SZTFO v Minister for Immigration

[2016] FCCA 3019

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTFO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3019

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal (now the Administrative Appeals Tribunal) – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth) – application dismissed.

Legislation:
Evidence Act 1995 (Cth), s.41
Migration Act 1958 (Cth), ss.424A, 424AA, 425

Cases cited:
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72
Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Applicant: SZTFO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2022 of 2013

Judgment of: Judge Barnes

Hearing date: 2 February 2016

Delivered at: Sydney

Delivered on: 24 November 2016

REPRESENTATION

Counsel for the Applicant: Mr P. Bodisco

Solicitors for the Applicant: Michaela Byers

Counsel for the Respondents: Mr J. Kay-Hoyle

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2022 of 2013

SZTFO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 25 July 2013 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a Tamil Sri Lankan, claimed to fear harm from the Sri Lankan authorities (including the police, CID, Eelam People’s Democratic Party (EPDP), the Sri Lankan army and the Sri Lankan navy) as a person imputed to be an LTTE member or supporter. 

3. He claimed he had experienced mistreatment during the civil war, that the navy had stopped and harassed him while he was a fisherman and that after he became a security guard at a prawn farm the army had threatened and mistreated him, confiscated his bike and harassed him.  He also claimed that on one occasion in 2008 he had been detained because he had refused to attend an Army camp, interrogated and beaten, but that he was released after his parents paid 5000 rupees.  He claimed that “greasemen” came to his family home twice during 2011/2012 and that he was being sought by the navy and the army.

4. The Applicant also claimed that as a Tamil he had been deprived of his basic rights by the authorities and that he was a Hindu but that the Muslim community had prevented him from praying.  In addition, he claimed to fear harm as a Tamil who left Sri Lanka illegally and who, if he returned, would do so as a failed asylum seeker.

5. The refusal of the application was notified to the Applicant on 29 October 2012.  The Applicant sought review by the Tribunal.  He was invited to and attended a Tribunal hearing on 18 January 2013.  At the invitation of the Tribunal he also attended a further hearing on 11 June 2013.  The Applicant did not seek to put the transcript of the first hearing in evidence.  A transcript of the second hearing is in evidence as an annexure to an affidavit of Judith Mclallen affirmed on 24 July 2014 and was relied on in these proceedings.  What occurred in that hearing is discussed further below. 

6. In its reasons for decision the Tribunal set out in some detail the Applicant’s claims and evidence (including issues raised with him during the hearings).  It referred to his adviser’s submissions and information cited therein.  It set out lengthy extracts from country information. 

7. For the reasons which it gave the Tribunal did not find the Applicant’s claims about past events in Sri Lanka to be credible.  In particular it had regard to a lack of plausibility in aspects of the Applicant’s claims about past events and stated:

   112. Of most concern to me was his central claim, and one of the main reasons he claims to have fled Sri Lanka – that he was being sought by the navy and army.

   113. The applicant claims that due to the harassment as a fisherman, he started working on a prawn farm.  He said that the navy and army used to come to the farm and question him as to why he was not fishing.  He said that they beat him and asked him to go to the camp, which he did not do.  He said that because he did not go to the camp, he was in hiding and the navy and army went to his home and asked his parents where he was.  He said they came again and again to his parent’s.  He said this happened in 2011 and 2012.  He said he was hiding from the navy/army at the prawn farm which he supervised, and he was able to hide from them as they only came at night and he would hide in the jungle.  The applicant claims to fear being harmed by the army/navy on return.  When I asked about his boss at the prawn farm he said that he was a Tamil and when the navy/army had asked about the applicant his boss had said he was not coming to work.

   114. I do not accept that the navy/army could not find the applicant at his place of employment or in the jungle around it, despite its large size, if they were really looking for the applicant and had come to his parents’ house ‘again and again’.  I do not accept that if the applicant was in hiding he would hide at his place of employment, where the navy/army had come and questioned and beat him.  I do not accept that the navy/army could not have put pressure on his boss to deliver the applicant to them.  I do not accept that the applicant would be warned of the approach of the navy/army in a van and be able to hide.  As I put my concerns to the applicant he made increasingly implausible claims, including that he slept at the prawn farm in the daytime as the navy/army did not come during the day, but only at night. 

   115. I find the applicant’s claim that he was in hiding from the navy/army during 2011 – 2012 at the prawn farm because he had refused to go to the camp is not credible.  I find it implausible that he would hide in his workplace or the area surrounding his workplace, where they knew he worked, and I consider the navy/army could have found him if they really wanted to, or put pressure on his boss to hand him over. 

   116. The applicant claimed that he would visit his family house once a week during 2011 to 2012, especially at night time, when he had said that the navy/army would come looking for him at the prawn farm.  I do not accept that he would visit his family home if he was in hiding.  I do not accept that, if the applicant was in fear of being found by the navy/army as he says he was, that he would visit his family home once a week.

   117. This reasoning causes me to disbelieve that the navy or army were or are looking for him, that he was in hiding, and to doubt his other claims and to find that the applicant is not a credible witness.  The centrality of these claims to his claimed fear on return, and the implausible and not credible underpinnings of these main claims mean that I disbelieve the applicant and find that I cannot accept his evidence as it is not credible. 

8. The Tribunal rejected the Applicant’s claims about past events involving the navy, army or other authorities.  It also rejected the claim that a “Grease man” came to the Applicant’s family home twice during 2011/2012 and broke in but was scared away by the neighbours, having regard to its credibility concerns and country information which indicated that most attacks of this nature were on women.  In the absence of any supporting country information it did not accept that anyone had been killed, injured or abducted by a “Grease man” in the Udappu region. 

9. The Tribunal did not accept the Applicant’s claims that he would be killed, harmed or arrested by the Police, CID, EPDP or the Sri Lankan army or navy for any reason connected with his claims about past events, including any claim that he would be suspected of being an LTTE member or supporter for any reason.  Nor did it accept that he had been prevented from travelling to temples or praying; that his father and brother were taken to a camp and beaten; that 2-3 weeks before the second hearing people had gone to his house in a white van to search for him; or that his parents were in hiding because people often came looking for him. 

10. The Tribunal accepted that the Applicant was a Tamil who had left Sri Lanka illegally and would return as a failed asylum seeker.  It found, however, that country information indicated that simply being a Tamil, or a Tamil who returned to Sri Lanka as a failed asylum seeker, would not result in being imputed with an LTTE profile by the authorities.  It did not accept that the Applicant would be imputed with an LTTE profile because he had departed Sri Lanka illegally or on any other claimed basis.  It found that there was no real chance or real risk of the Applicant being harmed because he was imputed to be or to have an LTTE profile or any association with the LTTE. 

11. The Tribunal also accepted that as a Tamil the Applicant had suffered harassment and discrimination from the majority Sinhalese, but did not accept that he had suffered harassment, ill treatment or denial of his right to worship by the Muslim minority or that he was unable to worship at specific temples. 

12. Further, while the Tribunal accepted claims that the Applicant was harassed and on occasion beaten by people in the navy during the civil war because he did not hold a fishing pass, it did not accept that he had suffered any ill treatment as a Tamil or for any other reason since he stopped working as a fisherman in 2011.  It had regard to the fact he had expressed no wish to return to fishing and found that there was no real chance or risk of the Applicant being harassed and beaten by the navy for not having his pass in the future or that this would impact on his future treatment by the authorities.

13. On the basis of country information, the Tribunal did not accept that there was a real chance or real risk of serious or significant harm to the Applicant as a Tamil. 

14. As indicated, the Tribunal accepted that if the Applicant returned to Sri Lanka, he would be returned as a failed asylum seeker and charged as a person who departed illegally. In essence, having regard to country information and the claims and evidence provided by the Applicant and his representative, the Tribunal accepted that the Applicant would be questioned and charged at the airport in relation to his illegal departure and possibly held for 24 hours while this was happening; that he may spend sometime on remand in Negombo Prison awaiting a bail hearing; that he would be released on bail on his personal recognisance with a personal guarantee of a family member; and that he may receive a follow up visit from the police or other authorities in his home village. It accepted that he would be charged with departing illegally and probably with doing so without a valid passport under the Immigration and Emigration Act (which it found to be a law of general application) but also that, as he did not have a profile of interest, if convicted and sentenced he would receive a fine and that any term of imprisonment would be suspended. The Tribunal also accepted that thereafter the Applicant may be subjected to monitoring or questioning by the authorities in his home area.

15. However, having regard to country information (which it discussed) the Tribunal did not accept that there was a real chance or real risk that the Applicant would be harmed during any period spent at the airport on arrival; that he would be harassed to the level of serious or significant harm on remand in Negombo Prison or thereafter; or that the imposition of a fine for illegal departure would amount to serious or significant harm. 

16. It found that he did not meet the Refugees Convention criterion or the complementary protection criterion and affirmed the delegate’s decision.

17. The Applicant sought review by application filed in this court on 28 August 2013. He now relies on a Further Amended Application filed on 23 September 2015. There is one ground in the Further Amended Application. It is that the Tribunal breached s.425 of the Migration Act 1958 (Cth) (the Act). The particulars to this ground are as follows:

    In circumstances where critical, relevant and adverse material was disclosed, the Applicant was denied a meaningful opportunity to give evidence and present arguments.

18. The Applicant submitted that the invitation to this hearing was a “hollow gesture” in that the Tribunal did not, “in any meaningful way”, provide him with an opportunity to give evidence or present arguments regarding the treatment he would receive for having left Sri Lanka illegally. 

19. In support of this proposition, reliance was placed on the transcript of the second Tribunal hearing of 11 June 2013, in particular the part of the hearing in which the Tribunal put country information to the Applicant.  This was said to have been done in a manner that was indicative of jurisdictional error. 

20. The Tribunal stated (transcript, 11 June 2013, pp.2-5):

    TRIBUNAL: …Now, I know the last hearing was some time ago.  During that hearing we discussed what you said had happened to you in Sri Lanka.  At the end of that hearing I put to you concerns with what you had told me.  I told you that because of what you had told me I may not believe that the Navy were sinking (sic) you?  And I may not believe that the “grease” men came to your house or was (sic) after you and that I may not accept that the things that you say caused you to leave Sri Lanka.  I explained to you that even if I didn’t accept the specific things you said had happened to you, I would still consider what might happen to you if you were returned to Sri Lanka as someone who had left illegally and would be returned as a failed asylum seeker.  During that earlier hearing I put forward some information from the Australian government that the illegal departure law under the Immigration Act was not usually enforced.  Since then the Australian government has provided different advice which I want to put to you today and seek your comment on.  That information is that from late November 2012 the Sri Lankan government has started to enforce the law about illegal departure and since then returned Sri Lankan nationals who arrive in Australia by boat, therefore departed Sri Lanka illegally, have been charged and remanded with offences regarding their illegal departure.

    Now, the Australian government has further information about this, remand means that the person returned will be held in a prison.  Those returning to Colombo airport will be held in remand at Negombo Prison.  The experience of the Australian government in Sri Lanka is that persons are arrested by CID at the airport, they are held in police custody at the CID airport office, and questioned about their departure, which can last up to 24 hours under government legislation.  They are then taken before a Magistrate who can decide whether the person is to be released on bail or remanded into custody.  If the person needs to be held for more than 24 hours because the Magistrates Court is not sitting that day, they are transferred to the nearby ... prison until the court is in session.  The Australian government understands the current process prevails until the person produces bail... based on a family member standing in as guarantor.  There is no payment... if a person is found to have organised people smuggling or to have illegally departed more than once they may be refused bail or granted specific bail conditions.  Now, I think that you have broken the law of Sri Lanka, that says you cannot leave from an unauthorised point of departure and without a... passport.  The most recent information I have you will be charged and remanded.  The advice I have from the Australian government says that in this process you will be charged and remanded for a period of between one to four days and then taken before a magistrate where you can apply for bail.  I have umm, information from news sites that returnees are granted bail. 

    Now, from my perspective I have to consider whether this process indicates that you may be seriously harmed or harmed and I need to consider whether this is the enforcement of a law of general application.  Now generally speaking umm if it is the enforcement of the law of general application it does not ordinarily mean that that is persecution for the purpose of the Convention, because enforcement of such a law does not generally indicate discrimination if it is generally applied. 

    Now the provisions of the Sri Lankan Immigrants Act that deal with irregular departure from Sri Lanka are not expressed in terms that are discriminatory on the face or are discriminatory in intent.  Now the Australian Government advises that all persons who are returnees or left for Australia illegally and sought asylum, are dealt with equally, regardless of ethnicity.  The Australian government say they have not observed any difference in the way Tamils are treated in comparison to Sinhalese or Muslims.  Now I have other country available information that indicates the law is not applied in a discriminatory way or selectively enforced against Tamils.

    Now, at some point after a person is bailed, ah people will be charged with illegally departing.  The uh punishment for a person unlawfully departing is to be a fine of approximately 50,000 rupees.  The law itself expresses the punishment to be a prison sentence and a fine, but Australian Government has information that people who are not involved in organising the people smuggling have ah only been fined.  The information has no suggestion of discriminatory enforcement or punishment of a particular...

    Now this information may lead me to conclude that if you experience short term imprisonment on remand, and are fined as a result of being charged under the Immigrants Act, this harm does not amount to serious harm as it does not amount to persecution for a Convention reason because it is enforcement of a general [law of] application.  Now, this information may also lead me to find that this does not amount to significant harm, under the Complementary Protection provisions as I may find that a short term imprisonment and a fine means that there is no a (sic) risk of significant harm.  Now, there is no evidence that you have been involved in organising people smuggling or illegally ... Sri Lanka ... and umm I think that your family could act (sic) for personal bail?

    Now, I realise that’s a lot of information, essentially I’d like to summarise it for you.  If I don’t believe your specific claims of what you say happened to you, and then I might find that you can go back to Sri Lanka, that you will be questioned by the CID at the airport, and not suffer discriminatory treatment from that that you maybe at the end of ... for one to four days, that you will not be seriously or significantly harmed in that time, that you will be granted bail on ah personal bail of a family member and released on that basis, that there is no information that you will be harmed or sought after that, until you appear before the court to be sentenced, to have a sentence.  If you are found to have illegally departed, you will be charged and fined ... of approximately 50,000 rupees.

    Now, I may find that that process isn’t the basis for you being granted ah protection.  I may find that that process is no basis for you being granted protection.  Would you like to say anything about that?

1. It was pointed out that the Applicant had responded (transcript, p.5):

   Yes, I have already a problem in Sri Lanka.  I was much affected in Sri Lanka so I had and I was not able to leave by so I came by boat.  My parents are sent me by boat know they will kill me so they are torturing me as they think I am a convert and I have scarred the navy and army they hit me.  The Navy hit me.

2. The Applicant acknowledged that the Tribunal had put him on notice of its concerns about his evidence about past events and had indicated its intention to consider claims arising from the fact that he would be returning to Sri Lanka as someone who left illegally and as a failed asylum seeker, in the event that it did not accept his primary claim (in particular his claims about the navy looking for him and past interactions with a “Grease man”).  However, counsel for the Applicant submitted that the Tribunal had put what was described as “one single question” containing some 23 propositions, which were said to be as follows:

   1)Material from the Australia government regarding illegal departures under Sri Lankan law;

   2)The information was dated “late November 2012”;

   3)The information now demonstrated that those who had left illegally were charged and remanded under Sri Lankan law;

   4)It was now accepted that individuals would be held in a prison while on remand;

   5)The prison was the Negombo prison;

   6)Those individuals would be arrested by the CID (Central Investigations Departments) at the airport;

   7)They are questioned at the airport;

   8)This can last up to 24 hours;

   9)They are taken before a Magistrate if one is sitting;

   10)If no Magistrate is sitting, they are transferred to a nearby prison;

   11)They are held until the remandee is able to provide surety;

   12)The laws apply to those who have left Sri Lanka without a Passport stamp;

   13)Individuals are charged and remanded;

   14)This can take one to four days;

   15)These are laws of general application;

   16)Returnees are granted bail;

   17)The Immigrants and Emigrants Act is not applied in a discriminatory manner;

   18)All those who left are treated the same – regardless of their ethnicity;

   19)After this process, people are charge with departing illegally;

   20)The punishment is approximately 50,000 rupees;

   21)The law states that the punishment would also be a prison term;

   22)The Australian Government have advised that those who are not involved in people smuggling would only be fined;

   23)This material may lead the Tribunal to conclude that the Applicant may experience a short term of imprisonment on remand.

3. It was submitted that the Tribunal had failed to comply with s.425 of the Act in that it had failed to afford the Applicant a meaningful opportunity to give evidence or present arguments regarding the treatment he would receive for having left Sri Lanka. This was said to be apparent having regard to the length and oppressive mode of its “questioning”; the manner in which multiple propositions and source documents were “conflated” within one single question; and confused responses by the Applicant.  The Applicant submitted that matters which ultimately were very important to the Tribunal decision had been presented in a dense, complex and confusing manner of questioning that had involved these numerous propositions and that he was not given the opportunity to respond meaningfully to these propositions as they were put to him. 

4. It was submitted that such “questions” would be disallowed in a court as improper questions or improper questioning under s.41 of the Evidence Act 1995 (Cth), although it was acknowledged that the rules of evidence did not apply to the Tribunal procedures. It was contended that, instead of proceeding in this manner, the Tribunal could have broken up what it said to the Applicant into multiple questions. It was also contended that the matters raised by the Tribunal could have been disclosed by some other method. Reference was made to the procedure under s.424A of the Act (albeit the information in question was from independent country information and hence would be within the exception in s.424A(3)(b) of the Act).

5. Counsel for the Applicant submitted that the material put to the Applicant had, in effect, been “dumped” on him at the second hearing and that the manner in which this had occurred had not afforded him a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review, in particular in relation to the treatment he would receive for having left Sri Lanka illegally.  It was contended that there was a denial of a procedural fairness as the hearing invitation was a “hollow” gesture. This was also said to constitute a failure by the Tribunal to comply with s.425 of the Act.

6. The Applicant relied on a number of general propositions in support of the contention that in these circumstances the hearing invitation was a “hollow” gesture.

7. First, it was said to be settled law that jurisdictional error was established if the process by which the decision-maker assessed an applicant’s claims failed to have regard to the actual nature of the legal inquiry it was required to undertake (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]).

8. Second, it was pointed out that a person whose interests may be adversely affected must receive a fair hearing by the use of an appropriate procedure in the circumstances (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). In this context reference was made to the fact that their Honours had indicated that “what is required by procedural fairness is a fair hearing, not a fair outcome”, and to the remarks of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 35-36 about the scope of judicial review. It was said that what was in issue is the Tribunal’s processes, not its actual decision.

9. Third, it was said that the courts had declined to be prescriptive as to the procedures a decision-maker must employ in order to provide procedural fairness in any particular case, because what would be sufficient and necessary to ensure a fair hearing would depend on, and vary with, the context in which the decision-maker acted, including any statutory or regulatory requirements or considerations (SZBEL at [26] and [29] and Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [19]-[20] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

10. Fourth, it was said to be well-settled law (see Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that an administrative decision-maker must determine whether particular information is credible, relevant and significant before arriving at a final decision. It was suggested that if such a determination was made and the information was apparently adverse to the interests of a person who would be affected by the decision, then ordinarily procedural fairness required that the decision-maker give such person an opportunity to deal with the information. The Applicant’s submissions acknowledged that the person whose interests may be affected should be given the “substance” of such potentially adverse information so that he or she may respond to it and that in general it was not necessary for the decision-maker to give the person a copy of any document containing the information or to identify its source (Applicant VEAL of 2002 at [15] and [29]).

11. Finally, reference was made to the fact that in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074 at [28] the Full Court of the Federal Court had (as the Applicant’s counsel put it) “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…

12. The Applicant relied generally on these principles and did not draw any distinction between the content of common law procedural fairness obligations and those arising under the Migration Act, in particular in the context of s.425 of the Act.

13. In oral submissions, counsel for the Applicant conceded however that his contention in the present case was not based on a direct application of existing principles, but rather involved a submission that the Applicant had not been “heard” in a process embarked upon by the Tribunal of its own volition that was said to involve a mode of questioning that was confusing and oppressive.  Hence, in the particular circumstances of this case, it was contended that the invitation to the hearing was a hollow gesture.

14. The First Respondent submitted that this ground was without merit and that having regard to the particular factual context, including what occurred at both the first and second Tribunal hearings and the opportunity that was afforded to the Applicant to address the information in question, the Applicant had been afforded a reasonable opportunity (including through his adviser) to comment on or respond to the information summarised by the Tribunal. It was submitted that it could not be said that this hearing invitation was in any sense hollow or that the Tribunal did not afford a meaningful opportunity to the Applicant to participate in the sense required by s.425 of the Act.

Consideration

1. As the First Respondent submitted, the Applicant’s contentions can be seen as akin to those relevant to the determination of whether there is practical unfairness in the sense considered by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6. In such a case it is appropriate to have regard to the context in which the impugned part of the Tribunal hearing occurred, as part of all the relevant circumstances.

2. In particular, it is relevant to bear in mind that in the impugned portion of the second hearing, the Tribunal was putting to the Applicant new information, which differed from the information that had been put to him at the first hearing, about a change in the Sri Lankan government’s approach to enforcement of the law about illegal departure and issues arising therefrom, relevant to whether he met the Refugees Convention or complementary protection criterion as a person who had departed Sri Lanka illegally.

3. Relevantly, in the statutory declaration of 12 September 2012 provided in support of his protection visa application, the Applicant had claimed, among other things, that he left Sri Lanka illegally and that if he returned he would face interrogation by the authorities and would be viewed as an LTTE supporter.  He did not claim to otherwise fear harm based specifically on his illegal departure.  His adviser’s written submission to the delegate dated 19 September 2012 (provided on 27 September 2012) addressed in some detail country information about human rights abuses in Sri Lanka, in particular against Tamils, and in relation to the treatment of returned Tamil failed asylum seekers, but (unsurprisingly given that it was only later country information that indicated that the illegal departure law was being enforced) made no reference to any issues arising specifically in relation to illegal departees returning to Sri Lanka.

4. The delegate understood that in his interview on 19 September 2012 the Applicant claimed that he feared the Sri Lankan authorities would interrogate him on return because he had left Sri Lanka illegally and he feared being wrongly accused of being involved in the LTTE. 

5. In her reasons of 26 October 2012, the delegate discussed in some detail the issue of illegal departure and the Applicant’s fear that this may result in threats to his life and/or liberty.  The delegate considered the then available country information about the treatment of Sri Lankans who had departed Sri Lanka illegally, including considering whether Tamils were treated the same as other returnees, airport procedures and questioning.  The delegate referred to the absence of information referring to persons being imprisoned or (importantly) subjected to serious harm on the basis of their illegal departure alone.  The delegate noted 2009 advice from DFAT that penalties of imprisonment for offences under the I&E Act were seldom enforced.  The delegate accepted the Applicant may be questioned by the authorities on return, but was not satisfied that he held a profile of significance or belonged to any particular high risk group that would increase his chances of being detained and subjected to other serious harm, despite having left the country illegally.

6. The delegate was not satisfied that the Applicant met the Refugees Convention criterion or the complementary protection criterion because of his illegal departure from Australia.

7. After the Applicant sought review by the Tribunal, he was invited to and attended the first hearing on 18 January 2013.  The Applicant did not rely on the transcript of that hearing.  However it is apparent from the Tribunal reasons for decision and the transcript of the second hearing that at the first hearing (attended by the Applicant and his representative and conducted with the assistance of a Tamil interpreter) the Tribunal put to the Applicant country information on various matters for comment.  In particular, the Tribunal recorded at paragraph 52 of its reasons:

   I put to him that country information seemed to indicate to me that those who left illegally and returned as failed asylum seekers were not detained or otherwise harmed or mistreated if not suspected of LTTE involvement.  He responded that if they go back to Sri Lanka they will say that Tamils must be LTTE and harm them.  I put to him that I did not think so as many known LTTE had been released by the Government, and the country information indicated that the authorities did not suspect all returnees of being LTTE, but only those with past links.  In response the applicant asked what would happen to him if he goes back as his parents will be tortured and he has already had problems (emphasis added). 

8. The Tribunal recorded that it also put other issues of concern to the Applicant at the first hearing and gave the Applicant’s representative the opportunity to make oral submissions (which it summarised, but which did not relate to the consequences of illegal departure from Sri Lanka).

9. Subsequently, the Tribunal invited the Applicant to a further hearing on 11 June 2013.  The Applicant again had the assistance of his adviser and an interpreter.  He provided some supporting documents, including a statement from a Sri Lankan lawyer about past events in Sri Lanka. 

10. Relevantly, at the start of the second hearing, the Tribunal reminded the Applicant (transcript, p.2) that at the previous hearing it had discussed the Refugees Convention and complementary protection criteria; that they would proceed in the same manner; that it had questions to ask him; and that “at the end of those questions” there would be an opportunity for him to put anything else he thought was important to his case and for his adviser to suggest other questions the Tribunal should ask the Applicant or to make a submission on his behalf.  However this general statement does not mean that everything the Tribunal said to the Applicant during the hearing was a question. 

11. The Tribunal also stated to the Applicant (transcript, p.2):

    …as I said last time if you do not understand the question I ask, or why I’m asking a question, please ask for it to be clarified and I can ask the question in a different way…

    The Applicant did not avail himself of this opportunity.

12. The Tribunal checked that the Applicant had no concerns about using the interpreter and asked him to let the Tribunal know if he had any trouble at any stage understanding the interpreter.  There was no such indication from the Applicant during the course of the hearing. 

13. As set out above, in the part of the hearing complained about, the Tribunal member explained that at the earlier hearing they had discussed what the Applicant said had happened in Sri Lanka, the Tribunal had put its concerns to him and had also indicated that even if it did not accept his claims about past events it would still consider what might happen to him if he returned to Sri Lanka as someone who left illegally and would be returned as a failed asylum seeker. 

14. In this way the Tribunal made clear to the Applicant the context in which it then put further information to him for comment and also alerted him to the fact that his adviser would have the opportunity to make a submission on his behalf. 

15. Importantly the Tribunal also explained (at transcript, p.3):

    …During that earlier hearing I put forward some information rom the Australian government that the illegal departure law under the Immigration Act was not usually enforced.  Since then the Australian government has provided different advice which I want to put to you today and seek your comment on…(emphasis added)

16. In other words, rather than putting “questions” to the Applicant on some 23 issues about the situation in Sri Lanka, it is apparent that, as contended by the First Respondent, what the Tribunal was doing in this part of the hearing was putting to the Applicant for comment recent independent country information which differed from the information it had put to him at the earlier hearing in January 2013 (which had been to the effect that the illegal departure law in the Sri Lankan Immigrants and Emigrants Act was not usually enforced) and the issue of whether the new process of enforcement was a basis for him to be granted protection.

17. Had the Tribunal failed to put such new information to the Applicant it may well have been criticised on procedural fairness grounds.   Moreover, had it not raised the issues it outlined about the extent and nature of the consequences of the recent enforcement of the Sri Lankan law about illegal departure it may have failed to raise a dispositive issue with the Applicant.

18. At transcript, p.3 the Tribunal summarised the effect of the new information (not by way of question, but rather by way of a clear statement) as being that:

    …from late November 2012 the Sri Lankan government has started to enforce the law about illegal departure and since then returned Sri Lankan nationals who arrive in Australia by boat, therefore departed Sri Lanka illegally, have been charged and remanded for offences regarding their illegal departure…

19. Having explained in basic terms the change in enforcement of the law, the Tribunal went on to describe in more detail aspects of the information it had about the treatment of and consequences for returned illegal departees.  At that point the Tribunal was putting information to the Applicant, not asking questions.  Given the nature of the information, it was not such as to require the Tribunal to invite comment after each of the specific items of information to which it referred. 

20. In addition, the Tribunal explained (transcript, p.3) the relevance of this information to the Applicant.  It made clear to him that “the most recent information I have [is that] you will be charged and remanded” and explained what this involved.  The Tribunal also explained that it had to consider whether this process suggested that the Applicant may be “seriously harmed or harmed” and also whether it would involve the enforcement of a law of general application, a concept which the Tribunal also explained.  The Tribunal also told the Applicant that the information before it indicated that this law was not applied in a discriminatory way or selectively enforced against Tamils. 

1. The Tribunal then advised the Applicant what the new information indicated about the consequences of being charged for illegal departure.  It described the likely penalty for a person who departed illegally.  The Tribunal also explained that while a prison sentence could be imposed as a punishment, the information was that people who were not involved in organising people smuggling had only been fined. 

2. Having given this information to the Applicant, the Tribunal then put to him (in a manner that summarised the relevance of the information) that the information before it may lead it to conclude that if he experienced short term imprisonment on remand and was fined as a result of being charged under the Immigrants and Emigrants Act, it may find that this harm did not amount to serious harm amounting to persecution for a Convention reason, because it would be enforcement of a law of general application and that it did not amount to significant harm under the complementary protection criterion, as the Tribunal may find that a short term of imprisonment and a fine meant that there was no real risk of significant harm.  The Tribunal also observed there was no evidence the Applicant had been involved in organising people smuggling and that it thought his family “could act (sic) for personal bail”.

3. Importantly, as pointed out by the First Respondent, while the Tribunal summarised what was undoubtedly quite a lot of country information and referred to the possible implications of such country information for the decision in relation to the Applicant, it also acknowledged that there was a considerable amount of information.  It then summarised the information and the issues arising on which it sought to give the Applicant the opportunity to comment (transcript, p.4).  It did so in what, on its face, was a relatively straightforward and comprehensible fashion.  There is no suggestion that the Tribunal’s account of the information, or its summary, was in any way inaccurate. 

4. In this part of the hearing, the Tribunal was, albeit at some length, putting to the Applicant a fresh issue that had arisen because of changed information that had come to its attention in the course of the review, consisting of additional independent country information in relation to the question of what happened to those who had departed Sri Lanka illegally on their return to Sri Lanka. It was not putting information to the Applicant under s.424AA of the Act.

5. Rather than simply engaging in lengthy and oppressive questioning and/or putting multiple propositions and source documents “conflated” within one “single question” in relation to a large number of issues (as the Applicant submitted), the Tribunal, quite properly, informed the Applicant of additional and different country information that had come to light after the first hearing.  It raised the effect of this information with him as a potentially dispositive issue in relation to an aspect of his claims (see SZBEL).  The Tribunal gave the Applicant the opportunity to comment on this new information and the impact of the enforcement of the law in relation to illegal departure from Sri Lanka having brought to his attention that it may make adverse findings based on that information and the Applicant’s circumstances (which it had described). 

6. The information provided was extensive, but there is no suggestion that there was any misstatement.  There is no evidence that the Applicant misunderstood the essence of the information conveyed or that he did not have the opportunity to comment.

7. The Tribunal, appropriately, asked the Applicant if he would like to say anything “about that”.  In context, this was obviously a reference not only to the individual items of information, but more particularly to the possibility that the Tribunal may find that the process for him on return to Sri Lanka as an illegal departee was not a basis for him to be granted protection.

8. It was suggested in submissions that the Applicant’s response was unresponsive and that this demonstrated that he was confused.  It is the case that the Applicant responded (transcript, p.5):

   Yes.  I have already a problem in Sri Lanka.  I was much affected in Sri Lanka so I had and I was not able to leave by (sic) so I came by boat.  My parents are (sic) sent me by boat know they will kill me so they are torturing me as they think I am a convert and I have scarred (sic) the navy and army they hit me.  The Navy hit me.

9. While the Applicant’s immediate response may be said to be non-responsive to the information put to him about the treatment of returned illegal departees, it may also be seen as taking issue with the initial statement made by the Tribunal that at the first hearing it had told him that it may not believe his claims about the navy “sinking” him (which, it appears, was in fact a reference to “seeking” him), may not believe that the “Grease men” came to his house or were after him and may not accept the things he said caused him to leave Sri Lanka.  The Applicant reiterated his fundamental claim (maintained at all times) that he feared he would be killed if he returned to Sri Lanka.

10. However the Applicant’s failure, at that point in time, to respond to the information about the process on return for illegal departees to Sri Lanka or the consequences for the Tribunal decision is not such as to indicate a level of incomprehension such as to support the claim that the Tribunal failed to afford him a meaningful opportunity to respond.  Regard should also be had to what occurred thereafter. 

11. First, the Applicant did not raise any issue about his understanding or seek any clarification of what the Tribunal said in this respect. Nor did his representative. While that is not of itself conclusive, it forms part of the context when considering the manner in which the Tribunal put information to the Applicant and whether that resulted in a failure to comply with s.425 of the Act.

12. Further, there is no claim or evidence to suggest that the interpretation at the hearing was deficient in any way.  There is also no evidence from the Applicant in these proceedings to support any claim that he found the Tribunal’s question or statements confusing or that he was not able to understand what was put to him.

13. Moreover, the Tribunal offered the Applicant a further opportunity to respond to the matters raised by this information in a manner that accorded him a meaningful opportunity to address the issues raised.  After some discussion of the Applicant’s claims about past events, the Tribunal returned (transcript, p.6) to ask the Applicant if he wanted to say anything about the information that the Tribunal had given him “today”, to which the Applicant again replied:

    Yes, so I can say I say that you send me to the country they’ll kill me.

14. The Tribunal again explained (transcript, p.6):

    I’ve explained to you what I think will happen.  Based on information from the Australian government in Sri Lanka, based on information from these reports that’s based on information from international governments and international non governments organisations who have some people inside Sri Lanka.  So I may not accept they will kill you if you are returned to Sri Lanka.

15. In other words, the Tribunal responded to the particular concern the Applicant had expressed.  There was then a further discussion of the Applicant’s claims that his identity would be “marked” and that he would have a problem because he was suspected to be associated with the LTTE (transcript, p.6). 

16. After the Applicant again reiterated that if he returned to Sri Lanka, they would beat and kill him, the Tribunal returned to the issue in question in these proceedings and put to him (transcript, p.7):

    I don’t have evidence that that is what is happening to returnees just for illegally departing and then returning…

17. After an unsuccessful attempt to speak to the Applicant’s parents by telephone (as the Applicant had requested) the Tribunal asked the Applicant’s representative what the representative would like the Tribunal to do (apparently about the inability to contact the Applicant’s parents).  In that context the Tribunal also suggested that the representative have some time to provide a written statement.  The Tribunal then asked whether the adviser wanted the Tribunal to ask the Applicant any particular questions.

18. The adviser sought and was granted a break to speak to the Applicant.  The adviser also asked whether, for the purposes of submissions, the Tribunal could provide a copy of the information that indicated that people were now only being fined (thus indicating that the explanation provided by the Tribunal in this respect had been understood by the Applicant’s adviser).

19. The Tribunal agreed to provide such information.  It referred to the source of such information in a particular DFAT report, a Sydney Morning Herald article and discussions with a lawyer in Colombo who often acted in such cases. 

20. After an adjournment, the adviser in fact made quite detailed oral submissions in relation to both the information put to the Applicant by the Tribunal in the impugned part of the hearing and other issues.  In the course of such submissions the adviser indicated that he wished to provide further submissions after the hearing in relation to the information about returning illegal departees.  He elaborated on some of the issues that he saw in relation to the complementary protection criterion and the Refugees Convention criterion in this context.  There was a discussion between the adviser and the Tribunal about the extent and effect of the independent country information to which the Tribunal had referred, about whether there had been a change in enforcement of the law and what the information should be taken as establishing (see transcript, pp.8-16).  This made it clear that the adviser understood and was addressing the issues raised by the Tribunal and the relevance of the information on behalf of the Applicant. 

21. The Applicant’s adviser also sought, and was granted, a week to provide written submissions, in particular about information relating to degrading conditions in prisons and “things like that” (transcript, p.16). 

22. In other words, the Tribunal afforded the Applicant an opportunity to make post-hearing written submissions, including to address the information and issues raised in the impugned portion of the second hearing. 

23. The Applicant’s adviser took the opportunity to provide written submissions dated 18 June 2013 which addressed in more detail the Applicant’s claims with respect to his fear of harm on return to Sri Lanka, particularly as a consequence of his illegal departure.  These submissions responded to issues raised or noted during the hearing and included extensive extracts from, and commentary on, independent country information, including the independent country information relied on by the Tribunal in its reasons for decision in relation to this aspect of the Applicant’s claims.  In this way, the Applicant had a meaningful opportunity to respond in a reasoned manner and to address the issues raised by the information and the Tribunal.  In its reasons, the Tribunal had regard to the post-hearing submissions and to information cited therein.

24. Seen in context, the manner in which the Tribunal put the information and the issues to the Applicant is not such as to establish that the invitation to the hearing was a hollow gesture or that the Tribunal did not, in any meaningful way, provide the Applicant with an opportunity to give evidence or present arguments, in particular regarding the treatment he would receive for having left Sri Lanka illegally.

25. Contrary to the Applicant’s implicit criticism of the Tribunal for “dumping” information on the Applicant in what was said to be an “oppressive” mode of questioning involving a conflation of multiple propositions and source documents, the Tribunal was endeavouring to put new and critical independent country information to the Applicant for comment, to raise issues relating to the relevance of such information to the Applicant’s situation and whether he met the criteria for a protection visa and to give him (including through his adviser) an opportunity to comment.

26. The fact that the Tribunal could (had it chosen to do so) have put such information to the Applicant for comment in writing (albeit that such information would be within the exception in s.424A(3)(b) to the obligation under s.424A of the Act) does not mean that, in this particular case, the Tribunal failed to afford the requisite invitation to the Applicant under s.425 of the Act or that it in any way denied the Applicant procedural fairness. It is relevant in that respect to have regard to the nature of the information in question, the fact that the Applicant had an adviser, that the material in question was provided to the adviser and that the adviser had the opportunity to make oral and written submissions which the Tribunal took into account.

27. What occurred after the impugned part of the hearing is contrary to any proposition that the Tribunal failed to afford the Applicant a meaningful opportunity to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review as required under s.425 of the Act. Considering the context in which the information was put and what occurred thereafter, it cannot be said that there was any failure by the Tribunal in the course of the hearing (or, indeed, the review more generally) to afford the Applicant procedural fairness having regard to the principles cited generally by the Applicant.

28. As pointed out in SZBYR, what is sufficient and necessary to ensure a fair Tribunal hearing will depend on, and vary with, the context in which the decision-maker acts.  The context to which the Court was referring in SZBYR was said to include any statutory or regulatory requirements or considerations.  It is also relevant in this case to have regard to the whole of the Tribunal review and, in particular, what occurred in all of the second hearing and thereafter in order to consider whether the Applicant was afforded the opportunity to ascertain dispositive issues and to have a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.

29. Having regard to all of what occurred in the Tribunal hearing and the opportunity afforded to the Applicant’s adviser to consider the information after the hearing and to provide written submissions, the Tribunal’s invitation under s.425 was not a hollow gesture. The Applicant was not denied a meaningful opportunity to appear before the Tribunal to give evidence and present arguments relating to the issues (including, relevantly, the illegal departure issue) arising in relation to the decision under review.

30. The ground relied on by the Applicant is not made out.  Accordingly, the application should be dismissed.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 24 November 2016