SZTPL v Minister for Immigration

[2016] FCCA 361

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTPL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 361

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether Tribunal breached s.425 of the Migration Act 1958 (Cth) – jurisdictional error found – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.36, 46A, 425, 476

Minister for Immigration & Ethnic Affairs v Wu Shan  Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
SZORZ  v Minister for Immigration and Citizenship [2011] FCA 593
SZTQS v Minister for Immigration & Border Protection & Anor [2015] FCCA 978
Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152
Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11; (1989) 166 CLR 245
SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486
SZIMM  v Minister for Immigration & Anor [2008] FMCA 34
SZQSP v Minister for Immigration & Anor [2012] FMCA 890
SZRRX v Minister for Immigration & Anor [2013] FMCA 84

Applicant: SZTPL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3000 of 2013

Judgment of: Judge Nicholls

Hearing date: 6 November 2015

Date of Last Submission: 6 November 2015

Delivered at: Sydney

Delivered on: 24 February 2016

REPRESENTATION

Applicant: In Person

Counsel for the Respondents:

Solicitors for the Respondents:

Mr T Reilly

Australian Government Solicitor

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. A writ in the nature of certiorari issue quashing the decision of the second respondent made on 7 November 2013.

3. A writ in the nature of mandamus issue compelling the second respondent to reconsider the application according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3000 of 2013

SZTPL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 3 December 2013 seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 7 November 2013 which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.

Background

1. A bundle of relevant documents filed by the Minister is in evidence before the Court (“the Court Book” – “CB”). In evidence also is the applicant’s affidavit made on 13 November 2013 which annexed a copy of the Tribunal’s decision record, and a letter from Grama Niladhari, Batticaloa of 5 June 2013 stating that the applicant was involved in a shooting incident on 15 July 2010 in Karuveppankerny (Sri Lanka) and was taken into custody on 17 July 2010.

2. The following relevant background can be ascertained from these documents.

3. The applicant is a citizen of Sri Lanka who arrived in Australia on 11 April 2012 without authority (CB 57). The Minister subsequently exercised his discretion pursuant s.46A(2) of the Act, and the applicant applied for a protection visa on 13 June 2012 (CB 44 to CB 105, including attachments). He was assisted by a registered migration agent (CB 98 to CB 100). The applicant provided a written statement in support of his application (CB 72 to CB 76), and a Statutory Declaration (CB 102).

4. The applicant claimed to fear harm from the Sri Lankan government due to an imputed political opinion (support of the Liberation Tigers of Tamil Eelam (“LTTE”)), his Tamil race, that the authorities suspected him of being involved in the killing of a policeman in July 2010, his Hindu religion, and membership of a particular social group of returned failed asylum seekers.

5. The applicant attended an interview before the Minister’s delegate on 19 June 2012 (CB 127). The applicant’s representative provided submissions to the delegate after the interview on 15 August 2012 (CB 106 to CB 114). The delegate refused the applicant the grant of the visa on 19 November 2012 (CB 115 to CB 140). The delegate had concerns with the applicant’s credibility because he had not provided clear or consistent statements to the Minister’s department. The delegate was not satisfied that Australia owed protection obligations to the applicant.

The Tribunal

1. The applicant applied for review to the Tribunal on 7 December 2012 (CB 141 to CB 147). The applicant and his representative attended a hearing before the Tribunal on 4 June 2013 (CB 157 to CB 159). The applicant provided written submissions to the Tribunal after the hearing  on 18 June 2013 (CB 165 to CB 171) and 12 September 2013 (CB 172 to CB 173). The applicant’s claims, as they were before the Tribunal, are set out in the Tribunal’s decision record ([5] at CB 177 to [27] at CB 181).

2. The applicant had previously travelled from Sri Lanka to Saudi Arabia a number of times, and, ultimately returned to Sri Lanka ([12] at CB 178). He claimed that the police in his village suspected his involvement in, or knowledge of, the shooting of a policeman in July 2010. The applicant set out an account of events relating to this claim. These events included his detention and questioning by police. The applicant claimed he was released when the village administrator intervened with the police on his behalf ([8] at CB 177 to CB 178). The applicant claimed that the shooting was in relation to the war against the LTTE, and, despite acknowledging that the war had ended, said that the “army is still very suspicious of Tamils”. The applicant claimed that no one was arrested for the shooting, and that the investigation was still open ([15] at CB 179).

3. A letter from Grama Niladhari, the village administrative head, was before the Tribunal. The letter stated that the applicant was taken into custody regarding suspicion over the police shooting on 15 July 2010, and that he “cleared the matter” with the police. He understood those in custody to have been “severely attacked” ([25] at CB 181).

4. The applicant claimed that he had also been subject to harassment of such frequency and duration, due to his Tamil ethnicity, that he found it “too difficult” to work and provide for his family. The applicant claimed that he had been rounded-up for identify checks which had lasted all day ([9] at CB 178).

5. The applicant claimed that the police still “had their eye on him” two years after the July 2010 incident and continued to harass him while he was fishing ([16] at CB 179). The applicant claimed that he had been beaten by police, and on one occasion he was beaten with a stingray, and that his fishing “catch” was taken by the police officer. He claimed that this incident was connected to police suspicion arising from the shooting incident. The applicant said he was “looked at” like he was a criminal and that the police acted like this so as to humiliate him, as he was Tamil ([16] at CB 179).

6. The applicant also claimed that he had paid an agent to arrange his trip to Australia. The applicant departed Sri Lanka on 23 March 2012 ([12] at CB 178). He claimed that since his departure from Sri Lanka, the police have “harshly” questioned his family about his whereabouts and used foul language ([10] at CB 178 and [13] at CB 178 to CB 179). The applicant also claimed that the police “sexually assaulted” his wife, who moved constantly to avoid the police ([10] at CB 178).

7. In written submissions provided after the Tribunal hearing, the applicant claimed that his wife’s father was assaulted by police officers in September 2010. He said that they came to his house and claimed extortion money, but his father-in-law indicated that they could not pay and he was “struck” repeatedly on his face ([26] at CB 181)

8. The applicant claimed that “further things happen” when returnees are released on bail ([18] at CB 180). During the hearing before the Tribunal, the applicant claimed to have a press report from a parliamentarian from Batticaloa in Sri Lanka, that urged the Australian government not to return asylum seekers to Sri Lanka, as they would be humiliated. The applicant was given further time to provide this evidence to the Tribunal. This evidence was not provided to the Tribunal ([18] at CB 180 and [27] at CB 181).

9. The Tribunal had regard to written submissions provided by the applicant after the hearing on 18 June 2013 and 12 September 2013. The submissions outlined that the “Convention grounds” of his application where were variously, his Tamil ethnicity, his imputed pro-LTTE political opinion, imputed anti-government opinion as a failed asylum seeker, his Hindu religion, and his membership of particular social groups as a failed asylum seeker, Tamils implicated in serious criminal offences and Tamils with an existing police profile ([21] at CB 180 to [22] at CB 181).

10. The applicant claimed that his fear of persecution turned not merely on his profile as a Tamil and failed asylum seeker, but was due to his interaction with the police during, and since, the 2010 shooting. The applicant claimed that he would suffer economic hardship as a result of police violence and harassment, which amounted to persecution

    
    

    ([23] – [24] at CB 181).

11. The Tribunal affirmed the decision of the delegate on 7 November 2013 to refuse a protection visa to the applicant. The Tribunal accepted that the applicant was questioned in July 2010 regarding the shooting of the police officer as he, and his neighbour’s houses, were in close proximity to the shooting site and there may have been “potential witnesses” ([41] at CB 183). However, the Tribunal did not accept that the questioning, on this occasion, was for a “Convention reason” as there was nothing in the applicant’s circumstances which would “elevate” this questioning from that which is undertaken in a “normal investigation undertaken by police in a serious incident” in which the applicant could be a source of information or an eye witness ([42] at CB 183 to CB 184).

12. The Tribunal did not accept that the “harassment” that the applicant claimed that he was subject to, in particular “round-ups for identity checks” that may have lasted all day, was motivated by a Convention reason or would amount to “serious harm”. This was found in the circumstances set out above, and where there was no evidence to indicate that non-Tamils were not also subject to security checks. Further, the Tribunal did not accept that “even frequent identity checks” would prevent the applicant from providing for his family, as he was self-employed as a fisherman and there was no risk of his being dismissed from his job ([43] at CB 184).

13. The Tribunal found that the fact that the applicant was never arrested or questioned again in relation to the police shooting incident from July 2010 to March 2012 indicated that he was “not of any suspicion by the police for involvement in, or knowledge of, the shooting”. The Tribunal also found that the applicant had exaggerated his claims in relation to the shooting incident and it was not true. Further, the Tribunal accepted that he was mistreated while he was detained in 2010, but found that because he was no longer of any suspicion to the police, that any risk of suspicion in the future was “fanciful”, that there was “no risk that the applicant would be detained again in the future for this reason” ([44] – [45] at CB 184).

14. The Tribunal found that the stingray incident appeared, on its face, to be an “act of theft and brutality” that was not connected to the 2010 shooting incident. The Tribunal’s relevant reasoning was that the incident occurred 18 months after the applicant was released from questioning in relation to the shooting incident, different police officers were involved, and the applicant had been subjected to identity checks in the intervening period but was never arrested, or taken in for questioning ([47] at CB 184 to [48] at CB 185).

15. The Tribunal found that the stingray incident was not motivated by any Convention reason, rather, that the applicant was targeted by “corrupt and brutal officers” because he had something to steal, and was

    
    

    “ill-treated” as a form of “intimidation from seeking redress or making a complaint about the illegal actions”. The Tribunal was satisfied that it was open to the applicant to report these actions to the police and seek their protection as there was no evidence before the Tribunal to suggest that the “Sri Lankan government condones criminality by members of its police force” ([48] – [51] at CB 185).

16. The Tribunal accepted that the authorities may be aware that the applicant had left Sri Lanka irregularly, and that the applicant’s family had received attention from the police. The Tribunal accepted that this may have involved “foul language”, “slapping” and attempts at money extortion. However, the Tribunal stated ([53] at CB 185):

    “I do not accept that the attention of the police was motivated by a Convention reason. I am satisfied that the motivation for questioning members of his family is, first, to determine his whereabouts and the manner of his departure, and, second, corruptly to attempt to extort money from someone with a relative abroad and thought to be employed. Neither of these are Convention reasons, and I find that they do not amount to persecution.”

17. The Tribunal found that the applicant’s return to Sri Lanka would resolve inquiries into his whereabouts and, in the course of any investigation, reveal the manner of his departure. The Tribunal found that “attempted” extortion is not persecution within the Convention, as it is a criminal act that would be amenable to complaint to the Sri Lankan authorities, who do not condone or tolerate “corrupt police”. Further, that an “attempt” at extortion, even with foul language and “slaps”, was not torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment (s.36(2A) of the Act) ([54] at CB 185 to [56] at CB 186).

18. The Tribunal held that the applicant was unlikely to be imputed with a pro-LTTE or anti-government political opinion as the applicant had never engaged in political activities, had never been suspected of LTTE involvement or support, and prior to the shooting incident had had no other dealings with the authorities and had travelled freely in and out of Sri Lanka.

19. While the Tribunal found that he had left Sri Lanka illegally by boat without his passport, and had applied for asylum in Australia, there were no other factors which would “elevate his profile to one that would attract adverse attention” by the authorities on any Convention ground. Further, that while he may be briefly arrested, charged, and held on remand, until brought before a Magistrate and likely released on his own recognizance with a family member as guarantor, on return to Sri Lanka for his illegal departure, that this was “not serious enough to amount to persecution” and that the “law of unlawful departures” in Sri Lanka applies equally to all persons, regardless of race ([57] at CB 186 to [63] CB 187).

20. The Tribunal did not believe the applicant’s claim to fear persecution or significant harm because he was Hindu, as the applicant had not provided any evidence to support this claim, had not provided examples of any instances of past harm because he was Hindu, and found there was no evidence from other sources to substantiate a claim that Hindus are targeted in Sri Lanka ([64] at CB 187).

21. The Tribunal found that the applicant’s fear of harm was not

    
    

    well-founded and that there were not substantial grounds for believing that there is a real risk that he would suffer significant harm in the future ([46] at CB 184 and [66] at CB 187).

Application before the Court

1. The grounds of the application before the Court are in the following terms:

   “1. That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.

   2. More details will be provided by the legal representative.”

   The grounds of the application were unparticularised.

Consideration

1. Ground two of the application to the Court does not assert legal error on the part of the Tribunal. Rather, it states that “more details will be provided by the legal representative”.

2. The applicant was not represented before the Court. When the matter was set down for hearing, orders were made (12 March 2014) giving the applicant the opportunity to file any amended application, evidence by way of affidavit in support of the grounds of his application, and written submissions. Nothing further has been filed by the applicant. The applicant appeared in person at the final hearing of this matter and was assisted by an interpreter in the Tamil language. He made no reference to legal representation at the final hearing of this matter.

3. Ground one of the application lacks any particularity whatsoever. Before the Court, I understood the applicant’s complaint, when given the opportunity to make submissions, to be that he had made his application for judicial review to obtain a favourable decision on his visa application because he had “suffered” in his “home country”.

4. Plainly, this is no assertion of legal, let alone, jurisdictional error on the part of the Tribunal. Rather, the applicant seeks that this Court review the merits of his claim to fear harm with a view to his being granted a protection visa. The applicant really seeks impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 and Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [56]).

5. It has been held that in matters involving unrepresented applicants who have limited capacity with English, the appropriate approach is to examine the “substratum” of the matters raised, in addition to the examination of the terms of the grounds presented (SZORZ v Minister for Immigration and Citizenship [2011] FCA 593 at [8]).

6. However, even with this approach, the applicant’s ground is so general in its expression that it can only be described as lacking in relevant merit and, therefore, is not made out.

7. Nevertheless, before the Court, the Minister, fairly, raised a matter for the Court’s consideration. The question posed was whether the Tribunal fell into the same error as found by the Court in SZTQS v Minister for Immigration & Border Protection & Anor [2015] FCCA 978 (“SZTQS (FCCA)”), which the Federal Court upheld on appeal (Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (“SZTQS”)).

8. It is convenient to note the following from SZTQS (FCCA). The applicant in that case was from Sri Lanka. He was of Tamil ethnicity and feared harm from the Sri Lankan authorities (SZTQS (FCCA) at [2]). This harm was said to arise from his fishing activities (SZTQS (FCCA) at [24]).

9. These elements are common with the current case. Further, and relevantly, the applicant in SZTQS claimed to fear harm, amongst other matters, because on return to Sri Lanka, as a person who had left illegally, he would be arrested and detained (SZTQS (FCCA) at [25]). That was also a claim in the current matter.

10. The Tribunal in SZTQS found that because the applicant had left Sri Lanka “unlawfully”, he would be arrested on return and would need to obtain bail before being released (SZTQS (FCCA) at [44]). In SZTQS (FCCA) the Court stated at [44]:

    “It is common ground that the RRT accepted that, because the applicant had left Sri Lanka unlawfully, he would be arrested upon his return and would need to obtain bail before being released. The relevant finding of the RRT is as follows:

    ‘Under recently tightened procedures those returnees who are believed to have left the country in breach of Sri Lanka’s laws on immigration and emigration are arrested at the airport and brought before a court to apply for bail. Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison and may remain there for some days until a bail hearing is available.’”

1. The Court found that (SZTQS (FCCA) at [45] – [46]):

   “[45] I accept that a crucial plank in the RRT’s reasoning in relation to whether the applicant would obtain bail was that a member of the family of the applicant would provide surety for him.

   [46] It is also common ground that the RRT never raised this issue with the applicant expressly.”

2. The Court in SZTQS (FCCA) found that the matter of the family member providing “surety” in these circumstances was not raised with the applicant at the Tribunal hearing. This matter was “critical” to the Tribunal’s finding that the applicant could apply for, and be granted, bail. It was an issue in the review that was not put to the applicant at the hearing, and did not arise from the delegate’s decision (SZTQS (FCCA) at [62]).

3. The Tribunal was, therefore, required to raise it. Its failure to do so was a failure to afford procedural fairness to the applicant as required by s.425(1) of the Act (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152 and SZTQS (FCCA) at [63] and [55] – [57]).

4. On appeal, it was held that it was reasonably open to the primary judge to find that a “crucial plank” in the Tribunal’s reasoning in SZTQS “was that [the applicant] would not be subjected to significant harm on return to Sri Lanka because a member of his family would provide surety for him” (SZTQS at [41]). No error was found in the primary judge’s reasoning (SZTQS at [45]).

5. Of relevance to the current case is also the following (SZTQS (FCCA) at [58] and [60]):

   “[58] The only relevant reference to bail upon the applicant’s return to Sri Lanka in the transcript of the RRT hearing is as follows:

   ‘MEMBER: So I need to assess... the credibility of that claim but, where there...where a person is returned and they are...suspected of having departed illegally, what the information generally reports is that, depending on the day that they return, if there is an intervening weekend or a public holiday, the person can be held for either a few hours or one or two days, before they're then taken to the court to apply for bail.

   It seems that bail is routinely given and then the returnees go back to their life and then they have to reappear in court to discuss the substantive issues of having... of having left... of having left Sri Lanka illegally.

   And...

   Just let me finish...overwhelmingly the information indicates that when people do appear in relation to those charges, they're...the penalty that they are given is a fine.

   Now, I need to consider that information...but is there anything that you want to say in relation to it?’

   (emphasis added)

   …

   [60] Counsel for the first respondent referred to various exchanges between the RRT Member and the applicant relating to his family’s sources of income, however, there is no evidence to suggest definitively that the applicant’s family was a family of wealth. There is no exploration by the RRT with the applicant specifically of the overall financial position of his family. Indeed, the applicant’s evidence as to where the money came from to pay for a boat to take him to Australia was that his mother borrowed money from people.”

6. In the current case, the applicant made similar claims to fear harm in relation to Sri Lanka as did the applicant in SZTQS. In the current case, the Tribunal relevantly found ([60] at CB 186):

   “I accept that the applicant is likely to be arrested and charged on return to Sri Lanka, for his illegal departure. I accept that he is likely to be detained on remand for a short period (one day, or a weekend, depending on when he arrives) until brought before a Magistrate, whereupon the independent information states that he is likely to be released on his own recognizance with a family member as guarantor.”

   [Emphasis added.]

7. In the account of the hearing, the Tribunal stated ([18] at CB 180):

   “I put to the applicant for comment the independent information available to me that irregular departures such as his are a breach of Sri Lankan law and that since November 2012 the Sri Lankan government has been prosecuting people for illegal departure. I said that the information available to me indicates that when people who left Sri Lanka irregularly return, they are investigated for having committed an offence. If they are charged they are released on their own recognizance after a day (or a weekend) of remand until their charges are heard, only persons charged as smugglers or facilitators or repeat offenders are refused bail, and the only cases where people are detained on arrival is where the person has prior and outstanding criminal charges under Sri Lankan law…”

   [Emphasis added.]

8. In the current case, the Minister read the affidavit of Ms Elizabeth Warner Knight, solicitor, made on 3 November 2015. Annexed to the affidavit was a partial transcript of the Tribunal hearing (“EWK 1”) :

   “…Member: Some other information that I have from independent observers says that people who leave Sri Lanka illegally and who are returned to Sri Lanka are charged for offences in relation to their illegal departure.

   (pause while translated into Tamil)

   But what's been happening since about November last year says that people are taken before a Magistrate and they are released on their own recognisance.

   (pause while translated into Tamil)

   So that means they are bailed but there is no money involved.

   (pause while translated into Tamil)

   And the only people who are not allowed to be bailed are people who have other criminal charges which are outstanding.

   (pause while translated into Tamil)

   So according to this information the worst that will happen to people in your situation is that you will be held for one day or possibly one weekend until you can be produced before a Magistrate.

   (pause while translated into Tamil)

   And observers have been investigating the situation but have not been able to discover any incidences of mistreatment of people in that one day or one weekend during which they are waiting to be bailed.

   (pause while translated into Tamil)

   So that is the information that is available to me from independent observers. Is there anything you would like to say about that?

   (pause while translated into Tamil)

   Applicant: (through interpreter): You say they are released on bail without any charges or whatever. But the things happening after release are the documents I have with me which explains what's really happening, which is what the parliamentarians were concerned about, this issue, that's what the documents are that I have.

   Member: OK, Just give me a general idea of what you say happens to people after they are released on bail.”

   [Emphasis added.]

9. The Minister submitted that the current case can be distinguished from the circumstances in SZTQS in at least two ways. First, in the current case, the Tribunal member told the applicant at the hearing that “no money” was required to obtain bail. Second, that the Tribunal (at [60] at CB 186 – see [44] above) referred in its finding to a “guarantor” rather than to “provide surety”, as was the case in SZTQS.

10. The Minister’s argument was that these differences were of such significance so to distinguish the current case from the factual situation in SZTQS. The Minister submitted that in SZTQS it seems to have been “assumed” that the term “provide surety” meant that the family member would have to pay a sum of money. Therefore, the financial ability to do so was relevant (see SZTQS (FCCA) at [44] – [45] and [62] – [64]). In SZTQS that matter was critical, and the failure to raise it resulted in a denial of procedural fairness.

11. The Minister submitted that, in contrast to this, in the current case, there is no basis to suggest, or assume, that being a “guarantor” required any payment of money. In that circumstance, the financial capacity of the family members to do so was not a relevant matter. Therefore, there was no reason in the circumstances presented, to take the view that the applicant’s family members in Sri Lanka would be unwilling to assist him in obtaining bail by being a guarantor.

12. The Minister submits that it is implicit in the Tribunal’s finding at [60] (at CB 186) that a family member would be willing to act as guarantor, and this was reasonably open on the evidence before the Tribunal. In particular, in this regard, that the applicant had given evidence that he had frequently spoken to his wife in Sri Lanka.

13. The Minister’s position was that for the purposes of s.425 of the Act, the relevant “issue” was the ability of the applicant to obtain bail. Given that this issue was raised at the hearing there was no failure of procedural fairness pursuant to s.425 of the Act.

14. In SZTQS, the Court explained the direction given by SZBEL to the degree of particularity required in the task of identifying “the issue” in a review for the purposes of s.425(1) of the Act. Noting, of course, that the language of s.425(1) of the Act directs attention to what the Tribunal “considers” to be the issue, or issues, on the review (SZTQS at [48] – [57]).

15. The Federal Court, in applying this to the circumstances in SZTQS, stated (SZTQS at [58]):

    “That is not the case here. As the primary judge found, the Tribunal made a factual conclusion, which was a necessary link in the Tribunal’s chain of reasoning in rejecting SZTQS’s claim, without any notice to SZTQS that the conclusion might be made or that the factual question was in issue. That factual conclusion was to the effect that the applicant would only be detained for a short period because a member of his family would provide surety and he would be granted bail.”

16. Respectfully drawing on this, the question in the current case can be posed as being whether the matter of the “guarantor” was a critical link in the Tribunal’s chain of reasoning that the applicant would only be detained for a short period because it was likely that he would be released on his own recognisance.

17. The Minister submitted that the phrase “provide surety” in SZTQS was different to “guarantor” as in the current case, and that the Court proceeded on the basis that “provide surety” required payment of money. I agree with the Minister as to this part of his submissions. I respectfully understood the references to “pay surety” as they appear at [62] – [64] of SZTQS (FCCA) to mean that the giving of the surety required the payment of money.

18. It is the case that the provision of a “surety” generally can be understood to relate to one person agreeing to be answerable for another’s obligation. Commonly in contract situations in Australia, that relates to the liability of a debtor. For example, bail situations in Australia can result in the forfeiting of a sum of money if the defendant fails to comply with the bail undertaking.

19. However, it may be allowed that the giving of a guarantee, while also addressing the debt or default of another, can extend to some miscarriage by another person (see Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11; (1989) 166 CLR 245).

20. In the current case, the Tribunal made clear, on the evidence before the Court (the partial transcript of the Tribunal hearing) that the giving of the guarantee in Sri Lanka did not involve the payment of money by a family member. To that extent, the Minister’s submissions may be accepted.

21. However, it must be remembered that the relevant question for the Tribunal, arising in the circumstances of the current case, was whether the applicant would suffer serious or significant harm on return to Sri Lanka. As set out above, the Tribunal concluded, in part, that he would not suffer such harm because he would be held only briefly on remand, and would likely be released “on his own recognizance with a family member as guarantor” ([60] at CB 186). The Tribunal concluded that being held briefly in those circumstances did not amount to serious or significant harm ([61] at CB 186).

22. The question now raised, fairly, by the Minister is whether in the circumstances the Tribunal breached its procedural fairness obligations pursuant to s.425 of the Act by failing to raise with the applicant at the hearing, the matter of the family member acting as guarantor. That is, was such a matter an issue, or an integral part of an issue, in the review.

23. There is authority that distinguishes between an issue (that is caught by the obligation in s.425 of the Act) and the substratum of facts to that issue (which is not so caught) (SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 per Bennett J, SZIMM  v Minister for Immigration & Anor [2008] FMCA 34 at [41] – [72] per Judge Barnes, SZQSP v Minister for Immigration & Anor [2012] FMCA 890 and SZRRX v Minister for Immigration & Anor [2013] FMCA 84).

24. That, however, in my respectful view, must now be understood in light of the analysis and direction provided by the appellate Court in SZTQS. That is, in each case it is necessary to identify the issue with sufficient particularity and (SZTQS at [52]):

    “…In doing so, it should be recalled that what is, and what is not, an issue for the purposes of s 425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision (SZBEL at [47]). The matters identified as issues in SZBEL were matters that had led the Tribunal to reject SZBEL’s claim (see at [20]).”

    [Emphasis added.]

25. Further, in addition to [58] (set out above [53] above), and in particular, I respectfully note [59] of SZTQS:

    “Nor does SZMUF assist the Minister’s case. As Flick J stated there at [22]:

    Wherever the line may be drawn in individual cases, a party must be sufficiently put on notice of those matters which place him in a position where he can meaningfully avail himself of an opportunity to be heard.”

26. In my respectful view, the Court in SZTQS made clear that the determination (arising from what the Tribunal considers) of what is an issue requires a degree of specificity appropriate to, and relevant to, the particular circumstances presented in any one case. That degree of specificity is also informed by having regard to the concepts of procedural fairness.

27. In the current case the Minister’s submissions focussed on the differences between the subject matter in SZTQS and the current case (money/no money). That difference is accepted. However, the question in the current case (as it was in SZTQS) is focussed on whether the applicant could be granted bail within a short period of time following his return to Sri Lanka, thereby making his being held on remand “short”.

28. In that light, the matter of the guarantee by a family member was, having regard to the Tribunal’s own statement at [60] (at CB 186) of its decision record, an integral part of the Tribunal’s reasoning for affirming the delegate’s decision. Even when read fairly, the words “with a family member as guarantor” (as they appear at [60] of the Tribunal’s decision), can only be seen as an integral part of the Tribunal’s finding that “he is likely to be released on his own recognisance”.

29. In my view, the parallel that can be drawn with the analysis in SZTQS is that in SZTQS the financial ability of the family to pay the surety was a relevant matter. Similarly, in the current case, the family’s ability to provide a guarantee (albeit without the payment of money) was equally relevant.

30. The Tribunal’s use of the phrase (“family member as guarantor”) in context did not mean that the guarantor would have to pay any money. However, the use of the phrase by the Tribunal must have meant something. In context, it could only be that a family member would provide some guarantee for the conduct of the applicant in complying with the terms of his bail.

31. In the current case the Minister submits that there was no reason to think that the applicant’s family members in Sri Lanka would be unwilling to assist him to get bail by acting as guarantor. The Minister points to the applicant’s evidence that he was in contact with his wife. This, however, says nothing about whether she, or indeed any other family member, would be able, willing, or even acceptable to the authorities, to provide the guarantee.

32. However, in any event, that is not the relevant point for current purposes. The relevant point is that the issue of the family members giving of a guarantee was not raised by the Tribunal with the applicant at the hearing, in circumstances where it was not a live issue in the delegate’s decision record.

33. The Minister’s submissions focused on a possible finding available to the Tribunal. However, the question of procedural fairness is focussed on the fairness of the process, not the outcome. In this case, the applicant did not have the fair opportunity to address the matter of a family member giving a guarantee. The Tribunal breached its procedural fairness obligations pursuant to s.425(1) of the Act.

Conclusion

1. The Tribunal’s failure to provide that opportunity reveals jurisdictional error. There is no reason to deny the applicant the relief he seeks. I will make an order accordingly.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 24 February 2016