SZTVG v Minister for Immigration and Border Protection
[2016] FCA 1172
•30 September 2016
FEDERAL COURT OF AUSTRALIA
SZTVG v Minister for Immigration and Border Protection [2016] FCA 1172
Appeal from: SZTVG v Minister for Immigration & Anor
[2016] FCCA 616File number: NSD 511 of 2016 Judge: BURLEY J Date of judgment: 30 September 2016 Catchwords: MIGRATION – application for a Protection (Class XA) Visa on basis of appellant’s perceived association with LTTE, actual or imputed political opinion due to Tamil ethnicity and because appellant departed Sri Lanka illegally seeking asylum – refusal by a delegate of the Minister for Immigration and Border Protection – review of the delegate’s decision by the Refugee Review Tribunal – dismissal by Refugee Review Tribunal on basis that appellant was not credible and there was no a real chance appellant would be persecuted on return to Sri Lanka – application for judicial review in Federal Circuit Court of Australia – appeal from primary judge’s dismissal of application – whether Refugee Review Tribunal engaged in jurisdictional error by misunderstanding appellant’s claims – whether Refugee Review Tribunal failed to put country information relating to persons being held on remand on return to Sri Lanka to appellant – whether appellant had opportunity to present arguments in accordance with Migration Act 1958 (Cth) s 425
ADMINISTRATIVE LAW – role of the Court to decide whether decision was invalid by reason of jurisdictional error – role of the Court not to consider factual merits of Refugee Review Tribunal’s decision
Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Migration Act 1958 (Cth) ss 36, 412, 415, 422B, 424, 424AA, 424A, 425
Migration Regulations 1994 (Cth) cl 866.211
Cases cited: Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505
Date of hearing: 23 August 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 51 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr M J Smith Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs ORDERS
NSD 511 of 2016 BETWEEN: SZTVG
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
30 SEPTEMBER 2016
THE COURT ORDERS THAT:
1.The name of the second respondent be amended to the “Administrative Appeals Tribunal”.
2.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
1 INTRODUCTION
[1]
2 BACKGROUND
[6]
2.1 The Visa application and the decision of the Delegate
[6]
2.2 The Tribunal’s decision
[7]
2.3 The decision of the FCCA
[21]
2.4 The present appeal
[33]
2.4.1 First Argument: General disagreement with the Tribunal’s decision
[34]
2.4.2 Second argument: The Tribunal misunderstood the appellant’s claims
[36]
2.4.3 Third argument: Country information not put to the appellant
[38]
3 DISPOSITION
[51]
BURLEY J:
1. INTRODUCTION
This is an appeal from the judgment and orders made by the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent (Delegate) not to grant the appellant a Protection (Class XA) Visa (Visa) under section 36 of the Migration Act 1958 (Cth) (the Act).
In the present hearing, the appellant, who was unrepresented, relied on the following ground of appeal:
1.The Respondent made an error in law, with the error being a jurisdictional error, as the AAT misunderstood of my Convention Claims.
Particulars
I have provided a transcript of the AAT hearing in this respect.
The Federal Circuit Court Judge erred in the judgment as the Judge failed to find that the Respondent erred in law when the Respondent had reviewed my review application.
This is essentially the same as the ground, slightly differently expressed, raised before the FCCA (which was that the Tribunal had “exceeded its jurisdiction”).
The first respondent (Minister) filed an outline of submissions on 12 August 2016 in advance of the hearing which set out the background to the appeal and the reasons why the Minister submitted that the appeal should be dismissed. At the start of the hearing the appellant confirmed that he had received a copy of the submissions and that they had been translated to him.
For the reasons that follow no error has been demonstrated in the decision of the FCCA and the appeal is dismissed.
2. BACKGROUND
2.1 The Visa application and the decision of the Delegate
The appellant is a citizen of Sri Lanka who arrived in Australia on 20 June 2012 as an undocumented Irregular Maritime Arrival. On 15 November 2012 he applied for the Visa. On 9 August 2013 the Delegate refused to grant the Visa, rejecting his claims, essentially on credibility grounds.
2.2 The Tribunal’s decision
The appellant applied for a review of the Delegate’s decision. Submissions were filed on behalf of the appellant on 27 August 2013. Oral argument was heard and evidence was presented on 1 November 2013. The hearing was conducted with the assistance of a Tamil/English interpreter. The appellant gave evidence before the Tribunal and was represented by an employee of the Refugee and Immigration Legal Service Inc by telephone.
On 19 December 2013 the Tribunal affirmed the Delegate’s decision not to grant the Visa.
The appellant’s claims were made in his Visa application, his interview with the Delegate, in submissions made to the Delegate and the Tribunal, and at the Tribunal hearing. In summary, the appellant claims to fear persecution under the 1951 Convention Relating to the Status of Refugees (as amended by the 1967 Protocol Relating to the Status of Refugees) (Refugees Convention) on the basis of a well-founded fear of persecution if he returns to Sri Lanka. His claimed fear arises because of his perceived association with the Liberation Tigers of Tamil Eelam (LTTE) as a result of his brother-in-law’s (K) alleged involvement with the LTTE; his ethnicity; his actual or imputed political opinion due to his Tamil ethnicity, and the fact that he departed Sri Lanka illegally to seek protection in Australia. He submitted that his application satisfies the criteria for the grant of the Visa under subsection 36(2) of the Act and the Migration Regulations 1994 (Cth) Schedule 2 Clause 866.211.
In particular, the factual substratum of the appellant’s claims before the Tribunal were as follows:
(1)The appellant was born in a village near Mullaithievu city and taken to a town in North Western Province soon after his birth, where he grew up. He went to primary school and secondary school there, and completed his secondary schooling. After secondary school, he worked for a short period at a garment company and otherwise assisted his father in fishing. He attended a technical college for three months until March 2012.
(2)He is a single male who, before leaving for Australia, lived with his parents. He has one sister and one brother.
(3)In 2009 his sister, her husband, K, and K’s parents were detained in the Arunachalam camp in Vavuniya by the authorities. On 20 June 2009, the appellant’s family, including the appellant went to the camp and located his sister, but not K. Speaking through his uncle and K’s cousin (both of whom who spoke Sinhalese), his family arranged for the release of his sister and her parents-in-law by paying some money.
(4)The appellant, his parents, his sister and his sister’s parents-in-law went back to his family home. Two weeks later, in early July 2009, the police visited the appellant’s home and interrogated his sister about K’s activities and whereabouts. The appellant intervened. He was threatened by the police, grabbed and slapped twice on the face and instructed to report to the police station the next day. The appellant did not report to the police station and the police did not return for him.
(5)In June 2011, K visited his wife at the appellant’s house and told the appellant’s family that he had been taken to another camp in Vavuniya where he was tortured on the basis that he was suspected of being involved with the LTTE. When the appellant told K that the police were looking for him, K went to stay at his uncle’s house.
(6)On 2 July 2011, the police took the appellant to the police station in Muntal where they questioned him about K. At first he denied having any knowledge of K, but they hit him and so he told them the truth. They kept the appellant for three days and interrogated him. It was only after his uncle spoke to the police that they released him.
(7)In September 2011, the appellant’s brother was taken away by the police. He was released when the appellant reported at the police station. The appellant was detained for six days, where he was interrogated about K’s whereabouts and physically and verbally abused. He was released when the family paid money. The appellant was told to report to the police once every month.
(8)In about January 2012 the appellant moved to Jaffna to study computing. After two months the police went to his parents’ house looking for him because he had failed to report to the police on time. The police demanded that he go and report or they would arrest his father instead. After this, the appellant reported to the police and explained to them that he had been studying. The police did not believe him and insisted that he stay in his home town.
(9)The appellant believes that he will be punished for leaving the country because the police suspect him of having links with LTTE due to K’s past association, and that they would now be certain that he is an LTTE member because he left the country. The appellant also fears for his safety because he disobeyed police orders and because K fled to Australia. He also believes that the Sri Lankan authorities cannot protect him as it is the Sri Lankan police who are persecuting him.
The Tribunal assessed the appellant’s claims for protection and rejected them on the basis that he was not a credible witness and that there was not a real chance that he would be persecuted upon his return to Sri Lanka. The Tribunal also considered and rejected his claim for complementary protection on the basis that he does not satisfy the criteria set out in subsection 36(2)(aa).
In relation to credibility, the Tribunal accepted the personal details about the appellant’s background and that his sister had married K, and that K was involved in some way with the LTTE. The Tribunal did not accept that K’s detention had led to the appellant being questioned, beaten and detained. The Tribunal found that the appellant’s claims appeared illogical and unfeasible and that there were a number of key inconsistencies in his evidence. For instance, the Tribunal did not accept that two weeks after his sister was released, members of the local police and army came to his house, questioned his sister, threatened him and took him to the police station for questioning and then released him saying that he must go to the police station the next day. The Tribunal did not consider that this was feasible as K had, on the appellant’s evidence, just been detained; there was no need to question his family about his whereabouts. The appellant’s answer to that anomaly was that the police from his home town may have not known that K had just been detained, however the Tribunal doubted, as a matter of logic, that the police would have known about K at all.
Further, the Tribunal found that there were other inconsistencies in relation to the appellant’s evidence. For instance, in a submission from his advisor in May 2013, it was claimed on behalf of the appellant that civilian officers had attended his house and it was presumed that they were from the Criminal Investigation Department (CID); however, at the Tribunal hearing the appellant said that two police officers and one army officer had attended the house, a fact that he knew because of their uniforms. A further inconsistency was that he told the Tribunal at the hearing that he was not assaulted by the persons who attended at his house, but in his earlier statement he had said that he was slapped twice in the face. The Tribunal did not accept that he would not tell the Tribunal about this when asked, as it was a significant feature. Finally, the Tribunal found that there was contradictory evidence given by the appellant as to whether K had escaped or had been released from detention.
The Tribunal also did not accept that the appellant had been questioned in September 2011 because, it said, it did not accept that the appellant had been questioned in June or July 2009 or July 2011 or that the authorities were looking for K. As a consequence the Tribunal did not accept that in September 2011 the appellant had been detained for a number of days, ill-treated, beaten, verbally abused or interrogated. It also did not accept that the appellant had been asked to report once a month or that when he was studying in Jaffna he had been required to return to his home town to report, because the police told his father that he had to do so. The Tribunal did not accept the appellant’s explanation that he did not report to the police from March to June 2012 and was in hiding by staying at his friends’ place and working irregularly because the Tribunal did not accept that the police could not find the appellant in the small town where he lived, which in 2009 was recorded to have a population of only 15,000.
In relation to whether there was a real chance that the appellant would be persecuted upon his return to Sri Lanka, the Tribunal’s findings turned essentially on the basis that it did not accept that the appellant had suffered serious harm in the Convention sense in the past in Sri Lanka. However, having regard to the fact that proof of past persecution is not an essential step in an applicant demonstrating that he or she has a well-founded fear of persecution, the Tribunal went on to consider whether the suspicion of an association with the LTTE, his Tamil ethnicity and place of residence in Sri Lanka, and the appellant’s unlawful departure and failed asylum-seeker claims, whether considered separately or cumulatively, would satisfy the test of amounting to a well-founded fear of persecution.
On the evidence before it, the Tribunal did not accept that the appellant was a person who the authorities would have an adverse interest in, in the future.
The Tribunal considered that on the evidence before it, neither the appellant nor any member of his immediate family ever had any involvement or association with the LTTE. It also considered that the appellant would not be suspected of being connected to or associated with the LTTE because K was involved in some way with that organisation. The Tribunal found that in the past the appellant had not suffered any serious harm as a result of the connection with K, and that there was no substantial basis for considering that the appellant would do so in the reasonably foreseeable future, as K was not living in the appellant’s immediate family surrounds and was not in any way closely connected to his family during the war.
The Tribunal also rejected the contention that the appellant would be imputed with an adverse political opinion and perceived as being an LTTE sympathiser because he is a young male Tamil from his particular home town. In this regard the Tribunal relied on independent country information available to it that the weight of available information indicates that the authorities would not impute the appellant with an adverse political opinion and perceived him to be an LTTE sympathiser or supporter because of his ethnicity, religion, age or residence in his home town.
The Tribunal also considered and rejected the submission that the Sri Lankan authorities would perceive the appellant as having an LTTE association because he travelled to Australia by irregular methods and claimed asylum. Country information before the Tribunal did not indicate that the authorities would necessarily impute an adverse political opinion with the LTTE on this basis. Nor did the Tribunal consider that, taking each of the claims made cumulatively, they would lead to serious harm to the appellant in Sri Lanka in the reasonably foreseeable future.
In relation to complementary protection, the Tribunal found, in summary, that as a result of the matters that it had considered in relation to the other grounds, there were no substantial grounds for believing that there was a real risk that the appellant would suffer significant harm, including physical harm, deprivation of liberty, torture or death, as a result of returning to Sri Lanka.
2.3 The decision of the FCCA
The appellant was self-represented before the FCCA and presented his oral arguments with the assistance of a Tamil/English interpreter. He filed an application to review the decision of the Tribunal on 31 January 2014, which specified the following as grounds of the application:
I understand that the RRT denied and exceeded its jurisdiction when it reviewed my case by the RRT.
The FCCA understood from the appellant’s oral submissions that he contended that there were three bases upon which his application for review relied. The FCCA scrutinised each to discern whether they revealed jurisdictional error.
The first argument was a general disagreement with the Tribunal’s decision. The primary judge rejected that as a valid ground because it sought an impermissible merits review.
The second argument was that the Tribunal had misunderstood the appellant’s claims about whether K had escaped or had been released from custody. The primary judge reviewed the transcript of the hearing before the Tribunal and, over the course of paragraphs [48] – [78] of the judgment, considered the appellant’s complaint. It noted at [49] that the Tribunal had considered that there was an inconsistency in the evidence given by the appellant in relation to whether K had been released from custody or escaped. The primary judge found (at [60]) that a reading of the transcript of the hearing indicated that the Tribunal was aware of and discussed with the appellant the issue of whether K had escaped or had been released, and that it noted on a number of occasions that the evidence for and on behalf of the appellant in this regard was inconsistent.
The primary judge noted that the Tribunal had put to the appellant the various competing versions of events that emerged from his own statutory declaration, his advisers’ submissions, his advisers’ correspondence and the evidence given by the appellant before the Delegate and the Tribunal.
The primary judge concluded at [79]:
The transcript of the Tribunal hearing considered together with all the other material before the court, does not establish that the Tribunal misunderstood the Applicant’s claim in this regard. Rather, all the evidence before the court, including the transcript, indicates that the Tribunal was aware there was inconsistent evidence about whether the brother-in-law had escaped or had been released and that this was a factor the Tribunal took into account in rejecting the Applicant’s credibility. It found that the contradictory evidence in this regard led to a conclusion that it was being fabricated. The Tribunal’s failure to accept the Applicant’s claim that his brother-in-law had escaped from custody did not involve a misunderstanding of the Applicant’s claim or any integer of his claims such as to constitute or demonstrate a jurisdictional error.
The third argument concerned the likely effect of the Immigrants and Emigrants Act 2006, Sri Lanka, upon a Sri Lankan who had departed that country illegally and been returned as a failed asylum seeker. The appellant contended before the FCCA that the Tribunal had failed to put to him country information in relation to persons being held on remand for up to four days as part of the procedure in relation to being charged under the Sri Lankan Immigrants and Emigrants Act 2006, that he was unaware of the information upon which that conclusion was based and that he had not had an opportunity to respond to it.
The primary judge noted, first, that independent country information fell within the exception to subsection 424A(1) of the Act and that the Tribunal was not obliged to put such information to the appellant by virtue of subsection 424A(3)(a).
Secondly, she noted that the Tribunal did, as a matter of fact, put the effect of the relevant independent country information to the appellant. In this context, it noted that the Tribunal had put to the appellant that:
… the country information indicates that people who have left Sri Lanka illegally will be charged under some legislation there, which is legislation that applies to all people who have left illegally, and there’s no information before the tribunal to indicate that that legislation is being applied in a discriminatory way.
Also under that legislation people who have left illegally may have to spend a few days in custody on remand, however there’s no information to suggest that persons on remand are being seriously harmed, and so far it appears from the evidence that prison sentences are unlikely to be imposed, it’s more likely to be a fine. So, so as this is a general law applying to everyone, it does not appear to fall under – as one of the convention reasons.
The primary judge concluded that, so far as it may be necessary to put information going to the issue of the appellant being held on remand for the purpose of subsection 425(1) of the Act, the above passage satisfied the requirements, citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL).
Thirdly, the primary judge considered whether the Tribunal was entitled to find that being held on remand upon his return would not amount to serious harm. She concluded, on the basis of the decision of the High Court in Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 (WZAPN) that the evaluation as to whether or not there may be serious harm was a matter for the Tribunal and that no error had been demonstrated in the Tribunal’s reasons.
Accordingly, the FCCA dismissed the appeal.
2.4 The present appeal
The appellant was self-represented before this Court. He made oral submissions with the assistance of an English/Tamil interpreter. As may be seen from [2] above, the appellant’s grounds of appeal are ambulatory in nature. The appellant’s oral submissions were to the effect, first, that he disagreed with the Tribunal’s findings. Secondly, that the Tribunal misunderstood his contentions and thirdly, that the decision in WZAPN supported his position. As the appellant was self-represented I have decided to address these submissions more broadly and in the context of the three arguments considered by the primary judge. The Minister agreed with this approach. I turn to address each of those arguments below.
2.4.1First Argument: General disagreement with the Tribunal’s decision
Neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of a protection visa or to grant the appellant a visa. As such, neither Court has the capacity to consider the factual merits of the Tribunal’s decision to refuse to grant a protection visa to the appellant. The jurisdiction of the FCCA is limited to considering only whether the Tribunal’s decision to refuse to grant the appellant a visa is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on an appeal from the Tribunal under section 24 of the Federal Court of Australia Act 1976 (Cth).
The appellant’s first argument invites a merits review of the Tribunal decision which is not permissible. Accordingly, I agree with the FCCA’s conclusion that this argument should be rejected.
2.4.2Second argument: The Tribunal misunderstood the appellant’s claims
The FCCA considered the transcript of the hearing before the Tribunal and, over the course of 31 paragraphs of its reasons, concluded that there was no misunderstanding by the Tribunal. I have read the decision of the Tribunal and the transcript and agree with that view. In my opinion, the Tribunal had a good appreciation of the factual contentions made by the appellant in relation to his brother-in-law, K. The difficulty for the appellant is that the Tribunal found that inconsistencies in his evidence and submissions were such that the Tribunal did not find his version of events as finally presented before the Tribunal to be credible.
Accordingly, the factual premise of the second argument, namely, that the Tribunal misunderstood the appellant’s claim, is not made out. In this respect I agree with the learned primary judge’s conclusions and reject the argument.
2.4.3Third argument: Country information not put to the appellant
As noted above, the appellant contended that the Tribunal failed to put to him country information in relation to persons being held on remand as part of the procedure in relation to being charged under the Immigrants and Emigrants Act 2006 for offences relating to departing Sri Lanka illegally, and, in particular failed to notify him of the basis for its conclusion that he would be held for up to four days and then released.
In considering this argument, it is necessary to commence by examining the legislation relevant to the Tribunal’s decision.
Part 7 of the Act is entitled “Review of Part 7 – reviewable decisions” and in broad terms relates to decisions to grant or cancel protection visas. Upon an application being filed in accordance with section 412 of the Act, the Tribunal (as defined) must review the decision of the Delegate. Section 415 confers upon the Tribunal all of the powers and discretions that are conferred by the Act on the initial decision maker (that is, the Delegate) which effectively enables the Tribunal to conduct a full merits review of the visa application.
Some sections of Division 4 of Part 7 are particularly relevant to the present argument. That Division is entitled “Part 7 – Reviewable Decisions: Conduct of Review” and includes the following sections:
Section 422B
Exhaustive statement of natural justice hearing rule
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2)Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
Section 424
Tribunal may seek information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) A written invitation under subsection (2) must be given to the person:
(a)except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b)if the person is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
Section 424AA
Information and invitation given orally by Tribunal while applicant appearing
(1)If an applicant is appearing before the Tribunal because of an invitation under section 425
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Section 424A
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Section 425
Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Section 424A imposes a mandatory obligation upon the Tribunal to give clear particulars of any “information” that it considers would be the reason or a part of the reason for affirming the decision under review. Subsection 424AA(a) creates no imperative duties, but enables the Tribunal, if it wishes, to give particulars of the type required under section 424AA at an oral hearing and, if it does so, subsection 424AA(b) requires that the particulars be given in a certain way; SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505 at [10] per Flick J.
In the present case, the Tribunal put the country information quoted in [29] above to the appellant at the hearing. Earlier in the hearing, the Tribunal had said:
I might also refer you to information which would be a reason or a part of the reason for affirming or agreeing with the department’s decision. As decision-makers in Australia, we are required by law to ask you questions about that information in a particular manner. And, if I do that, I will explain to you why the information is relevant and provide you with an opportunity to comment on or respond to that information, and you can also tell me if you need more time to comment on or respond to that information.
The information supplied orally to the appellant by the Tribunal conforms with the obligations pursuant to section 424AA of the Act.
The question then arises as to whether the appellant had been given an opportunity to appear before the Tribunal to give evidence and present arguments relating to the issue arising in relation to the decision under review within subsection 425(1) of the Act. The question of what might happen to a person who has left Sri Lanka illegally and been repatriated as a failed asylum seeker was considered first by the Delegate who, after referring to relevant country information, said:
More recent DFAT advice in March 2013 confirms the information of October 2012, but added that since November 2012 some involuntary returns from Australia have been charged with offences related to their irregular departure from Sri Lanka and remanded in custody, after which they are generally granted bail, unless found to be an organiser of people smuggling activities.
The issue of possible detention for a period of time upon return was accordingly squarely raised by the Delegate. As the matter was raised as an issue before the Delegate, the circumstances of the appellant potentially being held on remand was an issue arising on the merits review of the Delegate’s decision by the Tribunal. This has in past cases been considered sufficient notice within subsection 425(1); SZBEL at [36], [45]. Further, as noted in [29] above, the Tribunal during the course of the hearing specifically put to the appellant that people who have left Sri Lanka illegally may have to spend a few days in custody on remand.
In my view, these matters constitute sufficient notification to the appellant of the issues arising in relation to the decision under review under subsection 425(1), as those obligations have been interpreted by the High Court, inter alia, in SZBEL.
A further point that was raised by the FCCA in this connection was whether or not the Tribunal fell into error in concluding that the detention of a returned asylum seeker under the Immigrants and Emigrants Act 2006 for a few days amounted to “serious harm”. The primary judge concluded that the High Court’s decision in WZAPN left it open to the Tribunal to engage in a qualitative assessment as to the severity of the consequences of detention on remand. The Minister submitted that that decision at [35], [45] and [77] support that conclusion.
In my view, the Minister’s submissions in this regard should be accepted.
Accordingly, for the reasons set out above, in my view the third argument should be rejected.
3. DISPOSITION
For the reasons set out above, in my view, the appeal should be dismissed and the appellant should pay the respondents’ costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate:
Dated: 30 September 2016
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