SZTXD v Minister for Immigration

[2015] FCCA 700

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTXD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 700

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to find that any detention of the applicant would amount to serious harm for the purposes of s.91R(1)(b) of the Migration Act 1958, failed to apply the “real chance” test and failed to alert the applicant to an issue determinative of the review.

Legislation:

Migration Act 1958, ss.36, 91R, 425, 430, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

WZAPN v Minister for Immigration & Border Protection [2014] FCA 947
SZTEQ v Minister for Immigration & Border Protection [2015] FCAFC 39
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387
Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152

Applicant: SZTXD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 395 of 2014

Judgment of: Judge Cameron

Hearing date: 11 March 2015

Date of Last Submission: 11 March 2015

Delivered at: Sydney

Delivered on: 1 April 2015

REPRESENTATION

Counsel for the Applicant: Mr S.E.J Prince

Solicitors for the Applicant: Westside Legal

Counsel for the First Respondent: Ms R. Francois

Solicitors for the Respondents: Clayton Utz

ORDERS

1. A writ of certiorari issue bringing the second respondent’s decision of 31 July 2013 into this Court to be quashed.

2. A writ of mandamus issue directing the second respondent to re-determine according to law the applicant’s application made to it on 25 February 2013.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 395 of 2014

SZTXD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived at Christmas Island by boat on 5 June 2012.  On 10 September 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Sri Lanka because of his imputed political opinion.  On 18 January 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to it to be determined according to law.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa were set out in the Tribunal’s decision. Relevant factual allegations are summarised below.

2. The applicant made the following claims in a statutory declaration dated 10 September 2012 attached to his protection visa application:

   a)he is Tamil;

   b)in 1990 his family moved from Mullaitivu to Udappu;

   c)in May 2011 he began assisting his mother in her dried fish business which involved travelling to Mullaitivu to buy dried fish and transporting them back to Udappu where they would be sold to a wholesale merchant;

   d)in June 2011, whilst staying in a fishing hut along the beach in Mullaitivu, he heard from the fisherman that a large amount of money belonging to the former Liberation Tigers of Tamil Eelam (“LTTE”) had been stolen from a hidden bunker in the jungle near Allambi.  He returned to Udappu a few days later;

   e)someone from Allambi informed the Criminal Investigation Department (“CID”) that he had taken the money.  Consequently, in June 2011 a CID officer and a local businessman came to his home and took him to an abandoned house where he was interrogated, bashed and tortured.  They demanded to know where the money was;

   f)he was visited by the CID twice after this initial attack and was threatened with further torture;

   g)in September 2011 he fled to Kalpitya.  He returned to Udappu in December 2011 but managed to avoid the CID by staying with various friends.  In fear for his life, he fled to Australia in May 2012;

   h)if he returned to Sri Lanka the CID would arrest and torture him, possibly even kill him; and

   i)he also feared that he would be arrested, tortured and imprisoned for leaving Sri Lanka illegally.

3. In written submissions to the delegate dated 28 September 2012 the applicant alleged that his claims were based on the Convention grounds of race as a Tamil, imputed political opinion arising from his race and his former residence in a predominately Tamil region and his membership of the particular social groups “Sri Lankan Tamils” and “Tamils who have fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia”.  

4. The applicant appeared before the Tribunal on 13 June 2013 and made the following additional claims:

   a)since his departure from Sri Lanka, people from the CID had come to his mother’s home in search of him.  They had also asked his mother for money;

   b)his mother had accompanied him to Mullaitivu in June 2011 to buy the dried fish.  While she had stayed with friends, he had stayed in Allambi with other fisherman by the sea.  This had been his only trip to Mullaitivu;

   c)he did not know or speak to the other fishermen but heard them talking about the money and jewellery they had found in the bunker.  He left Mullaitivu the next day;

   d)the local businessman who had threatened him was close to the CID and had connections with the Sri Lankan Army;

   e)the last time he had been visited by the CID was in January 2012, after he had returned to Udappu from Kalpitya;

   f)his claims were based on the Convention ground of imputed political opinion because the money and jewellery had belonged to the LTTE; and

   g)he would also be targeted in Sri Lanka because he is Tamil.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act.

2. The Tribunal found that there had been several inconsistencies in the applicant’s evidence:

   a)in his written statement of claims the applicant said that when he had travelled north to buy dried fish with his mother he had stayed in a fisherman’s hut on the beach in Mullaitivu.  However, at the Tribunal hearing the applicant said that he had stayed in Allambi.  In the Tribunal’s view, it was reasonable to assume that the applicant would remember such a fundamental detail if he had indeed travelled north on that one occasion;

   b)the applicant said in his written statement of claims that he left Mullaitivu a few days after he had heard about the stolen money.  In the delegate’s decision record the applicant is recorded as having stated at his interview that he left Mullaitivu on the day the money was found.  At the Tribunal hearing he said that he had left the next day; 

   c)the applicant’s accounts of how often the CID and the businessman came to question him were inconsistent:

   i)in his written statement of claims he stated that the CID officer and the local businessman had returned to his home twice after the initial attack in June 2011 whereas at his departmental interview he said that they had returned once in August, when he had been at home, and numerous times after that, when he had not been at home; and

   ii)at his departmental interview and at the Tribunal hearing the applicant claimed that he had been visited by the CID officer in January 2012 whereas in his written statement of claims he said that from December 2011 he had been able to avoid the CID.

3. In light of these inconsistencies, the Tribunal did not accept that the applicant had travelled to Mullaitivu with his mother in June 2011 or that he had been detained, beaten and interrogated by the CID in connection with money and jewellery belonging to the LTTE.  The Tribunal also found that the applicant had not been of adverse interest to the CID or the local businessman.  Given these findings, it did not accept that the applicant’s mother had been visited by the CID while he had been in Australia.

4. The Tribunal was not satisfied that the applicant faced a real chance of serious harm because he had come from a Tamil-dominated region, noting in this regard that Udappu, although a predominately Tamil village, had not been under the control of the LTTE and was not considered to be part of the war zone.

5. In relation to the applicant’s claim that he feared harm in Sri Lanka as a young Tamil male and failed asylum seeker who had departed Sri Lanka illegally, the Tribunal noted that information from various sources indicated that:  

   a)all Sri Lankan nationals were treated in the same manner with regard to entry procedures;

   b)failed asylum seekers and Tamils were not specifically targeted for adverse attention at the time of entry; and

   c)non-voluntary returnees would be interviewed by the authorities and subjected to criminal background checks.

6. Given this information, the Tribunal was not satisfied that the applicant would be treated differently or adversely on arrival or through the screening and checking processes he would undergo at the airport.  The Tribunal noted that the situation would be different for returnees who had real or perceived associations with the LTTE but it did not accept that the applicant had any such associations or that he would be imputed to be a supporter of the LTTE or to have an anti-government political opinion. 

7. The Tribunal was satisfied that, were he to return to Sri Lanka, the applicant would be detained for questioning, remanded (in custody) and charged with an offence for departing the country illegally.  It also accepted that there was a strong possibility that he would be fined as a result.  However, the Tribunal did not accept that “this” amounted to serious harm for a Convention reason.

8. The Tribunal accepted that Tamils in Sri Lanka might generally experience a level of discriminatory treatment and that Tamils in areas previously under LTTE control experienced a higher level of discrimination and surveillance.  The Tribunal noted, however, that the applicant had made no claims of discriminatory treatment which could be regarded as involving serious harm other than the claims concerning the CID which it had not accepted as credible.  The applicant’s claim that he could no longer live in Sri Lanka because he was a Tamil was, in the Tribunal’s view, generalised and non-specific.  It consequently found that the applicant faced only a remote chance of suffering discrimination amounting to serious harm were he to return to Sri Lanka.

9. The Tribunal also did not believe that the procedures to which the applicant might be subject upon a return to Sri Lanka gave rise to a real risk of “significant harm” as understood in the complementary protection context.

Proceedings in this Court

1. In his amended application the applicant alleged:

   1.The RRT has applied the wrong test pursuant to section 91R(2)(a) of the Migration Act 1958 (Cth).

   Particulars

   At paragraph [90] of the decision, the RRT accepted that the applicant had committed offences under Sri Lanka’s Immigrants and Emigrants Act, would be remanded and charged but released on bail, with a family member as surety and that he would only be subject to a fine on conviction. The Tribunal found that such circumstances would not amount to serious harm for a Convention reason.

   The Tribunal’s reasons impermissibly found that incarceration whilst on remand would not involve serious harm in circumstances where a deprivation of liberty will amount to serious harm for the purposes of s.91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protect & Another [2014] FCA 947 at [30] and [45].

   Further and in the alternative, to the extent that the Tribunal may have found that the reason for the incarceration was not for a Convention related reason because “it was in breach of the Immigration and Emigration Act s.45(1)(b) and that that Act is a law of general application, it made no such finding and did not provide any reasons or analysis for an such finding and failed to apply the principles explained by North J in WZAPN v Minister for Immigration and Border Protect & Another [2014] FCA 947 at [48] and [51].

   2.     The RRT failed to apply the real chance test to the issue of potential imprisonment of the applicant upon conviction under s.45 of the Immigrants and Emigrants Act at [89] of its reasons for decision.

   Particulars

   By finding that ‘current experience is that imprisonment is ‘uncommon’ and fines of the maximum ‘unusual’, the RRT failed to direct consideration to whether there was a ‘real chance’ that imprisonment would be imposed upon conviction or whether there was a ‘real chance’ that the maximum penalty would be imposed.

   3. The RRT decision involved jurisdictional error because its credibility finding at [64] of the Tribunal’s reasons departs from the Delegate’s reasons without warning for the purposes of s.425 of the Act and contrary to the requirements described by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152.

   Particulars

   The RRT found at [62] that the applicant’s statement at the hearing that he returned to Udappu in December 2012 contradicted “the evidence given by him in his written statement of claims where he stated that he returned to Udappu after December 2011 he managed to avoid the CID by staying with various friends and not returning to his house”.

   On this basis, the Tribunal found that the applicant was inconsistent in his evidence and accordingly undermined the credibility of his claims (at [64]).

   This finding raised a new issue from the decision of the delegate who had afforded the applicant the benefit of the doubt on the issue (AB86) and accepted that he could have been involved in some questioning in Udappu by the CID.

   The applicant was not put on notice that this finding of the Delegate may be departed from.

Ground 1

1. Section 91R relevantly provides:

   91R Persecution

   (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

   (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

   (b) the persecution involves serious harm to the person; and

   (c) the persecution involves systematic and discriminatory conduct.

   (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a) a threat to the person’s life or liberty;

   (b) significant physical harassment of the person;

   (c) significant physical ill‑treatment of the person;

   (d) significant economic hardship that threatens the person’s capacity to subsist;

   (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

Submissions

1. The applicant argued that the Tribunal had erred because, although it accepted that upon return to Sri Lanka his liberty would be curtailed for at least a short period, it did not find that such a circumstance would amount to a threat to his liberty and thus serious harm for the purpose of s.91R(1)(b). The applicant referred in this connection to the reasons for judgment of North J in WZAPN v Minister for Immigration & Border Protection [2014] FCA 947 where his Honour held that, regardless of its severity, any threat to liberty will amount to serious harm for the purposes of s.91R(1)(b) and that making a qualitative assessment of the nature and degree of a threat to liberty allegedly feared by an applicant, when determining whether such a threat amounted to serious harm, would be to fall into error. It should be noted that since the hearing of this application North J’s holding has been disapproved by the Full Court of the Federal Court in SZTEQ v Minister for Immigration & Border Protection [2015] FCAFC 39.

2. The applicant also alleged that, to the extent that the Tribunal may have found that any detention of him would not have a Convention nexus because the law under which he could be detained – the Immigration and Emigration Act (“I & E Act”) – was a law of general application, such a finding was not explicit or supported by reasons as required by s.430 of the Act. Specifically, the applicant submitted that the Tribunal had not considered whether the I & E Act was appropriate and adapted to a legitimate object of the Sri Lankan state.

Consideration

1. The applicant is correct to say that the Tribunal did not find that his likely detention for a period upon return to Sri Lanka satisfied the test for serious harm articulated in WZAPN. However, it did not need to address that issue because, I find, it implicitly concluded for other reasons that such detention would not amount to persecution as mentioned in Article 1A(2) of the Convention as affected by s.91R(1) and, specifically, s.91R(1)(c).

2. The Tribunal stated at para.79 of its reasons that it was not satisfied that the applicant would be treated in a discriminatory way in the processes he would have to undergo at the airport in Sri Lanka and in paras.88 to 90 it noted that all returned Sri Lankan nationals who had arrived in Australia by boat were being charged with departing Sri Lanka illegally, remanded (in custody) and subsequently released on bail upon provision of a surety by a family member.  The Tribunal’s express conclusion was that the Sri Lankan authorities would treat the applicant no differently to the way it would treat anyone with his characteristics. 

3. However, that conclusion did leave open the possibility that the applicant was a member of a particular social group whose members were discriminated against because of the characteristics which they shared such that the uniformity of treatment was no answer to the applicant’s claim to fear persecution in Sri Lanka.

4. It is apparent that the Tribunal treated the applicant’s claim to fear persecution as a failed asylum seeker in the same way it would have considered a claim based on membership of a particular social group of “Tamils who have fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia”, which was a claim made on the applicant’s behalf in his representatives’ written submissions to the delegate of 28 September 2012.  The Tribunal found that the applicant’s fear of persecution because he had those characteristics was not made out.

1. The basis for that conclusion was the Tribunal’s implicit finding that detention under the I & E Act did not amount to persecution because that statute was a law of general application. In this regard, the Tribunal referred expressly to that Act’s indiscriminate application since late November 2012 to all persons returned to Sri Lanka, whether voluntarily or involuntarily. The fact that the Tribunal did not employ the expression “law of general application” in its reasons should not obscure the substance of its relevant conclusion which was to the affect that the I & E Act was such a law.

2. Moreover, it is apparent from the Tribunal’s reasons that it did not consider the I & E Act as objectionable for failing to be “appropriate and adapted to achieving a legitimate national objective”: Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 at 402 [43]. For instance, in para.86 of its reasons it said:

   The Sri Lanka’s Attorney-General’s Department (AGD) has told staff from Australia’s overseas post in Sri Lanka (post) that people being intercepted on people smuggling boat ventures in Sri Lanka are considered to be “victims” and are not given a custodial sentence but are issued a fine for the offence of departing Sri Lanka illegally under Section 45(1)(a). The fine is to act as a deterrent to joining boat ventures in the future. In relation to using fraudulent documents, Sri Lanka’s AGD said the person would be issued with a fine. In Sri Lanka, magistrates are able to use their own discretion in determining the amount of the fine. For example, AGD said the Magistrates Court in Colombo has, in practice, been handing out fines between 5,000 and 10,000 LKR for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the Magistrate, who handles a large number of people smuggling cases, has been handing out fines between 10,000 to 100,000 LKR to act as a deterrent. AGD said if a person is considered to be an organiser, the person will be charged and prosecuted for the relevant offence under the Immigration and Emigration Act. Prosecutors would seek a prison sentence and the maximum fine of 200,000 LKR for people smuggling or the facilitation of people smuggling.

3. The applicant did not allege that he had submitted to the Tribunal that the I & E Act was not appropriate and adapted to some legitimate objective of the Sri Lankan state. Consequently, there was no call for the Tribunal to express its reasoning in terms different from the ones it employed. Additionally, a breach of s.430 by a failure to give adequate reasons is not, on its own, a jurisdictional error: Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362 at 379 [54]; 387-388 [85]; 396 [116].

4. In any event, whether the I & E Act was appropriate and adapted to a legitimate national purpose was a mixed question of law and fact. Consequently, the proper question was not procedural but substantive, namely whether the Tribunal’s finding on that question was correct. However, the applicant did not invite the Court to consider that issue.

5. At para.90 of its reasons the Tribunal said:

   After assessing all the evidence before it, the Tribunal is satisfied that, on return to Sri Lanka, the applicant will be detained for questioning and security and character checks will be undertaken. He will be remanded and charged with an offence under the Immigration and Emigration Act because he departed Sri Lanka illegally. The Tribunal notes there is no evidence before it to indicate that the applicant has used any false or fraudulent documents or was involved in people smuggling activities or that he has attempted to illegally depart Sri Lanka on more than one occasion. The applicant will be released on bail, with a family member as surety, to appear in court at a future date. This will occur because he departed Sri Lanka illegally and is therefore in breach of section 45(1)(b) of the Immigration and Emigration Act, as cited above. There is a strong possibility that a fine will be imposed on the applicant because of his illegal departure from Sri Lanka. The Tribunal does not accept that this amounts to serious harm for a Convention reason.

6. The applicant submitted that in the final sentence of that paragraph “this” referred to his detention while the Minister submitted that it referred to the fine which might be imposed on him.  The sentence could be clearer but, on balance, I prefer the Minister’s interpretation.  This is because there were two sorts of government action which the Tribunal was considering.  The first was the certainty of a period of detention and the second was the (strong) possibility of a fine.  The former was indiscriminately imposed on persons such as the applicant while the latter was not and would be particular to the applicant’s case.

7. Consistently with my earlier finding that the Tribunal at least implicitly considered the I & E Act to be a law of general application appropriate and adapted to a legitimate purpose, I conclude that the Tribunal made no express finding that I & E Act’s application did not amount to serious harm because it did not need to, whereas the possible fine, not having that quality, had to be addressed specifically in the context of serious harm – which was what the Tribunal did.

Ground 2

1. In the second ground of his amended application the applicant alleged that the Tribunal had failed to consider whether he faced a real chance of imprisonment if convicted of an offence against the I & E Act, referring instead to imprisonment being uncommon and to the imposition of the maximum fine being unusual. In making this allegation the applicant relied on para.89 of the Tribunal’s reasons where it said in relation to the sort of penalties which were imposed for offences against the I & E Act:

   Current experience is that imprisonment is uncommon and fines of the maximum unusual. 

Consideration

1. Paragraph 89 of the Tribunal’s reasons referred to above contained no analysis or consideration of the applicant’s claims; it simply set out certain evidence concerning the operation and implementation of Sri Lanka’s I & E Act.  Consequently, the use of those words in that context does not demonstrate a misunderstanding by the Tribunal of the test which it had to apply.  In any case, the relevant question for the Tribunal was whether the applicant’s claimed fear was well-founded, the “real chance” formulation being no more than an accepted alternative for “well-founded”: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572. In that connection, at para.13 of its reasons the Tribunal set out its correct understanding of that part of the Convention test and went on to say at para.96 of its reasons, after having discussed the evidence and arguments before it:

   After assessing all the evidence before it, including on a cumulative basis, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason in the reasonably foreseeable future in Sri Lanka. 

2. Further, para.90 of the Tribunal’s decision record set out its reasoning on the issue of the punishment which the applicant might face in Sri Lanka for having breached the I & E Act. As noted earlier it was in two parts. The first concerned the process which the applicant would have to undergo with every other returned national who had left Sri Lanka illegally and the second concerned the penalty which might be imposed on him. In relation to the latter, the Tribunal made no reference to imprisonment and considered only the likelihood of a fine being imposed. The Tribunal had discussed only a few sentences before, in para.89, the fact and the uncommonness of the penalty option of imprisonment and I would not conclude that the absence of any mention of it in para.90 was an inadvertent omission. Given that the Tribunal correctly understood the test it had to apply, I infer that its silence on the issue of whether the applicant would be sentenced to a term of imprisonment bespoke a conclusion by it that a fear of imprisonment was not well-founded.

3. I conclude that the Tribunal understood the test it had to apply and applied it correctly.

Ground 3

Submissions

1. By way of introduction it should be recorded that at the hearing of this application the applicant presented the third allegation somewhat differently from the way in which it had been pleaded. 

2. In order to understand the third ground of the amended application, it must be recalled that the applicant’s evidence in his statutory declaration of 10 September 2012 had relevantly been that, after going into hiding in late 2011, he returned to Udappu and avoided the CID by staying with friends whereas his evidence to the delegate and to the Tribunal had been to the effect that he was visited by the CID in January 2012, following his return from his period of hiding.  That inconsistency produced different findings by the delegate and the Tribunal.   The delegate said:

   I accept that [after his emergence from hiding] the applicant could have been involved in some kind of questioning as a Tamil residing in Udappu by the CID …

   In contrast, the Tribunal said in para.64 of its reasons:

   At the hearing the applicant told the Tribunal that the last time he was visited by the CID was in the first month of 2012. This visit from the CID is not referred to in the applicant’s written statement of claims.  In the Tribunal’s view, this inconsistency regarding the number of visits and questioning of him by the CID and the time of the last visit from the CID further undermines the credibility of the applicant’s claims. 

3. The applicant alleged that pursuant to s.425 of the Act the Tribunal had been under an obligation to alert him to the possibility that its view of the evidence in question might be different from the delegate’s. In substance, his allegation was that he had not been alerted to the fact that the alleged CID questioning in January 2012 had become a matter in issue before the Tribunal.

4. The applicant relied on passages from the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 which were referred to with approval by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. The burden of the applicant’s submission, based on Alphaone, was that he had been entitled to be notified of any issue critical to the Tribunal’s decision which was not apparent from the nature of that decision or the terms of the Act. He submitted that this finding on his credit could not be disaggregated from the Tribunal’s overall finding on his credit with the consequence that the whole of the overall finding was infected by the error manifested in the particular finding.

5. The transcript of the Tribunal’s hearing discloses that the Tribunal did not indicate, in terms, that its view of the evidence in question might be different from the delegate’s and that that might affect its view of the credibility of his account.  The Minister submitted that advice of such particularity had been unnecessary because, as recorded at p.16 of the transcript, not long after the applicant had given evidence about the CID visit in 2012, it had said to him:

   Well I’ll just put something to you as something that I just put to you.  Another possibility is that you came to Australia looking for employment and better opportunities.  You tried, at one point, that’s mentioned in the decision that you said that you went to Thailand not for tourism but looking for work, you also indicated in the decision that you went to India looking for work.  The reason that you were trying to go to India was looking for work.  It’s possible therefore that you were also, your reason for coming to Australia was looking for work and better opportunities and that you fabricated this story.  I’ll just put that to you for comment and your response. 

6. The Minister submitted that the Tribunal had, by that statement, put the applicant sufficiently on notice that all his factual allegations were in issue and so it did not need to raise the particular issue with him.   

Consideration

1. It was said in SZBEL:

   … there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.  (emphasis in original) (at 165-166 [47]).

2. The purpose of putting to the applicant the proposition mentioned in the passage quoted above at [40] was to alert him, so that he might address it, to the possibility that the Tribunal would consider his conduct to have been motivated by a wish to better his economic situation rather than by a fear of persecution.  The implication of the Minister’s submission was that it also served to alert him to the entirety of his account being in issue. 

3. It is true that a hypothesis put by the Tribunal to an applicant may, depending on the content of that advice and the manner in which it is given, “sufficiently indicate” to the applicant that all of his or her claims are in issue.  The question is whether the passage quoted above at [40] did that.  I am of the view that it did not, even though the proposition put by the Tribunal was inconsistent with the applicant’s claim to fear persecution in Sri Lanka and all the elements of that claim.

4. It is not necessarily enough for the Tribunal to put a hypothesis to an applicant for comment, even if the hypothesis is inconsistent with the applicant’s claims, and expect the applicant to deduce from that that all of his or her claims are in issue, particularly if some of them have nothing in particular to do with the hypothesis.  It is a matter of fact in each case and, in this case, I find that the Tribunal did not make it clear to the applicant that there was any reason for him to think that it might agree with the proposition it had put to him.  Unless it did, there was no reason for him to infer that it would.  Although, if the Tribunal wants to put everything in issue it should not be needlessly blunt, it should not be oblique either.

5. Finally, I find that the January 2012 CID visit was sufficiently significant for it to be considered an issue critical to, or determinative of, the Tribunal’s decision.  It was an important element of one of the three categories of inconsistency which the Tribunal relied on to find the applicant’s account unconvincing.  It is not possible for the Court to identify exactly how significant this particular issue was to the overall credit finding.  Relevantly, it is not in a position to conclude that the adverse credit finding would still have been made even if the error had not occurred.

6. The Tribunal erred by not bringing the issue to the applicant’s attention.

Conclusion

1. The Tribunal’s decision to affirm the delegate’s decision was affected by jurisdictional error. 

2. As a result, the Tribunal’s decision will be set aside and the matter returned to it to be determined according to law.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  1 April 2015