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SZQGL v Minister for Immigration & Anor [2011] FMCA 1019 (21 December 2011)

Last Updated: 22 December 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQGL v MINISTER FOR IMMIGRATION & ANOR
[2011] FMCA 1019

MIGRATION – Review of decision of Independent Merits Reviewer – whether the reviewer failed to comply with the principles of procedural fairness at common law – discussion of the “hearing rule” – whether the reviewer had regard to all information put forward by the applicant – translation of documents at the interview – reviewer’s findings were open on what was before him – no jurisdictional error – application dismissed.


Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Darabi v Minister for Immigration & Anor [2011] FMCA 371; (2011) 250 FLR 301
SZPAC v Minister for Immigration & Anor [2011] FMCA 517
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1
Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912
NAJK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 163
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 176 ALR 219
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481
MZYLF v Minister for Immigration & Anor [2011] FMCA 621
X v Minister for Immigration & Multicultural Affairs [2002] FCA 56; (2002) 116 FCR 319
MZXTZ v Minister for Immigration & Citizenship (includes Corrigendum dated 17 August 2009) [2009] FCA 888
WAIQ v Minister for Immigration [2002] FMCA 319
Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151
Cabal v Minister for Immigration & Multicultural Affairs (Includes Corrigenda dated 15 May 2001) [2001] FCA 546
S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (with Corrigendum dated 3 February 2004) [2003] FCA 1153

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)

Applicant:
SZQGL

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MICHAEL GRIFFIN IN HIS CAPACITY AS INDPENDENT MERITS REVIEWER

File Number:
SYG 1060 of 2011

Judgment of:
Nicholls FM

Hearing date:
8 November 2011

Date of Last Submission:
8 November 2011

Delivered at:
Sydney

Delivered on:
21 December 2011

REPRESENTATION

Counsel for the Applicant:
Ms R Bell

Solicitors for the Applicant:
Brett Slater Solicitors

Counsel for the Respondents:
Mr HPT Bevan

Solicitors for the Respondents:
Australian Government Solicitor

ORDERS

(1) The application made on 24 May 2011, and amended on 29 September 2011, is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of $6,240.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1060 of 2011

SZQGL

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MICHAEL GRIFFIN IN HIS CAPACITY AS INDPENDENT MERITS REVIEWER

Second Respondent


REASONS FOR JUDGMENT

  1. This is an application made on 24 May 2011, and amended on 29 September 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of Mr Michael Griffin, in his capacity as an Independent Merits Reviewer, to recommend to the first respondent, the Minister for Immigration and Citizenship (“the Minister”), that the applicant (SZQGL) is not a person to whom Australia owes protection obligations.
  2. The issue in this case is whether, in light of Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14 (“M61/M69”), the Court should grant declaratory relief in relation to that recommendation.
  3. Specifically, the recommendation was that the applicant should not be recognised as a person to whom Australia has protection obligations. However, the essence of the recommendation was that he does not meet the definition of “refugee” as set out in Article 1A(2) of the United Nations Convention Relating to the Status of Refugees.[1] (See s.36(2) of the Act.)

Background

  1. The relevant background to this case can be derived from the Court Book (“CB”) and Supplementary Court Book (“SCB”) filed by the Minister.
  2. The applicant is a Sri Lankan national who arrived at Christmas Island by boat on 7 February 2010. He was interviewed on 10 March 2010 at Christmas Island by an officer of the Minister’s Department with the assistance of an interpreter in the Tamil language (CB 1 to CB 26).
  3. The applicant appointed a migration agent, who was located in Melbourne, on 23 April 2010 (CB 35 to CB 38). On the same day the applicant made a request for a Refugee Status Assessment (“RSA”) and also submitted an accompanying Statement of Claims (CB 39 to CB 64). He was interviewed for the purpose of the RSA on 26 April 2010, again with the assistance of an interpreter in the Tamil language (CB 87.1).

Claims to Protection

  1. The applicant is of Tamil ethnicity and of the Hindu faith. His claims to protection are derived from his claimed forced participation in the Liberation Tigers of Tamil Eelam (“LTTE”) training in 2007 (CB 11).
  2. The applicant claimed that when he participated in “Pongu Thamil
    (sic: Tamil) protests” which had been organised by the LTTE, he was “videoed” by the army, and was consequently “... detained during round ups and beaten [where] masked men were brought to the round ups and recognised [the applicant]...” who was then placed in a “log book” (CB 11.5).
  3. During 2007 and 2008 the applicant claimed that: “... [he] was taken by the SLA [Sri Lankan Army] whenever a land mine was found.” (CB 57.4.) He said that this occurred because the SLA was in conflict with the LTTE (CB 56.8).
  4. The applicant claimed that on 24 June 2009 a man was shot by the SLA in front of his “snack” shop. After he indicated to police that he would be able to identify the assailant he started to receive threatening telephone calls from someone who said that “...he was from the CID and warned [the applicant] against identifying the killer.” (CB 21.3.) For the following two months, he and his family were harassed by CID officers and on one occasion visited the applicant’s wife when the applicant was not at home and threatened her (CB 21.5). Consequently the applicant fled with his family to Colombo (CB 21.9).
  5. While in Colombo the applicant claims he was taken by the police “... on suspicion of being an LTTE supporter.” (CB 57.2.) Although not formally charged with anything, the applicant claimed that he had to pay a bribe to be released (CB 57.3).
  6. Further, the applicant claimed that because he held a “Valvettithurei (sic: Valvettithurai) Identity Card” (his home village) he encountered “problems” and “was targeted more [by] the CID and the army... [because] ... Valvettithurei (sic) is famous because it is the birthplace of the LTTE leader...” (CB 11.6). If the applicant were to return to Sri Lanka, he claimed that he did not know if he would “be shot or jailed”, but that he would “not be alive” (CB 19.1). He claimed he would suffer serious harm because he would be a returnee and failed asylum seeker and the authorities would be unable to protect him from the SLA (CB 58.2).

Initial Assessment

  1. The applicant was interviewed by an officer of the Minister’s department in relation to his claims on 10 March 2010. The assessor had doubts regarding the applicant’s credibility due to the inconsistency in the applicant’s answers to interview questions (CB 92.5). Further, the assessor was of the view that the applicant fabricated his evidence to substantiate his refugee claims and consequently did not accept that the applicant would face a real threat of serious harm if he were to return to Sri Lanka (CB 93.8)

Independent Merits Review

  1. On 13 July 2010 the applicant’s migration agent, on behalf of the applicant, lodged a request for review of this assessment by an independent review assessor (CB 98 to CB 102).
  2. On 3 September 2010 the applicant’s migration agent wrote to the Refugee Status Review Panel attaching a submission supporting the applicant’s claims for asylum (see SCB).
  3. On 29 November 2010 the applicant, with his advisor present, was interviewed by the second respondent in these proceedings, who had been assigned to conduct the independent merits review of the Departmental officer’s assessment. (An account of this interview is to be found in the reviewer’s record at [12] (at CB 121) to [16] (at CB 122).)
  4. On 7 April 2011 the applicant’s migration agent provided further documentation to the office of the reviewer, including copies of identification documents for the applicant and a letter in support of the applicant’s asylum claims (CB 103 to CB 108 and CB 110 to CB 115).
  5. On 27 April 2011 a person from the reviewer’s office wrote to the applicant’s migration agent informing the applicant that the identification documents provided were received after the reviewer had signed a recommendation for the matter, and therefore the documents were unable to be considered by the reviewer who was now “functus officio” (CB 109).
  6. In the decision, made on 13 April 2011, the reviewer held “... serious doubts about the credibility...” of the claim that the applicant had witnessed a shooting outside his shop ([24] at CB 129.2). Further, there was “... no evidence to suggest that the police were actually making the telephone threats... [or] that the Army, the CID, the LTTE or
    pro-government para-militaries were involved.” (CB 129.3.) In any event, the reviewer commented that even if this claim were accepted, there was “... nothing to connect this event to Convention persecution.” (CB 129.3.)
  7. The reviewer noted that the applicant had “... never been sought out as a particular target...” during general security round ups conducted by the SLA ([25] at CB 129), and consequently there was nothing particular about the applicant which would bring him to the adverse interests of the authorities ([27] at CB 129). The reviewer did concede that the applicant may come to the adverse attention of authorities as a result of departing Sri Lanka illegally, however this potential risk of harm “... would be pursuant to the application of the general law and not necessarily for a Convention reason.” ([28] at CB 129.)
  8. In consideration of the applicant’s Statement of Claims, the evidence provided at the interview, and available country information, the reviewer found that the applicant did not meet the criteria for a protection visa and therefore made the recommendation that the applicant not be recognised as a person to whom Australia owes protection obligations ([30] at CB 129 and [31] at CB 130).

Application to the Court

  1. An application for review of the reviewer’s recommendation was made to the Court on 24 May 2011, at which time the matter was placed in the docket of another Federal Magistrate. On 29 September 2011, with the benefit of legal representation, an amended application was made to the Court at which time the matter was transferred to my docket.
  2. The grounds of the amended application (without particulars) are:
  3. An application to extend time pursuant to s.477 of the Act was also made with the amended application. This repeated the ground for the granting of an extension of time made in the original application to the Court which stated:

Before the Court

  1. Ms R Bell of counsel appeared for the applicant. Mr HPT Bevan of counsel appeared for the first respondent. Written submissions were filed by both parties. Leave was granted for the affidavit of Ms Susan Archer, affirmed on 22 September 2011, to be read into evidence. This annexed a transcript of the interview conducted by the reviewer with the applicant. The Court Book and Supplementary Court Book were taken into evidence. A document titled “GUIDELINES FOR INDEPENDENT MERITS REVIEWERS” was marked as Applicant’s Exhibit 1 (“AE-1”) (“Minister’s Guidelines”).

The Court’s Jurisdiction

  1. The reviewer’s decision was notified to the applicant on 21 April 2011 (see the application to the Court). The letter of notification was dated 21 April 2011 (CB 116). The application to the Court was made on 24 May 2011. Section 477(1) of the Act requires an application to this Court seeking review of the reviewer’s decision, pursuant to s.476 of the Act, to be made within thirty-five days of the date of the letter of notification of the decision (s.477(3)(d) of the Act).
  2. It appears in these circumstances that the application was made just on thirty-five days from the relevant date. In these circumstances no application for extension of time pursuant to s.477(2) of the Act was necessary. Consideration of this matter in any event proceeded on the basis that the application was made within the relevant time limit.
  3. The application as amended seeks, amongst other things, injunctive relief, and thereby engages the jurisdiction of this Court as explained by the High Court in M61/M69 (see variously at [8], [50] – [52] and [99] – [103]).

Ground One

  1. Ground one asserts a failure to comply with the principles of procedural fairness at common law. This is said to be in two ways.
  2. First, the reviewer did not put to the applicant the country information, set out in the decision record (at [17] at CB 122 to [21] at CB 128), which was adverse to the applicant’s interests and on which he relied to find adversely to the applicant.
  3. Second, the reviewer did not put to the applicant adverse findings, or otherwise give the applicant the opportunity to address these findings, about the applicant’s personal circumstances.
  4. In relation to country information the applicant’s position is that none of this was put to the applicant at the actual “hearing” (interview) by the reviewer.
  5. The applicant’s submission appeared to recognise that the applicant was generally on notice of the issues to which the country information related, and the tenor of the country information, but that the rules of procedural fairness required the reviewer to specifically put this information to the applicant at the “hearing”. It was also put that the information relied on by the reviewer was similar to what had been put previously, but was still different.
  6. I understood the applicant’s position to be that the reviewer set out in his decision record a series of reports from international sources (and extracts from these reports). The reviewer did not give the reports or the extracts set out in the decision record to the applicant at the “hearing”. The failure to give the “whole” of this information constituted a denial of procedural fairness.
  7. To the extent that the applicant’s references before the Court to a “hearing” sought to invoke some reference to, or analogy with, s.425 of the Act and what the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 (“SZBEL”), such an invocation does not assist the applicant.
  8. Section 425 of the Act is concerned with a statutory obligation on the Refugee Review Tribunal (“the Tribunal”) to invite an applicant to appear before it at a hearing to give evidence and present arguments “relating to the issues arising in relation to the decision under review”. These words are derived from s.425 of the Act itself.
  9. While it is the case that I respectfully understand the High Court’s analysis in SZBEL to be influenced by the common law principles of procedural fairness, the analysis was focussed on the decision-maker’s obligation as it arose from the relevant statute.
  10. In that case the decision-maker was required to ensure that the opportunity be given to an applicant to meaningfully participate in the hearing which was designed to provide the medium in which not just that evidence and argument be given per se, but evidence and argument be given specifically in relation to the issues arising in relation to the delegate’s decision which is the subject of the review before the Tribunal.
  11. Thus, in this context, the Tribunal’s obligation is discharged if those issues are drawn to the applicant’s attention as a result of the delegate’s decision. It is where a “new” issue emerges that the Tribunal must ensure the applicant is made aware of it at the hearing.
  12. The distinction between the current process and that before the Tribunal (which is conducted pursuant to Pt. 7 of the Act) was relied upon by the applicant’s additional argument that the reviewer was obliged to put all of this country information to the applicant at the “hearing” because the process before the reviewer was “de novo”.
  13. Without expressing it as such, I understood the underlying basis of the applicant’s argument otherwise, and in this latter regard, to be that the review in the current case was not analogous to the Tribunal’s review of the delegate’s decision. Therefore what the High Court said in SZBEL (as referred to at [39] above) does not apply in the current circumstances.
  14. The applicant may have sought to point to what was said in M61/M69 at [80]:
  15. It is clear the reviewer is required to bring an open mind to the proceedings before him. That is, to consider the claims “afresh” without being unduly influenced or prejudiced by what has been found before, and in accordance with the principles of procedural fairness. The Minister’s Guidelines relevant to these matters also make that clear. (See at 18 of 24 and “Attachment D” of “AE-1”.)
  16. Ultimately the focus on the word “hearing” before the reviewer, meaning the interview he had with the applicant, is a distraction from what is meant by the word “hearing” as understood by one of the limbs of the concept of procedural fairness at common law. Namely the “hearing rule”.
  17. The reviewer is required to act “fairly”. As was said by Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (“Kioa”), that is: “... in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestations of a contrary statutory intention.” (At 584.)
  18. While s.425 of the Act does not necessarily embody a contrary statutory intention it is, as I have said above, focussed on a particular statutory construct. That is, the invitation to a particular hearing and the opportunity to deal with the issues arising in the review at that hearing, if the issues have not already been brought out into the open.
  19. The reviewer’s relevant obligations here are not so shaped. The duty on the reviewer to act “fairly” arises from requirements at common law, which does not always require an actual “hearing”, as distinct from the applicant being heard.
  20. Here again Kioa (per Mason J at 582) provides the relevant direction. The common law “rule” of a hearing requires those affected by, relevant to this case, an administrative decision to have the opportunity to present their case in relation to a decision which affects them.
  21. This means such a person has a right to be told the substance of the case against them and to be given the opportunity to respond. This does not mean that an oral “hearing” is mandated in each and every case.
    As I said in Darabi v Minister for Immigration & Anor [2011] FMCA 371; (2011) 250 FLR 301 (“Darabi”) at [100], what is relevant is that:

“The answer lays in what Allsop J said at [27] and at the beginning of [28]: “Natural justice is ultimately a question of fairness”. This, with respect, is consistent with the authorities to which I have referred above. What is fair depends on the circumstances of the particular case. That is, it is those circumstances that will dictate what is required by way of procedural fairness. I emphasise that what is required is such as to ensure that the claimant knows the case against him, and has the opportunity to put his case.”

  1. In somewhat similar circumstances in Darabi I reviewed relevant propositions and authorities. The following are relevant to the current circumstances:
    1. At [85]:
      • “... starting point for any consideration of procedural fairness for this cohort of cases is M61/M69 itself. Relevantly (at [91]):
        • ‘Third, procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims... The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not.’”
    2. At [87]:
      • “... Flick J in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations [2011] FCA 370 at [34] gives clear relevant direction:
        • ‘First, irrespective of whether the requirement of disclosure is to be found by way of implication in s 487-10(1) or in the common law rules of procedural fairness, it is considered that the requirement is satisfied where the ‘substance’ of the legal and factual concern is disclosed. There is no requirement that the documents or other material relied upon need necessarily also be disclosed. Thus, in the context of procedural fairness, in M61/2010E v The Commonwealth [2010] HCA 41 at [91], [2010] HCA 41; 272 ALR 14 at 36 French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said that ‘procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims’. The ‘precise detail of all matters upon which’ a decision-maker intends to rely need not necessarily be disclosed: McVeigh v Willarra Pty Ltd [1984] FCA 379; (1984) 6 FCR 587 at 601 per Toohey, Wilcox and Spender JJ. See also: Karina Fisheries Pty Ltd v Evans (Unreported, Federal Court of Australia, Forster J, 1 July 1988).’”
    3. At [91] – [100]:
      • “91. The natural justice hearing rule, or, more relevantly, the accepted obligations of procedural fairness, require the decision-maker to give a claimant the opportunity to put his or her case. Fairness requires that a claimant be given the opportunity to be heard. An element of this is that the decision-maker has an obligation to unambiguously and clearly raise the critical issues on which the decision will turn (Kioa at 587, VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; (2003) 129 FCR 168 at [27]). There was no argument between the parties that the extent of this requirement is derived from the circumstances of each particular case (Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 672 per Gaudron J).
      • 92. There is a clear requirement of fairness that a claimant be informed of the type of matters that the reviewer may take into account, but this does not lead to the proposition that procedural fairness requires the claimant to have the opportunity to comment on all “adverse” information irrespective of its credibility, relevance or significance (Kioa at 628 per Brennan J).
      • 93. The reviewer’s obligation, and indeed the claimant’s entitlement, is to have the claimant’s mind directed to the core or critical issues on which the decision will turn. This is, of course, so that the claimant will have the opportunity of dealing with it (Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 591). This is especially the case where the critical issue to the decision is not apparent from its very nature or even the terms of the statute under which it is made (here the Migration Act). (Ex parte Miah at [194] per Kirby J.)
      • 94. Relevantly, again depending on the circumstances of the particular case, procedural fairness at common law may require that country information be put to the claimant as a matter of fairness (Ex parte Miah, WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188), particularly where the country information is determinative of the assessment or decision (Muin at [24], [131] – [137] per McHugh J, at [229] – [236] per Kirby J, at [263] – [268] per Hayne J, with whom Gummow J agreed and at [64] per Gaudron J, Ex parte Miah at [97] – [99] per Gaudron J, at [140] – [141] per McHugh J, at [193] – [194] per Kirby J, Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at [144]).
      • 95. But here again, and depending on the circumstances, where the country information is used by the reviewer as a basis against which to assess a complainant’s claims, procedural fairness does not require that country information, even where it is perceived to be of relevance, be provided as long as the issues of concern are raised and the claimant has an opportunity to put his or her case (VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 (‘VHAP of 2002’) at [27] – [28] per Allsop J, Gyles and Conti JJ agreeing at [17]).
      • 96. Some caution must be taken with the bald assertion made in the respondent’s written submissions (at [15] – page 5) that: ‘Fairness does not require the provision to an applicant of the documents or the specific text of country information in which the information might be contained’.
      • 97. The Minister says he relies on, in part, VHAP of 2002 per Allsop J at [27] – [28] in support of this submission:
        • ‘[27] Natural justice and the analysis of whether, in any case, it was afforded is not a process of syllogistic reasoning. One does not approach it thus: the person is entitled to adverse material, this material was relied on in reaching an adverse result, that makes it adverse material, it was not provided in terms, therefore there has been a failure to afford natural justice.
        • [28] Natural justice is ultimately a question of fairness. The appellant here came to the Tribunal armed with her material about her country of origin in order to persuade the Tribunal to reach a state of satisfaction about her, China, and her future: that she had a well-founded fear of persecution for a Convention reason should she be required to return to China. In order to perform the task required of it by ss 36 and 65 of the Migration Act 1958, the Tribunal was required to inform and educate itself about China generally, and about aspects of Chinese life and affairs pertinent to the appellant’s claims. In so analysing that material the Tribunal might form a view about the appellant or her version of events, which fairness dictated, must be raised. That was done here. The Tribunal will often have a store of experience and knowledge about the country in question without the need for specific reference to material. Sometimes, as here, it will reach for specific material for assistance. In doing so it was only informing itself of matters against which to assess the claims of the appellant. If, as here, subjects of concern are raised, I do not see how fairness requires provision of the specific text of country information seen to be of relevance.’
      • 98. It is the case that Allsop J states, with respect, with reference to the circumstances before him, that where subjects of concern are raised there is no need as a matter of fairness to provide the specific text of the country information.
      • 99. In my respectful view this still allows for the possibility that it should be provided where, for example, the subjects of concern are raised in such a way, or are of such character, that the claimant can only have the opportunity to meaningfully respond when he has been given the actual text.
      • 100. The answer lays in what Allsop J said at [27] and at the beginning of [28]: ‘Natural justice is ultimately a question of fairness’. This, with respect, is consistent with the authorities to which I have referred above. What is fair depends on the circumstances of the particular case. That is, it is those circumstances that will dictate what is required by way of procedural fairness. I emphasise that what is required is such as to ensure that the claimant knows the case against him, and has the opportunity to put his case.”
  2. What then are the particular circumstances of this case in which it is said the reviewer failed to provide procedural fairness at common law?
  3. The applicant’s attack centres on three areas. The first is the country information set out in the reviewer’s decision record (said to be at [17] at CB 122 to [19] at CB 125). This information, drawn from a 2009 US State Department Report and the Refugee Review Tribunal’s advice to the reviewer, concerns human rights abuses in Sri Lanka.
  4. The applicant’s submissions, both oral and written, make no real attempt to explain how this information was adverse to the applicant’s claims, such that it constituted the case against him, and in respect of which the reviewer failed to provide him with an opportunity to be heard.
  5. That is, there was nothing put to argue that the information was, as was said in Kioa (at [38] per Brennan J), “credible, relevant and significant” to the decision.
  6. Here I agree with Mr Bevan that the information was not necessarily adverse to the applicant’s claims, nor adversely relevant and significant to the decision made. The human rights abuses set out in this report were expressly accepted by the reviewer (see at [26] at CB 129):
  7. This situation is different, however, to the second set of information relied on by the applicant. This is set out in the reviewer’s decision at [19] (at CB 125) to [20] (at CB 127). In essence this information derives from three sources and is concerned with the situation of Tamil returnees to Sri Lanka.
  8. There are three reports:
    1. Advice from the Refugee Review Tribunal in April 2010 (CB 125).
    2. “Global Tamil News Report” of 29 April 2010 (CB 127).
    3. The Minister’s department’s “Country Guidance Note” of 28 October 2010 (CB 128).
  9. The applicant’s position is that the reviewer relied on this information (see at [28] at CB 129) yet no reference was made to it at the interview, nor otherwise during the process of the review. That given that in M61/M69 (at [85]) the High Court found error in that none of the country information was put to the applicant at the interview, so too in this case.
  10. The applicant also relied on SZPAC v Minister for Immigration & Anor [2011] FMCA 517, where the Court drew on M61/M69 to find that the information subsequently relied upon was not given at the interview. Jurisdictional error was found in the circumstances.
  11. In this latter regard, the circumstances in that case are clearly distinguishable. The information was contained in a document dated after the interview. Plainly, if the reviewer in that case relied on information to find adverse to the applicant, information that was “credible, relevant and significant”, then the reliance on M61/M69 was, in my respectful view, to draw on the proposition that the information was not given at the interview. It could not have been, in the circumstances. The inability to do so at the interview in circumstances where it was relied upon therefore led to jurisdictional error.
  12. The applicant also relies on the Ministerial Guidelines (at page 12 of 24):
  13. I did not see that this advanced matters beyond what is a simple expression of a procedural fairness principle at common law. It does not assist in the consideration of whether they require that adverse information to be given at an interview as opposed to any time during the conduct of the review, such that an applicant knows the case against them and is given the opportunity to respond.
  14. It is indeed the case that the Minister’s Guidelines require an invitation to comment on adverse information, but I do not see that they necessarily require that this only be done at an interview.
  15. The Minister relies essentially on the proposition that common law procedural fairness requires the applicant to be on notice of the matters on which the decision turns, and to be given the opportunity to respond.
  16. The Minister’s submissions, not unnaturally, and it must be said in contrast to the approach by the applicant, focussed on what the reviewer actually found. It is the case that for the applicant to succeed, it is not sufficient to say simply there was country information, it was not put at the interview, and therefore jurisdictional error follows.
  17. It is where information that is credible, relevant and significant to the outcome, and is not put or known to the applicant, such that he has the opportunity to answer the case against him, that jurisdictional error occurs. If the information was not part of the case to answer and in that sense adverse to the applicant’s cause, then it is difficult to see how error can be said to ensue.
  18. The great beauty of the common law is that it calls on common sense for what is fair, rather than on some artificial construct which sometimes makes no sense and may be said to be otherwise, or objectively, unfair. The obvious example is that, under the statutory code, country information of a non-in personam nature, even though it may be adverse to an applicant’s cause, does not have to be put to the applicant (ss.424A(1), 424A(3) and 424AA).
  19. In any event the Minister focussed on [26] (at CB 129) of the reviewer’s decision record:
  20. The first part of that paragraph, as set out above (at [55]), does not provide any assistance to the applicant’s case. As Mr Bevan submitted, that information cannot be said to be adverse to the applicant’s cause.
  21. It is to the last sentence that attention must be given (at [68] above). That finding, or observation, by the reviewer is clearly taken from what is said in the “Global Tamil News Report” (see [57.2] above), which was concerned, amongst many other things, with the return of “displaced Tamil civilians” to their home districts (see at CB 127).
  22. In the circumstances of this case I agree with the Minister that there was no obligation at common law for the reviewer to have put this information to the applicant at the interview, or otherwise.
  23. The reason is that the applicant (and his representatives) already knew the case against him in this regard, and were cognisant of the substance of the information referred to by the reviewer.
  24. The issue of the situation regarding Tamil returnees to Sri Lanka was a live issue before the initial assessor. The assessor’s decision record made extensive reference to country information in this regard (CB 94.5 to CB 96).
  25. That the applicant and his advisors were alert to this issue and the country information attendant on it, and understood its importance to the review, is seen in submissions made by them to the reviewer on 3 September 2010 (see in particular at page 5 of the submissions at SCB, and country information at page 6):
  26. The comparison here can be made with what the reviewer relied upon (see at CB 95 to CB 96). Mr Bevan conceded that the three sets of country information (the initial assertions, the representatives’ and the reviewer’s) were not identical.
  27. However I agree with the Minister that the obligation to be discharged by the reviewer was that the applicant had the right to know the case against him, and the opportunity to answer that case before the reviewer. The applicant knew the case, and had been exposed to the substance of the country information which ultimately informed and was relied upon by the reviewer. I cannot see any failure of procedural fairness in these circumstances.
  28. Ms Bell sought to rely on what was said by the High Court in M61/M69 at [80] (see at [42] above).
  29. Her submission was that the words “the steps taken” and “overtaken” should be understood as saying that, whatever had occurred before, the reviewer started with a “clear slate” and had to go through all the “procedural steps again”.
  30. I do not agree. I respectfully do not understand the High Court to have said this.
  31. First, as the heading above that paragraph makes clear (“Plaintiff M61 – Procedural fairness and error of law”) the High Court (at [80] and immediately following) was focussed on “the steps taken” in the sense that the focus of their consideration of “fairness” was on the procedures taken, and not on the ultimate outcome (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1).
  32. Second, the starting point in the consideration was the submissions made on behalf of M61. With respect, I understand the plain language used to say that these submissions focussed on the process before the reviewer, rather than the process (“steps”) before the initial assessor, because any procedural fairness issues, or error at law, at the initial stage was “overtaken” by the process before the reviewer whose recommendation was the one to be considered by the Minister.
  33. I respectfully do not see any of this providing support for the applicant’s position that what had previously occurred was to be ignored by the reviewer. The process before the initial assessor was not to be “focussed” upon in litigation because the reviewer’s process was the relevant process, and the decision for consideration by the Minister and therefore the Court on judicial review.
  34. What is further missing in the applicant’s submissions now is some understanding that the review is not conducted in isolation. As the Minister’s Guidelines make clear, the process before the reviewer is a continuation of a process commenced “within 48 to 72 hours of the” applicant’s arrival in Australia (page 1 of 24). That process, at each stage, is concerned with the question of the applicant’s call on Australia’s protection and whether Australia is obliged to respond to that call in a way positive to the applicant.
  35. Ultimately the applicant, and his advisor, did not come to the review with a mind “blanked out” as to what has occurred in the past. They knew what had gone before. In this context, and in this sense, while the reviewer is obliged to consider the applicant’s claims and circumstances with a fresh mind, as explained above, the reviewer is entitled to have regard to what has been said and done in the past.
  36. In the current case the applicant knew the case against him in terms of the substance of the “credible, relevant and significant” country information adverse to his claims. The advisors plainly knew of it, they made submissions to the reviewer. In these circumstances I cannot see legal error.
  37. The final particular under ground one also does not assist the applicant. The assertion here is that the reviewer failed to alert the applicant at the “hearing” to the issues to which the reasoning processes were directed. The complaint is that the reviewer did not put adverse findings, as subsequently expressed in the decision record, to the applicant for comment.
  38. Some distinction needs to be made between “issues” and the reviewer’s thought processes which led to the adverse findings in the context of these “issues”.
  39. To the extent that the applicant relies on the matter of “issues” and SZBEL, as set out above, that consideration, in my respectful understanding, was focussed on and derived from s.425 of the Act, which does not apply to the current circumstances.
  40. To the extent that the word “issues” is used to convey some complaint that the applicant did not know the case against him, that also must be rejected in light of what is set out elsewhere above.
  41. Finally, as the Minister submits, the reviewer was not obliged to give the applicant a running commentary on his thought processes.
  42. To the extent that the High Court, in my respectful view, sought to draw from general principles of procedural fairness and apply that understanding to s.425 of the Act, then SZBEL stands in support of that proposition above, as the Minister submits.
  43. The following also stands in support of the proposition expressed at [90] above: Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 (“Ex parte Applicant S154/2002”) per Gummow and Heydon JJ at [54], and per Kirby J at [85] – [86], Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 592, WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 per French J (as he then was).
  44. This of course must be seen in the context, consistent with the applicant’s right to know the case against him, of any adverse conclusions not obviously open on the material before the
    decision-maker, or an obvious evaluation of that material (Ex parte Applicant S154/2002 per McHugh J at [48] and per Kirby J at [86] and NAJK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 163 per Jacobson J).
  45. Again, it is to be stressed that an applicant should not be left unknowing as to the risk of an adverse finding, and therefore deprived of an opportunity to put probative material in support of his position (Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 176 ALR 219 per Gaudron and Gummow JJ at [78] and per McHugh J at [101]).
  46. In the current case the applicant and his advisor knew that country information existed concerning the situation of Tamil returnees to Sri Lanka. His advisors made submissions and provided other material to the reviewer in response to this. The applicant’s particular “(c)” to ground one does not reveal legal error.
  47. In all ground one is not made out.

Ground Two

  1. In ground two the applicant asserts that the reviewer’s decision was affected by legal error because the reviewer failed to “adequately” consider, or take into account, or give “genuine consideration” to, the grounds upon which the applicant’s claim was made.
  2. I understand ground two to assert the type of error considered in such authorities as NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244. It must be said there appeared to be some difficulty in obtaining a clear articulation as to how the reviewer was said to have fallen into error in this regard.
  3. In the particular circumstances of this case, general assertions that the reviewer failed to give proper consideration to country information on its own, and as the country information relates to the applicant’s claims, would appear to be no more than a challenge to the facts as found by the reviewer. In other words, a call for the Court to engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481 (“Wu Shan Liang”)).
  4. In any event, the applicant asserts that the reviewer failed to understand, and therefore failed to consider and properly deal with, the following aspects of his claims:
    1. The reviewer did not consider that the applicant had been arrested a number of times and asked to identify people said to be linked to bombings in his village.
    2. The significance of his personal circumstances in coming from his particular village (Valvettithurai).
    3. The reviewer focussed on the “shooting incident” and was thereby diverted from considering the “real” or substantial reasons advanced in the claim.
    4. This incident is “elevated” to be the applicant’s substantive subjective reason for fearing persecutory harm.
    5. The reviewer did not give proper consideration to the claims advanced by the applicant in his Statutory Declaration and submissions (no particularity provided).
  5. In attempting to give some shape to the applicant’s far ranging and in great part generalised complaints before the Court, a number of factors must be noted.
  6. First, the applicant’s claims evolved, and were explained and refined, over time. The reviewer is obliged to deal with claims as they survive and are ultimately pressed. There is no obligation on the reviewer to deal with claims abandoned.
  7. Second, that the reviewer may have emphasised some of the applicant’s evidence in his recorded analysis does not of itself reveal error. This is simply part of the process of evaluation with which the reviewer has been tasked.
  8. The applicant’s submissions now appear to focus on the Statutory Declaration and the advisors’ written submissions, without proper regard to the transcript of the interview which he has caused to be put before the Court.
  9. The applicant’s Statutory Declaration is reproduced at CB 56 to CB 58. Ms Bell submitted that the Statutory Declaration repeats the claims and integers of claims previously made by the applicant. The scope of the applicant’s claims to fear persecutory harm as expressed here is that he fled Sri Lanka because he feared harm (on return) from the Sri Lankan authorities because, as an ethnic Tamil from Valvettithurai (as indicated on his identity card) he was, and would be, suspected of involvement with the LTTE.
  10. The applicant recounted instances of past harm, including being stopped and detained after having undergone “compulsory training” with the LTTE, and during 2007 and 2008 taken for questioning every time a land mine was found in his home area.
  11. The applicant also recounted an incident where he witnessed a gunman who “fired a bullet” near his “snack” shop. He recognised this person and agreed to cooperate with the police. He subsequently “received calls” from people who said they were the police “but they were not”.
  12. The advisors’ submissions are reproduced in the SCB. Here the applicant’s claims were said to be those set out in the Statutory Declaration, and as set out in the submissions (page 1 and throughout).
  13. While the submissions are conveniently grouped under relevant questions and refer to legal authority and country information, they do not expand the ambit of the applicant’s claims other than to provide some depth. An example of this is with the provision of country information concerning the current situation of Tamils in Sri Lanka (see page 5 and following).
  14. As I understood it, the thrust of the applicant’s complaint was that the reviewer focussed on the claims made at the interview and failed to properly deal with the totality of claims made.
  15. This is said to be seen here where, at the interview, the reviewer focussed on the “shooting incident” outside the applicant’s shop (see at T5, line 5 of the transcript of the interview) to the exclusion of other matters advanced by the applicant. The submission is that, at the interview, the applicant did not necessarily repeat all the claims previously made.
  16. In this regard, Ms Bell referred to T15, line 9 to T15, line 16 (see also T16 – T17) (Mr Hammond was the applicant’s advisor):
  17. The interview canvassed the following matters:
    1. Documents provided by the applicant and personal circumstances relating to his family (T3 – T4).
    2. Why the applicant left Sri Lanka: the claim of threats to his life from the authorities (T5).
    3. The “shooting incident” (T5 – T7).
    4. The applicant’s evidence as to why the authorities were interested in him: he had been “compulsorily” trained by the LTTE (T7).
    5. That he was beaten by the authorities whenever he was caught in a “round up” (T8).
    6. The applicant’s return from India to Sri Lanka (Colombo) (T8).
    7. His “Valvettithurai identity card” (T8).
    8. Travel to Australia and his family’s travel to India (T9 – T10).
    9. The reviewer told the applicant he found it difficult to believe his claims as to why he could not return to Sri Lanka or go to India (T11 – T14).
    10. The representative, through the applicant, sought to clarify who it was who rang the applicant after the “shooting incident” (T14 – T15).
    11. The representative emphasised that in the applicant’s “statement” he said he had been arrested a number of times and asked to identify people who were involved with bombings in his area. The assertion was that that had not been covered at the interview and (T15, line 13 to T15, line 14):
      • “... It’s really at the core of his fear of the Sri Lankan army persecuting him due to a suspicion of being involved with the LTTE.”
    12. Further detail by the applicant as to what occurred in the
      “round-ups” (T16).
    13. The advisor’s submissions concerning returnees and suspicion of involvement with the LTTE (T17 – T18).
  18. It must be said that the applicant’s attack confuses claims made, and in particular integers of claims made, with evidence and assertions put in support of these claims. It fails to recognise that the key reason for interviews (or for that matter hearings) is to clarify an applicant’s claims to fear persecution, to enable the decision-maker to test the claims and evidence, to put the applicant on notice of matters adverse to him not already otherwise in evidence, and to give him the opportunity to give his explanations.
  19. It is not meant as an opportunity to go over ever minute detail ever put forward by an applicant (or his advisor). It is those claims (and integers of claims) that go to answer the central question of whether the applicant meets the definition of “refugee” that are crucial.
  20. In relation to particular “(a)”, it is the case that the applicant claimed to fear persecutory harm from the Sri Lankan authorities, in particular the Sri Lankan army.
  21. At the interview the representative asserted that a core part of the applicant’s claim was that he had been arrested a number of times and asked to identify people who were involved with bombings in his area (see [113.11] above).
  22. It is the case that the applicant was reported as having said at an interview conducted soon after arrival in Australia that he was taken by the Sri Lankan army in “round-ups”, beaten, and that the authorities knew he had received training and wanted information about others who had undergone training (CB 22.7). There was no specific reference beyond this to say that they wanted information about the bombers, although it may be allowed that this can be inferred in context.
  23. It is this latter that attracts the applicant’s attack at particular “(a)” (information about others).
  24. The applicant particularly refers the Court to [11] (at CB 120 to CB 121) of the reviewer’s decision, where the Statutory Declaration is reproduced (without headings). Contrary to the applicant’s assertions now, that particular detail was not repeated in the applicant’s Statutory Declaration.
  25. Nor does it appear in the representative’s written submissions (see SCB).
  26. At the interview with the reviewer it is important to note the following.
  27. At the beginning of the interview, the reviewer told the advisor that he had his written submissions. Then (T3, line 14 to T3, line 17):
  28. Throughout the interview, while it was made clear by the applicant that he sought protection because he feared persecutory harm, and that this was based on the authorities’ view of his ethnicity and village origins, and as revealed by instances of past harm such as being detained in round-ups, there was no mention of the reason for this being that they wanted him to identify any person who planted bombs.
  29. Mr Bevan emphasised in submissions that even when pressed (towards the end of the interview), the applicant made no mention of this. The following is relevant (T14, line 29 to T16, line 10):
  30. What must not be forgotten is, as trite as it is to say, that the claims to persecutory harm are the applicant’s, not the advisors’. In the circumstances, Mr Bevan was correct in his submissions that there was ultimately no obligation on the reviewer to specifically address and to make a finding in relation to being asked to identify people who planted bombs.
  31. As the transcript of the interview reveals, the applicant himself either abandoned this factual assertion or chose not to press it. Whichever of these, what remains clear is that he was given the specific opportunity to identify the exact nature of the problems with the authorities. The reviewer addressed his claimed, as ultimately presented, problems in his decision record.
  32. I also accept Mr Bevan’s submission in the alternative that the particular of being asked to identify those who planted bombs does not advance the strength of the claim advanced by the applicant.
  33. That claim was that he was of interest to the Sri Lankan authorities because of his Tamil ethnicity, his village origins, and because he had been trained by the LTTE. Further, that he had been picked up in round-ups, detained and beaten. That he was asked certain questions during this detention does not in the circumstances materially add to the seriousness of the harm claimed to be feared. Nor did it provide in the circumstances a separate reason for being “picked up”.
  34. The reviewer’s findings were that he was not of specific interest to the authorities, but was picked up in random round-ups, and even in circumstances where the authorities knew he was trained by the LTTE, and was arrested and beaten, he was “... Nevertheless... released on each occasion...” ([25] at CB 129).
  35. In these circumstances the reviewer’s finding is such that, whatever questions may have been asked of him, he was “nevertheless... released”. This finding was open to the reviewer. In all the circumstances, I cannot see error as asserted in particular “(a)”.
  36. The particular at “(b)” asserts the reviewer failed to take into account or give genuine consideration to the significance of the applicant’s personal circumstances, including that he came from a particular village. The reference here is again to the reviewer’s reproduction of the applicant’s Statutory Declaration (at [11] in the decision record at CB 120).
  37. The answer to the applicant’s complaint here is that the reviewer accepted that some young Tamil males from the north and east had suffered serious harm in the aftermath of the conflict in Sri Lanka ([26] at CB 129).
  38. There is nothing in the applicant’s claim to have come from a particular village in the north-east that goes beyond that finding as made by the reviewer. The applicant’s claim was that his “ID” identified him as coming from a particular village. The significance of this was that this identified him as coming from a “Tamil area” in the north-east. The reviewer’s relevant findings encompassed that detail.
  39. That he may have been able to identify people from his home village who planted bombs, as the applicant’s submissions now claim, is dealt with above, and does not succeed for the same reasons.
  40. At particulars “(c)” and “(d)” the applicant complains that the reviewer gave greater emphasis to the “shooting incident” and saw this as the basis for the applicant’s subjective fear of the authorities. That as a result he did not give proper or realistic consideration to the actual claims advanced by the applicant (particular “(e)”).
  41. Again, to some extent, the applicant relies on the transcript of the interview to support these assertions. It is the case that the “shooting incident” was discussed at the interview, however any plain reading of the “Findings and Reasons”, which is the reviewer’s analysis of the claims, his consideration of them, reveals that the applicant’s claims to fear harm were properly understood and considered.
  42. The reviewer understood that he feared harm from the Sri Lankan authorities because of his “age and Tamil ethnicity his basic military training with the LTTE”. That he also feared harm because of the “shooting incident” was additional to these ([24] at CB 128 to CB 129).
  43. The reviewer dealt with each. See (in the reviewer’s analysis):
    1. [24] – for the “shooting incident”.
    2. [25] – that he was generally a target.
    3. [26] – young Tamil males and those suspected of LTTE links.
    4. [27] – a young Tamil male from the north.
    5. [28] – risk as a returnee.
  44. That the reviewer gave certain weight to the “shooting incident” does not lead to support a claim that he misunderstood the claims or failed to properly deal with them.
  45. In all ground two is not made out.

Ground Three

  1. In ground three the applicant asserts a denial of procedural fairness in that the reviewer failed to apply the correct “legal principles” and did not consider the grounds put forward by the applicant.
  2. It must be said that the exact nature of the legal ground sought to be advanced was never made clear. For example is the complaint one of a failure to apply the correct law, or asking the wrong question, a failure to consider an integer of the applicant’s claims, or something else?
  3. At best, I understood from oral submissions that the complaint is that the applicant had claimed to fear returning to Sri Lanka because of a Convention reason, and that that fear was linked to returning as someone who had left the country illegally.
  4. Further, that there was country information before the reviewer to show that such returnees would suffer persecutory harm. The submission was that this was sufficient to link the applicant’s claims to the Convention and the reviewer did not properly deal with it.
  5. I agree with Mr Bevan that the thrust of the ground, as asserted in the application, that is that the reviewer failed to deal with an integer of the applicant’s claims, is not made out for all the reasons set out above in consideration of ground two.
  6. I should just note that to the extent that the application asserts that the applicant claimed to fear persecutory harm from the LTTE, then the applicant has failed to show on the evidence presented that he ever claimed to fear harm on return from the LTTE. The reference to “Line 553 of the transcript” in the particulars is meaningless given the page specific numbering system used in the transcript, which in any event appears to only contain a total of 527 lines. In any event this was not pressed before the Court.
  7. The applicant’s claim that he received telephone calls from people after he began to cooperate with the police never rose above a vague explanation by the applicant that it was not the police who made the calls.
  8. In any event, the reviewer directly dealt with this claim. He found that there was “no evidence to suggest” the “shooting incident” and its aftermath was “a political matter”. The reviewer plainly considered all possible groups which in the circumstances could have made the telephone calls. These included “the LTTE” (see [24] at CB 129). These findings were open to the reviewer on what was before him.
  9. What is left is what the reviewer plainly said at [28] (at CB 129):
  10. In the circumstances the applicant’s ground, as explained in submissions, does not rise above a request for impermissible merits review (Wu Shan Liang). The reviewer’s finding at [28] (at CB 129), in light of country information before him, was reasonably open to him. As I have already found, the reviewer’s earlier finding at [25] (at CB 129) which rejected the claim that the applicant would be of interest to the authorities on return, was equally open to him, and was a finding for which he gave reasons.
  11. I should just note that the applicant relied on MZYLF v Minister for Immigration & Anor [2011] FMCA 621 (“MZYLF”) at [29] – [33], where Riethmuller FM found that there had been a failure to consider one of the applicant’s grounds, namely the failure to deal with a Sri Lankan applicant’s claim to fear persecutory harm on return, on the basis of returning after leaving illegally, instead dealing with the claim on the basis of the applicant being a failed asylum seeker (at [32] – [33]).
  12. How this follows from the extract of the reviewer’s decision record reproduced at [31] of MZYLF remains, with respect, unexplained. It may be that this would become clearer if the reviewer’s subsequent reasoning (as referred to at [32] of MZYLF) was set out there. On its face I respectfully could not follow the distinction sought to be made in the circumstances as explained in that case. Again with respect, and on that basis, I do not find it persuasive as precedent to be followed on the basis of comity.
  13. In any event the circumstances of this case are plainly distinguished from what apparently was before the Court in MZYLF. The extract referred to at [150] above makes it clear that the reviewer in the current case understood the claim to be based on having left illegally. He dealt with it on that basis.
  14. No legal error is revealed by ground three.

Ground Four

  1. In ground four the applicant asserts that the reviewer fell into legal error by failing to comply with common law procedural fairness by not having regard to all of the information put forward by the applicant.
  2. The particulars explain that at the interview the applicant provided certain documents (three articles) in the Tamil language. The reviewer did not have the documents translated, and he should have done so. The complaint is that it was insufficient for the reviewer to simply ask the applicant about the documents.
  3. A further iteration of this complaint is that by “receiving the documents the reviewer purported” to intend to give them proper consideration “to the documents”, and thereby implied that there was no obligation on the applicant to have them translated.
  4. This latter was not pressed or explained in written or oral submissions. In any event it does not ultimately assist the applicant, given the consideration below.
  5. Before the Court Ms Bell relevantly referred to the transcript:
    1. At T3, line 16 to T3, line 18:
      • “HAMMOND: No, nothing that I’m aware of. The applicant’s brought some newspaper articles with him.
      • REVIEWER: All right, I’ll look at those now.”
    2. At T3, line 24 to T4, line 24:
      • “REVIEWER: Right. Thank you. [Applicant] because they’re not in English they’re of little assistance to me I’m afraid, but you can tell me about them if you want to.
      • CLAIMANT: (THROUGH INTERPRETER): Can I tell you now?
      • REVIEWER: Yes.
      • CLAIMANT: (THROUGH INTERPRETER): The headline says that the Government still has suspicion of the people of the north.
      • REVIEWER: Yeah?
      • CLAIMANT: (THROUGH INTERPRETER): The headline says that the Tigers are engaged in reforming themselves in order to create a Tamil ullam and the next sub-heading says that in the last month 4,562 people have been arrested.
      • REVIEWER: Yeah?
      • CLAIMANT: (THROUGH INTERPRETER): So the next one says that there are a large number of, thousands of army, armed soldiers are being hit in the area which is known as Barumbarachi East.
      • REVIEWER: And the people are being what in that area?
      • INTERPRETER: They are bringing in and heaping a large number of, bringing a large number of soldiers there, the Tamil ones, they are being heaped here, and because of that the people are all getting very nervous and afraid.
      • REVIEWER: Mm-hmm?
      • CLAIMANT: (THROUGH INTERPRETER): A person who went by plane from India to Sri Lanka is missing. From the airport he is missing.
      • REVIEWER: Are these all from the same newspaper or different newspapers?
      • CLAIMANT: (THROUGH INTERPRETER): They are from different newspapers.
      • INTERPRETER: He gives the name of the newspapers.
      • REVIEWER: Tell me what the newspapers are?
      • CLAIMANT: (THROUGH INTERPRETER): These two newspapers are called Udien(?) which means ‘the rising sun’. This one is an Indian paper which says Padyu(?) which means ‘record’. This is cut from somewhere. I am unable to say as to from where it has come.”
  6. Ms Bell submitted that decision-makers “are not necessarily under a duty to translate documents that are presented untranslated”, but that the common law rules of natural justice require that if such documents could have been easily translated the reviewer was under a duty to have them translated, and to then consider them as part of the applicant’s case.
  7. The applicant relies on X v Minister for Immigration & Multicultural Affairs [2002] FCA 56; (2002) 116 FCR 319 (“X”), particularly at [29] – [30] per Gray J. The argument is that the current circumstances are on a par with what was presented in X where the decision-maker was said to have proceeded not to consider the document in that case because it was not translated.
  8. The argument continues that nor did the reviewer in the current case arrange for the documents to be translated at the “hearing”. The submission was that they were short documents and this could easily have been done.
  9. I should just note that, although referred to in written submissions in relation to this ground, a number of other cases were not pressed or handed up during the course of the hearing: MZXTZ v Minister for Immigration & Citizenship (includes Corrigendum dated 17 August 2009) [2009] FCA 888, WAIQ v Minister for Immigration [2002] FMCA 319 and Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151. I can only speculate that, as for example with the latter case’s focus on the duty to inquire, these authorities ultimately go beyond the scope of the complaint as pressed.
  10. For present purposes what was said in X (at [29] – [30]) must respectfully also be considered in the context of what was also said by another Full Federal Court in Cabal v Minister for Immigration & Multicultural Affairs (Includes Corrigenda dated 15 May 2001) [2001] FCA 546 per Wilcox, Whitlam and Marshall JJ at [25]:
  11. In my respectful view Moore J in S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (with Corrigendum dated 3 February 2004) [2003] FCA 1153, who was part of the majority in X with Gray J, provides the direction for this Court now (at [49]):
  12. Just so in the current case. The reviewer did not just reject the documents (newspaper articles) because they were untranslated.
    He invited the applicant at the interview to tell him about these documents. The applicant proceeded to do so.
  13. At three points the reviewer sought some clarification from what the applicant said was in one of the documents (see at T4, lines 7, 15 and 20).
  14. As Moore J said of the circumstances before him, the reviewer in the current case asked the applicant about the newspaper articles and he ascertained the “gist” of the documents in order to understand the way in which the applicant sought to rely on them.
  15. I accept Mr Bevan’s submission that the reviewer’s initial response (that because the documents were not in English they were of “little assistance”) was plainly put in the context that, in that form, they could not assist him.
  16. What follows, however (“you can tell me about them”), takes the circumstances of this case out of the circumstances found in X, where the material in question was completely ignored because it was not translated.
  17. It must not be forgotten that the applicant’s representative was present at the “hearing”. The applicant therefore would have had the opportunity to have pressed anything further in relation to these newspaper articles.
  18. As to whether these documents were “considered” beyond what was said at the interview, the reviewer’s record reveals that he acknowledged that these documents were put before him, and recounts the applicant’s explanation of their relevance to his claims (see [12] at CB 121).
  19. What the reviewer made of these documents, as explained, is a matter for the reviewer in the evaluation of the evidence before him. It was a part of the fact finding exercise central to the task allocated to him.
  20. To the extent that the applicant told the reviewer that the articles dealt in turn with the authorities’ suspicion of “the North”, that a large number of people had been arrested in the previous month, and that “thousands of soldiers are coming into the area”, this was all part of the substance of the country information ultimately considered by the reviewer.
  21. It is interesting to note that, while the applicant’s particular refers to three documents (see particular “(a)”), the transcript reveals there was a fourth (see T4, line 13 to T4, line 14). In any event, the reviewer also noted that this was before him (see [12] at CB 121).
  22. The ground therefore as pleaded, particularised, and explained, is not made out.

Conclusion

  1. With the benefit of legal assistance and representation, none of the grounds the applicant has put before the Court are made out. The application should therefore be dismissed. I will make an order accordingly.

I certify that the preceding 178178one hundred178178seventy-eighttwenty-sixone hundred and seventy-eight (178) paragraphs are a true copy of the reasons for judgment of Nicholls FM


Date: 21 December 2011

[1] Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”).

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