SZQFU v Minister for Immigration & Anor [2011] FMCA 599 (29 September 2011)

Last Updated: 3 October 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQFU v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 599

MIGRATION – Review of a recommendation of an Independent Merits Reviewer in respect of an offshore entry person seeking protection in Australia – applicant claiming ethnic and political persecution in Sri Lanka as a Tamil and imputed LTTE supporter – applicant’s claims of past harm not believed – whether the Reviewer was biased – whether he failed to accord procedural fairness to the applicant and whether he overlooked relevant material considered.

Migration Act 1958 (Cth), ss.5, 46A, 195A, 476, 477

Darabi v Minister for Immigration & Anor [2011] FMCA 371 Haoucher v Minister for Immigration [1990] HCA 22; (1990) 169 CLR 648 Kwan v Kang [2003] NSWCA 336 Minister for Immigration v Guo (1997) 191 CLR 559 Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507 NAHI v Minister for Immigration [2004] FCAFC 10 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 State of South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378 Steed v Minister for Immigration (1981) 37 ALR 620 SZEHN v Minister for Immigration [2005] FCA 1389 SZKPH v Minister for Immigration [2008] FCA 707 SZQFD v Minister for Immigration [2011] FMCA 598

Applicant:

SZQFU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 975 of 2011

Judgment of:

Driver FM

Hearing date:

2 August 2011

Date of Last Submission:

24 August 2011

Delivered at:

Sydney

Delivered on:

29 September 2011

REPRESENTATION

Counsel for the Applicant:

Mr L Robison

Solicitors for the Applicant:

Barwick Legal

Solicitors for the Respondents:

Mr A Markus

ORDERS

(1) The amended application filed on 9 August 2011 is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 975 of 2011

SZQFU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application for judicial review of a recommendation of an Independent Merits Reviewer (“the Reviewer”) in respect of an “offshore entry person” as that term is defined in s.5(1) of the Migration Act 1958 (Cth) (“the Migration Act”).[1] The recommendation was made on 1 April 2011. The reviewer recommended to the Minister that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention[2]. The following statement of background facts is derived from the submissions of the parties.
2. The applicant is a citizen of Sri Lanka of Tamil ethnicity,[3] who arrived on Christmas Island on 7 February 2010. The applicant was subject to an entry interview on 12 March 2010,[4] and on 24 April 2010 lodged a request for a Refugee Status Assessment (RSA) with the assistance of a migration agent.[5]
3. The applicant was interviewed by an officer of the Minister’s Department (the RSA Assessor) on 27 April 2010 and again on 4 May 2010.[6] On
   22 July 2010 the RSA Assessor made an assessment that the applicant was not a refugee.[7]
4. The applicant lodged a request for Independent Merits Review on
   9 August 2010,[8] and on 28 November 2010 the applicant was interviewed by the Reviewer.[9]
5. In summary, the applicant claimed to fear persecution in Sri Lanka by the authorities and paramilitary groups on the basis that he is a young Tamil male from an LTTE[10] controlled area and will be falsely accused of involvement with the LTTE.
6. The applicant claimed that he lived in Mullaitavu, which was controlled by the LTTE. In April 2009 he was taken to the Kathirkaran army camp, where he was tortured whilst being questioned about the whereabouts of his brother who was missing since 2007, and ordered to identify members of the LTTE. He managed to escape from the camp through bribery. He claimed that he would be at risk because he escaped from the camp and because his brother had been missing since 2007, which would implicate him as being associated with the LTTE.
7. He claimed that his family members were all taken to different camps, although his parents and younger sister have now been released. His brother is now living in Switzerland, possibly as a refugee. His sister's husband was kidnapped and never heard from again, and some of his cousins have been arrested and put into prison and other army camps.[11]
8. The applicant initially denied that he had been to any other country or had a passport. However, a fingerprint match of the applicant requested by the department indicated that he had been fingerprinted in Hanoi in 2007 by the US Department of State in connection with a non-immigrant visa application.[12] Having received the information regarding the fingerprint match after the interview with the applicant, the RSA Assessor held a second interview with the applicant in order to put the information to him for comment. The applicant continued to deny that he had a passport, had his fingerprints taken, went to Vietnam or applied to the US for a visa. However, at the interview with the Reviewer, the applicant admitted that he departed Sri Lanka in 2007, had been in Malaysia for five months, where he attended the UNHCR office and gave them his number but was "never called", and had been in Vietnam for one month, where he applied for a US visa and was immediately rejected. The applicant said that he had not told the truth earlier because he thought he would be deported if he admitted having travelled to another country through the airport.

The Reviewer’s recommendation

9. In summary, the Reviewer accepted that the applicant was a Tamil from the northern area of Mullaitavu and that he left Sri Lanka illegally by boat in January 2010. The Reviewer accepted that the applicant's brother was working in a government controlled area in 2007 and applied for and obtained a visa for Switzerland, and that the applicant's parents and family may have been detained and have now been released.
10. The Reviewer also accepted general information regarding the detention of Tamils, the harsh treatment, including imprisonment, torture and killing of those identified as LTTE, and that in the process of identification many civilians have been seriously harmed and killed.
11. However, the Reviewer found that there were significant credibility issues, mainly due to the applicant's repeated omission and denial of the fact that he had a passport, had travelled overseas and applied for a visa. The Reviewer did not accept his explanation for the discrepancy, and found that he manufactured his claim to have been detained, as he was in fact outside Sri Lanka at the time. The Reviewer did not accept that he was detained at the camp, or any of his other claims relating to questioning and torture at the camp.
12. The Reviewer also did not accept that the applicant avoided being called up by the LTTE by getting married, instead finding that he avoided involvement by not being in an LTTE area, either within or outside Sri Lanka, as he admitted that he had travelled outside Sri Lanka on at least one occasion in 2007.
13. The Reviewer did not accept that the minimal activity the applicant claimed to have engaged in while living in an LTTE area would cause him any concern from the Sri Lankan authorities and did not accept that he would be considered to be an LTTE member. The Reviewer also found that he did not come to the adverse interest of authorities on his trips through the airport at Colombo and, given his lack of profile and the nearly two years which had passed since the end of hostilities, the Reviewer did not accept that he would be known to, or of any interest to the authorities, following from his claim for refugee status.
14. The Reviewer found that there was nothing in the applicant's history or profile to indicate that he may be at risk from paramilitary groups.

The judicial review application

15. These proceedings began with an application filed on 12 May 2011.
    I gave directions in the matter on 2 June 2011, at which time the applicant attended in person with the assistance of a Tamil interpreter. Order 7 made on that day provided leave to the applicant to file and serve any amended application on or before 15 July 2011. No amended application was filed by that date.
16. At the hearing of this matter on 2 August 2011 the applicant was represented by counsel who informed the Court that he had only recently been instructed by solicitors[13]. I accepted an undertaking that an amended application would be filed within seven days which reflected written submissions that had been filed prior to the hearing. The amended application was filed on 9 August 2011. That amended application contains the following grounds:
    • 1. The second respondent exhibited apparent (or in the alternative; actual) bias against the applicant by implying that he had no basis for a fear of persecution before hearing any submissions about this issue.
    • 2. The second respondent denied the applicant procedural fairness by failing to take into account any country information cited by the applicant’s migration agent in the submissions dated 9 August 2011.
    • 3. The second respondent denied the applicant procedural fairness by failing to provide any credible, relevant or significant country information to the applicant, including but not limited to
      • a. The material cited at paragraph 26 of the second respondent’s reasons for his decision,
      • b. The Globe
      • c. The Mail

The evidence and submissions

17. I received as evidence the book of relevant documents filed on 30 June 2011 and a supplementary book of relevant documents filed on 19 July 2011. I also received after the hearing the affidavit of Susan Archer made on 5 August 2011, to which is annexed a transcript of the hearing conducted by the Reviewer on 28 November 2010 at Christmas Island. I note that the transcript incorrectly names the Reviewer but I have no reason to doubt that the transcript relates to the hearing conducted by the Reviewer in relation to this applicant.
18. The applicant contends that the Reviewer showed apprehended or actual bias by expressing an opinion as to whether any genuine fear of persecution existed before hearing from the applicant or his agent at the hearing conducted before the Reviewer. Secondly, the applicant contends that the Reviewer failed to accord procedural fairness to the applicant by not inviting comment from the applicant on country information that was taken into account in determining that the applicant was not entitled to protection. Thirdly, the applicant contends that the Reviewer denied him procedural fairness (or possibly failed to have regard to relevant material) by failing to consider any of the country information referred to in submissions made by the applicant’s migration agent.
19. The Minister contends that the evidence does not establish a claim of bias, whether apprehended or actual. The Minister submits that the Reviewer was properly putting the applicant on notice at the start of the hearing before him about his doubts concerning the applicant’s claims. Secondly, the Minister contends that the country information relevant to the Reviewer’s recommendation was already available to the applicant from the first instance refugee status assessment. The Minister submits that the applicant has failed to identify any particular information that was not disclosed which was adverse to the applicant’s claims and determinative of the review. Finally, the Minister submits that the country information put forward on behalf of the applicant was directed to the general risk faced by Tamils in Sri Lanka which was taken into account by the Reviewer and that no inference is available from the evidence that that information was not considered.
20. In submissions in reply filed on 24 August 2011 the applicant joins issue with the Minister in relation to both bias and procedural fairness.

Consideration

The Court’s jurisdiction

21. This Court dealt with the issue of the Court’s jurisdiction and the competence of an application which seeks only declaratory relief in Darabi v Minister for Immigration & Anor [2011] FMCA 371 at [20] – [37] where Nicholls FM said:
    • A number of points arise from M61/M69 which particularly bears on the current proceedings.
    • In M61/M69 the High Court found that the decision by the Minister for Immigration and Citizenship to establish and implement procedures to deal with persons who arrive (as in M61/M69 at Christmas Island) by boat (“the offshore entry person”), and who claim that Australia owes them protection, was a decision “... by the Minister to consider whether to exercise...” powers under either s.46A or s.195A of the Act in respect of any such person (see M61/M69 at [65] to [66] in particular).
    • The High Court also found that the initial assessment and the subsequent review assessment made under these procedures, undertaken for the purpose of the Minister considering whether to exercise power under either s.46A or s.195A, were subject to the principles of procedural fairness given that the claimants right “... to liberty from restraint at the behest of the Australian Executive is directly affected...” (at [77]). In addition, any such consideration and review conducted under these procedures “... must proceed by reference to correct legal principles, correctly applied.” (at [78]).
    • The High Court found that, as one of the powers whose exercise was being considered was the power to lift the “bar” under s.46A of the Act to enable the claimant to make an application for a protection visa, the exercise of that power must be made “... according to the criteria and principles identified in the Migration Act, as construed and applied by the courts of Australia...”. For present purposes, what was referred to in the relevant review procedural manual as: “... Australian legislation and relevant case law...” was “... to be treated as binding...” on the reviewer (at [88]).
    • The Court’s Jurisdiction and the Competency of the Application
    • In this light also, some consideration must be given to this Court’s jurisdiction and the competency of the application made.
    • The application to the Court in this case was made on 10 February 2011. Mr Connolly’s recommendation is dated 20 December 2010. Section 477(1) of the Act requires application to this Court for a remedy to be granted pursuant to this Court’s original jurisdiction under s.476 of the Act in relation to a “migration decision” to be made within 35 days of that decision.
    • I took the view that the circumstances of this case fall within the definition of the “date of the migration decision” as set out at s.477(3)(d). The relevant date therefore is the date of the written notice to the applicant of the reviewer’s decision, 17 January 2011 (CB 116). The application therefore was made within the time specified in s.477(1).
    • However, the application to the Court was deficient in one important respect. It did not properly invoke the jurisdiction of this Court pursuant to s.476(1) of the Act. That section provides that this Court has the same original jurisdiction in relation to a migration decision as the High Court has under s.75(v) of the Constitution. It does not have, as the High Court has, jurisdiction in relation to, relevantly, s.75(i) or (iii).
    • Further, the status of the reviewer as an “independent contractor”, and the assumption therefore that he is not “an officer of the Commonwealth”, which must be seen in light of s.75(v), led the High Court to state that “... a claim for mandamus, prohibition or injunction against [such] persons would not, standing alone, found the original jurisdiction of [the High Court] under s 75(v) of the Constitution.” (M61/M69 at [51]). By extension, therefore, it is the same before this Court.
    • It was not necessary, given the circumstances of the cases before it, for the High Court to consider whether the reviewers, as “independent contractors”, could nevertheless fall within the expression of an “officer of the Commonwealth” in s.75(v) (M61/M69 at [51]).
    • However in the current circumstances there is no need to enter into any greater consideration or analysis of the High Court’s judgment in this regard. Both parties agreed that, given the relevant analysis and reasoning of the High Court, an application to this Court which is made within time and which seeks injunctive and declaratory relief is valid and competent. An application that seeks a declaration, but does not seek an injunction restraining the Minister from relying on the reviewer’s recommendation, is not (see variously M61/M69 at [8],
      [50] – [52] and [99] – [103]).
    • The application to the Court did not meet this requirement. Only a declaration was sought. It was therefore not competent. The Minister did not oppose the Court granting the applicant leave to file and serve an “amended” application addressing this deficiency. The applicant filed such an application on 15 April 2011. It sought both an injunction and a declaration.
    • However, on reflection, there is a strong argument to say that this application should not be considered an “amending” application. The “first” application was not competent because of want of jurisdiction of this Court given the nature of the relief sought and the provisions of s.476.
    • In my view the filing of the “amended” application could not serve to, in some way “retrospectively”, make an application that is not competent, competent. The “amending” or “second” application therefore is to be viewed as being competent in the sense that it properly invoked the jurisdiction of this Court pursuant to s.476. It was, however, filed outside the time limit provided for in s.477(1) of the Act. The application however does seek an extension of time pursuant to s.477(2), the application for which complies with s.477(2)(a) of the Act.
    • The reasons generally advanced in support of this application are that the applicant commenced his application at a time when he had no realistic opportunity to obtain legal advice as to how to properly invoke the jurisdiction of this Court in light of M61/M69. Further, he suffered from the disadvantage of not being able to speak English, and was held in immigration detention which further mitigated against the capacity to obtain such advice. Even further, that the applicant, notwithstanding any difficulties, did attempt to make his application within time.
    • I would add to this that this is amongst the first of this type of matter to be put before this Court. That also would be, in itself, a disadvantage to the applicant in the sense that there was no or little precedent as to how he could go about properly invoking the jurisdiction of this Court.
    • It is also important to note that the Minister, fairly, did not oppose the granting of any such extension in the interests of the administration of justice, but sought the dismissal of the application on the basis that there was no legal error in the decision of Mr Connolly to recommend that the applicant was not a person to whom Australia owed any protection obligations.
    • These reasons are sufficient, in my view, and of such weight as to satisfy the Court that it is in the interests of the administration of justice to extend time pursuant to s.477(2) without having regard for this purpose to the merits or prospects of success of the grounds of the application as pleaded.
22. I agree with and adopt his Honour’s observations on jurisdiction.
    In the present case, the application filed on 12 May 2011, in my view, properly engaged the jurisdiction of the Court in that the final relief sought included an injunction restraining the Minister, by himself or his Departmental officers, delegates or agents, from relying upon the recommendation of the Reviewer. The applicant was notified of the Reviewer’s decision by letter dated 5 April 2011. The application filed on 12 May 2011 was filed less than 35 days after that date. I conclude that the Court has jurisdiction to deal with the application as amended and it is not necessary to consider the issue of an extension of time.

Bias

23. The transcript of the hearing conducted by the Reviewer on
    28 November 2010 records that the hearing commenced as follows[14]:
    • [REVIEWER]: Good morning sir. My name’s Chris Keogh [sic]. I’m the reviewer who has been appointed to review your application for refugee status. I have some general information that I will read through first and I largely need you to listen to that, but it will be obvious where you need you respond.
    • So the following is a record of interview held on 28th November 2010. The interview is commencing at 11.30am and is being held at the recreation centre on Christmas Island. Present are myself, Chris Keogh [sic], independent reviewer and [the applicant] who is claiming to be a refugee as defined by the Refugees Convention.
    • The interview is conducted using the interpreting services in the Tamil language of a NATI [sic] accredited interpreter. Also present is Mr James Hammond who is your migration agent. All information you give during the course of the interview is treated as confidential. What that essentially means is it’s not available to the authorities in the country you say you’re from. It may, however be disclosed to Australian Government agencies, including those involved with security and law enforcement, and also possibly to the UNHCR.
    • The interview is recorded today. That is to ensure there’s an accurate record of the interview. Do you have any objection to it being recorded?
    • APPLICANT: No.
    • [REVIEWER]: Now, we have an interpreter today to help us discuss things. He’s an accredited interpreter. Now, that means many things, but one of them is that he’s bound not to tell anyone what he hears during the course of the interview. He is only here to help us discuss things. He does not have anything to do with determining your request. Do you understand the interpreter?
    • APPLICANT: Yes.
    • [REVIEWER]: Do you have any objections to using him?
    • APPLICANT : No.
    • [REVIEWER]: And you don’t know him other that through this type of interview?
    • APPLICANT: No, I don’t know him.
    • [REVIEWER]: Now, to assist the interpreter with his job which is very difficult, it’s a good idea and try and keep phrases or sentences you say fairly short. In saying this, I don’t wish to imply to you that you should tell me any less than what you would like to tell me, but just break it up into manageable portions to assist the interpreter. That applies to myself and Mr Hammond as well. If any of us are going on for too long, the interpreter is at liberty to tell us to stop and he will probably do that just by raising his hand or telling us to stop.
    • My role in the process is to re-hear your claims. I then make a new and independent assessment as to whether or not you are found to be a refugee. I then make a recommendation to the Minister and the Minister determines what to do with it at his own discretion. So if it’s a positive recommendation, for example, the Minister may then intervene to allow you to lodge an application for a visa and that could include an application for a protection visa.
    • Do you generally understand that process?
    • APPLICANT: Yes.
    • [REVIEWER]: The purpose of the interview is to, as I said, re-put your claims. As part of that process, I’ll ask you questions. You need to listen to the questions carefully and respond to my questions that I ask you as direct and truthfully as possible. I understand that you may have things you want to tell me that may not be covered by the questions I ask you and I’ll give you an opportunity at the conclusion of my questions to tell me whatever you wish to.
    • Do you undertake to tell me the truth and not provide me with any false or misleading information?
    • APPLICANT: Yes.
    • [REVIEWER]: Now, Mr Hammond is aware of my practice in relation to his role, and that is that he can make submissions at any time, either before I start or at the conclusion of the interview, and he can also suggest questions or clarification of questions or issues at any time as well.
    • I think today’s interview will probably go for about an hour, and hour and a half. If anyone needs a break at any time you just need to let me know that you need a break and we can facilitate that at any time.
    • Anything arising before I start?
    • MR HAMMOND: A couple of matters. At the time of the last interview he’s mentioned that his brother was missing. He’s subsequently been found residing in Switzerland. There are some documents here. They don’t necessarily go directly to providing that he’s living there, but some of them are in German or Swiss German.
    • [REVIEWER]: So the first one’s a driving licence. Who’s that of?
    • APPLICANT: My brother’s.
    • MR HAMMOND: I think it’s a tracing request that his brother has made to find the family remaining in Sri Lanka.
    • [REVIEWER]: Yes, it’s just a tracing request. Anything else?
    • MR HAMMOND: In the previous interview the Department put forward information about him having applied for a visa to the USA and Vietnam in 2007. He denied that he applied for that visa, but he’s instructed me that he did actually apply for a US visa in 2007.
    • [REVIEWER]: Yes, 100 per cent you did. And where did you apply for the visa from?
    • APPLICANT: From Malaysia.
    • [REVIEWER]: And how long had you lived in Malaysia?
    • APPLICANT: I was there for five months.
    • [REVIEWER]: And what other countries did you go to?
    • APPLICANT: Vietnam.
    • [REVIEWER]: And how long did you spend in Vietnam?
    • APPLICANT: I lived there for a month, about a month?
    • [REVIEWER]: And how long in Malaysia?
    • APPLICANT: Five months.
    • [REVIEWER]: Why are you only stating this today? Why didn’t you say when the information was presented to you by the RSA officer, why didn’t you say then that that information was true?
    • APPLICANT: I was told that if you had gone to other countries through the airport you would be deported back to your country. That is the reason why I said that. Apart from that, I came here after being tortured and held under..(not transcribable). So I wanted to save my life and the thought of returning to Sri Lanka meant that I will lie and that’s why I said that.
    • [REVIEWER]: It raises an issue, sir, of your preparedness to actually not tell the truth, and it raises really where you’ve been for the past several years. Because the information that was presented to you, you denied it on several occasions, you denied that you’d ever been to Vietnam, you denied that you knew anything about a visa application to the USA, and that was put to you on several occasions during the course of that interview. And that was in the face of what in my view is incontrovertible, or non-contestable evidence against you.
    • APPLICANT: I said this because of fear for my life. I felt that if I was returned I will die. That is why I said that. Because I came here from a hell pit, so because I had come from such a little hell, I wouldn’t want to be back there. And with the torture that I suffered, the questioning that I suffered. I mean it’s very difficult to describe what I had to bear when I was there.
    • [REVIEWER]: I have doubts that really anything has ever happened to you and I have doubts about where you’ve lived for the last three or four years. What type of visa did you apply for in Hanoi? (emphasis added)
24. The applicant’s assertion of bias relates to the final two statements by the Reviewer in bold above.
25. I prefer the submissions of the Minister on this ground. The applicant's only basis for alleging apprehended bias and actual bias is that the Reviewer put to the applicant concerns arising from the applicant's retraction of his earlier denial during the Refugee Status Assessment process that he had applied for a visa to the United States of America while in Vietnam.
26. The transcript establishes that the applicant's agent raised this issue at the outset of the interview with the Reviewer.[15] Consequent upon doing so, the Reviewer asked the applicant questions about his previous visa application, other countries in which he had spent time and the reason why he was retracting his previous denial. The applicant's response to these questions included the admission that in his claimed circumstances he would lie and had done so.[16] The Reviewer then raised with the applicant concerns regarding the applicant's credibility.[17] The Reviewer stated that the applicant's evidence "raises an issue" of whether the applicant might be prepared to not tell the truth and that the Reviewer had "doubts" about the applicant's claims.
27. Although the applicant's submissions do not elaborate upon his claim of actual bias, the Reviewer's comments in no way indicate a closed mind such that such a serious claim can be sustained: see Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507. Nothing the Reviewer said indicates he was not open to persuasion; he merely had doubts and considered an issue as to credibility arose.
28. Is so far as the applicant's claim is that this gave rise to a reasonable apprehension of bias, this too has no foundation. The only reason the applicant gives for such an apprehension is due to the timing of the questioning – apparently because this issue was discussed "prior to a discussion or consideration of the substantive issues at hand (ie whether or not the applicant was entitled to a visa)". While the Reviewer does not make a decision on an applicant’s entitlement to a visa, the Reviewer does make findings of fact bearing on the eligibility of an applicant for a visa. The credibility of an applicant is clearly relevant to the issue of whether or not the factual basis on which the applicant claimed to be someone who should be recognised as a person to whom Australia has protection obligations were true. The applicant's credibility was relevant to assessing one of the issues the applicant contends should have been discussed first - the applicant's personal background.[18]
29. The applicant relies on a number of cases dealing with apprehended bias in curial proceedings in support of his ground. Such cases are distinguishable from the present. In particular, the applicant relies on the judgment in Kwan v Kang [2003] NSWCA 336. That case involved an appeal from a refusal by a primary judge to disqualify himself after having given an interlocutory judgment in which the appeal court found the judge had made unambiguous findings going to the issue of fraud the subject of the substantive proceedings. Such a case needs to be treated with caution when considering administrative proceedings.
30. As the High Court has noted in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, the non-curial nature of administrative proceedings must be taken into account in considering whether an apprehension of bias arises. In particular, the Court noted at [30] that:
    • Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
31. There is nothing in the transcript or other material before this Court to support the view that a hypothetical fair-minded lay person properly informed as to the nature of IMR review and the matters in issue would form the view that the Reviewer did not bring an impartial mind to the matter.
32. In my view the approach taken by the Reviewer at the interview in the passages quoted was proper – even commendable. The fact of the applicant recanting an earlier falsehood having been raised by the applicant’s migration agent, it was appropriate and probably necessary for the Reviewer to ensure that the applicant understood that his credibility was in issue. I reject the first ground of review.

Grounds two and three - breach of procedural fairness

33. The applicant's second and third grounds assert that the Reviewer denied the applicant procedural fairness. I also prefer the Minister’s submissions in relation to those grounds.
34. The grounds raised by the applicant assert first, that the Reviewer failed to take into account country information cited by the applicant's migration agent and, secondly, that the Reviewer failed to afford procedural fairness by not providing country information to the applicant.
35. The applicant's submissions traverse somewhat broader territory than the grounds in the amended application. Nevertheless, the Minister has attempted to deal with all of the issues in his submissions, which I accept.

Failure to take into account country information

36. There is no basis for the applicant's assertion in his second ground that the Reviewer failed to take into account country information cited by the applicant's migration agent.
37. There is no obligation upon a decision maker to refer to every piece of evidence which is before him to explain why an item has been rejected or given less weight. Further, not referring to an item does not require the conclusion that it has been overlooked: see SZQFD v Minister for Immigration [2011] FMCA 598 at [14] with respect to IMR recommendations, citing SZKPH v Minister for Immigration [2008] FCA 707 per Flick J at [18]; SZEHN v Minister for Immigration [2005] FCA 1389 at [58] per Lindgren J; Minister for Immigration v Guo (1997) 191 CLR 559 at [593]; NAHI v Minister for Immigration [2004] FCAFC 10 at [14] and see Steed v Minister for Immigration (1981) 37 ALR 620 at 621.
38. In this case the Reviewer specifically states in his recommendation that he considered the “submissions from the claimant/claimant's agent”[19], “the country information ... provided by the claimant's advisor”[20] and the “claims and evidence presented by the claimant”[21]. The Reviewer then evaluated the material before him and found, particularly given the adverse credibility findings about the applicant, that he would not face the persecution he claimed.
39. The applicant refers (at 3(a) of his supplementary submissions) to the agent's summary of the effect of the country information cited in the submissions as evidence that the Reviewer did not take country information into account. He does not, however, identify what material was not considered.
40. Nor is it apparent how the other pieces of country information referred to, to the extent they are identified, can give rise to such an inference in the circumstances of this matter. The Reviewer considered the applicant's specific claim to fear harm arising from being a young Tamil male from northern Sri Lanka suspected of being associated with the LTTE. In doing so he made findings regarding the ongoing situation for Tamils, including those detained in camps, those released and those identified as being LTTE.[22] In particular the Reviewer recognised the harsh conditions of some camps, and incidents of torture and killings. At [33] of his reasons he said:
    • The claimant fears that he will be harmed and possibly killed in Sri Lanka by the Sri Lankan authorities as he is a young Tamil male from the north, and also has made a vague claim that he may be harmed by paramilitary groups who harm people. I do not accept that he has ever come to the adverse interest of the authorities. It is apparent as well that his family members are also of no interest, as they have been released from detention camps and returned home. I accept that about 200,000 to 300,000 Tamil civilians were detained for several months and some are still in camps. Most however have been released, and from the end of 2009 had been in relatively open camps. Those who had been identified as LTTE are in detention, including prison and rehabilitation camps, and most remain so detained. I accept as true that those who have been [identified] as being LTTE have been generally dealt with harshly, and many have been imprisoned, tortured and killed. I also accept as true that in that process of identification many civilians have been seriously harmed, including being killed.
41. However, having rejected the applicant's claimed history, the Reviewer also found that the applicant would not be someone who would come to the adverse interest of the authorities.
42. The applicant's submissions also refer to a failure to consider the applicant's finger injuries as a relevant consideration to screening at Colombo airport. The applicant referred to his injuries as being proof of his having been beaten when detained (a claim not accepted by the Reviewer - see RD 136 [29]). In so far as such an injury may relate to whether the applicant might come to the attention of authorities upon entering the country, the Reviewer considered whether the applicant might have a profile which would result in him coming to the attention of the authorities. The Reviewer considered the applicant's history including the applicant's own evidence of having previously left and returned to Sri Lanka through the international airport and, having made findings adverse to the applicant's credibility, did not accept the applicant would come to adverse attention of the authorities as claimed.[23]

Failure to provide to the applicant country information

43. The applicant's third ground asserts that the Reviewer failed to afford procedural fairness due to not putting to the applicant country information referred to at paragraph 26 of the recommendation and two other items referred to in the information cited by the Reviewer.
44. The Minister accepts that the Reviewer did not specifically draw to the applicant's attention country information referred to in the recommendation during the interview with the applicant. However, only information which is adverse, credible, relevant and significant to rejecting the applicant's claims is required to be put. The applicant does not identify in his ground or submissions what information was relied upon which was required to be put. Much of the information cited in the recommendation is uncontentious and not adverse to the applicant's claims. It refers to the difficulties of Tamils in the post civil war situation and the circumstances of those detained in camps.
45. The applicant refers in his submissions to country information referred to in a report of the Canadian Immigration and Refugee Board, stated as coming from the Globe and Mai, regarding information about the “tiers” of people who have been detained by the Sri Lankan authorities relating to a person's links to the LTTE and their seniority in it. The applicant assumes in his submissions that these tiers were relevant to the decision of the Reviewer on the basis of a claim made by the applicant that he had been detained (see paragraph 8 of the applicant's supplementary submissions). However, this claim was rejected by the Reviewer on the basis of credibility findings which were open to him.[24] The Reviewer also noted that the applicant's family may have been detained but noted that they had now been released and returned home. The Reviewer further found that the applicant would not, given his history, have a profile which would lead him to come to the attention of the authorities were he to return.
46. The applicant also refers to country information regarding "provision of aid to displaced Tamils" and a "general improvement in security" (applicant's supplementary submissions at [1]). While it is true that some of the country information referred to improvements in the circumstances of the general Tamil community, the applicant has not identified how the material cited is adverse and significant to the Reviewer's findings regarding the applicant's claims. In my view, the essential and significant issue on which the review turned was the issue of the credibility of the applicant’s claims of past harm. That issue was properly flagged by the Reviewer early in the hearing he conducted. The resolution of that issue did not depend upon any particular country information adverse to the applicant’s claims.
47. To the extent that the applicant submitted orally at the hearing of this matter that what occurred during the RSA process is irrelevant, the Minister notes that where there are multiple stages of a decision making process, that process should be considered in its entirety to determine what procedural fairness entails: Haoucher v Minister of State for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 660 - 662, State of South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378 at 31 and, with respect to the RSA/IMR process: Darabi v Minister for Immigration at [103], [106]-[111].
48. The applicant contests that that authority is relevant to offshore entry person cases in the light of the decision of the High Court in M61 at [80] where the High Court stated:
    • The written and oral submissions advanced on behalf of Plaintiff M61 about procedural fairness and error of law focused upon the review of the Refugee Status Assessment that was conducted by the third-named defendant (the reviewer). The steps taken by the fourth-named defendant in conducting the initial Refugee Status Assessment were rightly treated as overtaken by the subsequent review. The reviewer concluded that Plaintiff M61 did not meet the definition of a refugee set out in Art 1A of the Refugees Convention (as amended by the Refugees Protocol) and recommended that he should not be recognised as a refugee.
49. I do not understand those observations as affecting the general principle that the content of the rules of procedural fairness will vary according to the circumstances.

Conclusion and orders

50. There is no legal error in the manner in which the Reviewer reached his decision or in his recommendation. The application will be dismissed.
51. I will hear the parties as to costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 29 September 2011

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[1] Relevant Documents (RD) 81.
[2] Convention Relating to the Status of Refugees done at Geneva, 28 July 1951 as amended by the Refugees Protocol done at New York on 31 January 1967.
[3] Relevant Documents (“RD”) 137.
[4] RD 6-27.
[5] RD 28-75.
[6] RD 90.
[7] RD 81-94.
[8] Supplementary Relevant Documents (SRD) 4-9.
[9] RD 122.
[10]Liberation Tigers of Tamil Elam.
[11] The applicant's claims are set out in the entry interview (RD 6-27), the applicant's statutory declaration dated 24 April 2010 (RD 67-69), the RSA Record (RD 81-94), submissions by the applicant's agent dated 9 August 2010 (RD 95-108) and the reasons of the Reviewer (RD 119-138).
[12] SRD 1-3.
[13] The solicitors filed a notice of appearance on 27 July 2011.
[14] Transcript of the interview with the Reviewer annexed to the affidavit of Sue Archer, sworn 5 August 2011 and filed on 8 August 2-11 (transcript), pages 1-4.
[15] See SRD 91, and transcript, page 3.13 ff.
[16] transcript, page 3.47.
[17] transcript, page 3-4.1-18.
[18] See applicant's supplementary submissions at [15].
[19] RD 120.10 at [8].
[20] RD 124.5 at [26].
[21] RD 136.3 at [27].
[22] RD 137.
[23] RD 137 at [34].
[24] RD 136 [29].