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[2017] FCA 1453
Federal Court of Australia
2017-12-05
Griffiths J
Original judgment source is linked above.
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent
JUDGE: GRIFFITHS J DATE OF ORDER: 5 DECEMBER 2017
Introduction 1 This is an appeal from a decision of the Federal Circuit of Australia (FCCA) which was published on 25 July 2017 and is reported as AZR16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 1725. The primary judge dismissed the appellant's judicial review application in respect of a decision of the Administrative Appeals Tribunal (AAT), which affirmed a decision dated 2 August 2013 by the Minister's delegate which refused the appellant's application for a protection visa. It is convenient to refer to the review body as the AAT even though some of the proceedings were conducted by the Refugee Review Tribunal before it merged with the AAT. 2 The appellant was represented by counsel, both below and on the appeal.
Background facts summarised 3 The appellant is a citizen of Sri Lanka, who arrived in Australia on 9 June 2012 as an unauthorised maritime arrival. He is a Tamil. He claimed to have left Sri Lanka to escape attempts by militia groups to recruit young single men into their ranks. He claimed that in September 2006 he and a friend were stopped by men from the Karuna Group, who tried to recruit them. He said that he pushed the leader of the group who fell and hit his head and was bleeding. He said that he ran away, but his friend was forced to join the Group. He said that the leader had threatened to kill him if he ever found him and so his uncle had arranged for him to go to Qatar in September 2006. He stayed there until 2010 and then returned to visit his sister in Sri Lanka in February and March 2010. He said that the Karuna Group came looking for him and said that he should go to their office. He said he complained to the police but that they told the Karuna Group, who returned to the family home and threatened his sister and told her that, even if they killed the appellant, the police would do nothing. From May 2010 until January 2012 the appellant was in Malaysia. It was unclear where he was during the period from January 2012 until his arrival in Australia on 9 June 2012. 4 The appellant claimed that his brother-in-law was a member of the LTTE and that he fled Sri Lanka in 2005 for Qatar, where he remained. 5 In brief, the appellant said that he feared harm from the Karuna Group or another militia group, who would try to recruit him. He said the local head of the Karuna Group said he would kill the appellant because the appellant had injured him. The appellant also feared harm because of the incident in September 2006 and his brother-in-law's past association with the LTTE. He raised other claims which need not be summarised. 6 The appellant attended the AAT hearing on 9 January 2015 and gave evidence and presented arguments. He was represented by a migration agent. 7 During the course of the hearing, the AAT said that it wished to put some information to the appellant pursuant to s 424AA of the Migration Act 1958 (Cth) (the Act). The information upon which the appellant was invited to respond was as follows: (a) during his entry interview in 2012, the appellant had said that he left Sri Lanka in 2006 because of the September 2006 incident and the threats made by the Karuna Group. The appellant responded to that information at the hearing; (b) the appellant also told the Department at his entry interview that his mother had died. The appellant responded to that information at the hearing; (c) the appellant had said at this entry interview, that young boys were being conscripted in 2000 and that he had to flee his home town. The appellant responded to that information at the hearing; and (d) at his entry interview the appellant was asked to respond to whether he or any members of his family had been associated or involved with any political group or organisations, to which he had responded "No". The AAT explained that the information was relevant because the AAT would think that if the appellant had fears relating to extortion, and his brother-in-law had been involved with the LTTE, he would have mentioned that at the entry interview. The AAT also explained that the question was relevant to a document provided by the appellant which purported to state that his brother-in-law had been arrested and released. The appellant responded to that information at the hearing. 8 The AAT gave the appellant an opportunity to provide written submissions in relation to his credibility after the hearing. The AAT also wrote to the appellant's agent on 13 January 2015 and invited submissions in response to two DFAT country information reports which the AAT had referred to at the hearing. Any comments were also invited on the issue of whether or not the appellant had left Sri Lanka illegally and the proposition that, if he had not, he would not be charged and processed under Sri Lanka's Immigrants and Emmigrants Act for illegal departure. The appellant's migration agent provided a detailed letter dated 19 January 2015, which contained submissions regarding the AAT's concerns as raised at the hearing about the appellant's credibility and also addressed the two DFAT country information reports. 9 By a letter dated 25 January 2016 (the AAT having now absorbed the RRT), the AAT wrote again to the appellant's agent and invited his comments on a recent DFAT report dated 18 December 2015 concerning Sri Lanka. The appellant's migration agent responded under cover of a letter dated 2 February 2016. 10 As noted above, the AAT's decision is dated 31 March 2016. After summarising the appellant's claims and supporting evidence the AAT said that it had had "serious concerns about the applicant's credibility and the veracity of his claims". It described at some length in [31]ff of its reasons for decision nine separate matters which underpinned its adverse credibility finding. Those matters are summarised in [23]-[33] of the primary judge's reasons for judgment and need not be repeated. They should be read as though incorporated herein. 11 The AAT rejected the appellant's claims to be entitled to a protection visa under either or both ss 36(2)(a) and (aa) of the Act.
The proceedings below 12 Only two grounds of judicial review were pressed below. The first was that the AAT failed to comply with s 424A(1) of the Act concerning the appellant's statement during his entry interview that no member of his family had been associated or involved with any political organisation. The second ground was that either or both of the AAT's written invitations dated 13 January 2015 and 25 January 2016 did not comply with s 424B of the Act (which assumed that s 424 applied to the letters). 13 In relation to the first ground, at [54] of his reasons for judgment, the primary judge described the ground as involving an alleged failure to comply with s 424AA(1)(b)(i) and (iv) (sic) of the Act (presumably this is the way in which the case was conducted below, notwithstanding that the relevant ground in the judicial review application claimed that there had been a failure to comply with s 424A(1) and not s 424AA(1)). The ground was rejected by the primary judge because: (a) the transcript revealed that the AAT had provided clear particulars for affirming the delegate's decision in respect of the appellant's answer to the question as to whether he or any members of his family had been associated or involved with any political group or organisation, to which he had answered "No". (Although the primary judge appears to have made a typographical error in [54] in describing the ground as relating to s 424AA(1)(b)(iv) and not (iii), in [57] of his reasons for judgment which explains why he rejected this aspect of the ground, the correct provision is referred to); and (b) even if there had been some non-compliance with s 424AA, the primary judge found that there was no practical injustice because the appellant had the opportunity to, and in fact did, respond to the adverse information, thus relief would have been refused on discretionary grounds. 14 As to the second judicial review ground, the primary judge rejected the contention that the AAT's invitation letters dated 13 January 2015 and 25 January 2016 were affected by s 424(2) of the Act. His Honour held at [61] that the letters were not an invitation to a person to give information within the meaning of that provision and therefore s 424 did not apply (nor the related provision in s 424B). Moreover, in [62], the primary judge said that s 424(2) had no application to a review applicant. His Honour gave no reasons for that view and it is not supported by the Minister in the appeal. 15 In any event, even if the letters were caught by s 424(2), the primary judge said that they did not give rise to any practical injustice because the appellant responded to them and, again, relief would have been refused on discretionary grounds.
The appeal 16 The notice of appeal raised the following four grounds (without alteration): 1. His Honour erred in finding that the second respondent (Tribunal) "complied with its statutory obligations under s. 424AA of the Migration Act (Act) in respect of oral evidence, provided by the appellant to the first respondent's department at his 2012 Entry Interview, that no member of his family had been associated or involved with any political group or organisation, or that relief should be refused on discretionary grounds. 2. His Honour ought to have found that the Tribunal did not comply with subparagraphs 424AA(1)(b)(i) and/or (iii) of the Act, that it therefore committed jurisdictional error by failing to comply with section 424A of the Act, and that constitutional writ relief should not be refused on discretionary grounds. 3. In the alternative, his Honour erred in finding that the Tribunal's letters to the appellant dated 13 January 2015 and 25 January 2016 (letters) were not "an invitation within the meaning of s. 424(2) of the Migration Act" and that subsection 424(2) has no application to an applicant, or that, if the requirements of section 424B of the Act applied to the letters, there was either no jurisdictional error or relief should be refused because there was no "practical injustice". 4. His Honour ought to have found that, by its letters, the Tribunal had invited the appellant in writing under section 424 to give information, that the Tribunal committed jurisdictional error by failing to comply with the requirements of section 424B of the Act, and that relief should not be refused on discretionary grounds. 17 The Minister relied on an amended notice of contention, the effect of which was that, even if s 424B(2) applied to the AAT's invitation letters, a breach of that provision cannot constitute jurisdictional error.
(a) Relevant statutory provisions summarised 18 The appeal can only be understood in the context of relevant provisions in Pt 7 of the Act regarding review of reviewable decisions by the AAT. 19 The AAT has a statutory obligation to review a Pt 7 "reviewable decision" if a valid application for review has been made under s 412 (s 414). In conducting such a review, the AAT is not "bound by technicalities, legal forms or rules of evidence" and "must act according to substantial justice and the merits of the case" (s 420). 20 Div 4 of Pt 7 contains important provisions which govern the conduct of the AAT's review. Section 422B (which was inserted in 2002) is an important provision and should be set out in full: 422B Exhaustive statement of natural justice hearing rule (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. (2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. (3) In applying this Division, the Tribunal must act in a way that is fair and just. 21 Section 423 permits a review applicant to give the Registrar a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider and written arguments relating to the issues arising in relation to the decision under review (s 423(1)). 22 Section 423A (which was inserted in 2015) provides for the circumstances in which the AAT may deal with a claim or evidence which was not raised before the primary decision-maker. 23 Section 424 is another important provision and should be set out in full: 424 Tribunal may seek information (1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. (2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information. (3) A written invitation under subsection (2) must be given to the person: (a) except where paragraph (b) applies-by one of the methods specified in section 441A; or (b) if the person is in immigration detention-by a method prescribed for the purposes of giving documents to such a person. 24 Similarly, the full terms of s 424AA should be noted (noting that s 424AA(2) was inserted in 2015): 424AA Information and invitation given orally by Tribunal while applicant appearing (1) If an applicant is appearing before the Tribunal because of an invitation under section 425: (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) if the Tribunal does so-the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information-adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. (2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F). 25 Section 424A interacts with both ss 424 and 424AA, and relevantly provides as follows: 424A Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies-by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention-by a method prescribed for the purposes of giving documents to such a person. (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non-disclosable information. … 26 Section 424B interacts with both ss 424 and 424A, as is evident from its terms: 424B Requirements for written invitation etc. (1) If a person is: (a) invited in writing under section 424 to give information; or (b) invited under section 424A to comment on or respond to information; the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances. (2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period. (3) If the invitation is to give information, or comments or a response, at an interview, the interview is to take place: (a) at the place specified in the invitation; and (b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period. (4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period. (5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to: (a) a later time within that period; or (b) a time within that period as extended by the Tribunal for a prescribed further period; and then the response is to be made at an interview at the new time. 27 Section 424C also operates with reference to both ss 424 and 424A. It provides that if a person is invited in writing under s 424 to give information and the information is not given before the relevant time has passed, the AAT may finalise the review without taking any further action to obtain the information (s 424C(1)). In the case of an invitation under s 424A to a review applicant to comment on or respond to information and no comment or response has been given before the relevant time lapses, the AAT may finalise the review without taking any further action to obtain the review applicant's views on the information. 28 Section 425 is another important provision. It obliges the AAT to invite the review applicant to appear before it "to give evidence and present arguments relating to the issues arising in relation to the decision under review", unless the exception in s 425(2) applies. 29 It might be noted that several of the provisions outlined above contain references to the term "information", and separate references to the notions of a person being invited to provide "comment on" or "respond to" information. 30 The term "information" is not a defined term. The term also appears in s 416 (which is in Pt 7 and was amended in 2015), in the context of multiple review applications. Sub-section 416(2) provides that, in considering a further application for review of a decision which was the subject of an earlier application and determination, the AAT is not required to consider any "information" considered in the earlier application and may have regard to, and take to be correct, any decision that a review body has made about or because of that "information". There are further references to the term "information" in Div 7 of Pt 7 in relation to provisions dealing with, for example, restrictions on the Secretary giving the AAT a document "or information" where the Minister has certified that disclosure of the document or "information" will be contrary to the public interest on specified grounds (s 437). There are also references to "information" and "the disclosure of the information" in s 438 in the context of the AAT's discretion concerning the disclosure of certain information. 31 The Act also distinguishes between the concepts of "evidence", "information" and "the contents of any document produced to the Tribunal", as is reflected in the terms of s 440(1): 440 Tribunal may restrict publication or disclosure of certain matters (1) If the Tribunal is satisfied, in relation to a review, that it is in the public interest that: (a) any evidence given before the Tribunal; or (b) any information given to the Tribunal; or (c) the contents of any document produced to the Tribunal; should not be published or otherwise disclosed, or should not be published or otherwise disclosed except in a particular manner and to particular persons, the Tribunal may give a written direction accordingly. … 32 The distinction between "information" and "documents" is further highlighted by the several provisions in Div 7A which deal specifically with the subject of "giving and receiving documents". 33 These matters are relevant to grounds 3 and 4 of the appeal and the issue whether the AAT's letters inviting the appellant's comment or response to the matters raised in those letters involved the AAT seeking "information" within the meaning of s 424 and thereby attracted the requirements of s 424B.
(b) The appellant's submissions summarised 34 The appellant's submissions, which were put on his behalf by counsel, Mr Chia, may be summarised as follows. 35 (i) s 424AA: The appellant contended that, although the AAT purported to give information concerning his entry interview response and invited him to respond at the hearing, it failed to comply with the requirements of s 424AA. This was because the AAT did not advise the appellant that he could seek additional time to comment on or respond to the information. Relying on the Full Court's decision in SZTGV v Minister for Immigration and Border Protection [2015] FACFC 3; 229 FCR 90 (SZTGV), the appellant submitted that it was not enough for the AAT to simply ask the appellant whether or not he would like to comment or respond or whether he would like further time and if so why. The appellant emphasised that, consistently with SZTGV at [55] per Perram, Jagot and Griffiths JJ, any offer of additional time must be made "in the immediate context of the information". The appellant also complained that the AAT did not ensure that he understood why the information was relevant to the review, contrary to the requirement in s 424AA(1)(b)(i). This was because the AAT made no reference to the relevance of the information the appellant provided in his entry interview to his other claims and to his credibility generally. 36 (ii) s 424B: The appellant submitted that s 424 of the Act empowered the AAT to "get any information that it considers relevant" but that, if it did so, it must have regard to that information in making the decision on the review. He drew attention to the AAT's power in s 424(2) to invite a person to give information, either orally or in writing. Furthermore, where a written invitation is given under s 424(2), s 424(3) obliged the AAT to give such a written invitation by one of the methods specified in s 441A (unless the person is in immigration detention). 37 The appellant submitted that the Tribunal's invitation letters dated 13 January 2015 and 25 January 2016 both involved the AAT exercising its discretion under s 424(1) to get information in writing, but the AAT failed to specify the way in which the information was to be given, nor did it specify any period within which this was to occur, contrary to the requirements of ss 424B(1) and (2) respectively. In the case of the 25 January 2016 letter, the appellant acknowledged that it did specify the period for response but this period (8 February 2015) had already passed and, in any event, fell short of the 21 day period prescribed in the Migration Regulations 1994 (Cth). Mr Chia properly acknowledged that, despite the stipulated 8 February 2015 deadline (which was clearly a typographical error), the appellant's migration agent provided submissions in response to both of the Tribunal's invitation letters. 38 The appellant criticised the primary judge's approach, which characterised the letters as inviting the appellant to give "comments" rather than "information". He contended that cases such as SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 60; 177 FCR 29 and Win v Minister for Immigration and Multicultural Affairs [2000] FCA 1363 (Win) were distinguishable. 39 As to the primary judge's finding that there was no "practical injustice" and that relief would have been refused on discretionary grounds, the appellant submitted that it could not be assumed that non-compliance with ss 424 and 424B made no difference to the appellant's response and, therefore, to the ultimate decision. The appellant relied upon the majority view of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 (SAAP) in support of his contention that, if there was a breach of s 424B, then the decision was necessarily invalid and the issue of whether or not relief should be refused, because there was no practical injustice, simply did not arise. 40 The appellant also made brief submissions in response to the Minister's amended notice of contention.
(c) The Minister's submissions summarised 41 The Minister's submissions may be summarised as follows. 42 (i) s 424AA: The Minister contended that the primary judge correctly found that the AAT had complied with s 424AA(1)(b)(i) and (iii). Reference was made to several passages in the AAT transcript at pages 40 and 42-43. The consequence of this compliance was that the AAT was not subject to other obligations under s 424A (see s 424A(2A)), so submitted the Minister. 43 The Minister relied on SZNKO v Minister for Immigration and Citizenship [2010] FCA 297; 184 FCR 505 (SZNKO) at [29] where Flick J emphasised that compliance with s 424AA(b)(iii), as then in force, did not require the Tribunal to repeat the very words of the provision. While compliance may not be achieved by a Tribunal statement which "merely implicitly conveys to an applicant that he may seek and be given 'additional time'", the Minister contended that what was said by the Tribunal to the appellant was an effective communication and effectively advised him of the ability to seek further time to respond. This is because the Tribunal is recorded in the transcript at page 43.2 as asking the appellant: "would you like to comment on or respond to the information or would you like further time and if so, why?" This statement was said to have been effectively repeated by the AAT at transcript 40.3-13. 44 The Minister submitted that SZTGV was distinguishable because the statements made there, which were considered to be non-compliant with the relevant provision, were not asked in the context of the Tribunal's discussion of the relevant s 424AA "information", but rather at the very end of the hearing. 45 The Minister contended that the Tribunal complied with s 424AA(1)(b)(i), having regard to the individual circumstances of the case. In particular, the AAT precisely identified the information upon which the appellant was asked to comment, including by stating the specific question he was asked and answered during the entry interview. Moreover, the Tribunal also explained why his answer was relevant because it indicated that if it were in fact the case that the appellant had a fear arising from his brother-in-law's LTTE connections, the AAT expected that he would have raised it but did not do so and that he may have made up these claims. 46 (ii) s 424B: The Minister submitted that, on a fair reading of the two letters, neither was an invitation under s 424(2). Rather, the AAT was simply extending an opportunity to the appellant to provide any comment or supplementary submissions if he wished to do so. Thus, the Minister's position was that s 424(2) had no application to either of the letters, with the further consequence that the operation of s 424B was not attracted. Mr Swan, who appeared for the Minister, contended that it was unnecessary to point to any source of the AAT's power to invite such comments or responses because the AAT was simply discharging its procedural fairness obligations. His submission was that, although s 422B operates to deem Div 4 of Pt 7 to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with, Div 4 merely sets out the minimum requirements of the natural justice hearing rule. In the Minister's submission, the AAT is not prevented from taking further steps to provide natural justice in an appropriate case. 47 The Minister accepted that s 424(2) can apply to a review applicant, but he submitted that this provision had no application here for the reasons given above. 48 The Minister added that, even if the primary judge erred in rejecting the appellant's claim that there was a breach of s 424B, no error was demonstrated in respect of his Honour's conclusion that relief should be refused on a discretionary basis. This is because the appellant's migration agent provided a submission to the AAT after each letter was sent (and it could be inferred that the representative received the letters). Accordingly, there was no practical unfairness to the appellant arising from any failure to comply with s 424B, citing Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; 238 CLR 627 at [32]-[36]). 49 The Minister made brief submissions in support of his amended notice of contention.
(a) Grounds 1 and 2 - the appellant's entry interview response and s 424AA 50 It is necessary to set out pages 40 to 43 of the AAT's transcript (emphasis added): Tribunal Member: Madam interpreter, would you like a break? Interpreter: No Tribunal Member: Ok, so please let me know if you would like a break. Ok, alright so I want to put some information to you in a more formal way. Now it's important again that you realise I haven't made up my mind, ok I am going to put particulars of information that would be the reason or part of the reason for affirming the decision under review. Interpreter; Ok Tribunal Member: Ok, alright. So I am going to say what the relevance of the information is, then I am going to tell you what the consequences of the Tribunal relying on the information is. Interpreter: Ok Tribunal Member: I am going to ask you if you would like to comment on or respond to the information and if you would like further time, and if so why. Interpreter: Ok Tribunal Member: Right so the first information is that in the entry interview in 2012, sorry I will just check the date of that, yeah in 2012, you said that you left Sri Lanka in 2006 because of the incident and the threats made by the Karuna group, and that they threatened your mother to kidnap you and after 2 to 3 years you heard that they were chopping people's necks and this information is relevant because it is inconsistent with your evidence to the Tribunal that you returned in 2010 because you didn't think that there would be any problem with these people. Ok, now if the Tribunal relies upon the information it would find that you are not a witness of truth, that the event with the Karuna group didn't happen, and you would not have returned to Sri Lanka if it had. Then you returned to Sri Lanka because you wanted to visit your family and you had no fear then and you don't fear harm from the Karuna group or anyone now, and the Tribunal would find you not entitled to a protection visa, and it would have found the decision under review. Would you like to comment or respond to the information, or would you like further time and if so, why? Interpreter: So you're saying I went back from Qatar so I didn't have any fear, I don't have any fear of them. What I'm saying is I went back because I thought that the problem might be eased off a bit now and that's why I thought I might go and visit my family. See already they gave me a chance asking me to come and see them but I went on hiding and I ran away from them so if I go back now I don't think they will give me that chance they will take me immediately. Tribunal Member: Right so the next information is that in the entry interview you told the Department that your mother passed away and thereafter your relatives didn't tell you that if you go back to Sri Lanka you will be in trouble. Now this information is relevant because it's inconsistent with your evidence to the Tribunal that your sister told you that these people kept on coming continuously to threaten you and kept on looking for you. If the Tribunal relies upon this information it will find that you are not a witness of truth and the event with the Karuna leader and the threats and people looking for you didn't happen and you had no fear then because you returned to Sri Lanka just to visit family and you don't have a fear now, and sorry almost finished, sorry, and the Tribunal not entitled to a protection visa and would affirm the decision under review. Would you like to comment or respond to the information or would you like further time and if so why. Interpreter: They didn't call me everyone saying ok you ring up what's happened there you call them and in 2010 they call me ok there's no problem now you can come. [not clear on cd] it's a trust event [not clear on cd] may be won't be there now. Tribunal Member: Sorry who did you trust? Interpreter: So I called my family members you know before I went back I called them asking how is the problem and they told me ok the trust has reduced a bit so if you want to visit us you can come now. Tribunal Member: And so the next information is that in the interview with the Delegate in relation to the protection visa application you said "in 2000 they were conscripting young boys to the movement by force and I had to flee to Trincomalee and continue to do my studies there for 2 years". This information is relevant because it is inconsistent with your evidence to the Tribunal that you had no problems before 2006 and when you moved to Trincomalee it was not because of any problems. If the Tribunal relies upon this information it would find that you are not a witness of truth and that you're prepared to make claims in order to get a protection visa and that there is no reason to believe that you be subjected, that you face a real chance or a real risk, sorry that you face a real chance of serious harm or a real risk of significant harm, and the Tribunal would find that you are not entitled to a protection visa and would affirm the decision under review. Would you like to comment or respond to the information or would you like further time and if so why? Interpreter: The movement was taking people by force at that time you know and that's why I went [not clear on cd] in 2009 so that's why I thought [not clear on cd] and I am telling you it was their it was in the movement and the only problem I have now is the Karuna group and that's why I came here. Tribunal Member: Ok, then the next information is um about um your omission to mention urn your fears of extortion, and um your brother-in-law's claimed LTTE connection. Ok so in the entry interview and in the bio data interview you didn't mention these matters, so the extortion and the LTTE connection and his arrest. Now further in the entry interview when asked if there were any family members ... I am just going to get the exact wording sorry ... "have you or any members of your family been associated or involved with any political group or organisation" you said "no". Now if the Tribunal um this information sorry this information is relevant because the Tribunal would think that if you did have fears relating to extortion and your brothers brother-in-law have been involved with the LTTE then you would have mentioned that and if the Tribunal takes into account that documents can be fabricated then it may find um that you're um then it would find that you did not, did not have any fear in relation to extortion and that your brother-in-law was not involved with the LTTE and that the document in relation to his release and arrest is a fabrication. Ok um please let me finish and then I will give you a chance. Sir Interpreter: So you are going to say that my mother those documents, that certificate, and everything are you going to say that it's fabricated? Tribunal Member: Um, if you let me finish you will hear what I am going to say. Ok now at the moment I am sir, sir please let me finish. What I am talking about at the moment is that the document in relation to the um your brother being arrested and released in relation to um you said being a LTTE member I am talking about that document. Now the consequences of the Tribunal relying upon the omission to mention these matters in your bio data interview and entry interview, i.e. the matters of extortion and your brother-in-law's LTTE connection the Tribunal would find that you've made up those claims and they're not genuine fears and the document about your brother-in-law is also made up. Would you like to comment and the Tribunal would affirm the decision under review because it would find that there is no reason for you to fear harm. Would you like to comment on or respond to the information or would you like further time and if so, why? Interpreter: My brother-in-law he was with the LTTE for 10 years. Initially when I came here I didn't tell that is because they told me if you mention about LTTE they will keep you in detention for 4 years, 4 or 5 years and that's why I was so scared I didn't mention that. Tribunal Member: And the extortion? Interpreter: Those things didn't come to my mind. Those things, I didn't know the consequences which comes later on, I was thinking what happened to me and what they told me that they would kill me that was in my mind. I didn't think this would happen and this didn't come to my mind. Tribunal Member: Um even I'll just say, even if your brother-in-law had been arrested during the conflict as LTTE, you've said that he's not a member of the LTTE and hasn't been for a long time and he came back to Sri Lanka. Interpreter: Yes Tribunal Member: And I find it hard to accept that he has been harassed because you didn't say that to me earlier, so if he is prepared to come back and he is the one who was the actual member, I don't see why and I don't see why you're not prepared to go back or why you think that you would face harm because of your brother-in-law. Interpreter: He was legally refabricated properly so they can't catch him, you know just like that to actually take him they have to create a problem there. Tribunal Member: I was just going to call the break now, yes absolutely so we will call a break. How long would you like, 10 minutes it could be a natural justice break as well if you like. I mean just a break to talk to your client yeah not natural justice. Ok is 10 minutes ok? Agent: Yes Tribunal Member: Madam interpreter, is that ok with you? Interpreter: Yes 51 I do not accept that the primary judge erred in concluding the AAT had complied with s 424AA(1)(b)(i). Each case necessarily turns on its own facts. I respectfully agree, however, with Flick J's observations in SZMTJ v Minister for Immigration and Citizenship (No 2) [2009] FCA 486; 323 FCR 282 at [52] that there is a relationship between the clarity in the particulars of information provided to the review applicant and the exposition needed to convey the relevance of that information so that, as far as is reasonably practicable, the review applicant understands why the information is relevant to the review. This is a helpful guiding principle but, ultimately, the question of compliance will turn on the particular facts and circumstances in which the issue arises (see SZNKO at [31] per Flick J). In my view, there is limited utility in seeking to answer that issue by reference to similarities with, or differences from, other decided cases. 52 This is well illustrated by the weight which the appellant placed on observations of the Full Court in SZTGV at [55]-[56]. In that case, the Refugee Review Tribunal had asked the appellant's representative whether she wished to "make a submission today" or "rely on your submission that's dated 14 June" or "did you want time to put something in writing". The Full Court stated in [56] that, in the context in which it arose, those statements did not satisfy the requirement in s 424AA(b)(iii) (as then in force) that the Tribunal advise the appellant that he may seek additional time to comment on or respond to the information because the questions asked "did not involve the Tribunal in advising the appellant of anything". As Mr Chia (who appeared for the appellant) frankly acknowledged, these observations were obiter. Perhaps more significantly, however, it is notable that the relevant statements were made at the very end of the hearing and did not arise in the immediate context of a discussion of the relevant s 424AA information, as is the case here. 53 In this case, the AAT clearly identified the information which it considered would be part of the reason for affirming the decision under review and in respect of which the appellant's comments were sought. It expressly stated the specific question which the appellant had been asked during his entry interview and the answer he gave. The AAT also explained that his response at his entry interview was relevant because, if he did have a fear arising from his brother-in-law's LTTE connections, the AAT would have expected him to have raised it at his entry interview but did not do so. Further, the AAT stated that this might cause it to find that his brother-in-law was in fact not involved in the LTTE and that it might find that "you've made up those claims and they're not genuine fears…" 54 Having regard to these matters, no appealable error has been demonstrated in respect of the primary judge's rejection of the claim that there was non-compliance with s 424AA(1)(b)(i). 55 Similarly, no appealable error has been demonstrated in respect of the primary judge's rejection of the appellant's claims concerning s 424AA(1)(b)(iii). The AAT's obligation was to advise the review applicant that he or she may seek additional time to comment on or respond to information provided by the AAT under s 424AA(1)(a). As noted above, the AAT specifically identified the appellant's entry interview question and answer and the potential relevance of it to the review and then asked "[w]ould you like to comment on or respond to the information or would you like further time and, if so, why?" This statement was made against the background of the AAT's earlier description of the hearing process, which involved it putting information to the appellant and saying that: I am going to ask you if you would like to comment on or respond to the information and if you would like further time, and if so why. 56 Compliance with s 424AA(b)(iii) does not require the Tribunal to repeat the very words of the provision but rather, turns on whether, in the particular circumstances, the requisite advice has been "effectively communicated" to the review applicant (see SZNKO at [29] and [31] per Flick J). 57 The primary judge did not err in finding that the AAT's statements were sufficient, in the particular circumstances here, to meet the relevant requirements. The repeated references to the possibility that the AAT would find that he was not a truthful witness on several particularised matters could have left the appellant in no doubt that his general credibility was also at stake.
(b) Grounds 3 and 4 - the AAT's letters and ss 424 and 424B 58 (i) The legislative history of some provisions in Div 4 of Pt 7: It is convenient first to summarise the parties' supplementary submissions concerning the possible relevance to these grounds of the legislative history and extrinsic materials concerning the significance of the separate expressions in Div 4 of "information", "comment on" and "respond to" information, "evidence" and "documents". 59 Sections 424, 424A, 424B and 424C of the Act, in substantially the same form as they are now, were inserted by the Migration Legislation Amendment Act (No 1) 1998 (Cth) (Act 113 of 1998) (the 1998 Amending Act) (see Sch 3, Pt 1, Item 3 of the 1998 Amending Act). The Explanatory Memorandum to the Migration Legislation Amendment Bill (No. 1) 1998 (Cth) stated that "sections 424, 424A, 424B and 424C provide a code of procedure which the Tribunal is to follow in conducting its review" (see Sch 3, Pt 1, Item 3). The related provisions applicable to the then Migration Review Tribunal (i.e. ss 359, 359A, 359B and 359C) were also added at this time (see Sch 1, Pt 1, Item 22 of the 1998 Amending Act and the Explanatory Memorandum). 60 Provisions of similar effect and drafted in similar language to ss 424, 424A and 424B, but applicable to the Minister (rather than the Tribunal), had earlier been inserted into the Act by the Migration Reform Act 1992 (Cth) (Act 184 of 1992) (the 1992 Amending Act). In particular, the then s 26X (inserted by the 1992 Amending Act) was similar in nature and drafting to the present s 424, s 26Y was similar in nature and drafting to the present s 424A, and s 26Z was similar in nature and drafting to the present s 424B. 61 Subsections 424(3) and 424A(2) were amended in 2001 by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth) (Act 58 of 2001), but these amendments concerned only the required method of notification and did not affect the use of terms "information", "comment" or "response". 62 Section 424AA was inserted into the Act in 2007 by the Migration Amendment (Review Provisions) Act 2007 (Cth) (Act 100 of 2007) (the 2007 Amending Act). Relevantly, s 424AA of the Act, as then inserted, included the phrase "comment on or respond to the information" (see eg. s 424AA(b)(ii), (iii) and (iv) as then enacted). Previously, s 424A had only used the phrase "comment on" (and did not use "respond to"). Amendments were also made, by the 2007 Amending Act, to ss 424A, 424B and 424C of the Act, inter alia by inserting the phrase "respond to" in those sections, so as to be consistent with the language used in s 424AA. The Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 (Cth) does not clearly identify why the phrase "respond to" was added to these sections - but it appears intended to broaden what a review applicant might permissibly do once in receipt of a ss 424A or 424AA invitation, from "commenting on" information, to "commenting on" or (more generally) "responding to" the information the subject of the Tribunal's invitation. I accept the appellant's submission that the word "respond" is sufficiently broad to encompass the provision of further evidence by a review applicant. 63 Section 424 of the Act was also amended by the Migration Legislation Amendment Act (No. 1) 2009 (Cth) (Act 10 of 2009) (the 2009 Amending Act), by, relevantly, inserting into s 424(2) "either orally (including by telephone) or in writing" (i.e. such that s 424(2) now specified the means the Tribunal could employ to issue an invitation under s 424(2)), and altering "additional information" to "information") (see the 2009 Amending Act, Sch 1, Items 9-11). The Explanatory Memorandum to the Migration Legislation Amendment Bill (No. 2) 2008 (Cth) stated that the amendments to s 424(2) were intended to broaden the means by which the Tribunal could obtain information under s 424 (i.e. by permitting less formal means such as orally over the telephone), and were made in response to the Full Court's decision in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83; 168 FCR 256 (note that the High Court upheld an appeal against from that decision in Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; 238 CLR 489) (see Items 9-16). Sections 424B(1)(a) and 424C(1)(a) were consequentially amended to refer to, and apply to, invitations in writing under s 424. Section 424B(1) and (2), and 424C(1), were also amended to remove reference to "additional" information (see the 2009 Amending Act, Sch 1, Items 12-16). 64 Finally, s 424A and 424AA were amended, by the insertion of ss 424A(4) and 424AA(2), in 2015 by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) (Act 35 of 2015), but those amendments do not affect the use of the terms of "information", "comment" or "response" in those sections. 65 In light of this legislative history, it is apparent that ss 424, 424A, 424B and 424C of the Act are an interrelated group of provisions (or, as the Explanatory Memorandum described them, a "code of procedure"). Given that they were inserted together and have been amended at the same time and in like fashion, I accept the Minister's submission that these provisions should be read and interpreted together, in the context of each other. The Act creates and maintains different procedures for the getting or giving of "information" (ss 424(1) and (2)) and the giving of comment" or "response" about "information" (ss 424A/424AA). The content of these interrelated provisions highlights that the Act has always maintained the distinction between, on the one hand, "information" and "giv[ing] information" and, on the other hand, the giving of "comment" and "responses". The Act does not equate those concepts or treat them as synonymous, even though they may overlap to some extent. 66 As noted above, s424B interacts with both ss 424(2) and 424A. That is because both ss 424B(1) and (2) refer to invitations to "give information" or to give "comments or [a] response". I accept the Minister's submission that the application of s 424B to invitations made under both ss 424 and 424A highlights the distinction which is drawn in the Act between, giving "information" (s 424) and giving comment on or responding to information (s 424A). 67 (ii) Other relevant matters: As noted above, the word "information" is not defined in the Act. In VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 436 FCR 549, the Full Court referred at [24] to the "considerable body of case law" concerned with the meaning of the term "information" in s 424A(1) (in circumstances where it is well settled that the term when used there has the same meaning as in s 424). The Full Court summarised the following propositions: 24 … The following propositions emerge from it: (i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [104]. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168; (ii) the word "information" in s 424A(1) has the same meaning as in s 424: Win at [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at [19]-[22]; and (iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; appr VAAM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26]-[29]. 68 This passage was referred to with apparent approval by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALJR 1190 at [18]. In the same paragraph, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said (emphasis added): … However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. 69 It is unnecessary to determine in this case the outer limits of the word "information" as used in s 424(1). It may be noted, however, that that provision is "primarily an enabling provision". As the Full Court said in Win at [15] (emphasis added): … It empowers the RRT "to get any information that it considers relevant" (although the sub-section also requires the RRT to have regard to the information so obtained). Section 424(1) appears to be directed to enabling the RRT to take the initiative in obtaining material it considers relevant. It does not exhaust the circumstances in which the RRT can receive and consider material relevant to the issues it has to decide. In particular, s 424(1) has nothing to say about a case like the present, where the RRT simply receives unsolicited material from another source such as the Department or a third party informant. Whether the RRT can take such material into account does not depend on the operation of s 424(1), but on the legislative scheme as a whole: see, for example, ss 414(1); 415(1), (2); 420(2). 70 I accept the Minister's submission that the primary judge was correct to find that s 424 did not apply to the two invitation letters. Those letters were sent, not to get "information" within the meaning of that provision but, rather, to meet the AAT's procedural fairness requirements by providing the appellant with an opportunity to comment on or respond to the content of those letters if he so wished. This is evident from the terms of both letters. As to the first, it was clearly sent to afford the appellant procedural fairness. This is because the AAT had asked the appellant various questions at the hearing about the possible application to the appellant of Sri Lanka's laws relating to people who illegally departed the country. But, on reviewing the hearing transcript, the AAT realised that this questioning had been based on a false premise because it now appreciated that the appellant said that he had left Sri Lanka legally and with a visa. Accordingly, in accordance with procedural fairness requirements, the appellant was given an opportunity to comment, if he wished to do so, on the proposition that, because he left legally, he would not be charged or prosecuted. He took advantage of that opportunity. 71 Similarly, the second letter was plainly sent to meet procedural fairness requirements. It was written after the AAT hearing and in circumstances where the AAT had recently come into possession of a DFAT country report dated 18 December 2015 on Sri Lanka. The AAT afforded the appellant the opportunity to comment on and respond to the document if he so wished. As noted above, he availed himself of that opportunity. 72 I accept the Minister's submission that Div 4 provides the minimum requirements for procedural fairness. This is not inconsistent with s 422B because, in its terms, that provision operates to deem Div 4 to be an exhaustive statement of requirements of the natural justice hearing rule in relation to the matters it deals with. Accordingly, there is scope for the residual operation of procedural fairness requirements which are not otherwise "dealt with" in Div 4. As Mr Swan submitted, there is no need to identify an explicit source of statutory power for the AAT to send the two invitation letters because their despatch was done in order to fulfil the AAT's residual procedural fairness obligations. 73 In my respectful view, the appellant's criticisms of the primary judge's finding on this matter is based on a false premise, namely that Div 4 of Pt 7 constitutes an exhaustive statement of the hearing limb of natural justice requirements, with the consequence that a source of power has to be found within the provisions in that Division for the sending of the two letters. That premise underpins the appellant's ultimate submission that the source of power can only be s 424. The flaw in this argument is that it overstates the effect of s 422B, which confines the exhaustive ambit of Div 4 to matters which are dealt with in the Division. This leaves residual room for the natural justice hearing rule to apply to matters which are not dealt with in Div 4. 74 No appealable error has been demonstrated in respect of the primary judge's finding that s 424(2) had no application to the two invitation letters. Ground 3 of the notice of appeal is rejected. 75 In these circumstances, it is unnecessary to determine ground 4, which is predicated on the Court accepting the appellant's contention that the primary judge erred in finding that s 424 did not apply to the two letters. 76 For completeness, as noted above, the Minister did not seek to defend the primary judge's finding at [62] of his reasons for judgment that s 424(2) did not apply to a review applicant. That finding was plainly in error (see SAAP at [6] per Gleeson CJ), but the error is immaterial because the primary judge was correct to conclude on an alternative basis that s 424(2) did not apply to the two invitation letters. 77 In the circumstances, it is also unnecessary to address the Minister's amended notice of contention.
Conclusion 78 For these reasons, the appeal will be dismissed. The appellant must pay the Minister's costs as agreed or assessed. I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.
AZR16
Minister for Immigration and Border Protection
[2009] HCA 37
(2001) 113 FCR 396
(2003) 129 FCR 168
(2002) 124 FCR 276