BLX16 v Minister for Immigration and Border Protection

PAUL JOHNSON (IN HIS CAPACITY AS AN INTERNATIONAL TREATIES OBLIGATIONS ASSESSOR) Second Respondent

JUDGES: MOSHINSKY, STEWARD AND WHEELAHAN JJ DATE OF ORDER: 17 OCTOBER 2019

1. The appellant have leave to rely on grounds 1 and 2 in the amended notice of appeal.
2. The appeal be dismissed.
3. The appellant pay the first respondent's costs of the appeal, to be fixed by way of a lump sum.

1. Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent's costs.
2. In the absence of any agreement: (a) within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court's Costs Practice Note (GPN-COSTS); (b) within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and (c) in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent's costs be referred to a Registrar for determination. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The appellant, a citizen of Sri Lanka of Tamil ethnicity, appeals from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the second respondent (the Assessor), who completed an International Treaties Obligations Assessment in respect of the appellant (the ITOA). The Assessor concluded that Australia did not have non-refoulement obligations in respect of the appellant. On appeal to this Court, the appellant relies on two grounds of appeal as set out in his amended notice of appeal. Both grounds of appeal are new, in the sense that they raise matters that were not relied on before the primary judge. Accordingly, the appellant requires leave to rely on these grounds. The first respondent (the Minister) consents to the appellant being granted leave to rely on ground 2, and does not oppose leave being granted to the appellant to rely on ground 1. 2 For the reasons that follow, we will grant the appellant leave to rely on the two grounds set out in his amended notice of appeal, but we reject both grounds. It follows that the appeal is to be dismissed.

Background facts 3 In 1999, the appellant departed Sri Lanka for India. 4 On 11 May 2010, the appellant arrived in Australia by boat. The appellant was an "offshore entry person" within the meaning of s 5(1) of the Migration Act 1958 (Cth). The appellant was therefore prohibited from making a valid application for a protection visa by s 46(1) of the Migration Act. 5 On 6 August 2010, the appellant applied for a refugee status assessment (RSA). This was conducted by an officer of the then Department of Immigration and Citizenship (the Department). 6 On 6 September 2010, the officer who conducted the RSA recommended that the appellant was not a person who engaged Australia's protection obligations. 7 On 1 October 2010, the appellant requested an independent merits review (IMR) of the officer's recommendation. 8 On 19 September 2011, the person conducting the IMR recommended that the appellant was not a person who engaged Australia's protection obligations. 9 The appellant unsuccessfully sought judicial review of the IMR: SZQUR v Minister for Immigration and Citizenship [2012] FMCA 290; and SZQUR v Minister for Immigration and Citizenship [2012] FCA 906. An application for special leave was refused: SZQUR v Minister for Immigration and Citizenship [2013] HCA Trans 67. 10 On 5 September 2012, the appellant applied unsuccessfully for ministerial intervention. The appellant then applied unsuccessfully for judicial review. 11 On 31 October 2012, the appellant was notified that the Department had conducted a Post Review Protection Claims assessment (the PRPC). The PRPC assessed the appellant's claims against Australia's obligations pursuant to the Convention against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR). (As of 23 March 2012, these obligations were incorporated into the Migration Act, by the Migration Amendment (Complementary Protection) Act 2011 (Cth) - see s 36(2)(aa).) The PRPC found that Australia's obligations under the CAT or ICCPR were not engaged. 12 The appellant sought judicial review of the PRPC. 13 On 18 October 2013, the Federal Circuit Court made a declaration that the PRPC had not been made according to law (proceeding MZZJG v Minister for Immigration and Citizenship, MLG 461/2013). The orders were made by consent in light of the decision of the Full Court of this Court in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505. 14 On 31 January 2014, certain personal information of the appellant - his name, date of birth, nationality, and details regarding his immigration detention - was inadvertently published online (the Data Breach). 15 On 17 April 2015, the appellant was notified by letter that the Department no longer relied on the PRPC and a new assessment of his claims would take place, by way of an International Treaties Obligations Assessment. 16 On 22 July 2015, the appellant provided submissions and country information to the Department. 17 On 22 February 2016, the appellant attended an interview with the Assessor. On 3 March 2016, the appellant provided further country information to the Assessor. 18 The appellant submitted as follows to the Assessor (AB 283-287): (a) The appellant left Sri Lanka as he feared he "would be arrested and killed by the police and the Sri Lankan Army". Moreover, he said "my father had disappeared, presumed dead, and my family and I were increasingly targeted and harassed in Sri Lanka". (b) He added that "I was also afraid in Sri Lanka because I am Tamil, and life for Tamil people in Sri Lanka is very dangerous", and that he had only two years ago come to know that his family members were "members of the LTTE". (c) He feared that "the army, Criminal Investigation Department (CID), government and police will arrest me, assault me, torture me and kill me" because he had no one in Sri Lanka to protect him. (d) He claimed the Data Breach "would increase my chances of being persecuted by authorities". (e) Specifically, he made claims to fear harm on account of his imputed anti-government political opinion due to his family ties to the LTTE, his Tamil race, and his status as a failed asylum seeker. 19 The appellant's submission to the Assessor also adopted a statement he made on 7 August 2010 (AB 80-81), in which he said: (a) He left Sri Lanka as "I feared that I would be arrested and killed by the police and the Sri Lankan army". (b) His father was abducted and his mother became mentally disabled. (c) He was discriminated against for being a Tamil. (d) The police and the army "intensified their attendance at our house in 1999 when the conflict escalated". (e) The authorities would not protect him because he did not have an identity card. 20 On 6 June 2016, the Assessor completed the ITOA (AB 12), concluding that Australia did not have non-refoulement obligations in respect of the appellant. 21 The Assessor accepted that it was plausible that the appellant's father had been abducted or had disappeared in 1995, and that the appellant and his family were visited by the police and the army several times between 1995 and 1999 (AB 34). The Assessor did not, however, accept that it was plausible that the appellant's father or his family were involved with supporting the LTTE in any significant way. The Assessor also did not accept that it was plausible that the Sri Lankan Army, CID or police maintained an ongoing adverse interest in the appellant's family (AB 34). The Assessor concluded that the appellant did not have a well-founded fear of being persecuted for a Refugee Convention reason (AB 41).

The proceeding in the Federal Circuit Court 22 The appellant applied to the Federal Circuit Court for judicial review of the ITOA. 23 The appellant relied on a single ground of review, namely that the Assessor applied the wrong test when considering the appellant's imputed links to the LTTE: see [4] of the reasons of the primary judge. The ground of review was rejected, for reasons that do not need to be referred to given that this ground is not pursued on appeal. The primary judge dismissed the application for judicial review.

The appeal to this Court 24 The appellant appeals to this Court from the judgment of the Federal Circuit Court. The appellant, who is represented by different lawyers from the lawyers who represented him in the Federal Circuit Court, filed a notice of appeal containing two grounds of appeal. Neither of those grounds was relied on before the primary judge. Thus, as acknowledged in the written submissions filed on behalf of the appellant, the appellant requires leave to rely on these grounds. In advance of the hearing of the appeal, the appellant filed an amended notice of appeal, which makes some relatively minor amendments to the notice of appeal. During the appeal, we granted the appellant leave to amend his notice of appeal, subject to the issue of whether leave should be granted to rely on the new grounds. 25 The grounds in the amended notice of appeal are as follows: 1. The Federal Circuit Court erred by failing to find that the Second Respondent denied the appellant procedural fairness by failing to consider the appellant's claims to fear serious or significant harm because he would be imputed with LTTE links due to his status as a failed asylum seeker. Particulars a) The appellant claimed that he was at risk of being imputed with an LTTE profile as a failed asylum seeker. b) The Second Respondent found the appellant was not at risk as a failed asylum seeker because neither he, nor his family had been identified as being LTTE supporters by Sri Lankan authorities. c) The Second Respondent failed to consider the following relevant personal circumstances that may lead the Sri Lankan authorities to suspect the appellant has a LTTE connection even though he did not have any connection: i. The appellant had been absent from Sri Lanka since 1999. ii. The appellant, upon being questioned by CID at the airport would reveal that his departure occurred after his father went missing in 1995. iii. The appellant has no other family in Sri Lanka 2. The Federal Circuit Court erred by failing to find that the Second Respondent denied the appellant procedural fairness by failing to put to the appellant credible, relevant, and significant county information relating to the appellant's claim to fear serious harm for reasons of his status as a failed asylum seeker. Particulars a) The Second Respondent relied on UK Home Office "Sri Lanka December 2012 - Bulletin: treatment of Returnees" (the bulletin) in this assessment of the appellant's claims. b) The Second Respondent relied on the bulletin for two critical findings in support of its conclusion that the appellant did not face a real chance of serious harm as a failed asylum seeker: i. Tamil returnees who departed Sri Lanka between 2006 - 2009 face greater scrutiny; and ii. Tamil returnees who departed Sri Lanka in the "mid-90s" are a greater risk of being interviewed on return and being forced to register in their home district. c) The Second Respondent noted the appellant had departed in 1999, outside of these two periods. d) The country information in the bulletin regarding the relevance of the appellant's date of departure was never put to the appellant. (Errors in original.) 26 In advance of the hearing of the appeal, the appellant filed an affidavit of Carina Ford, of his instructing solicitors, dated 5 August 2019. The affidavit related to whether a particular report prepared by the UK Home Office entitled "Sri Lanka - Bulletin: Treatment of Returns" dated December 2012 (the UK Home Office Bulletin), which is referred to in ground 2 of the amended notice of appeal, had been put to the appellant. The Minister in his written submissions conceded that the UK Home Office Bulletin had not been put to the appellant by the Assessor. In light of this concession, the appellant did not seek to rely on the affidavit at the hearing of the appeal. 27 As noted above, the appellant requires leave to rely on the grounds set out in the amended notice of appeal as they were not argued below. The principles regarding the grant of leave to rely on a new ground on appeal were stated by the Full Court of this Court (Kiefel, Weinberg and Stone JJ) in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]-[48]. See also Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 at [89]-[90] per Flick and Rangiah JJ; and Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 at [19]-[20] per Griffiths and Perry JJ. 28 The only explanation for the new grounds being raised now, and not earlier, is that the appellant is represented by new lawyers in the appeal, and the new lawyers have looked at the matter afresh. The appellant relies on the merit of the grounds, and the lack of any particular prejudice to the Minister in terms of his ability to respond to the appellant's case. 29 The Minister's position in relation to leave to rely on the new grounds is that the Minister: (a) consents to the appellant being granted leave to pursue ground 2 (because it arises from matters that the Minister raised below at a time when the appellant was self-represented); and (b) does not oppose the appellant being given leave to pursue ground 1, on the basis that what is presented is a pure question of law. 30 We note that it appears that the lawyers who represented the appellant in the Federal Circuit Court were retained only a short time before the hearing in that Court. 31 We consider that the grounds of appeal have some merit. Although generally the fact that new lawyers have been retained and have taken a 'fresh look' at the matter would not, of itself, be sufficient to justify a grant of leave, in the circumstances of the present case, including the position adopted by the Minister and our view that the grounds have some merit, we will grant the appellant leave to rely on the two grounds set out in the amended notice of appeal.

Ground 1 32 The appellant contends that the Assessor denied the appellant procedural fairness by failing to consider the appellant's claims to fear serious or significant harm because he would be imputed with LTTE links due to his status as a failed asylum seeker. In particular, the appellant contends that the Assessor failed to consider if the Sri Lankan authorities may suspect the appellant of LTTE connections based on his unique circumstances on return. 33 The appellant notes that the Minister accepted in the Federal Circuit Court that the appellant was entitled to procedural fairness in the process leading to the ITOA. The appellant submits that procedural fairness is implied because the process affected the appellant's rights and interests, specifically by prolonging his time in immigration detention: Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (the Offshore Processing case) at [9]; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [76]-[78]. 34 The appellant submits that the Assessor was under an obligation to consider the appellant's claims that he was a person who engaged Australia's obligations as codified in the Migration Act and the integral parts of those claims: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]-[27] and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]. 35 The appellant submits that: the Assessor's reasons focus on whether the appellant in fact had significant family connections to the LTTE which gave him an existing adverse profile with the Sri Lankan authorities; that analysis only dealt with one aspect of the appellant's failed asylum seeker claim - that he would be imputed with a pro-LTTE profile due to his family background; the Assessor did not consider if, irrespective of whether the appellant had an existing adverse profile, he would be imputed with an LTTE opinion given his personal circumstances. The appellant submits that the relevant circumstances were that: (a) the appellant had been absent from Sri Lanka for several years; (b) the appellant is a young Tamil male with no familial connections in Sri Lanka; and (c) during questioning at the airport, the appellant would need to disclose that his father had "disappeared" during the period of civil strife. 36 The appellant submits that, even if his father had no LTTE involvement, the Assessor needed to consider whether the father's disappearance coupled with the appellant's long absence from Sri Lanka would lead Sri Lankan authorities to suspect the appellant of having LTTE connections. 37 The appellant submits that: the Assessor found the appellant had no LTTE links, nor adverse profile, and then considered how a failed asylum seeker with no adverse profile would be treated on return; the Assessor omitted an intermediate question, namely whether Sri Lankan authorities at the airport would view the appellant with suspicion given his unique circumstances; as a result, the Assessor failed to consider the appellant's claim to fear harm due to imputed political opinion as a failed asylum seeker. 38 We note that the appellant's primary claim was that his father and relatives aided the LTTE in the mid-1990s and that, as a result, he had an adverse profile with the Sri Lankan authorities and/or would be imputed with a pro-LTTE political opinion. That claim was rejected by the Assessor because the Assessor did not accept that the appellant's father or his family were clearly identified by the Sri Lankan authorities as having LTTE links. The facts that the appellant was of Tamil ethnicity, had no family connections in Sri Lanka, had been absent from Sri Lanka for several years and that his father had "disappeared" were all facts that the appellant submitted to the Assessor. The appellant did not, however, expressly articulate a claim that these personal circumstances - irrespective of whether his family did, in fact, have LTTE connections - would lead him to be imputed with a pro-LTTE profile upon return to Sri Lanka. In light of this, in our view it was not necessary for the Assessor to specifically and expressly make a finding regarding this claim. Rather, it was sufficient for the Assessor to give consideration to the appellant's personal circumstances and the impact that they may have on his treatment by authorities upon return to Sri Lanka. For the following reasons, it is clear from the ITOA that the Assessor did give such consideration to the appellant's personal circumstances. 39 First, each of the appellant's personal circumstances identified in [35] above was expressly referred to by the Assessor in the ITOA (AB 14, 21, 24, 27, 34). These references indicate that the Assessor did have regard to the appellant's personal circumstances. 40 Secondly, in the section of the ITOA entitled "Failed Asylum Seeker risks if the Claimant returns to Sri Lanka", the Assessor considered country information regarding the treatment of Tamil returnees. The Assessor noted that country information indicated that Tamils were not treated differently during arrival airport processing. The country information did, however, identify specific circumstances that could lead to a Tamil returnee attracting the attention of authorities or receiving adverse treatment. The Assessor considered whether those circumstances were the same as the appellant's personal circumstances. In relation to the appellant's date of departure, the Assessor noted that the appellant did not depart in the mid-1990s or between 2006 and 2009, which were periods that might attract attention from the authorities. Further, the Assessor referred to country information indicating that a returnee may be asked additional questions if they had strong connections or links to the LTTE, and noted that the appellant had no specific links with someone from an LTTE supporting background. It is implicit in that statement that, in the Assessor's view, the fact of the appellant's father's disappearance, without more, would not attract the attention of the Sri Lankan authorities. It is, therefore, clear from this section of the ITOA that the Assessor did give consideration to the appellant's personal circumstances and whether they would lead to the appellant receiving adverse treatment from the authorities upon his return to Sri Lanka. 41 It follows from the foregoing that the Assessor did not deny the appellant procedural fairness by failing to consider one of his claims. Accordingly, the appellant's first ground is rejected.

Ground 2 42 The appellant contends that the UK Home Office Bulletin contained information that was credible, relevant and significant to the assessment that was not put to the appellant. 43 The appellant submits that the Assessor was required to put to the appellant information that was "credible, relevant and significant" to the assessment, relying on Kioa v West (1985) 159 CLR 550 at 629 per Brennan J (as his Honour then was). The appellant submits that the principle extends to requiring country information to be put to a visa applicant: Offshore Processing case at [91] and [98]. The appellant does not submit that the Assessor was required to put the details of all country information relied upon to the appellant. In the appellant's submission, the issue is whether, in light of the Assessor not having put the country information to the appellant, the appellant was not able to comment on a critical issue in the assessment: see VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at [27]-[28] per Allsop J (as his Honour then was). 44 The appellant submits that the Assessor's findings relating to the failed asylum seeker claim referred exclusively to the UK Home Office Bulletin, which was not put to the appellant. The appellant submits that the Assessor relied on that report to make the following findings or reach the following conclusions (at AB 39-40): (a) In the first paragraph, the Assessor found that persons with outstanding criminal warrants or suspected involvement in people smuggling are at risk of extended detention. (b) In the second paragraph, the Assessor noted that the UK Home Office Bulletin suggested that Tamils come under more scrutiny than other returnees; in particular, Tamils who departed between 2006 and 2009 would face greater scrutiny in the screening process, although they did not find the process intimidating; people suspected of LTTE connections are taken aside for questioning; and there are hearsay reports of torture. The Assessor stated that Tamils attract more scrutiny from airport authorities, but the appellant left Sri Lanka in 1999 rather than between 2006 and 2009. (c) In the third paragraph, the Assessor found that the appellant was likely to be subject to minimal, if any, monitoring on return to the community. (d) In the fourth paragraph, the Assessor noted that the UK Home Office Bulletin suggested that returnees with LTTE connections or returnees who left Sri Lanka in the mid-1990s may be subject to additional questioning. The Assessor concluded that the appellant left in the late 1990s not the mid-1990s, had no links to the LTTE, no adverse profile, and therefore did not have a well-founded fear of harm as a failed asylum seeker. 45 The appellant submits that, while he was on notice that only returnees with LTTE links, criminal records, and involvement in people-smuggling were at risk, he was not on notice that his specific period of departure - the late 1990s - would not lead him to attract additional risk. The appellant submits that the date of departure was significant in the context of the ITOA; it formed part of the Assessor's concluding analysis in finding that the appellant did not face a real chance of harm as a failed asylum seeker. 46 The appellant submits that: he was not provided with an opportunity to comment on country information indicating that because he left in 1999 he would not attract additional scrutiny on return to Sri Lanka; accordingly, the appellant was not afforded procedural fairness in the ITOA. 47 The Minister accepts that the proposition that those who left Sri Lanka between 2006 and 2009 "faced a bit more scrutiny" (AB 39) was not put to the appellant for comment. However, the Minister denies that the appellant did not receive procedural fairness. 48 In our view, the parts of the UK Home Office Bulletin that stated that those who left Sri Lanka between 2006 and 2009 "faced a bit more scrutiny" and that those who left in the mid-1990s "may be interviewed and even made to register in their home district" did not need to be put to the appellant because they were not adverse to his case. In Kioa v West, in the passage relied upon by the appellant (at 629), Brennan J said that "in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made" (emphasis added). This statement of principle was adopted as the basis of analysis by the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [15] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. See also Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs (2014) 220 FCR 202 at [149] per Kenny J; Summersford v Commissioner of Police (2018) 97 NSWLR 831 at [87] per Payne JA (McColl and Basten JJA agreeing). These parts of the UK Home Office Bulletin were not adverse, in that the passages referred to by the Assessor at AB 39-40 did not say that those who left in the late 1990s faced insufficient scrutiny to give rise to concern; they simply said that those who left between 2006 and 2009 "faced a bit more scrutiny" and that those who left in the mid-1990s "may be interviewed and even made to register in their home district". These parts of the UK Home Office Bulletin did not undermine the appellant's claim as they were not directed to his circumstances. 49 Further and in any event, there was no practical injustice such as to amount to a denial of procedural fairness: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] per Gleeson CJ; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [57] per Gageler and Gordon JJ. The fact that the appellant left Sri Lanka in 1999 was not contentious. The appellant was plainly aware that an issue was whether he would face harm on account of questioning at the airport. He had put forward material in support of that claim. It is difficult to see what more the appellant could have said on this matter if the Assessor had put to him that those who left between 2006 and 2009 "faced a bit more scrutiny" and that those who left in the mid-1990s "may be interviewed and even made to register in their home district". 50 In light of these matters, it is unnecessary to consider the materiality of any denial of procedural fairness: see generally Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599. 51 For these reasons, we reject the appellant's second ground of appeal.

Conclusion 52 The appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, we will also order that the appellant pay the Minister's costs, to be fixed by way of a lump sum. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moshinsky, Steward and Wheelahan.