These proceedings
23 The appellant raised three grounds of appeal in this court, viz:
1. The Federal Circuit Court erred in failing to find that the Tribunal had failed to provide a meaningful hearing in accordance with the requirements of s 425(1) of the Migration Act.
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2. The Federal Circuit Court erred in failing to find that the Tribunal made a finding that was not open to it on the evidence, or that was not rationally supported by the evidence before the Tribunal.
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3. The Federal Circuit Court erred in failing to find that the Tribunal failed to comply with s 499 of the Migration Act, in that it failed to take into account the most recent country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT), namely DFAT Country Information Report - Sri Lanka, 16 February 2015, in relation to the availability of bail with the requirement that a family member act as guarantor, contrary to Ministerial Direction No 56.
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24 It is convenient to deal first with Ground 3.
25 It is put in two ways - first, that the Federal Circuit Court erred in failing to find that the Tribunal failed to comply with s 499 of the Migration Act in that it failed to take into account the most recent country information assessment prepared by DFAT and secondly, that the Tribunal took into account an irrelevant consideration, viz the superseded DFAT Country Information Report for Sri Lanka dated 31 July 2013 (the 2013 DFAT Report) and thus fell into jurisdictional error. In my view, on a proper reading of the Tribunal's reasons, those submissions must be accepted.
26 The submission arose in response to written submissions made by the Minister, and no objection was taken to it being raised.
27 In his written submissions filed on 14 February 2018, the Minister submitted that the Tribunal was relying not on the most recent DFAT country information, being the 2015 DFAT Report, which the Tribunal extracted at [81] of its decision record, but on the superseded 2013 DFAT Report.
28 Paragraph 83 of the Tribunal's reasons is as follows:
83. As noted above DFAT indicates that in most cases bail is granted relatively quickly [citing Ben Doherty, 8 December 2012, "Asylum denied, a penalty waits at home". Chris Bowen MP, More Sti Lankans involuntarily sent home, 7 November 2012] and on a person's own undertaking and IOM is present while these procedures are undertaken [citing DFAT Country Information Report Sri Lanka 31 July 2013]. Other country information supports DFAT's advice [citing "Elite police officer suspected of key role in smuggling bid", The Age 8 July 2014]. The [appellant]'s wife and his siblings are in Sri Lanka so would be available to sign him out if necessary.
(Emphasis added.)
29 It is tolerably clear that the Tribunal's words "As noted above" at the commencement of [83] must be a reference to [81], which quotes from the 2015 DFAT Report. But the critical part of the Tribunal's decision (in bold above) expressly cites, and must be taken to have relevantly relied only on, the 2013 DFAT Report. The appellant's written submission (dated 30 April 2018) is as follows (at [12]-[21]):
The Minister asserts that the relevant difference between the July 2013 DFAT report and the February 2015 DFAT report is that the former report made no mention of the requirement of a family member acting as guarantor.
On this basis, the Minister asserts that there can have been no assumption on the part of the Tribunal that it was a requirement of bail that a family member act as guarantor, and thus the Tribunal's finding that the appellant would be bailed quickly, in the absence of any evidence about the availability of a guarantor, or its failure to ascertain whether or not a family member was willing and able to acts as guarantor for the appellant, cannot have been an error.
The appellant's primary submission in the first ground of appeal remains that a fair reading of the Tribunal's reasons, including the fact that it extracted the relevant part of the February 2015 DFAT report in its decision record at [81], just two paragraphs before the relevant finding at [83], indicates that the Tribunal was aware of the requirement that a family member act as guarantor for bail and made its decision on that basis…
However, if the Minister maintains that the Tribunal chose to disregard the February 2015 DFAT report, relying instead on the superseded July 2013 DFAT report as the basis for its reasoning, the Tribunal has failed to comply with its mandatory obligation in s 499(2A) of the Migration Act to comply with a Ministerial direction made under s 499(1), specifically Ministerial Direction No 56 of 21 June 2013. If the Tribunal did so, it made a jurisdictional error.
Ministerial Direction No 56 requires that a decision maker must take into account a country information report prepared by DFAT for the purposes of protection status determination processes. The DFAT Country Report- Sri Lanka dated 16 February 2015 expressly states that it has been prepared by DFAT "for protection status determination purposes only".
The February 2015 DFAT report further states, "The country report replaces the previous DFAT Country Report on Sri Lanka dated 3 October 2014." By extension, it also replaces earlier DFAT Country Reports on Sri Lanka, including the July 2013 DFAT report, each of which was superseded by the report that immediately followed it.
It follows that in relying on the July 2013 DFAT report and disregarding a relevant aspect of the most recent February 2015 DFAT report, the Tribunal failed to comply with Ministerial Direction No 56, in failing to have regard to the provision in the February 2015 DFAT report that directed that that report replaced its predecessors…
Accordingly, if the Minister's submission that the Tribunal was not relying on the February 2015 DFAT report in making its decision, but instead relied on the superseded July 2013 advice, is to be accepted, it must follow that the Tribunal committed a jurisdictional error by failing to comply with its mandatory obligation in s 499(2A) of the Migration Act.
An alternative formulation of the same error is that the Tribunal took into account an irrelevant consideration. Given that s 499(2A) of the Migration Act, read with Ministerial Direction No 56, requires the Tribunal to have regard to the February 2015 DFAT report, and given that the terms of the 2015 DFAT report itself indicates that it replaces the previous DFAT Country Reports on Sri Lanka, the Tribunal is precluded from relying on superseded July 2013 report, at least to the extent that the superseded report diverges from the most recent report.
By having regard to a report that is expressly stipulated, for the purposes of s499(2A) of the Migration Act and Ministerial Direction No 56, to have been "replaced", the Tribunal had regard to a consideration to which it was not permitted to have regard [citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [82]-[84] and Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, 39-40).]
30 During the course of oral argument, counsel for the Minister submitted that "at no point has the Minister submitted, written or otherwise, that the tribunal hasn't relied on the 2015 DFAT Report. What the Minister submitted … is that the Tribunal didn't rely upon the 2015 DFAT Report at paragraph [83]".
31 That submission was correct. It seems to me that there is no other way to read the Tribunal's reasons. On the critical question of the application of the relevant country information to the issue decided in [83] of the Tribunal's reasons, the footnote (set out in the bolded parenthetical at [28] above) makes clear that the Tribunal decided the question of whether the appellant would or would not spend a short period of time in jail upon return by reference to the wrong country information. It was critically wrong because the 2013 DFAT Report makes no reference to the need to procure a guarantor to ensure prompt release. It is, of course, true that at [83] of the Tribunal's reasons it sets out the relevant parts of the 2015 DFAT Report. But the reasons, even read as a whole, cannot be read, as the Minister effectively submits, as if the relevant words of the 2015 DFAT Report (including, "with the requirement for a family member to act as a guarantor") were included in [83] and the footnote were read as if it also included a citation to the 2015 DFAT Report (or deleted the 2013 DFAT Report). That construction of the Tribunal's reasons would be impermissibly to re-write them.
32 It follows that the Tribunal did not form any view at all about whether, as a matter of fact, the appellant had a family member to act as a guarantor - which, as I will explain briefly below, means that grounds 1 and 2 must fail.
33 Returning to ground 3, I accept the appellant's submissions set out above. Section 499(2A) of the Migration Act requires a person or body (which relevantly includes the Tribunal) to comply with ministerial directions made under s 499(1) of the Migration Act. Ministerial Direction No 56 of 21 June 2013, which is made under s 499(1) of the Migration Act, requires that a decision maker must take into account a country information report prepared by DFAT for the purposes of protection status determination processes. It states:
… 3. Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision make must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
The 2015 DFAT Report, at paragraph 1.1, states that "The country report replaces the previous DFAT country report on Sri Lanka dated 3 October 2014", and the DFAT Country Report - Sri Lanka dated 3 October 2014 (the 2014 DFAT Report) contains a correlative provision stating that it replaced the 2013 DFAT Report. Therefore, in those circumstances, there is only one DFAT Report that must be taken into account in order to comply with Ministerial Direction No 56. At the time of the Tribunal's decision, that was the 2015 DFAT Report.
34 By relying on the 2013 DFAT Report and failing to consider the relevant section of the 2015 DFAT Report (notwithstanding that the relevant section of the 2015 DFAT Report was extracted at [81] of the Tribunal's reasons), the Tribunal failed to comply with Ministerial Direction No 56. It follows, as the appellant submits, that the Tribunal committed jurisdictional error by failing to comply with its mandatory obligation in s 499(2A) of the Migration Act. Alternatively, it took into account an irrelevant consideration (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 232 at [82]-[84]). This error could also be characterised as a failure to consider the relevant consideration, being the bail procedures set out in the 2015 DFAT Report.
35 The Minister accepted that the Tribunal was required to rely upon the most recent and up-to-date country information, but submitted (in the course of oral argument) that "there is nothing wrong with it relying upon older country information, provided that older country information isn't flatly wrong and contradicts more recent information." So much may be accepted. The Ministerial Direction expressly provides that "[t]he decision maker is not precluded from considering other relevant information about the country." But in this case it is undeniable that, on the issue of bail, the 2013 DFAT Report set out a procedure for bail that was critically different to that described in the 2015 DFAT Report (reproduced at [81] of the Tribunal's reasons), because it did not contain the requirement for a family member to guarantee bail. And the Tribunal, with respect, does not offer any explanation why, having set out at length in [81] the relevant parts of the 2015 DFAT Report (including that "[i]n most cases, returnees have been granted bail on personal recognisance … with the requirement for a family member to act as guarantor"), when it comes to decide the question of what could likely happen to the appellant were he to return to Sri Lanka (which is does by finding that the appellant's "wife and siblings are in Sri Lanka so would be available to sign him out if necessary"), it does so expressly by reference to the 2013 DFAT Report and expressly without mentioning any "requirement" (the word used in the 2015 DFAT Report) that a family member act as a guarantor. In such circumstances, in my view, the Tribunal, merely by setting out parts of the 2015 DFAT Report at [81] cannot be said to have "take[n] into account" those parts within the meaning of the Ministerial Direction.
36 It is worth repeating that a decision maker is not precluded from considering other relevant information. That may, in certain circumstances, include older information. As the Full Court said in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (MZYTS) at [74]:
That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant's circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal's reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.
37 In this case, however, the 2013 DFAT Report had been replaced by the 2014 DFAT Report and then by the 2015 DFAT Report. And, as I say, it was for current purposes, different in a critical respect. And the Tribunal does not provide any explanation (or, as the Full Court would put it in MZYTS, an "evaluation process") for relying on the 2013 DFAT Report, including whether it was "other relevant information" within the meaning of the last sentence of the Ministerial Direction.
38 In such circumstances, the reliance on the 2013 DFAT Report constituted a failure to comply with the Ministerial Direction No 56.
39 For those reasons, the appellant's case on ground 3 must succeed and the appeal must be allowed. I will make orders accordingly.
40 It is not necessary to decide the other grounds, but they fail precisely because, for reasons I have explained, the Tribunal did not make any assumptions regarding the availability of the appellant's family member to act as a guarantor because it had regard to the wrong country information which did not mention that requirement. It cannot be said, therefore, that the Tribunal failed to put the issue of its assumption to the appellant for the purposes of s 425(1) of the Migration Act. Nor can it be said that it made a finding that was not open on the evidence or that was not rationally supported by the evidence before the Tribunal, and there was room for a logical or rational person to reach that decision on that material (cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135]).
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.