BTB15 v Minister for Immigration and Border Protection

DELEGATE'S DECISION 14 The delegate expressed concerns about the appellant's credibility, and stated that the appellant embellished and contrived critical elements of his claims, including the significance of his brother's role in the LTTE, his purchase of medical supplies for the LTTE, his method of escape from the camp and his family's situation in Sri Lanka since his departure. The delegate also expressed concerns about the veracity of the documents submitted by the appellant in support of his application, in light of the appellant's inference, during his protection visa interview, that he can easily obtain fraudulent documents from Sri Lanka. 15 However, the delegate accepted that the appellant's brother may have been involved with the LTTE, and that the appellant worked at the hospital and various other hospitals which treated injured members of the LTTE up until April 2009. 16 The delegate also considered the appellant's claim that he feared he would be killed by the Sri Lankan army and authorities if he returned to Sri Lanka because his brother was a member of the LTTE and because of his perceived links to the LTTE as a result of treating injured LTTE members while working at the hospital. 17 In this respect, the delegate was satisfied that the essential and significant reason for the harm feared was the Convention reason of political opinion, and that the harm feared amounted to persecution, as required by s 91R(1)(a) of the Migration Act 1958 (Cth). 18 However, the delegate found that, based on the evidence and current country information, the appellant was not a person of interest to the CID or any other Sri Lankan authority because of his brother's past involvement in the LTTE, and the chance of the appellant being targeted due to his perceived links to the LTTE was extremely remote. Consequently, the delegate was not satisfied the appellant had a well-founded fear of persecution and did not accept there was a real chance of persecution if he returned to Sri Lanka now or in the reasonably foreseeable future. 19 The delegate was not satisfied Australia owed protection obligations to the appellant and concluded that the appellant did not meet the criteria for a grant of a protection visa under s 36(2)(a) of the Act. 20 Furthermore, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there was a real risk the appellant would suffer significant harm. As a result, the delegate found the appellant did not meet the criteria for the grant of a protection visa under s 36(2)(aa) of the Act. 21 The delegate refused to grant the appellant a protection (class XA) visa. 22 The appellant sought merits review of the delegate's decision in the Tribunal.

TRIBUNAL'S DECISION 23 The appellant, together with his representative and an interpreter, appeared before the Tribunal on 25 June and 24 July 2015. At the end of this hearing, the Tribunal gave the appellant until 1 July 2015 to provide further material. The appellant provided further material and the Tribunal gave consideration to that material. On 24 July 2015, the Tribunal conducted a second hearing to discuss whether the appellant departed Sri Lanka illegally. 24 The Tribunal found the appellant was not a credible witness and had embellished and fabricated most aspects of his claim. The Tribunal did not accept that the appellant passed information or supplies to the LTTE or that his brother was a high ranking LTTE official. The Tribunal found the appellant's account of his escape from the camp was fabricated and inconsistent with country information about camps being tightly controlled by the military. The Tribunal did not accept that he was questioned and not identified as a member of the LTTE at the airport, that his family have been monitored, or that his other brother was harmed or threatened. The Tribunal did not accept the appellant was a person of interest to the Sri Lankan authorities, the CID or the military now or in the future. 25 The Tribunal then considered whether Australia had protection obligations under the Refugee Convention, having regard to the appellant's claims and submissions, and the country information. 26 The Tribunal did not accept the appellant would be imputed with LTTE connections or anti-government sentiment as a result of his ethnicity, his brother's involvement in the LTTE, his work at a hospital in a LTTE controlled area, his work treating LTTE members, his other brother's former work, or his status as a returned, failed asylum seeker. 27 The Tribunal was not satisfied the appellant had a real chance of being persecuted if he returned to Sri Lanka for his ethnicity, membership of a particular social group, political opinion or any imputed political opinion. 28 The Tribunal did not accept the appellant departed Sri Lanka illegally, that any CID officer or authorities were interested in him, or that the authorities have monitored his family or harmed his brother. 29 The Tribunal further considered that while there have been some reports of returnees being questioned or reported to police upon return to Sri Lanka, there is limited evidence of returnees suffering serious harm. Consequently, the Tribunal was not satisfied the appellant faced a real chance of serious harm should he be returned to Sri Lanka as a failed asylum seeker from Australia. 30 For these reasons, the Tribunal was not satisfied the appellant had a well-founded fear of persecution for any Convention reason now or in the reasonably foreseeable future if he returned to Sri Lanka. 31 The Tribunal was also not satisfied there were substantial grounds to believe that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer significant harm. 32 The Tribunal concluded that the appellant was not a person in respect of whom Australia had protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act, and so affirmed the delegate's decision not to grant the appellant a protection visa. 33 The appellant then sought judicial review of the Tribunal's decision in the Federal Circuit Court of Australia.

JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT 34 In his application for judicial review filed 31 August 2015, the appellant raised the following ground: 1. The decision of the Refugee Review Tribunal (the 'Tribunal') dated 24 July 2015, RRT Case Number 1405844 (the 'Decision'), was not a privative clause decision within the meaning given by subsection 474(2) of the Migration Act 1958 by reason of the following jurisdictional errors in the Decision: a. The Breach of procedural fairness; b. Apprehended bias; c. The identification of a wrong issue; d. The asking of a wrong question by the Tribunal; e. The failure to take into account relevant considerations; f. The taking into account of irrelevant considerations; g. The misconstruing of a statutory provision; h. The application of a wrong test; i. The failure to comply with a procedural requirement prescribed by statute; j. The failure to consider the Applicant's claims made or an integer of the Applicant's claims made; k. The failure to consider an articulated claim that was raised squarely on the material although not expressly advanced by the Applicant; and l. Unreasonableness, illogicality or irrationality in decision making such that the conclusion reached by the decision maker was not reasonably open on the evidence. 35 The appellant was represented at the hearing on 28 April 2016 and 10 October 2016. 36 The primary judge's reasoning indicates that, while there were 12 aspects to the two grounds of the appellant's application, the only aspects pressed before his Honour were that: (1) there was a breach of procedural fairness; and (2) the conclusion was not reasonably open on the evidence. 37 The appellant's outline of submissions dealt with these two aspects together. The appellant made no submissions in relation to the other aspects of his ground for review. 38 In his submission, the appellant referred to 17 instances in the decision record where the Tribunal relied on various documents to support a finding or conclusion. The appellant submitted there was no evidence that those documents were put to the appellant or his agent before the decision was made. The appellant further submitted that the failure to bring those documents to the appellant's attention, where the Tribunal intended to rely on such documents, constituted jurisdictional error. 39 Paragraph [20] of the appellant's submissions sets out the documents and information which the appellant claimed was not put to him, but was used by the Tribunal to contradict him. The table is reproduced below: Tribunal Reasons Paragraph No. Document or Information Referred to 35 DFAT Thematic Report 37 "Country information about the tight control in camps" 43 "Country information that it would have been highly militarised" 47 Country information "is that all suspected LTTE, even low profile were rounded up" 48 Country information (Chamberlain the Guardian 20 December 2009) 49 Country information 50 Country information is "that both the camps and hospitals were government controlled" 51 UNHCR 2009 68 Country information is that everyone in LTTE controlled area had supported them in some way 77 DFAT country report 2.37-2.40 and 3.12 81 Country information in the decision of the United Kingdom Upper Tribunal 86 Country information is the trend of monitoring and harassment has generally eased 88 DFAT country report paragraph 5.32 and DFAT country report 4.21 93 UK Home office 212 CG (2013) UKUT319 94 UK Home office 212 CG (2013) UKUT319 101 DFAT country report paragraphs 5.2205.33 105 DFAT country information is that returnees are treated to standard procedures and further reference to DFAT country report paragraph 5.26

40 The appellant relied on the observation of Mason J (as His Honour then was) in Kioa v West (1985) 159 CLR 550 at 587; [1985] HCA 81: recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it. 41 The primary judge explained that when the matter came before him in April 2016, he adjourned the matter to allow the appellant an opportunity to make submissions as to whether the Act overrode the common law in this area. 42 The primary judge, at [21]-[24], noted the following relevant provisions in the Act: 420 Refugee Review Tribunal's way of operating The Tribunal, in reviewing a Part 7 -reviewable decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case. ' 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. 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. 425 Tribunal must invite Applicant to appear (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the Applicants favour on the basis of the material before it; or (b) the Applicant consents to the Tribunal ·deciding the review without the Applicant appearing before it; or (c) subsection 424C(l) or (2) applies to the Applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the Applicant is not entitled to appear before the Tribunal. 43 The appellant submitted to the primary judge that s 424A did not absolve a Tribunal from acting fairly and could not override s 420 of the Act. 44 However, his Honour noted that s 422B prescribes that "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." In that respect, his Honour said, there had been a legislative overriding of the common law. 45 At [28] of his reasons, his Honour stated: Section 420 of the Act is, in many ways, a 'motherhood' statement. It is an aspirational statement that has no enforceability in, and of, itself. The effect of s.422B is, that if the Tribunal has complied with its obligations under s.424A in the disclosing of documents to the Applicant, then it has complied with 'natural justice' and has acted with 'substantial justice'. 46 His Honour then said that, under s 424A, a Tribunal need only put to an applicant information that it considers would be a reason, or part of the reason, for affirming a decision, and the exceptions to that rule are listed in s 424A(3). 47 The primary judge accepted the Minister's submission that: Broadly speaking, the abovementioned exception is said to immunise Country Information from being the subject of any obligation under s 424A of the Act. 48 In this respect, the Minister relied on the comments of the Full Court of the High Court in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319. 49 The primary judge considered that all the material identified by the appellant in the table reproduced at [39] above could be characterised as country information and was therefore captured under the exception in s 424A(3)(a). 50 The primary judge found the Tribunal complied with s 424A and further complied with all the obligations of natural justice, as a result of s 422B. The primary judge concluded there was no breach of procedural fairness. 51 In relation to the second aspect of the ground for review, the primary judge was satisfied that the conclusions reached by the Tribunal were, in fact, open on the evidence. 52 For those reasons, the primary judge held there was no jurisdictional error affecting the Tribunal's decision, and so dismissed the application for review. 53 The appellant now appeals from the primary judge's decision.

APPEAL TO THIS COURT 54 By notice of appeal filed in this Court on 2 November 2016, the appellant raised a number of grounds. However, at the hearing, he only relied on the following grounds of appeal: 1. The learned Judge of the Federal Circuit Court of Australia was in error- a. … b. By failing to find that the omission by the Tribunal to give particulars of the information referred to in the table set out in paragraph 18 of the decision to the appellant was a breach of subs 2 of s 424A of the Migration Act 1958. c. By failing to find that the decision of the Tribunal was affected by jurisdictional error. 2. The learned Judge of the Federal Circuit Court of Australia was wrong in law in failing to adopt the reasoning of the High Court of Australia in Saeed -v- Minister for Immigration and Citizenship (2010) 241 CLR 252. 3. The learned judge of the Federal Circuit Court of Australia was in error in paragraph 28 of the reasons for judgment in finding that section 420 of the Migration Act 1958 was in many ways a 'Motherhood' statement. 55 In his written outline of submissions dated 2 February 2017, the appellant states that the "gravamen" of his case is whether s 424A of the Act overrides principles of procedural fairness. The appellant submits this issue is encompassed in grounds 1(b), 1(c) and 2 of the notice of appeal. 56 Counsel for the appellant developed his submissions on the basis that the reasons of the Tribunal centred around the credibility of the applicant. In response to the proposition put by the Court that there are no grounds concerning credibility issues, counsel emphasised that the appellant was found not to be a witness of truth who had embellished and exaggerated his claims and his brother's association with the LTTE. 57 Counsel submitted that on a number of occasions the Tribunal found, after referring to country information, that it did not accept the version given by the appellant. However, the Tribunal member did not go into detail with the appellant concerning the country information that she considered had bearing on the credibility issues. 58 Counsel, after referring to such High Court decisions as Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 and other well-known authorities, submitted that the Tribunal was bound to disclose to the appellant the details of all relevant information that was calculated to prejudice his review application. That submission was made in the context of the obligation arising under s 424A of the Act as to when information must be provided, and need not be provided, to an applicant in a merits review hearing. 59 As I understood the appeal to general law authority, beyond the terms of the Act, it was to provide the background in which the provisions of the Act operate. 60 By reference to a number of authorities concerning s 424A(3)(a), including: VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003)131 FCR 80; [2003] FCAFC 186; NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 89; [2003] FCAFC 262, Baig v Minister for Immigration and Border Protection [2002] FCA 380 and NANF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 292, counsel submitted that even if the character of the information should be determined objectively without regard to the use to which it was to be put, in this case, looking objectively at the way the Tribunal went about its task, the relevant information was used to assess the credibility of the one and only witness, namely, the appellant and he should have been given detail about the information, and a proper opportunity to consider and respond to it. 61 For example, by reference to the information about "the tight control in camps" referred to in the list at [39] of the Tribunal's reasons, and three other pieces of information said to be "critical", counsel submitted that it was not satisfactory for the Tribunal member simply to draw from the information a specific point, such that the camps are strictly controlled, and require the appellant to respond to that proposition without identifying the information, its source, and giving the appellant an opportunity to deal with the cogency of the source information. 62 Counsel said that it was not good enough for the Tribunal merely to summarise what was in a document and the details, source, date and the like of the information needed to be provided. He accepted that "chapter and verse" did not need to be provided, but the information needed to be provided in sufficient detail so that the person could adequately respond to it, or his agent could, and if an adjournment was needed to do so, it should have been given. 63 On behalf of the Minister, it was accepted that at common law there is a requirement on the part of a decision-maker to disclose information that is credible, relevant and significant, although as pointed out in Annetts v McCann (1990) 170 CLR 596 at 598-600; [1990] HCA 57, that requirement can be excluded by statute. The Minister submitted that in this regard, s 422B and s 424A exhaustively act as a code for the Tribunal to put adverse information and there is no room to go to the general or common law. 64 As to the four "critical" pieces of country information that the appellant submits were not appropriately disclosed to him, counsel for the Minister submitted that, in truth, they could be divided into two categories: first, country information that was used as a tool to evaluate the weight to be given to the appellant's evidence to the Tribunal; secondly, information the Tribunal used to evaluate the likelihood of the appellant, as a Tamil from the north of Sri Lanka, being persecuted by the Sri Lankan authorities. Counsel submitted that the appellant, by his counsel's oral submissions, only advanced submissions on the first basis, whereas the appellant's written submissions canvassed the second category as well. 65 Counsel for the Minister submitted that where the information falls into the second category, there can be no real argument that s 424A(3)(a) applies to exempt the Tribunal from the s 424A disclosure obligations. 66 Counsel for the Minister accepted that it is necessary to look at the relevance of a document to the decision to be made in order to decide if it fell within the subs (3)(a) exception. 67 By reference to the information that camps and hospitals were government controlled and heavily guarded, counsel for the Minister submitted that it was relevant to the Tribunal's decision because it was generally about the situation experienced by people in camps or hospitals, of which class of people the applicant was a member. 68 Counsel, acknowledging the difficulties in identifying and then applying the relevant test, submitted that in a broad sense, if one is looking at information that applies to a wide class of persons, even if it includes the applicant, it falls within the subs (3)(a) exception. In other words, if the decision-maker is focussing on information about a class of people to ascertain the situation for an applicant, the exception applies. 69 Counsel for the Minister also addressed a number of other authorities he submitted clarified the test, including those that, in effect, overruled NARV. 70 Responding to those submissions, I would observe that the authorities have grappled with this issue and the so-called test created by s 424A(3)(a) over a number of years in a variety of different factual situations. I consider, however, the decision in Minister for Immigration and Citizenship v SZHXF (2008) 166 FCR 298; [2008] FCAFC 36 provides me with appropriate current guidance. In that case, two issues had led to the former Refugee Review Tribunal not accepting that the respondent was a person to whom Australia owed relevant protection obligations as a refugee. It reached its decision after questioning the respondent about Ahmadi beliefs and considering a letter from the Ameer of the Ahmadiyya Muslim Jamat Bangladesh (AMJB) stating that his claims were fabricated. The Full Court (Tamberlin, Gyles and Stone JJ) first dealt with the question whether the material which the Tribunal referred to in its reasons was "information" within s 424A(1). Their Honours stated, at [13], that where a source of information is perceived by the Tribunal to be generally reliable, the information derived from that source may then be used to weigh and assess evidence about the claims advanced by an applicant. The consequences of that assessment may support a conclusion that the applicant is owed protection obligations, or it may not. Whatever the conclusion, however, the process of assessment cannot properly be described as materially undermining the applicant's claim. Rather, it is a process which allows the Tribunal to investigate and evaluate the claims advanced by an applicant by weighing his or her evidence against another reliable source of information. It is, therefore, not of itself "information" within the meaning of s 424A which is required to be disclosed to the applicant. In the course of making that analysis, the Full Court relied on the decision of the High Court is SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 6. 71 The Full Court then dealt with the further question that arose under s 424A(3), namely, whether the information was information specifically about the first respondent or another person, or about a class of persons of which he is a member. 72 The Full Court, at [19], noted that a Full Court in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at 563; [2004] FCAFC 82 had observed that the reference to the "class of persons" is "not another criterion to be met". Rather, the reference is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it. In that regard, their Honours also referred to VHAJ and NANM and NANN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 99. 73 The Full Court, at [20], did not accept as correct the respondent's submission that the "information" concerning the reliability of the AMJB's advice as to whether a person is a genuine Ahmadi was specific information "about" the respondent because it impacted on his credibility. The Court said that the Tribunal's attitude towards the reliability of a particular source of information only relates to the soundness and dependability of information from that source; it is not an attitude, nor a piece of "information" for the purposes of s 424A of the Act, "about" the particular applicant. The Full Court added that the degree of connection between the "information" acquired from the AMJB and the respondent was not sufficiently close to be properly characterised as being information "about" him. 74 The Full Court also considered, at [21], there was no force in a submission made by the respondent that the information was "about" another person, namely the Ameer. They said that was because the reliance by the Tribunal was on the information sourced from the Ameer "as an institution". The information relied on was not sourced from the head of that organisation as an individual and therefore could not be said to be information "about" that individual. 75 In my view, precisely the same things should be said of each of the items of "information" falling into the four "critical" categories identified on behalf of the appellant, and indeed the other documents identified. 76 The information relied on in each instance was part of the general assessment processes adopted by the Tribunal in the first instance, and was not "about" the appellant, or another person in any event. 77 When this approach is taken, it becomes clear that the s 424A(3)(a) exception applied in this case, because: (1) the information that indicated that Columbo was "highly militarised, with checkpoints and requirements to register, with LTTE suspects being rounded up" was only relevant because it tended to show that it was difficult for a class of persons (LTTE suspects/persons of interest to the authorities) to avoid detection; (2) the information that indicated that "both the camps and hospitals were government controlled, being run by the military and were heavily guarded" was only relevant because it tended to show that it was difficult for a class of persons (persons in IOP camps and hospitals) to escape from such camps/hospitals ; and (3) the information that indicated that the situation for Tamils in the north had significantly improved since the end of the war (and the monitoring of such Tamils by the authorities had eased) was only relevant because it tended to show that the general situation for a class of persons (Tamils from the north) had improved. 78 That ground of appeal therefore fails. 79 As to the proposed amendment to the grounds of appeal, I accept the Minister's submission that leave should not be given to argue it because the first instance hearing in front of the primary judge involved two hearings and seven sets of submissions, where the appellant kept changing his case. For the grounds of appeal to be altered on yet another occasion should not be permitted. 80 The appellant did not contend in front of the primary judge that the information did not fall within s 424A(3)(a). What he contended was that the common law rules of natural justice continued to apply and the obligation to provide the information arose through s 420 of the Act. 81 The appeal ground would also involve a rehearing of the appeal. 82 Finally, it is clear that there is no general law obligation to disclose information outside the requirements and exceptions created by the Act, and the findings of the primary judge do not reveal any error in that regard. 83 For these reasons, all the grounds pressed by the appellant at the hearing fail and the appeal should be dismissed with costs.

orders 84 The Court orders: (1) The appeal be dismissed. (2) The appellant pay the first respondent's costs, to be assessed if not agreed. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.