Grounds 2 and 4
47 The central issue raised by ground 2 of the appeal is whether the primary judge erred in identifying, for the purposes of s 425(1) of the Act, that an issue arising in relation to the decision under review was whether SZTQS's family would be able to provide surety for him in order that he may obtain bail.
48 As noted above, the Minister described the relevant issue in broader terms, namely whether SZTQS would be harmed on return to Sri Lanka by reason of his contravention of a domestic law concerning departure from Sri Lanka. The distinction between the competing descriptions of the relevant "issue" is important, not the least because the issue as described by the primary judge was not raised by the delegate, whereas the broader issue as described by the Minister was. As will shortly emerge, this has significant implications for the application of the principles established in SZBEL.
49 In SZBEL, the applicant claimed to have jumped ship in Australia from an Iranian vessel "because the Iranian authorities had come to know of his interest and involvement in the Christian religion and he was in fear of punishment" (at [18]). The Tribunal did not accept that this claim was credible for three reasons. First, the applicant's account of the basis upon which his ship's captain came to believe that the applicant was involved in Christianity was said to be implausible. Secondly, the Tribunal regarded it as implausible, in the circumstances of the case, that the captain would have accused the applicant of apostasy or involvement in Christianity. Thirdly, that the applicant's freedom of movement when the ship was in dock was said to belie his claim that the crew considered him a criminal and that the captain intended to hand him to the authorities on return to Iran. Considered collectively, these three points led the Tribunal to reject the applicant's claim that the captain was planning to hand him to the authorities because of his religious inclinations.
50 The High Court held that accounts of "how his ship's captain came to know of his interest in Christianity, and…the captain's reaction to that knowledge" were live issues and that, because nothing was said by the Tribunal to reveal this to SZBEL, SZBEL would "have understood the central and determinative question on the review to be the nature and extent of his Christian commitment" (at [42] to [43]). Significantly, as the High Court emphasised in [43], the delegate had not based his decision on either of these matters and, absent an identification by the Tribunal of these matters constituting issues arising in its review, the applicant was entitled to assume that the issues in the review were the same as those before the delegate:
The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate's reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review.
51 The Tribunal's failure to give SZBEL sufficient opportunity "to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review" meant that the Tribunal fell into jurisdictional error (at [44] to [45]).
52 SZTQS submitted that identifying the issue in the present case as whether he faced harm by reason of his illegal departure from Sri Lanka was akin to identifying the issue in SZBEL as whether SZBEL was in fear of harm because the Iranian authorities had come to know of his interest in Christianity. I accept that, consistently with SZBEL, it is necessary to identify the issue in the present case with greater particularity. In doing so, it should be recalled that what is, and what is not, an issue for the purposes of s 425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision (SZBEL at [47]). The matters identified as issues in SZBEL were matters that had led the Tribunal to reject SZBEL's claim (see at [20]).
53 Further guidance as to the approach to be taken under s 425(1) when identifying "the issues arising in relation to the decision under review" can be gained from the judgment of Gray J, with whom Gyles J generally agreed, in SZHKA. At [7], Gray J said:
… because the Tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the Tribunal might not be persuaded by that material; the Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal's specific reservations about the applicant's case. Thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision-maker takes about the material before the tribunal, and will therefore be shaped by that person's thought processes.
54 Justice Gray clarified at [7] that this did not mean that the Tribunal had to expose all of its thought processes to the applicant.
55 I accept SZTQS's submission that Applicant S154 is distinguishable. The applicant there appeared before the Tribunal and it made a decision adverse to her that was ultimately quashed by the Federal Court. At her second Tribunal hearing, the applicant claimed, for the first time, to have been raped. The applicant had a psychological report in support of her claims for protection, but the report did not include any reference to the applicant having been raped. As part of its reasoning in rejecting this claim, the Tribunal relied on the absence of any reference to rape in the psychologist's report.
56 Justices Gummow and Heydon (with whom Gleeson CJ agreed), noted at [49] to [50] that the Tribunal had made it known to the applicant that a difficulty it perceived with the rape claim was that the claim was being advanced for the first time, and that the applicant had not made any earlier complaint about the rape to the first Tribunal, or police, or through lawyers or "more senior authorities". The applicant was well aware that her psychologist's report was silent on the matter of rape. Although the applicant had attempted to explain her failure to make an earlier complaint about the rape, she said nothing to explain the silence on this matter in the psychologist's report. It was thus open to the Tribunal to use the silence of the report to draw inferences that the psychologist had not been told about the rape, and that this was because the rape had not happened (see at [52]). Importantly, these inferences "were of the same kind" as the inferences to be drawn from the applicant's failure to raise the rape claim prior to the second hearing before the Tribunal (see at [53]).
57 The applicant in Applicant S154 was thus sufficiently on notice as to the possibility that the psychologist's report would be used by the Tribunal in the manner it ultimately did. The Tribunal's reasoning process could not have taken the applicant there by surprise.
58 That is not the case here. As the primary judge found, the Tribunal made a factual conclusion, which was a necessary link in the Tribunal's chain of reasoning in rejecting SZTQS's claim, without any notice to SZTQS that the conclusion might be made or that the factual question was in issue. That factual conclusion was to the effect that the applicant would only be detained for a short period because a member of his family would provide surety and he would be granted bail.
59 Nor does SZMUF assist the Minister's case. As Flick J stated there at [22]:
Wherever the line may be drawn in individual cases, a party must be sufficiently put on notice of those matters which place him in a position where he can meaningfully avail himself of an opportunity to be heard.
60 The question of whether a family member would provide surety for SZTQS was a crucial link in the Tribunal's chain of reasoning, and was an issue that, in order to comply with s 425(1), the Tribunal had to identify to SZTQS. Ground 2 is rejected.
61 Ground 4 should also be rejected. It is predicated on a false premise, namely that the relevant issue for the purpose of s 425 was the likelihood that SZTQS would suffer significant harm upon his return to Sri Lanka should he be suspected of having departed Sri Lanka illegally. For reasons given above that is too broad a statement of the relevant issue. The relevant issue was more particular than that, namely whether or not SZTQS had a family member who would provide surety for him.