Disposition of the appeal
31 The appellant has not persuaded the Court that there is any appellable error in the primary judge's reasons for judgment. In our respectful view, his Honour correctly stated the relevant legal principles and correctly applied them to the appellant's circumstances.
32 The primary judge accepted that the second respondent was required to observe procedural fairness. His Honour did not say anything which was inconsistent with the principles established by the High Court in Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319, Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 and Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 and by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 and SZQRB, referred to in the appellant's written submissions. The issues in this appeal concern the content of the procedural fairness obligation and whether the primary judge erred in concluding that the second respondent had satisfied that obligation.
33 We shall now consider each of the grounds raised by the appellant in his notice of appeal as constituting procedural unfairness on the part of the second respondent (noting that Mr Searle, who appeared with Mr Bodisco for the appellant, made clear that he did not press an argument that procedural fairness required that the appellant be given an opportunity of an oral hearing by the second respondent).
34 We reject the appellant's argument, as raised in paragraph 1(a) of the notice of appeal, that the primary judge erred in not finding that the appellant was not given an opportunity to put his case in substance in respect of his s 46A request. As noted above, the appellant's adviser provided certain information under cover of her letter dated 10 September 2012, and she was told shortly thereafter by the Department that it was important that the appellant provide the Department with all the information about his case, particularly any information which demonstrated that there had been a change in his circumstances which had not previously been considered. The adviser was expressly asked to provide any further information to the Department within ten days of the Department's letter dated 13 September 2012 and informed that, if no such information or documentation was provided within that time, the appellant's case would be assessed against the guidelines on the basis of information already held by the Department. Notwithstanding those statements, neither the appellant nor his adviser provided any further information or documentation. In our view, the primary judge was correct in concluding that the appellant was provided with an adequate opportunity to put his case in writing.
35 Paragraph 1(b) of the notice of appeal complains that the appellant was denied procedural fairness because he was not given an opportunity "of meeting the case against him in respect of the Country Information relied upon by [the Assessor] or of making representations". Paragraph 1(g) is in similar terms and also uses the language of the appellant being "denied the opportunity of meeting the case against him". In our view, this language misconceives the nature of the assessment which was carried out by the second respondent. That assessment was not of an adversarial nature so as to justify the notion of the appellant having to meet a case against him in respect of any matter, including country information which was relied upon by the second respondent. We accept that, in some circumstances, procedural fairness obligations may require disclosure of country information which is to be relied upon by the decision-maker and which has not otherwise been disclosed to the applicant concerned, but procedural fairness does not require every item of country information to be disclosed.
36 We respectfully agree with the following statement of the relevant legal principle by Rares and Jagot JJ in Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 223 (SZQHH) at [30] (and, to similar effect, see at [66] per Flick J):
However, the reviewer's obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country or other information that the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice. The purpose of giving a person in the position of the applicant the substance of such information is to enable him or her to have an opportunity to deal with its potentially adverse consequences by responding to the decision-maker on those consequences. That enables the decision-maker to take into account the person's answer to the substance of information that has the potential of being used adversely to his or her interests. Affording the person an opportunity of dealing with some matter that he or she has not already had a chance to address in the process ensures that the process itself is fair.
37 In SZQHH, the applicant's claim that the social discrimination suffered by Hazaras was so severe as to amount to persecution was rejected by the independent merits reviewer. In support of that finding, the reviewer relied upon a newspaper article in the Christian Science Monitor and, in particular, on the proposition stated there that the social discrimination against Hazaras had lessened significantly since 2001. The reviewer had not given the applicant prior notice of his intention to rely upon the newspaper article. In allowing the Minister's appeal against a decision of a Federal Magistrate that the non-disclosure involved procedural unfairness, the Full Court found that there was nothing substantively new or different in the newspaper article from other country information and material which was known to the applicant. Rares and Jagot JJ stated at [33] (to similar effect, see at [68] per Flick J):
… There was nothing in the concept of "golden period", or what the CSM article said about the changed position for the Hazaras since 2001, that was substantively new or different from what the applicant was aware had been said in the RSA, the information in the DFAT report or, for that matter, what the applicant's submissions and country information… had canvassed.
38 The general principle enunciated by Rares and Jagot JJ in SZQHH has been applied subsequently in SZQFY v Minister for Immigration and Citizenship [2012] FCA 486 at [60]-[61] per Siopis J and in SZQGL v Minister for Immigration and Citizenship [2012] FCA 1011; (2012) 206 FCR 474 at [61]-[74] per Cowdroy J.
39 In our view, the second respondent's failure to disclose to the appellant the country information contained in the two reports set out in [12] above did not constitute a denial of procedural fairness in the circumstances of this case because:
(a) neither of those reports contained any information which was not also set out in other country information which had been disclosed to the appellant in the earlier decision-making processes (noting again that the appeal book did not contain complete copies of those reports);
(b) the substance of those reports was to the effect that, while a returning failed asylum seeker might be questioned to a limited extent on arrival at Colombo airport, such a person would not be subjected to any differential or excessive treatment unless there was some other reason why the person would be of interest to the Sri Lankan authorities;
(c) country information which was to similar effect as the two later reports that had been taken into account by the reviewer (including information provided to the Department by the Department of Foreign Affairs and Trade in response to a series of questions relating to returning failed asylum seekers who were Tamils and a UK Home Office report on the treatment of Sri Lankan nationals returning to Sri Lanka after unsuccessful asylum bids). The appellant was provided with a copy of the reviewer's statement of reasons dated 7 July 2011, which set out the reviewer's conclusion at [58] that "… country information and UNHCR advice, which I accept, indicates that something more than simply being Tamil is required to sustain a claim to protection"; and
(d) by the Department's letter dated 13 September 2012, the appellant was informed that, in the absence of additional information from him, the Department would assess his case "against the Minister's guidelines on information already held". As a result, the appellant was on notice that the assessment would be made by reference to the information contained, inter alia, in the 7 July 2011 reasons which, in the absence of a change of circumstances, tended to contradict a contention that, by reference alone to being a failed asylum seeker, the appellant would be exposed to a real risk of significant harm if he returned to Sri Lanka;
(e) the appellant's counsel was unable to point to any material in the country information which had been provided by his adviser under cover of her letter dated 10 September 2012 which indicated that the mere fact that a person returning to Sri Lanka was an unsuccessful asylum seeker was sufficient of itself to indicate that there was a real risk of significant harm. In our view, this is relevant to an assessment as to whether the appellant suffered any practical injustice as a consequence of the non-disclosure of the two reports (see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 13-14 per Gleeson CJ).
40 In the absence of the appellant pointing to anything in the country information which was not disclosed containing something different in substance from that already disclosed, any argument as to there being a denial of procedural fairness is an argument without substance. An allegation of a denial of procedural fairness may have gained momentum had the appellant pointed to any further information which was not disclosed containing (for example) an assessment as to whether relevant circumstances had changed between July 2011 and September 2012. But no such submission was advanced. And the appellant had been invited to put such further information and materials upon which he wished to rely. The materials provided to the Department on 10 September 2012 on his behalf did not attempt to advance any contention that there was any relevant change of circumstances between the facts that prevailed in July 2011 and as at September 2012.
41 As to paragraphs 1(c) and (d) of the notice of appeal, we accept the Minister's submission that the meaning of both those grounds is unclear. That difficulty was not overcome by anything which was said on the appellant's behalf in either oral or written submissions. We do not consider that either ground gives rise to an appellable error.
42 Paragraph 1(e) of the notice of appeal complains that the "evidence" contained in pages 2-3 of the adviser's letter dated 10 September 2012 was not dealt with "in any particularity" in the minute dated 27 September 2012. Pages 2 and 3 of that letter summarised the appellant's protection claims (see [7] above) and also described in very general terms the attached documentation relating to evidence of the use of torture and ill-treatment in Sri Lanka. It is notable that the adviser did not draw attention to anything in the supporting documentation which indicated that there may be a risk of significant harm if a failed asylum seeker returned to the airport in Colombo merely because the person was a failed asylum seeker and without more.
43 One of the reports provided by the adviser, which was entitled "Tortured when deported to their place of origin - AUSTRALIA GETS IT WRONG, again" and was dated 11 August 2011, described the alleged torture on their return of 3 Sri Lankans who had been deported after their asylum claims had been rejected. But the report did not claim that the alleged events occurred merely because the 3 people were unsuccessful asylum seekers. According to the report, one of the alleged victims was accused of having involvement "with the LTTE and its ship". Another of the alleged victims was accused of committing a crime under Sri Lankan law. The adviser also provided a UK Home Office report dated 30 November 2011 entitled "Sri Lanka Bulletin: Recent Reports on Torture and Ill Treatment". This report explained that of 35 alleged torture victims, 4 were returned failed asylum seekers. However, again, the report did not suggest that the alleged torture had occurred merely because these people were failed asylum seekers.
44 In his minute dated 27 September 2012, the second respondent summarised the adviser's letter dated 10 September 2012 and explicitly identified the various supporting documents which had been enclosed with it. It is true that the second respondent did not analyse the appellant's supporting documentation beyond acknowledging that it had been supplied. In our view, however, there was no obligation on him to do so in circumstances where that information did not indicate that a failed asylum seeker returning to Colombo airport may be at risk of significant harm merely because they were a returning unsuccessful asylum seeker and without more. The appellant has not demonstrated to our satisfaction that there was an appellable error in the primary judge's finding that the supporting material had been considered adequately by the second respondent.
45 As to the appellant's complaint that he was not placed on notice that the second respondent proposed to reject the supporting material accompanying the adviser's letter dated 10 September 2012 (see paragraph 1(f) of the notice of appeal), we accept the Minister's submission that this ground misreads what the second respondent found. In our view the primary judge did not err in finding that the second respondent did not reject the reports which were provided by the appellant's adviser as not being credible, but rather found that they did not provide a credible basis for contradicting the reviewer's findings. The appellant's claims that he was at risk because he had worked for the LTTE and, as a result, the Karuna Group were looking for him, were rejected by the reviewer on credibility grounds. Otherwise, the reviewer did not accept that there was any risk factor in the appellant's background that would lead him to conclude that there was a real chance that the appellant would suffer harm by reason of his ethnicity, his real or imputed political opinion or for any other Convention reason should he return to Sri Lanka in the foreseeable future. The second respondent found that no new credible evidence had been supplied to contradict those findings.
46 As to the appellant's claim that he was at risk of being questioned and detained upon return to Colombo as a failed asylum seeker, the second respondent concluded that while the appellant might be questioned to a minor degree on return (because he had arrived in Australia without a valid travel document), he would not be subjected to any differential or excessive treatment in this process because there was no credible evidence to indicate that he was of any interest to the Sri Lankan authorities for any reason. The second respondent concluded that there was no credible evidence to indicate that the appellant was wanted by the Sri Lankan authorities or any other person, with the consequence that it did not appear that he was personally at risk of being subjected to significant harm within the meaning of the complementary protection provisions.
47 In oral argument, Mr Searle contended that appellable error was also disclosed by the primary judge not finding that there was procedural unfairness in the following extracts from the second respondent's minute set out at [59] of the primary judgment:
• Under the CP […Complementary Protection…] components, the definition of "significant harm" includes arbitrary deprivation of life (ADL) and the Death Penalty. There is no credible evidence before the Department to indicate that [the appellant] is wanted for any crimes in Sri Lanka, therefore, it does not appear that he is at risk of being imprisoned and/or facing the death penalty if he were to return to this country. (Emphasis added).
And
• … there is no credible evidence to indicate that [MZYPY] is wanted by the Sri Lankan authorities or any other person, therefore, it does not appear that he is personally at risk of being subjected to torture, [cruel or inhuman treatment or punishment] or [degrading treatment or punishment] in the context of detention or imprisonment. (Emphasis added).
48 In particular, Mr Searle contended that the primary judge erred in not finding that there was procedural unfairness because the second respondent did not disclose the basis for his implicit conclusion that the appellant was not personally at risk of significant harm of the kinds identified in the absence of being "wanted" in Sri Lanka.
49 We reject that submission. In the first extract, the second respondent was considering the possible risk of two types of significant harm that could give rise to complementary protection obligations, namely arbitrary deprivation of life and the death penalty. The appellant had not suggested that he was at risk of either type of significant harm, except by reference to claims that had been rejected. The second respondent had previously concluded that, as a failed asylum seeker holding an Emergency Travel Document, the greatest harm to which the appellant might be subjected was questioning "to a minor degree". In that context, in the first extract the second respondent was merely excluding from consideration the risk of imprisonment and or the death penalty in the absence of evidence that the second respondent was wanted for any crime.
50 The second respondent's reasoning was clarified by the subsequent observation that the appellant "may be subject to questioning but there is no indication that this questioning will result in [the appellant's] arbitrary detention or subsequent harm as a foreseeable consequence of his return".
51 As to the second extract, the second respondent was saying no more than that he accepted the reviewer's adverse findings against the appellant and no credible evidence had been provided by or on behalf of the appellant to indicate that he might personally be at risk of significant harm merely because he was a returning failed asylum seeker. This interpretation of the second respondent's reasons is also supported by the finding that there was no indication that any questioning of the appellant on his return to Sri Lanka would result in subsequent harm as a foreseeable consequence of his return.
52 In our view, the primary judge was correct to hold that procedural fairness did not require that the appellant be given advance notice of these conclusions (see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [9]).
53 Finally, in oral argument Mr Searle also contended that procedural fairness was denied to the appellant because the second respondent had, without prior notice to the appellant, carried out a full substantive assessment of the appellant's case under the complementary protection provisions, whereas all that had been requested was consideration of that case being referred to the Minister. It is not at all clear that this contention is supported by any of the grounds in the notice of appeal, but no pleading point was taken by the Minister. In any event, we do not accept the contention for the following reasons.
54 First, it is evident from the terms of the minute that the second respondent saw his task as being directed to the question whether or not the bar should be lifted, and not to undertake a full assessment of a s 36(2)(aa) complementary protection claim. That is reflected in the multiple references in the minute to the fact that the assessment was being carried out under the guidelines. The guidelines relevantly state:
5. Not a complete assessment
The assessing officer should not engage in a complete assessment of whether the person is owed protection obligations as provided for in s36(2) of the Act. Their responsibility is to consider whether the new information provided may engage Australia's protection obligations and enhances the person's chance of making a successful claim for protection under s36(2) of the Act. (Emphasis in original).
55 In the introductory section of the minute, the second respondent noted that he was conducting "an assessment of whether the case of [MZYPY] meets the Minister's guidelines… and, if so, whether it should be referred to the Minister for consideration". To similar effect, in expressing his conclusion, the second respondent stated that he was not satisfied that the case met the guidelines and that the request should therefore not be referred to the Minister for reconsideration. The second respondent was plainly aware that his task was defined by the guidelines.
56 Secondly, in the section of the minute dealing with complementary protection obligations, the second respondent described the relevant question as whether "there are substantial grounds for believing that, as a necessary and foreseeable consequence of [MZYPY] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm". We consider that that formulation is consistent with the guidelines. We do not accept that the second respondent misconceived his task and consequently denied the appellant procedural fairness.