SZQGA v Minister for Immigration & Anor [2011] FMCA 672

The Independent Protection Assessment Reviewer failed to accord procedural fairness to the applicant.

• a The Reviewer relied on independent country information (at [73]) in considering whether the applicant was likely to be subject to persecution for a convention reason upon return to Sir Lanka.

• b. This information was not put to the applicant.

• e. The Reviewer failed to accord the applicant a fair hearing by failing to take into account the applicant's answer to questions, posed by the reviewer, as to his relationship with his "aunt" and why the applicant, rather than his "aunt", would be targeted by the EPDP (at [29] and page 16 of the transcript).

• f. The Reviewer found (at [70]) that the applicant's father did not provide information to the LTTE that led to the killing of two members of the EPDP.

• g. That matter was not raised with the applicant during the hearing.

Ground 3

The Independent Protection Assessment Reviewer erred in law by misunderstanding the test to be applied in determining whether:

• a. the applicant met the criterion for a protection visa in s36(2) of the Migration Act 1958; and
• b. Australia owed protection obligations to the applicant under the Refugees Convention for the purposes of s195A of the Migration Act 1958.
  • Particulars
• i. The Reviewer concluded that the applicant "is not likely to be subject to persecution for a convention reason";
• ii. in reading that conclusion, the Reviewer found that the applicant is not a member of a group that is likely to be singled out."

1. The independent country information referred to at [73] in the Reviewer's decision is that extracted at [4] of these reasons. The applicant intended to rely upon what fell from me in SZPAC v Minister for Immigration & Anor [2011] FMCA 517 where those very guidelines had not been put to an applicant. In that case I found there had been a jurisdictional error in not putting the guidelines to the applicant but then relying on them for the purposes of coming to a decision. I concluded that the UNHCR Report constituted credible, relevant and significant information adverse to the applicant's interests.
2. Unfortunately for the applicant there are significant differences between SZPAC and his case. Firstly, the guidelines in SZPAC were not before the assessor at the time he considered that applicant's case. There was therefore no indication that they were a relevant document that he or his advisors should look at. Secondly, there was no reference to the guidelines in the transcript nor did I find that there was anything in the transcript which could be said to have given the applicant the substance of the adverse information to be gleaned from the guidelines: Minister for Immigration and Multicultural and Indigenous Affairs v Applicant VEAL of 2002 [2005] HCA 72; (2004) 225 CLR 88 at [27]. In the instant case the guidelines were before the assessor and they are specifically mentioned by him at [CB 67]. This would have put the applicant and his advisors on notice that they were a relevant matter.
3. The advisors were not only on notice that the Guidelines were a relevant matter, they made reference to them on page 4 of their first submission to the IMR [CB 80]. In their second submission, made after the hearing, they utilised them for their advantage [CB 83 - 84]. The IMR is not required to provide an applicant with a running commentary on her thought processes**:** SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [48]. I cannot see any lack of procedural fairness in not specifically putting to the applicant a particular adverse comment from a document known to and quoted by his own representatives in his favour. In Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 the High Court held (at [9]) that,
   • "Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material."

In the present case, the adverse nature of the information was clear from the face of the document. It is for the applicant to satisfy the IMR that he is a person to whom Australia owes protection obligations and whilst there is no burden of proof to be overcome the applicant must make out his or her own case**:** Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26]; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 per Kirby J at [78]; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510. I am not satisfied that the IMR fell into jurisdictional error in the way suggested by the applicant in Grounds 1(a) and (b).

1. The transcript of the relevant part of the discussion about the aunt is found at [T16]:
   • "GT: How is your aunty connected to you? Whose sister is it?
   • INT: His mother's mother and the auntie's mother are sisters.
   • GT: So that's quite a long connection from your father. Why would they approach your auntie about this issue?
   • INT: Because someone has told the EPDP that she had the family photo so that's when they came to her house to get the photo and asked the questions.
   • GT: If someone was going to try and kill you or injure you because of your connection to your father why wouldn't they do so to your auntie because of her connection to your father?
   • INT: He said that his auntie is not connected to his father and he is his son and the person they are angry about so to get revenge they would get his sons and not the aunt."
2. The paragraph in the decision record relating to this issue is [(29) CB 92]:
   • "[29] The reviewer asked why the members of the EPDP would not have targeted the aunty, as it would seem logical if they were going to target members of Mr Applicant's father's family, as they must have known she was related to him in order to get the photo. Also, his aunty is older and on her own, therefore she could be very vulnerable. Mr Applicant could not explain why they had not targeted his aunty."
3. In his helpful written submissions Mr Tynan, who appeared for the applicant, says:
   • "[22] There are two further matters which the applicant submits amounted to a denial of procedural fairness.
   • [23] First, there was a claim that a photo of the applicant was taken from his aunt's house for identification purposes. At [29] of the Reviewer's reasons the Reviewer states that the applicant could not explain why the EPDP had not targeted his aunty.
   • [24] The Transcript (p 160) discloses that statement is wrong, in that the applicant did offer an explanation as to why the EPDP had not targeted his aunt. The applicant submits this was a failure to afford a procedurally fair hearing, in that the applicant's evidence appears to have been disregarded.
   • [25] At [72], the Reviewer later rejected the applicant's claim. Among other things, the Reviewer did not accept that the incident had any connection with the alleged incidents of 1990. It may be inferred that the Reviewer's statement informed her ultimate rejection of the respective claim. Thus, it cannot be said that the failure to take into account the applicant's explanation had no bearing on the outcome of one of the claims made."
4. The IMR's reasons for decision should not be read with an eye attuned to the perception of error**:** Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. It seems to me very probable that the words utilised by the IMR were shorthand for "could not explain adequately" because the use of the word "could" next to the verb "explain" seems to me to denote, as happened, that some explanation was proffered but was not satisfactory. If she thought no explanation at all had been proffered surely the IMR would have said that. If I am wrong about this and what has occurred is that the IMR has misunderstood the applicant then I am of the view that it was an error within jurisdiction because whilst it might have informed the IMR's views about the applicant it cannot be shown that it was a significant reason for those views.
5. The seminal Australian case on jurisdictional error is Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 in which Brennan, Deane, Toohey, Gaudron and McHugh JJ signalled that the drawing of the distinction between errors of jurisdiction and errors within jurisdiction was not always self-evident (at 177-178) and gave the following list of errors constituting jurisdictional errors (at 179):
   • "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

Justice Hayne clarified the principle in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, in which his honour opined (at [163]):

"In deciding whether writs of prohibition and certiorari (and analogous forms of relief) should be granted, a distinction is drawn between jurisdictional error and error within jurisdiction. This court has not accepted that this distinction should be discarded. As was noted in Craig v South Australia, that distinction may be difficult to draw. The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision-maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision-maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not."

The High Court further elucidated the question of jurisdictional error in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 by stating that the list in Craig was non-exhaustive and opining (at 351) that:

"What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have the authority to make the decision that was made; he or she did not have jurisdiction to make it." [emphasis added]

In that case it had been argued that the Refugee Review Tribunal had made no finding about one of the incidents the applicant had claimed was a reason for her fear of persecution. The High Court found (at 353) that:

"For the reasons given earlier, even if it were said that [incident] occurred in the manner, and with the consequences, described by Ms Yusuf was a material question of fact, a failure to make a finding about it would not amount to a breach of s 430, for the [incident] was not material to the decision the Tribunal actually made. Nor, in the particular circumstances of this case, does any failure by the Tribunal to make a finding about this matter in its s 430 statement reveal any error of law by the Tribunal or any failure to take account of a relevant consideration."

Likewise, in the instant case even if the Reviewer did misunderstand the applicant, such a misunderstanding was not, in the circumstances, sufficient to affect the exercise of power.

1. I do not believe that the IMR fell into jurisdictional error in this regard.

1. My views on this ground coincide with those expressed by Ms Mitchelmore in her helpful written submissions at [22]. Ms Mitchelmore points out that the death of the two EPDP officers at a time of escalating military conflict could not necessarily be attributed to the applicant's father providing information about them as noted by the assessor. She points out that the Reviewer's findings in relation to the events are similar to those reached by the assessor and that the IMR closely questioned the applicant about the matter upon which he clearly had no firsthand knowledge, being a very young boy at the time. She concludes at [26]:
   • "[26] With the RSA officer having raised these issues with the applicant, and with the reviewer having asked the applicant to shed light on the events regarding his father and not received any relevant assistance from him, it was open to the reviewer to have doubts about whether the events in question had occurred as his parents had told him, and whether, even if the applicant's father had told the LTTE about the approach by the EPDP, that would have caused the deaths of the two EPDP members, being one basis on which the applicant fear to return to Sir Lanka. Consistently with the authorities referred to in SZGUR, the reviewer did not need to give the applicant a running commentary about her doubts as to this or any other part of the applicant's claims."

It seems to me difficult to argue against the force of these submissions and I am satisfied that the IMR did not fall into jurisdictional error as alleged.

1. Whilst the expressions used by the IMR at [(76) CB 98] as extracted at [5] of these reasons are loose I do not think that they constitute a test that was then applied. I am satisfied that the IMR was aware of the "real chance test" and its application to this set of claims. The applicant's advisors most certainly were and brought this to the attention of the IMR at [T21] when making comments about the assessor's decision:
   • "Finally I conclude that the real [chance] test was also not applied properly in the decision which all about the reasonable likelihood ... in the reasonably foreseeable future and this does not have to be a substantial percentage even a 10% is sufficient to establish a real chance and objectively speaking based on the evidence the ... and all the submissions made to day the ... claimant's fear is well founded and most importantly there is a real chance that he will be persecuted ..."
2. The IMR notes this submission at [(54) CB 95]:
   • "[54] The agent also submitted that the 'real chance" test was not properly applied, as even a 10 percent chance is sufficient. Objectively speaking, there is a real chance that Mr Applicant will be subject to persecution because of his race and imputed political opinion, and his failed asylum bid in Australia."
3. She refers to the test again at [(72) CB 97] where she says:
   • "However, even if it is accepted that the photo was taken the Reviewer does not accept that it was taken in the circumstances or for the reasons claimed or that it was taken by the EPDP or that the incident had any connection with the alleged incidents of 1990, or that it gives rise to a real chance that Mr Applicant will be at risk of harm from the EPDP now or in the foreseeable future." [emphasis added]
4. When the decision is looked at in the light of these matters it can be seen that the IMR was both conscious of and applied the real chance test in relation to the applicant's claims and for this reason I am unable to find that she fell into jurisdictional error as suggested in the Amended Application.
5. During the course of the hearing one further matter of alleged procedural fairness was raised. It related to the following:
   • "In relation to more current information UNHCR reports a relatively large number of Sri Lankans have returned to Sri Lanka after fleeing during the civil unrest being in excess of 4,000 returnees in 2010."

It was suggested that this was not put to the applicant. Unfortunately, this is incorrect. At [T18] the following exchange takes place:

GT: Okay I'm just going to stop you now. I'll take your point on that the agent and I had a .... Today and we discussed the numbers of people coming and going from Sri Lanka and that the number is quite low but this morning I looked at a report from the United Nations so it's not directly on your case but it may influence it but the number of refugees the UN helped return to Sri Lanka was over 2,000 in 2010 so I think these are more updated numbers. You can have a look at the form and another almost 3,000 returned on their own accord which was over 5,000 returned. So there is a bit of a difference. It's from the UN integrated regional information network dated 5 January. That's ok if you want to photocopy it. I only mentioned it because it is something that I will mention in the report."

It is clear from this exchange that the applicant was made aware of the information and that the IMR went further by offering him a copy of it and providing him with an opportunity to comment upon it in the post-hearing submission that was made but in which it was not referred to.

1. The court is grateful to Mr Tynan, who appeared pro bono on behalf of the applicant, for putting forward a well argued and coherent case. That it is not successful should not deter him or other members of the profession from seeking to assist applicants in these matters. I have been unable to find any instance of jurisdictional error on the part of the IMR. The application is dismissed. The applicant must pay the First Respondent's costs which I assess in the sum of $6,240.00.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM