SZRCI v Minister for Immigration and Citizenship

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

JUDGE: FLICK J DATE OF ORDER: 21 NOVEMBER 2012 WHERE MADE: SYDNEy (via video link to melbournE)

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 662 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

JUDGE: FLICK J DATE: 21 NOVEMBER 2012 PLACE: SYDNEy (via video link to melbournE)

REASONS FOR JUDGMENT 1 On 10 May 2012 a Notice of Appeal was filed in this Court appealing from a decision of a Federal Magistrate given on 19 April 2012: SZRCI v Minister for Immigration [2012] FMCA 343. An Amended Notice of Appeal was filed on 30 July 2012. An Interlocutory Application was filed on 8 August 2012 seeking (inter alia) leave to amend the Notice of Appeal to include the Grounds of Appeal set forth in the Amended Notice of Appeal. 2 On 5 September 2012 reasons for decision were given for (inter alia) rejecting some of the Grounds set forth in the Amended Notice of Appeal and for granting the Appellant leave to raise a Ground not previously relied upon in the hearing before the Federal Magistrate: SZRCI v Minister for Immigration and Citizenship [2012] FCA 965. 3 The Respondent Minister has filed additional evidence directed to the new Ground of Appeal. 4 The appeal is to be dismissed.

THE NEW GROUND - A FAILURE TO DISCLOSE A DEPARTMENTAL ADVICE? 5 The new Ground in respect to which leave was given on 5 September 2012 is set forth in the Amended Notice of Appeal as follows: The Federal Magistrate erred in failing to consider and find that there had been a denial of procedural fairness in relation to country information that, of the many thousands of Tamils returned to Sri Lanka from overseas, the numbers of those harshly treated 'remain relatively extremely low'. This new Ground focussed upon the following findings as made by the Independent Merits Reviewer, Dr Witton: In considering whether there is a real chance the claimant, should he return, [would] suffer serious harm from any interrogation or investigation by the Sri Lankan authorities, the reviewer has taken into consideration that many thousands of Tamils have returned from overseas (see 2011 UK Home Office Sri Lanka Report, 25.36, cited above at para 48) and that while there are occasional reports of such people being interrogated and detained and indeed that some have been harshly treated, their numbers remain relatively extremely low. 6 Paragraph [25.36] of the United Kingdom Home Office Sri Lanka: Country of Origin Information (COI) Report, to which Dr Witton expressly refers, and the following paragraph [25.37] provide as follows (without alteration): 25.36 The BHC letter of 30 August 2010 went on to observe that: At the beginning of 2010, partly due to the large numbers of Sri Lankans being returned from around the world and causing logistical problems, CID procedures were relaxed in that they no longer had to detain returnees until written confirmation was received from the local police." "In general, the situation regarding all returnees regardless of race or creed appears to be more relaxed than was reported following the Fact Finding Mission. There is though still inconsistency in the way individuals are dealt with. 25.37 Human Rights and Security Issues concerning Tamils in Sri Lanka, Report from Danish Immigration Service's fact-finding mission to Colombo, Sri Lanka 19 June to 3 July 2010, dated October 2010 reported: "As regards, the authorities' entering procedures for returnees, including returned failed asylum seekers in the Colombo Airport, Mr W.A. Chulananda Perera, Acting Controller General, Department of Immigration and Emigration (DIE) explained that the returnee can enter the Sri Lankan border with either a national passport or an Emergency Travel Document issued by the Sri Lankan Embassy. If the returnee enters with a national passport, DIE can check the data in a database. Entry with an Emergency Travel Document does not give this possibility. However, an Emergency Travel Document is considered a proof of identity established in the country of departure. DIE registers the details of all returnee, including travel documents, flight numbers and country of return in a register that all law enforcement agencies are given access to." "A diplomatic mission said that the vast majority of Tamils returning at the moment are facing a minimal risk for undergoing a scrutiny at the airport. The source commented that the way people will be screened today seem to be the result of improved intelligence, also exchange of intelligence between countries in Asia. People with a clear LTTE-profile or people suspected of money transfer would be detained for further investigations. According to the source there is in general no difference in the way Tamil and Sinhalese people are treated at the airport, and there are also exampled of Sinhalese human rights defenders who have been detained for investigations." 7 The further Outline of Submissions filed on behalf of the Appellant contend, in summary form, that Dr Witton denied the Appellant procedural fairness in making his findings that there are "occasional reports" of some persons being "harshly treated" and that "their numbers remain relatively extremely low". This denial of procedural fairness was said to be the failure to disclose the Departmental advice. Alternatively, the Appellant submitted that there was no evidence to support these findings. In the event that it is found that there was evidence to support the findings, no further submission was advanced on behalf of the Appellant that he was denied procedural fairness by reason of being deprived of an opportunity to comment on that evidence. 8 The Appellant primarily contends that the denial of procedural fairness is exposed by the failure on the part of Dr Witton to disclose the factual basis for these findings were based and that the only possible evidentiary basis for the findings could be a report from the Department of Immigration and Citizenship "provided on" 15 December 2011.

THE NEED FOR FURTHER EVIDENCE 9 It is sufficient, for present purposes, to recall that all that was relevantly known at the first hearing in this matter on 13 August 2012 was that: the Appellant was interviewed on 6 December 2011 and the recommendation of Dr Witton was dated 17 December 2011; and the interview of another Tamil asylum seeker ("SZRFK"), which is relied upon by the Appellant, was conducted on 8 December 2011 and the recommendation and Statement of Reasons of the same Independent Merits Reviewer provided in respect to SZRFK was dated 27 December 2011. The "Findings and Reasons" contained within the Statement of Reasons for the recommendation provided by Dr Witton in respect to SZRFK set forth a finding identical to the one in the Appellant's case as to the prospect that SZRFK may face a "real chance" of persecution if he were to return to Sri Lanka - but also went on to contain the following additional reference: … their numbers remain relatively extremely low, as reflected in the advice from DIAC at paragraph 40 above. Paragraph [40], in turn, identified the advice as that "provided on the 15 December 2011". The non-disclosure of the Departmental advice dated 15 December 2011 led to the adverse recommendation in that case being set aside by orders made by the Federal Magistrates Court on 13 June 2012. Given that those orders were made by consent, no reasons for decision were given by the Federal Magistrate in that proceeding. 10 The failure to disclose this Departmental advice, it was submitted on behalf of the Appellant, should lead to the same order now being made by this Court. 11 But what was unknown when the first judgment in this matter was delivered on 5 September 2012 - or at least uncertain - was whether Dr Witton had available to him the Departmental advice "provided on" 15 December 2011 and, if so, whether he relied upon it when making his recommendation regarding the Appellant some two days later on 17 December 2011. The Departmental advice was obviously not available to Dr Witton when conducting his interviews with either the Appellant on 6 December 2011 or SZRFK on 8 December 2011. 12 Having granted leave to the Appellant to raise this new Ground of Appeal, the hearing of the appeal in respect to that Ground was adjourned to permit the Minister an opportunity to adduce such further evidence as may have been considered of relevance. 13 Although the traditional role of judicial review should be constantly kept in mind so that a court does not trespass beyond review and into the realm of questioning the merits of an administrative decision (R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 655 per Windeyer J; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J), there are limited circumstances in which evidence beyond that which was before the decision-maker may be admissible. Ordinarily there is no reason in a judicial review application to adduce evidence other than what was before the decision-maker: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 at [442], 148 FCR 446 at 562 per Weinberg J. The potential admissibility of additional evidence depends upon the ground of review being relied upon: Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539 per Lockhart J; McCormack v Commissioner of Taxation [2001] FCA 1700 at [37]-[41], 114 FCR 574 at 586-587 per Sackville J; Theo Holdings Pty Ltd v Hockey [2000] FCA 665 at [52]-[54], 99 FCR 232 at 249-250 per Dowsett J. Evidence as to what occurred at a hearing, for example, has been described as "an exception to the general rule" where it is claimed that there has been a denial of an opportunity to be heard or actual or apprehended bias: SZJBD v Minister for Immigration and Citizenship [2008] FCA 922 at [24], 102 ALD 622 at 626 per Siopis J. 14 It is similarly concluded that evidence is admissible where a question arises as to whether or not a particular document was or was not before a decision-maker when making his decision. The Minister did not submit to the contrary. 15 Two Affidavits of a Departmental officer (Mr Migotto) were accordingly filed and relied upon by the Minister. Those Affidavits essentially addressed two matters. First, the text of the 15 December 2011 Departmental advice was provided. In relevant part that advice stated as follows: Are you aware of any reports of ill-treatment at Colombo airport, or subsequent to this, of failed asylum seekers to Sri Lanka who have been returned involuntarily? As per above, the department is able to confirm that in 2009 one man was arrested and charged with a people smuggling offence under Sri Lankan law after being removed from Australia. The client also alleged that he had been mistreated (beaten around the ears) on arrival at Colombo airport. These allegations were widely reported in the media and have again surfaced in a recent Amnesty International report. However, at the time of the allegations, officers from the Department (Post in Colombo) investigated the incident further, including private interviews with the client and his brother in Sri Lanka and liaison with the medical doctor, who the client presented to on arrival at the prison from the airport. Through these investigations the reports he had been beaten were not substantiated and the Department was satisfied that the removal did not breach Australia's international obligations. Second, Mr Migotto stated that the Departmental advice was provided to him on 15 December 2011 and that "it would not have been possible for any other [Independent Protection Assessment] researcher (or Reviewer) to have access to the DIAC advice prior to 19 December 2011". That date was the date upon which Mr Migotto "uploaded it to the share file". There was no cross-examination of Mr Migotto. 16 There was no evidence that any inquiries were made directly of Dr Witton.

WAS THE DEPARTMENTAL ADVICE PROVIDED & CONSIDERED? 17 To succeed in the claim that he had been denied procedural fairness by reason of the failure to disclose to him the 15 December 2011 Departmental advice, the Appellant had to establish initially that: 1. Dr Witton did in fact have the Departmental advice available to him when making his recommendation; and, thereafter, establish that 2. Dr Witton did in fact take the Departmental advice into account when making his recommendation. Without first establishing these matters, the remaining Ground of Appeal lacked any factual basis. 18 In seeking to support a conclusion that Dr Witton was in fact "provided" with the Departmental advice on 15 December 2011, Counsel for the Appellant relied upon three matters. 19 First, he relied on the text contained in the Statement of Reasons in SZRFK's case. If the 15 December 2011 advice was available to Dr Witton when making the identical finding in respect to SZRFK, it was submitted that the very same finding was based upon the very same material in the present proceeding. The text of the report in respect to SZRFK, it was submitted, should be accepted on its face. If that be accepted, the Departmental advice was "provided on … 15 December 2011." The phrase as it appeared in paragraph [40] of the Statement of Reasons in respect to SZRFK, relevantly referred to the "following advice … provided on the 15 December 2011 by Returns and Removals Program Support Section, Compliance Status Resolution Branch, Compliance and Case Resolution Division, Department of Immigration and Citizenship". The deletion of the word "the", according to the Appellant, assumed no relevance. 20 Second, he relied upon the failure to call Dr Witton to give evidence or to adduce evidence as to what was before him when making his recommendation regarding the Appellant. Other than the fact that Dr Witton was named as a Respondent to the present proceeding, there was no reason why evidence could not have been adduced as to what material Dr Witton had available to him and what he in fact relied upon. The Appellant submitted that this failure to call Dr Witton to give evidence, or to make inquiries of him as to what materials were available to him provided a basis upon which inferences favourable to the Appellant could and should be drawn: Jones v Dunkel (1959) 101 CLR 298 at 308. Kitto J there observed: … any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. But the absence of a particular witness "cannot be used to make up any deficiency of evidence": (1959) 101 CLR 298 at 312 per Menzies J. See also: Morley v Australian Securities and Investments Commission [2010] NSWCA 331 at [634], 247 FLR 140 at 155, per Spigelman CJ, Beazley and Giles JJA. These statements in Jones v Dunkel however, "… give no support to the proposition that the failure to call a witness may itself provide the basis of an adverse inference. An inference must be founded in evidence": Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 at 124 per Wilcox J. 21 Third, if the Departmental advice was not relied upon by Dr Witton, it was submitted that his finding that the "numbers [of people being subjected to harsh treatment] remain relatively extremely low" is a finding without evidence because it could only be based upon the information in the Departmental advice. 22 Counsel for the Minister rejected these submissions. He maintained that no such finding should be made. Dr Witton's Statement of Reasons, he argued, identified what materials were before Dr Witton. Moreover, the Minister submitted that Mr Migotto's Affidavit evidence made clear that the Departmental advice could not have been available to Dr Witton prior to 19 December 2011. The text of the Statement of Reasons provided by Dr Witton in respect to SZRFK, it was contended, only identified the Departmental advice referred to and was not to be taken as evidence as to the date it was "provided". The full text of paragraph [40] in the SZRFK Statement of Reasons - namely "provided on the 15 December 2011" - exposed the fact that it was a means of citation alone. It is only if the word "the" is deleted that the phrase can be properly construed as a reference to the date upon which the advice was in fact "provided". There was said to be significance in the inclusion of the word "the". If that submission be accepted, it would follow - at least according to the Minister - that the reference to paragraph [40] was no more than a convenient means of referencing the Departmental advice. The phrase, it was said, identified the advice to which reference is being made, namely "the 15 December 2011" advice. The curious phrase, "provided on the 15 December 2011", was common to both Dr Witton's Statement of Reasons in respect to SZRFK and the heading at the outset of the Departmental advice. 23 It is unnecessary, however, to resolve whether Dr Witton did in fact have available to him the Departmental advice when making his recommendation on 17 December 2011. In all likelihood, he did not. 24 Irrespective of how that factual dispute may ultimately have been resolved, it is separately concluded that no finding should be made that Dr Witton placed any reliance upon the 15 December 2011 Departmental advice when making his recommendation in respect to the Appellant. 25 Even if a finding were to be made based upon Dr Witton's Statement of Reasons in respect to SZRFK that the Departmental advice was in fact "provided" to him on 15 December 2011, no separate finding can be made that he took it into account when making his recommendation in respect to the Appellant because: there is no reference in Dr Witton's Statement of Reasons to the Departmental advice comparable to the reference to paragraph [40] in the SZRFK Statement of Reasons; and there is no express reference elsewhere in his Statement of Reasons to the 15 December 2011 advice. Moreover, Dr Witton's Statement of Reasons in respect to the Appellant expressly states: Country Information 34. The reviewer has had regard to country information cited and specifically referred to in the delegate's decision as well as material submitted by the claimant and his adviser and other relevant material consulted by the viewer and discussed with the claimant at the interview, and herein cited. There is no reference in the material "herein cited" to the Departmental advice. In the absence of a persuasive reason to the contrary, the statement by Dr Witton regarding what he relied upon when making his recommendation should be accepted. 26 The identification of the "other relevant material consulted", and the absence of any reference to the Departmental advice amongst that material, should be accepted.

A DENIAL OF PROCEDURAL FAIRNESS & AN ABSENCE OF EVIDENCE? 27 Counsel for the Appellant properly accepted that he bore the onus of making out his contention that his client had been denied procedural fairness. 28 Any applicant in a proceeding in the nature of judicial review bears the onus of making out the legal error which is said to vitiate the administrative decision being challenged. It is thus recognised that "it is trite law that the onus of establishing the factual foundation for a claim of a breach of natural justice or a failure to afford procedural fairness lies on the party alleging the breach …": VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations [2011] FCAFC 88 at [79], 195 FCR 318 at 365-366 per Keane CJ, Lander and Foster JJ. 29 The failure on the part of the Appellant to establish that the Departmental advice was taken into account when making the recommendation in the present proceeding almost inevitably leads to the rejection of the remaining Ground of Appeal. 30 Left outstanding, perhaps, is the Appellant's alternative formulation of the remaining Ground. The Appellant submitted that Dr Witton must have taken into account the Departmental advice; if that advice was not taken into account, there was supposedly an absence of evidence to support the findings made. 31 It may readily be accepted that an absence of evidence which is relevant and logically probative may provide a basis for setting aside an administrative decision: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J; GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309 at 336-337 per Burchett J; Sagar v O'Sullivan [2011] FCA 182 at [60], 193 FCR 311 at 322 per Tracey J. But all that is required is "some evidence, no matter how unconvincing": Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 at [575], 148 FCR 446 at 587 per Weinberg J. "The court", it has been said, "should be cautious in considering administrative decisions impugned on the basis of 'no evidence' submissions and/or unreasonableness so as not to cross over into the prohibited area of merits review": Hendy v Repatriation Commission [2002] FCA 602 at [58], 72 ALD 112 at 125 per Madgwick J. 32 But no support for the denial of procedural fairness argument can be gleaned from this alternative argument. This alternative argument has to confront the difficulty that the findings of Dr Witton are supported by: the findings set forth in the 2011 United Kingdom Home Office Sri Lanka Report; and the incorporation in that Report of findings previously recorded in an earlier Report compiled in October 2010 by the Danish Immigration Service. Paragraph [25.36] of the Home Office Report, to which Dr Witton expressly refers, and the subsequent incorporation at paragraph [25.37] of the Danish Immigration Service report, it is concluded, provide a more than sufficient evidentiary basis for the findings made by Dr Witton. 33 Further, the Appellant was in fact given an opportunity to comment on the substance of the findings of Dr Witton now under consideration. The text of the Home Office Report was expressly put to the Appellant for comment during the interview. A transcript of that interview thus records Dr Witton stating (without alteration): It would seem - the very latest information that I've found is over a hundred page report from the United Kingdom, that's from July 2011. What that report shows is that - first of all, before that, what is clear that a lot people who the government would suspect have received protection visas overseas, and think because of that the British have pointed out that there is not a lot of evidence that people have been detained upon arrival at airports, and I think what they say is, for example, at the beginning of 2010, so that was still almost two years ago now. "Partly due to the large numbers of Sri Lankans being returned from around the world, which caused logistical problems at the airport, CID procedures were relaxed, in that they no longer had to detain returnees until wWitton (sic) confirmation received from the local police. In general, the situation regarding all returnees regardless of race or creed appears to be more relaxed." Much more relaxed than in 2009, which is the one that the immigration official was - though it says, "There is though still inconsistency in the way individuals are dealt with." You know, there's always a chance that someone would be picked up, but what they're saying is, so many Tamils have been coming back that it was impossible to interview everybody at the airport. So what they were saying is that generally the people who are being detained are people with clear LTTE profile or those that were involved in collecting money for the LTTE before. What I can't find is very much evidence that people overseas have been detained, because people with LTTE links have usually been allowed to stay overseas as refugees. Notwithstanding the reservations expressed in Minister for Immigration and Citizenship v SZQHH [2012] FCAC 45 at [70]-[71], 200 FCR 223 at 243-244, had it been necessary to resolve this final issue, it would have been concluded that the Appellant has not been prejudiced by any non-disclosure of the Departmental advice - even if it were before Dr Witton when making his decision and taken into account by him. The Appellant, it would have been concluded, was not prejudiced by being denied an opportunity to comment upon the only part of that advice which may have been relevant.

CONCLUSIONS 34 Although it is less than desirable to resolve a case by reference to onus of proof, the Appellant has failed to show that he was denied procedural fairness. It follows that the remaining Ground of Appeal which the Appellant was granted leave to argue should be rejected. 35 Apart from what was said on instructions from the Bar table, little is known about the facts and circumstances of the orders in SZRFK. Whether the content of Dr Witton's Statement of Reasons in relation to SZRFK or the conduct of the interview with the Applicant in that case provided any basis for the orders being made by consent is a matter of speculation. There is no reason in the present proceeding to reach any conclusion other than that the appeal should be dismissed. 36 There is no reason why the Appellant should not pay the costs of the First Respondent. 37 It should finally be noted that Counsel for the Appellant in the earlier hearing of this appeal expressly abandoned any reliance upon any error in the application of what was characterised as the "rational persecutor" test: [2012] FCA 965 at [48]. It was for this reason that this issue was not addressed by Counsel for the Respondent.

THE ORDERS OF THE COURT ARE: 1. The appeal is dismissed. 2. The Appellant is to pay the costs of the First Respondent. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.