SZSYG v Minister for Immigration and Border Protection

The Tribunal Decision 5 The Tribunal accepted that the appellant is a Tamil male who experienced a range of frightening events before June 2008 and who grew up in the context of a civil war which informed his genuine concerns for his safety in Sri Lanka. However, the Tribunal also found that, based on the appellant's evidence, after June 2008 the appellant experienced no further harm or adverse attention from Sri Lankan authorities or anyone else for any reason despite his continued residence in Trincomalee for a further four years prior to his departure for Australia in 2012. 6 The appellant told the Tribunal that he avoided further harm after June 2008 by not going out in public and by living at the same premises in which he worked and leaving infrequently. However, the Tribunal found that evidence conflicted with the appellant's evidence of a life in Sri Lanka which involved him having a largely unbroken work history, undertaking three different courses of study and his mother's continued public work in her grocery store where the appellant frequently visited. On the appellant's own evidence, no enquiries were made about him until one claimed enquiry by the CID in February 2013. The Tribunal considered that these circumstances cast significant doubt on the truth of the appellant's claims that he was of adverse interest to anyone in Sri Lanka at the time of his departure in 2012 and that he remained safe by living discretely. 7 The Tribunal accepted that the appellant was a supporter of the TNA. However, it found that he had exaggerated the nature and level of his involvement with the TNA and was not satisfied that the appellant went door to door and street to street advocating for it, that he gathered people in public places in support of it or that he was or intends to be anything more than an ordinary Tamil civilian supporter of the TNA in the future. The Tribunal was not satisfied on the evidence before it that the appellant's support for the TNA, even when assessed cumulatively with other factors, had exposed the appellant to any harm of any nature since June 2008. 8 In considering the appellant's claims in relation to his involvement with the TNA, the Tribunal put to the appellant that his entry interview, which took place on 10 July 2012, did not record him making any reference to his involvement with the TNA as a reason for leaving Sri Lanka or a reason why he fears returning to Sri Lanka. The Tribunal explained that if he was involved with the TNA in 2010 to 2011, and he feared harm as a result of that involvement, it was surprising that he did not mention those fears at the time of his entry interview and that he only mentioned events from 1990 to 2008. Having put those matters, the Tribunal records the appellant's response at [17] of its decision: … He responded by reference to a letter in support from a person from the Trincomalee Urban Council (Department folio 34), insisting that this evidences his support and involvement with the TNA. However, the letter is dated 24 July 2012, and according to the applicant, was emailed to him in Australia after he heard that he needs documentary evidence in support of his Protection visa application. That the letter was provided with his Protection visa application in mind raises concerns that its contents were drafted to enhance the applicant's claims. Further, the Tribunal is unable to contact the writer of the letter to test the veracity of its contents, as the Tribunal cannot be certain that the writer of that letter would be able to speak openly to the Tribunal or that the Tribunal's inquiries would not open new risks of harm to the writer of the letter or the applicant. Further, the applicant has indicated that his uncle has many connections in the TNA which suggests that such a letter may not be difficult to source. For the above reasons cumulatively, the Tribunal does not consider the letter at Department folio 34 to be determinative of any aspect of the applicant's claims or to overcome the Tribunal's concerns regarding the true nature and extent of his political involvement in Sri Lanka. 9 The Tribunal also considered the other aspects of the appellant's claims and in each case was not satisfied these claims gave rise to a risk of harm in the reasonably foreseeable future. Those claims were based on the appellant being of Tamil ethnicity or being a Tamil male who has lived and worked in Trincomalee, the appellant's support for the TNA or his family's involvement with the TNA and whether that imputed him with any political opinion linked to the LTTE, the appellant's claim to be a member of a particular social group, namely, a failed Tamil asylum seeker, the appellant's claim as a member of a particular social group, being those who have left Sri Lanka in breach of its immigration laws, and the appellant's claim for complementary protection.

The Federal Circuit Proceedings 10 In his application filed in the Federal Circuit Court, the appellant relied on the following ground of review (as written): 1. The Tribunal denied the applicant natural justice in a manner not foreclosed by s.422B of the Migration Act. Particulars (a) Failure to disclose to the applicant the reasons why it considered that it could not make an enquiry of the author of a letter dated 24 July 2012 written by Mr K Selvaraja, who purported to be Chairman of the Urban Council of Trincomalee as to whether the applicant worked for the Tamil National alliance in the manner stated in that letter. (b) Failure to make the enquiry stated in Particular (a) above. 11 At the hearing before the Federal Circuit Court, the appellant did not press ground 1(b) of his application: see [33] of SZSYG. Having considered the submissions of the appellant and the Minister, the primary judge was not satisfied that the appellant's claim could be sustained. Accordingly, the primary judge dismissed the application. 12 In dismissing the application the primary judge observed at [38] of his decision that, based on the authority of WAEH of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 364 (WAEH), the Act does not impose an obligation on the Tribunal to consider the exercise of its power under s 424. What had occurred was that the Tribunal had considered whether to use its power but had declined to do so. 13 The primary judge then turned to consider whether the Tribunal breached its procedural fairness obligations to the appellant by not inviting him to comment on the Tribunal's decision not to contact the writer. The primary judge found at [42] of his decision that there is no obligation on the Tribunal to consult an applicant about whether it is going to use its powers under s 424(1) of the Act in circumstances where the applicant did not ask the Tribunal to contact the author of the letter. If it was obliged to consult the applicant in this way, it would undermine the s 430 obligation to give reasons.

The Appeal 14 On 9 July 2015 the appellant filed a Notice of Appeal raising the following grounds: 1. The Court below erred in holding that the second respondent had no obligation to consult the appellant about whether or not it was [sic] should use its powers under s. 424(1) of the Migration Act to contact a Mr K. Selvarajah, Chairman of the Urban Council of Trincomalee, who was the writer of a letter dated 24 July 2012 which was submitted in support of the appellant's case. 2. The Court Below erred in holding that the second respondent did not breach the requirements of natural justice, and thereby fall into jurisdictional error, in failing to raise with the appellant its concerns in considering whether or not to contact Mr Selvarajah. 15 In the Outline of Appellant's Submissions, the appellant gave notice that at the hearing he would seek leave to introduce a further ground of appeal in the following terms: The Court below erred by failing to find that the Tribunal was in breach of statutory duty [s424A Migration Act 1958] when it failed to alert the appellant in advance or at any time that the written evidence he had presented would be given no weight for the published reason (inter alia) that the Tribunal was fearful of there being possible repercussions against the author of the letter or the appellant himself should he be returned to his place of flight. PARTICULARS The Tribunal had a letter from the T(incomalee) U(rban) C(ouncil) of July 24, 2012 supporting the appellant's claims that he feared persecution and/or harm. It wished to test the veracity of the letter's contents but felt that to do so could imperil the author and/or the appellant. At the hearing the tribunal kept its fears to itself and failed to afford an opportunity to the appellant to make suggestions as to how the evidence might be tested in some other way (eg was the author out of the country or was there some clandestine way of communicating with him?). 16 The Minster did not oppose the appellant's reliance on the further ground of appeal and the appeal proceeded on the basis that it was included as a ground of appeal. 17 The three grounds raised on appeal relate to the Tribunal's treatment of the letter dated 24 July 2012 provided by the appellant to the Tribunal which was dealt with by the Tribunal at [17] of its decision (reproduced above at [8]) and in particular to the following part of the Tribunal's consideration of that letter: Further, the Tribunal is unable to contact the writer of the letter to test the veracity of its contents, as the Tribunal cannot be certain that the writer of that letter would be able to speak openly to the Tribunal or that the Tribunal's inquiries would not open new risks of harm to the writer of the letter or the applicant.

Ground 1 18 By this ground, the appellant contends that the primary judge erred in holding that the Tribunal had no obligation to consult the appellant about whether or not it should use its powers under s 424(1) of the Act to contact the author of the letter. 19 In the written submissions filed on behalf of the appellant, the appellant submits that the Tribunal did not raise with him the concerns it expressed at [17] of its decision in relation to contacting the author of the letter. In response to a query in the course of argument, the solicitor for the appellant submitted that the obligation on the Tribunal to consult the appellant about whether it should exercise its powers under s 424(1) arises because the Tribunal raised the letter and had concerns about it. The Tribunal did not want to contact the author because it considered it dangerous to do so. However, if it had a concern then it should have engaged with the appellant to discuss the best way of achieving its objective of testing the veracity of the letter. 20 The Minster submits that the primary judge did not err in his finding that, in general, the Tribunal is not obliged to exercise its inquisitorial powers. There was no obligation on the Tribunal to give the appellant a hearing on whether it should use its inquisitorial powers and the appellant has not cited any authority for such an obligation. The Minister also submits that this is not a case where the limited duty to inquire applies. 21 Section 424(1) of the Act is in the following terms: 424 Tribunal may seek information (1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. 22 In WAEH at [19] to [22] a Full Court of this Court considered the exercise of power under s 424 of the Act: [19] Section 424 provides powers to the Tribunal by which it may seek additional information. Before the primary judge a similar ground was argued also with reference to s 427 which gives to a tribunal powers to summon or require evidence. The second ground of appeal for which leave was given is expressed only with reference to s 424. [20] Prior authorities in relation to the powers under s 424 were considered by the primary judge. He stated that had it have been necessary he would have followed the line of authority commencing with Kulwant Singh to the effect that the section is permissive and does not require the power to be exercised. That line of authority, as he pointed out, was contrary to the decision of Madgwick J at first instance in Al Shamry where his Honour held that it could be inferred from the silence of a tribunal in relation to the issue of why investigative avenues had not been pursued that it gave no consideration to the question whether any such clarificatory exercise of its information-gathering powers was necessary and that, in the circumstances, there was a breach of the Tribunal's obligations under the Act. The primary judge considered it was unnecessary for him in the present matter to form a definite view on this issue. He considered the Tribunal's clear finding that even if the appellant was a leader in the League, he did not have a well-founded fear of persecution, was conclusive so that the Tribunal had not been obliged to consider whether to exercise the investigative powers conferred on it by either ss 424 or 427. [21] Counsel for the appellant argued that the authorities referred to by his Honour were ones in which the decisions had been made as to whether the failure to consider gave rise to a procedural breach pursuant to s 476(1)(a) of the Act. The issue was further addressed in that light in Yusuf v Minister for Immigration & Multicultural Affairs [1999] 58 ALD 470 and in Marjeed. Here, however, the argument is based on failure to consider a relevant consideration namely, whether the Tribunal should exercise such powers. [22] Our views accord with submissions on behalf of the respondent on this ground which must be accepted for the following reasons. The first is that the statute does not impose an implied obligation to consider the exercise of the power. That much is common ground and it is significant. The second is that the issue relied upon in the ground is not a relevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 27 at 39 per Mason J. A relevant consideration arises where an implication arises to that effect from the subject matter, scope and purpose of the Act. It is just that obligation which it is common ground does not exist under s 424. The third is that s 476(3)(e) provides that a failure to take a relevant consideration into account in the exercise of a power is not included in the reference to an improper exercise of power in s 476(1)(d). 23 The power in s 424(1) is permissive not mandatory. There is no obligation on the Tribunal to exercise its power to get any information that it considers relevant. In my view the primary judge did not err in his findings in relation to the operation of s 424(1). 24 Given the permissive or discretionary nature of the power, in my view there is no obligation on the Tribunal to consult the appellant on whether it should exercise its powers under s 424(1). It is a matter for the Tribunal. The fact that the Tribunal considered itself, without any request from the appellant to do so, the possibility of contacting the author of the letter does not lead to the result that the Tribunal was then bound to consult the appellant about whether it should in fact proceed to exercise its powers. The decision as to whether to exercise powers under s 424(1) of the Act is one for the Tribunal alone.

Ground 2 25 By this ground, the appellant alleges that the primary judge erred in finding that the Tribunal did not breach the requirements of natural justice, and thus fell into jurisdictional error by failing to raise with the appellant its concerns in considering whether to contact the author of the letter. 26 In support of this ground, the appellant submits that the failure of the Tribunal to put its concerns about contacting the author of the letter to the appellant is a breach of the requirements of natural justice. The solicitor for the appellant submitted that the appellant ought to have had the opportunity of discussing ways of communicating with the author of the letter. The Tribunal eliminated the letter for reasons that, in the appellant's submission, the Tribunal did not test. By proceeding in this manner the Tribunal did not give the appellant an opportunity of providing the Tribunal with a way of communicating with the author of the letter. 27 The solicitor for the appellant referred to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 (Prasad) and Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 249 (SZIAI) in support of this ground submitting that on the authority of these cases, where a simple inquiry can be made and is not, that results in a failure to afford natural justice to the appellant. The simple inquiry that ought to have been made was, in the appellant's submission, an inquiry by the Tribunal of the appellant about whether the author of the letter could be contacted. 28 The Minster submits that the Tribunal was under no obligation to consult the appellant in relation to its decision about whether to contact the author of the letter. The idea of whether to make such contact was generated by the Tribunal, it considered the idea briefly and then rejected it. In doing so it disclosed its thought process in its decision. The Minister submits that procedural fairness does not oblige the Tribunal to give an applicant a "running commentary on what it thinks about the evidence" or, by extension, what it thinks about the merits or otherwise of using its discretionary inquisitorial powers. 29 The Tribunal was, as the Minister has submitted, considering whether to exercise its discretionary statutory power to obtain information. It set out that consideration in its decision. It cannot be said that in doing so the Tribunal had to consult with the appellant in undertaking that consideration. Nor can it be said that a failure to do so amounts to a breach of procedural fairness. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48] the High Court observed that procedural fairness "does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence. On the contrary to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment". The decision whether to use the power was, as I have observed above, one for the Tribunal and not one in relation to which it had to engage with the appellant. 30 The appellant's reliance on Prasad and SZIAI is misplaced. In Prasad Wilcox J was dealing with the grounds of review in s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and, in particular ss 5(1)(e) and 5(2)(g). In considering those sections, Wilcox J expressed a "tentative view" at 169 to 170 about the operation of those sections and the issue of the duty to inquire. That duty has been more recently considered in SZIAI. At [25], Heydon J said the following about the duty to inquire: Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. … 31 The case put by the appellant is different. The principles in Prasad and more recently SZIAI do not apply on the basis contended. As counsel for the Minister submitted the appellant's case is not a case about the duty to inquire. The primary judge observed at [39] of his decision that the appellant did not plead a ground before him which alleged that there was a duty to inquire and, in any event, the primary judge went on to find that on a fair reading of the relevant part of the Tribunal's decision such an obligation did not arise. The issue is not raised on appeal before me and [39] of the primary judge's decision is not challenged. 32 In my view, there is no error in the approach of the primary judge. Ground 2 is not made out.

Ground 3 33 By this ground, the appellant alleges that the primary judge erred by failing to find that the Tribunal was in breach of s 424A of the Act by failing to inform the appellant that the letter would be given no weight because the Tribunal was fearful of there being possible repercussions against its author or the appellant should he be returned to Sri Lanka. 34 The appellant submits, based on the transcript of the Tribunal hearing which was before the primary judge and is reproduced in the Appeal Book, that there is nothing to suggest that the appellant would have been aware of what is described as the Tribunal's "need to check out the contents" of the letter but that it felt "constrained by real or imagined risks" and "by risks that were unexplored and unassessed". The issue is not about whether circumstances existed that ought to have compelled the Tribunal to inquire rather, that the Tribunal "indicated its desire to inquire but thought better of it" and spoke only of "possibilities" of the impact of any inquiries. 35 In support of this ground the appellant relies on two decisions of the NSW Criminal Court of Appeal, R v Clark [2001] NSWCCA 494 and R v Lisoff [1999] NSWCCA 364, which considered ss 135-137 of the Evidence Act 1995 (NSW). Sections 135 and 136 relate to the discretion to exclude or limit the use of evidence where, among other things, its probative value is substantially outweighed by the danger that it may be unfairly prejudicial to a party and s 137 requires a court, in a criminal proceeding, to refuse to admit evidence adduced by a prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 36 The Minster submits that the issue of whether the Tribunal is going to use its inquisitorial powers is not "information" for the purposes of s 424A of the Act. The Minister also submits that even if that issue, that is, the consideration by the Tribunal of whether it should exercise those powers, was somehow seen as an extension of the letter, which arguably was "information", the letter is excluded from the obligations in s 424A and s 424AA because it is "information" provided by the appellant to the Tribunal (s 424A(3)(b)) or to the delegate (s 424A(3)(ba)). 37 Section 424A relevantly provides: (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. … (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. 38 The requirement in s 424A(1) is for the Tribunal to give to an applicant particulars of the information that would be the reason or part of the reason for affirming the decision under review. The "information" that the appellant says the Tribunal should have provided to him was to tell him that the letter would be given no weight because of the reasons included in the Tribunal's decision at [17] namely that: ... the Tribunal is unable to contact the writer of the letter to test the veracity of its contents, as the Tribunal cannot be certain that the writer of that letter would be able to speak openly to the Tribunal or that the Tribunal's inquiries would not open new risks of harm to the writer of the letter or the applicant. 39 In SZBYR v Minster for Immigration and Citizenship (2007) 235 ALR 609 Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ made the following observations about s 424A at [17] and [18]: Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the tribunal", or "the tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review. [18] Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": … does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc … If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. (Citations omitted.) 40 In my view the "information" characterised by the appellant is not information for the purposes of s 424A(1) of the Act. Rather the consideration by the Tribunal about whether to use its powers under s 424(1) reflected the Tribunal's thought processes and did not amount to information that would be the reason or part of the reason for affirming the decision under review. On that basis in my view this ground of appeal must fail. 41 For completeness I note that I do not think that the decisions referred to by the appellant relating to the application of ss 135 - 137 of the Evidence Act 1995 (NSW) are relevant to this issue.

CONCLUSION 42 For the above reasons the appeal should be dismissed. As the appellant has been unsuccessful in his appeal I will make an order that he pay the Minster's costs. I will also make an order that the name of the second respondent be changed to "Administrative Appeals Tribunal". I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.