FEDERAL COURT OF AUSTRALIA ALQ15 v Minister for Immigration and Border Protection [2015] FCA 1253 Citation: ALQ15 v Minister for Immigration and Border Protection [2015] FCA 1253 Appeal from: ALQ15 v Minister for Immigration and Border Protection & Anor [2015] FCCA 1704 Parties: ALQ15 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION AND ADMINISTRATIVE APPEALS TRIBUNAL File number(s): NSD 761 of 2015 Judge(s): LOGAN J Date of judgment: 4 November 2015 Catchwords: MIGRATION – procedural fairness – appeal from a decision of the Federal Circuit Court affirming a decision of the Refugee Review Tribunal (Tribunal) to uphold the Minister's refusal to grant the appellant's protection visa application – where Tribunal's reasons referred to country information report by the Department of Foreign Affairs and Trade (DFAT) which was re-issued after hearing – appellant claimed Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) by not inviting him to comment on DFAT report – whether the appellant was given the opportunity to give evidence and present arguments in relation to the issues arising in relation to the decision under review Held: Tribunal part of an administrative decision-making continuum which commenced with the appellant's visa application – DFAT report did not raise new issue but rather one which had emerged in the continuum and which appellant had been given opportunity to address – no breach of s 425 – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 46A, 424, 425 Cases cited: ALQ15 v Minister for Immigration & Anor [2015] FCCA 1704 cited Jebb v Repatriation Commission (1988) 80 ALR 329 applied SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 cited Date of Hearing: 4 November 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 20 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the Respondent: Mr G Johnson Solicitor for the Respondent: Sparke Helmore IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 761 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: ALQ15 Appellant AND: MINISTER FOR BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: LOGAN J DATE OF ORDER: 4 NOVEMBER 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The name of the second respondent is amended from "Refugee Review Tribunal" to "Administrative Appeals Tribunal". 2. The appeal is dismissed. 3. The appellant is to pay the first respondent's costs of and incidental to the appeal, to be taxed if not agreed. 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 761 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: ALQ15 Appellant AND: MINISTER FOR BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: LOGAN J DATE: 4 NOVEMBER 2015 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 The appellant is a citizen of the Republic of Sri Lanka. He came to Australia on a boat on 11 May 2012. He arrived without either a passport or a visa. Following the favourable exercise by the Minister administering the department now known as the Department of Immigration and Border Protection under s 46A of the Migration Act 1958 (Cth) (the Act), the appellant came to lodge an application for a Protection (Class XA) Visa (protection visa) on 10 August 2012. 2 By his application, the appellant made claim for a protection visa on the basis of what he said was his suspected involvement in a bomb explosion that injured two soldiers in Sri Lanka in 2005. He claimed to have left Sri Lanka in 2006 and resided in India until coming to Australia. He claimed to be at risk and to fear persecution in Sri Lanka because of past suspicion about his involvement in that 2005 bomb explosion, and because he is a Tamil. Another aspect of his protection visa claim related to his professing the Christian faith. 3 A delegate of the Minister decided not to grant the appellant a protection visa in response to his application. That decision was affirmed by the Refugee Review Tribunal (the Tribunal) in August 2013. The following year, in September, the Federal Circuit Court set aside that Tribunal's decision and remitted the matter to the Tribunal for re-determination. 4 Upon that remittal, the decision of the Minister's delegate was again reviewed by the Tribunal, which was constituted by a different member to the Tribunal in August 2013. The Tribunal offered and the appellant accepted a hearing. That hearing took place in December 2014. On 10 March 2015, the Tribunal again decided to affirm the Minister's delegate's decision not to grant to the appellant a protection visa. Once more, the appellant sought the judicial review by the Federal Circuit Court of the Tribunal's decision. On this occasion, the Federal Circuit Court decided to dismiss the judicial review application. That court delivered judgment on 19 June 2015, with the reasons for judgment being delivered orally that day: see ALQ15 v Minister for Immigration & Anor [2015] FCCA 1704. It is from that judgment that the appellant now appeals to this Court. 5 As originally filed, the notice of appeal did nothing more than specify under the heading Grounds of Appeal "grounds will be provided once the reasons for judgment are published". It is understandable, but erroneous, for an appellant acting for himself to consider that reasons for judgment delivered orally in open court by a judicial officer are not published when so delivered, as opposed to when those reasons for judgment, as revised from transcript, are sent afterwards to the parties in writing. It is not necessarily a sufficient answer to the requirement that a notice of appeal state the grounds of appeal that, as here, an appellant awaits the receipt and analysis of reasons for judgment as revised. In making that observation, I do not for one moment underestimate the difficulties which attend a person who, not only acts for himself, but whose first language is not English. 6 The appellant here adopted the course of annexing in draft to his written outline of submissions, a proposed amended notice of appeal. That notice specifies meaningful grounds of appeal. The Minister, with commendable fairness, did not oppose the appellant's application to amend the notice of appeal in terms of the draft. That draft already being on file as an annexure to the appellant's filed written submission and so as to relieve the appellant of the burden of filing the notice of appeal in amended form, I directed that the draft notice annexed to his written submission stand as a filed amended notice of appeal. As amended, the grounds of appeal are these: (1) His Honour erred in [4] by directing himself as the alleged breach was of s 425 of the Act and not s 424 of the Act, as the Appellant claimed he was not provided with a fair hearing at the Tribunal. (2) His Honour erred in [5] and [10] finding that the 16 February 2015 report was a re-issue as it was updated after a change of government in Sri Lanka. The change of government in Sri Lanka also occurred after the Appellant's hearing. Particulars a. Regardless of whether the two reports were similar or not, the Tribunal denied the Appellant procedural fairness by adversely relying upon the 16 February 2015 report to make a number of adverse findings. 7 That the learned Federal Circuit Court judge referred to s 424 of the Act, not s 425 of the Act, at para 4 of his Honour's reasons for judgment, is correct. It does not follow as a matter of course that that error of reference is of any moment. Of course it would, if that error of reference were indicative of a misunderstanding of the basis upon which judicial review of the Tribunal's decision had been sought by the appellant. Whether an error of that kind is present depends upon reading the Federal Circuit Court's reasons for judgment as a whole so as to determine the substance of the issue addressed by that court. 8 When this is done, it may be noted, firstly, that the court did set out at para 2 of the reasons for judgment, the grounds of review in which the appellant had identified s 425 as the provision in the Act with which the Tribunal had not complied. What follows thereafter in that court's reasons for judgment is explicable only as an addressing by that court of the grounds of review set out in para 2 of that court's reasons for judgment. In other words, the admitted error of reference by the Federal Circuit Court is one of form, not indicative of an error of substance. Ground 1 in the amended notice of appeal must therefore fail. 9 A role which ground 1 does play is to emphasise the appellant's enduring complaint that the Tribunal did not comply with s 425 of the Act. It is that complaint which is specified in ground 2 of the amended notice of appeal and which was developed by the appellant in written and oral submissions. Materially, s 425 of the Act provides: (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. In para 117 of the Tribunal's reasons, the Tribunal states: The independent information before the Tribunal clearly indicates that Tamils with an actual or perceived association with the LTTE are at particular risk of adverse attention by GOSL (Government of Sri Lanka) authorities. 10 That statement is accompanied by a footnote reference to "Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka", a 21 December 2012 publication of the United Nations High Commissioner for Refugees and also by a reference to an Australian Department of Foreign Affairs and Trade (DFAT) "Country Information Report: Sri Lanka" dated 3 October 2014 and re-issued report of 16 February 2015. There is a further footnote reference to each of these publications later in the Tribunal's reasons at footnote 9 on page 27 of those reasons, appeal book page 299. 11 Perhaps incongruously, or at least intriguingly, the Tribunal has chosen elsewhere in its reasons to make reference only to that DFAT report dated 3 October 2014, not to the re-issued report of 16 February 2015: see footnote 10 on page 29, appeal book page 301, and footnote 16 on page 31, appeal book page 303. 12 One might, with respect, upon reading the reasons for judgment of the learned Federal Circuit Court judge at paras 5, 6 and 10, be forgiven from thinking that the DFAT reports of 3 October 2014 and 16 February 2015 were each in evidence before the Federal Circuit Court, and had been compared and contrasted by his Honour. Those reports were not tendered in evidence by either active party to the judicial review application. [The Tribunal, whose role is now, by amendment, assumed by the Administrative Appeals Tribunal, quite properly took no active part in the judicial review application and neither did the Administrative Appeals Tribunal, as the second respondent became by amendment, take any active part on the hearing of the appeal. So the reports in question were not introduced into evidence before the Federal Circuit Court by the Tribunal]. His Honour's observations concerning them appear to be responsive to submissions as to inferences one might draw from reading the Tribunal's reasons. 13 However that may be, what is clear from the footnote references to the re-issued report of 16 February 2015 is that, by that reference, no new issue was introduced to the review which the Tribunal was duty bound to conduct according to law. Part of that duty which fell on the Tribunal was, of course, to comply with s 425 of the Act. The content of that duty, in terms of the invitation to the appellant to appear before the Tribunal "to give evidence and present arguments relating to the issues arising in relation to the decision under review", was necessarily related to the administrative process initiated by the lodging of the appellant's protection visa application. 14 In Jebb v Repatriation Commission (1988) 80 ALR 329 at 333, Davies J, referring to the role of the Administrative Appeals Tribunal in respect of the review of decisions concerning veterans entitlements stated: … [T]he general approach of the Tribunal has been to regard the administrative decision making process as a continuum and to look upon the tribunal's function as part of that continuum … 15 In the sense that it also stood in the place of the Minister in determining whether or not the appellant ought, on the basis of his application and the other information before it, to be granted a protection visa, the Tribunal was also part of an administrative decision-making continuum. 16 For the purposes of s 425 and as SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 establishes, the issues which arise in relation to the decision under review are necessarily and inherently related to the course of that administration decision-making continuum in a particular case. Here, that continuum included the reasons given by the Minister's delegate upon the initial refusal of the application and the reasons of the Tribunal as initially constituted, together with the basis upon which that Tribunal decision had been set aside by the Federal Circuit Court. The continuum then progressed through to the hearing conducted by the Tribunal and concluded when the Tribunal came to make its decision in March 2015. 17 It appears from the Tribunal's reasons that the information in the DFAT report as reissued on 16 February 2015 was of a generic nature. In other words, it appears to be information that did not generate an obligation on the part of the Tribunal to give to the appellant an invitation so as to comply with s 424A of the Act. Instead, what that information appears to have done is to underscore that Tamils with an actual or perceived association with the LTTE were at particular risk of adverse attention by the Sri Lankan government authorities. 18 That was already an issue which had emerged from the course of the continuum initiated in 2012 by the protection visa application. The appellant had been given and had taken up an opportunity to, amongst other things, address that issue at a hearing before the Tribunal. That opportunity occurred in December 2014. 19 As it happened, the particular issue, as to whether there was a risk of adverse attention, was one in relation to which there was no particular controversy in respect of this particular review application. The real issue before the Tribunal was not one of whether Tamils with an actual or perceived association with the LTTE were at particular risk of adverse attention, but rather whether the appellant was at risk on the basis that he claimed. In that regard, and as the Tribunal's reasons reveal, the Tribunal made evaluative factual judgments, in part related to an assessment of the appellant's credibility. This the Tribunal was entitled to do. It is essential that, on judicial review and on appeal in respect of judicial review cases, a principal restraint be exercised by those exercising judicial power in relation to evaluative factual judgments reasonably open to an administrative tribunal. The point for this case is that, in making those evaluative judgments, the Tribunal did offer an invitation which complied with s 425 of the Act. 20 Had the reissued report of 16 February 2015 raised some new issue upon which the appellant had not been invited to give evidence or make submissions, a contravention of s 425 may well have arisen. But that is not this case. Ground 2 of the amended notice of appeal also fails. It follows that the appeal must be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 17 November 2015