FEDERAL CIRCUIT COURT OF AUSTRALIA
SZTQS v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR	[2015] FCCA 978	

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal breached s.425(1) by failing to raise with the applicant an issue that formed part of the Refugee Review Tribunal’s adverse findings – whether the applicant should have been aware on the known material that it was an issue for the Refugee Review Tribunal whether his family were able to provide surety for him to answer his bail if returned to Sri Lanka – jurisdictional error – writs issued.	

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 425, 474
Migration Regulations 1994 (Cth) reg.2.01	

Cases Cited: 
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100	

Applicant:	SZTQS	

First Respondent:	MINISTER FOR IMMIGRATION & BORDER PROTECTION	

Second Respondent:	REFUGEE REVIEW TRIBUNAL	

File Number:	SYG 3072 of 2013	

Judgment of:	Judge Emmett	

Hearing date:	17 April 2015	

Date of Last Submission:	17 April 2015	

Delivered at:	Sydney	

Delivered on:	4 June 2015	

REPRESENTATION
Counsel for the Applicant:	Mr. Ben Mostafa	

Solicitors for the Applicant:	Fragomen	

Counsel for the Respondents:	Mr. James Mitchell	

Solicitors for the Respondents:	Australian Government Solicitor	

(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT SYDNEY	
SYG 3072 of 2013
szTQS	
Applicant

And

minister for immigration & BORDER PROTECTION	
First Respondent

refugee review tribunal	
Second Respondent

EX TEMPORE
REASONS FOR JUDGMENT
1.	This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 6 November 2013 and handed down on that date (“the RRT”).
2.	The applicant claims to be a citizen of Sri Lanka and of Tamil ethnicity, who fears harm from the authorities in Sri Lanka.
3.	Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims made in support of his application for a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.
Background
4.	The applicant arrived in Australia on 29 June 2012 as an unauthorised maritime arrival, having departed illegally from Sri Lanka on a passport issued in his own name.
5.	On 29 August 2012, the applicant undertook an Irregular Maritime Arrival Entry Interview.
6.	The applicant was subsequently granted a bridging visa and released from detention on 16 October 2012.
7.	On 9 November 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).
8.	On 13 February 2013, the applicant had an interview with an officer of the first respondent with the assistance of a Tamil interpreter.
9.	On 8 March 2013, the Delegate refused the applicant’s application for a protection visa.
10.	On 15 April 2013, the applicant lodged an application for review of the Delegate’s decision by the RRT. 
11.	On 6 November 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa. 
12.	On 11 December 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.
Legislative framework
13.	Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa.  One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
14.	Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”). 
15.	Article 1A(2) of the Convention relevantly defines a refugee as a person who:
	“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
16.	Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
17.	Section 36(2)(aa) of the Act provides that:
	“(2)  A criterion for a protection visa is that the Applicant for the visa is:
	(aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
18.	Sections 36(2A) and 5 of the Act define “significant harm.”
19.	Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
20.	The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act).  Division 4 Part 7 includes ss.424A and 425, which provide that:
	“424A  Information and invitation given in writing by Tribunal
		(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.
				425  Tribunal must invite Applicant to appear
	(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.”
21.	Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
22.	Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'.  Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
23.	However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The applicant’s application for a protection visa
24.	The applicant claimed to have suffered past harm at the hands of the police and the Sri Lankan Navy, arising from his fishing activities. The applicant claimed that on 25 May 2012 he was arrested and detained for 2 days. He was released upon payment by his mother of his bail money.
25.	The applicant claimed that by reason of his Tamil ethnicity he feared he would be arrested or harmed upon his return, and that failed Sri Lankan asylum seekers were detained upon re-entry and suffered serious harm constituted by detention in dire prison conditions.
26.	The applicant also claimed that he feared he would be targeted because of his Tamil ethnicity and because of a perception that he was associated with the Liberation Tigers of Tamil Eelam (“the LTTE”).
The Delegate’s decision
27.	The Delegate found that the applicant’s claims for protection were not credible because his claims of past persecution at the hands of the police had not been mentioned in his entry interview and that his evidence in relation to these claims was vague and unconvincing.
28.	The Delegate accepted that the applicant had been harassed by the Sri Lankan Navy as claimed and accepted that he had been involved in a neighbourhood dispute.
29.	The Delegate found that, on return to Sri Lanka, the applicant may suffer some discrimination by reason of his ethnicity but that such discrimination would not amount to serious harm.
30.	The Delegate found that the chance of any harm befalling the applicant upon return to Sri Lanka as a failed asylum seeker was remote.
31.	Accordingly, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and that the applicant does not meet the alternate complementary protection criterion.
The RRT’s review and decision
32.	On 15 April 2013, the applicant lodged an application for review of the Delegate’s decision by the RRT. 
33.	On 5 August 2013, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 29 October 2013 to give oral evidence and present arguments. 
34.	On 22 October 2013, the applicant’s legal representative lodged a submission in support of the applicant’s claims, which detailed, inter alia, country information as to the ill-treatment of failed asylum seekers upon re-entry to Sri Lanka.
35.	On 29 October 2013, the applicant and his legal representative attended the RRT hearing and the applicant gave evidence with the assistance of a Tamil interpreter.
36.	The RRT did not accept the applicant’s claims to have experienced past Convention-related serious harm. 
37.	The RRT did not accept that the applicant was arrested and detained on 25 May 2012 as claimed, or that he was required to attend court for any reason.
38.	 The RRT found that the applicant had not suffered any persecutory harm in Sri Lanka because of his Tamil ethnicity and that he would not be imputed with a political opinion sympathetic to the LTTE, or opposed to Sri Lankan authorities.
39.	The RRT was not satisfied that the applicant would suffer any differential treatment to other returned asylum seekers or that there was a real chance of persecution by reason of being a returned asylum seeker. The RRT also found that the applicant would not suffer differential treatment for a Convention reason because he left Sri Lanka illegally.
40.	The RRT was not satisfied that the applicant faced a real risk of being arbitrarily deprived of his life, the death penalty being carried out on him, being subjected to torture, being subjected to cruel or inhumane treatment or punishment, or being subjected to degrading treatment or punishment for any reason or as a necessary or foreseeable consequence of him being removed from Australia to Sri Lanka. 
41.	Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review. 
The proceeding before this Court
42.	The applicant was represented before this Court by Mr Ben Mostafa, of counsel. 
43.	Counsel for the applicant confirmed that the applicant relied on only one of the grounds contained in his application for judicial review, filed 11 December 2013. Counsel confirmed that the applicant did not rely on any other ground. The ground is as follows:
	“The Tribunal failed to comply with s 425(1) of the Act.
	Particulars
	The Tribunal found that the applicant “may be placed in the remand section of Negombo prison” and would remain there “until a bail hearing is available”: [46]
	The Tribunal said that bail “is routinely given”, but qualified that statement by finding that “a family member is also required to provide surety”: [46]
	The Tribunal concluded that “the prospect of the applicant being detained for a prolonged period of time [is] remote” and probably only “a few days”: [51], thereby implicitly concluding or assuming that someone would be able and willing to provide the surety required for the applicant’s bail. It was only on that basis that the Tribunal could have concluded that the applicant would be released after a few days.
	The “issues arising in relation to the decision under review” therefore included whether the applicant or his family or someone else would be able and willing to provide the surety required for the applicant’s bail so as to cause him to be released from the overcrowded prison.
	The Tribunal’s conclusion or assumption that the applicant or his family or someone else would be able and willing to provide the surety required for the applicant’s bail was “adverse” to the applicant and was “not obviously … open on the known material”: SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152 at [29], citing Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592.
	The Tribunal did not give the applicant “the opportunity of ascertaining” that issue or the opportunity “to be informed of the nature and content of adverse material” in relation to that issue: SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152 at [32].”
44.	It is common ground that the RRT accepted that, because the applicant had left Sri Lanka unlawfully, he would be arrested upon his return and would need to obtain bail before being released. The relevant finding of the RRT is as follows:
	“Under recently tightened procedures those returnees who are believed to have left the country in breach of Sri Lanka’s laws on immigration and emigration are arrested at the airport and brought before a court to apply for bail. Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison and may remain there for some days until a bail hearing is available.”
45.	I accept that a crucial plank in the RRT’s reasoning in relation to whether the applicant would obtain bail was that a member of the family of the applicant would provide surety for him.
46.	It is also common ground that the RRT never raised this issue with the applicant expressly.
47.	Counsel for the applicant contended that, in failing to raise that issue with the applicant, the RRT committed jurisdictional error in that it failed to comply with s.425(1) of the Act. Counsel for the applicant contended that the RRT failed to give the applicant a sufficient opportunity to give evidence or make submissions about an issue arising in relation to the decision under review. That issue was whether the applicant had a family member who could provide surety for the applicant to ensure his release on bail. 
48.	Further, counsel for the applicant contended that the RRT failed to give the applicant the opportunity to respond to an adverse conclusion that was not obviously open on the known material. That adverse conclusion was that the applicant had a family member who would provide surety for the applicant to ensure his release on bail.
49.	In considering complementary protection, the RRT made the following findings:
	“The Tribunal accepts that the applicant may be remanded in prison for a few days in conditions which are cramped, uncomfortable and unpleasant. The Tribunal accepts that returnees are only reported to be held in remand if they illegally departed Sri Lanka and for a short duration of a few days while waiting to be brought before a court to apply for bail, which is routinely given.”
50.	I accept counsel for the applicant’s submission that the RRT had concluded that the applicant would be granted bail and that it was therefore unnecessary for the RRT to proceed to consider whether the prospect of a longer stay in prison might have entitled the applicant to complementary protection. I also accept counsel for the applicant’s submission that the RRT’s reasons clearly show that the conclusion that the applicant would be granted bail was based on the RRT’s acceptance that a member of the applicant’s family would be needed to provide surety for the applicant.
51.	Counsel for the first respondent’s submissions were based on a contention that the applicant had a reasonable opportunity before the RRT hearing on 29 October 2013 to make a claim that he would suffer harm in prison in Sri Lanka and that his family were impecunious and therefore unable to assist him in making bail.
52.	Counsel for the first respondent submitted that on the applicant’s own evidence, his mother had previously paid bail for him upon his detention in Sri Lanka and that his parents had financially supported him when he was unemployed.
53.	Counsel for the first respondent submitted that it was open to the RRT to conclude that the applicant’s family could pay surety for the applicant’s release should he be detained for leaving Sri Lanka illegally and that such a conclusion was not a conclusion not obviously open on the known material in the manner referred to in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (“Alphaone”).
54.	However, the RRT rejected the applicant’s claims of having been detained before, including that his family had paid his bail to release him from detention.
55.	It is well established that the issues that arise in relation to the decision under review are to be identified by the RRT. If the RRT takes no step to identify some issue other than those the Delegate considered dispositive and does not tell the applicant what that other issue is on review by the RRT, the issues arising in relation to the decision under review will be those that the original decision-maker identified as determinative against the applicant (see: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35], as per the Court (“SZBEL”)).
56.	The Court in SZBEL referred to Gummow J in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 (“Somaghi”), where the Court may require the applicant to have the opportunity to deal with matters adverse to the applicant’s interests which the decision-maker proposes to take into account.
57.	In SZBEL at [29], the Court cited Alphaone at 591-2 as follows:
“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”

58.	The only relevant reference to bail upon the applicant’s return to Sri Lanka in the transcript of the RRT hearing is as follows:
	“MEMBER: So I need to assess… the credibility of that claim but, where there...where a person is returned and they are…suspected of having departed illegally, what the information generally reports is that, depending on the day that they return, if there is an intervening weekend or a public holiday, the person can be held for either a few hours or one or two days, before they're then taken to the court to apply for bail.
	It seems that bail is routinely given and then the returnees go back to their life and then they have to reappear in court to discuss the substantive issues of having... of having left... of having left Sri Lanka illegally.
	And...
	Just let me finish...overwhelmingly the information indicates that when people do appear in relation to those charges, they're...the penalty that they are given is a fine.
	Now, I need to consider that information...but is there anything that you want to say in relation to it?”
	(emphasis added)
59.	The applicant’s response was that he would not get bail because he would be suspected of escaping to some other country, so would therefore be put in gaol. 
60.	Counsel for the first respondent referred to various exchanges between the RRT Member and the applicant relating to his family’s sources of income, however, there is no evidence to suggest definitively that the applicant’s family was a family of wealth. There is no exploration by the RRT with the applicant specifically of the overall financial position of his family. Indeed, the applicant’s evidence as to where the money came from to pay for a boat to take him to Australia was that his mother borrowed money from people.
61.	Counsel for the first respondent does not suggest that whether a family member of the applicant was able to provide surety was a matter that was expressly raised with the applicant by the RRT. Counsel for the first respondent relies on a submission that there was every opportunity provided to the applicant to make such a claim about his family’s impecuniosity that no such claim was made and that the RRT’s implicit conclusion that the applicant’s family would be able to provide surety for him was open to it on the material before the RRT.
62.	I do not accept the first respondent’s submissions. As stated above, critical to the RRT’s finding that the applicant could apply for bail and that bail was routinely given was a finding that a family member is required to provide surety. In those circumstances, it was plainly an issue for the RRT that the applicant’s family would be able to provide surety for him in order that he may obtain bail. That was not an issue before the Delegate and, in the circumstances, it became an issue for the RRT. The RRT was required to raise it with the applicant for the applicant to have an opportunity to address that finding by the RRT, which was adverse to him. 
63.	Accordingly, the RRT failed to accord the applicant procedural fairness as required by s.425(1) of the Act. A fair reading of the decision that a family member must pay surety to effect bail for the applicant was an issue solely named by the RRT and which it failed to identify to the applicant. Section 425(1) of the Act requires the RRT to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The issue of whether a family member was required to pay surety to enable the applicant to be bailed was not an issue before the Delegate and was not an issue raised by the applicant. It is an issue arising from the finding of the RRT that the applicant’s family were required to pay surety to enable the applicant to be granted bail. 
64.	Further, on the evidence and material before the RRT, there is nothing to suggest that the applicant or his representative should have been aware that the ability of the applicant’s family to pay surety to enable him to be granted bail was a determinative factor in the mind of the RRT Member. 
65.	Further, I accept counsel for the applicant’s submission that the RRT’s conclusion that the applicant had such a family member was a conclusion that was critical to the RRT’s decision and was not a conclusion that would obviously be open on the known material.
66.	In considering whether the applicant met the complementary protection criterion, the RRT concluded that the applicant was not at risk of serious harm as a failed asylum seeker upon return to Sri Lanka because he would be detained only for a few days while waiting to be brought before a court to apply for bail, which is routinely given. Implicit in that finding is that because bail is routinely given, it will be given to the applicant. However, the RRT made the clear finding that the applicant’s ability to be granted bail was dependent on a family member being able to provide surety. As stated above, that was an issue that the RRT was obliged to raise with the applicant and its failure to do so is a denial of procedural fairness and a breach of s.425(1) of the Act.
67.	Accordingly, the matter should be remitted to the RRT for determination according to law. 
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Emmett 

Associate:  

Date:  4 June 2015