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QLN151 v Republic of Nauru [2017] NRSC 109; Appeal Case 21 of 2016 (13 December 2017)


IN THE SUPREME COURT OF NAURU
AT YAREN


APPEAL NO. 21/2016

Being an appeal against a decision of the Nauru Refugee Status Review Tribunal brought pursuant to s43 of the Refugees Convention Act 2012


BETWEEN


QLN151 APPELLANT


AND


The Republic of Nauru RESPONDENT


Before: Khan J
Date of Hearing: 13 and 14 September 2017
Date of Judgment: 13 December 2017


Case may be cited as: QLN151 v The Republic


CATCHWORDS:
Section 22(b) of the Act provides that the Tribunal must act according to the principles of natural justice and substantial merits of the case- Where the appellant claimed that he would be at risk of arbitrary arrest and interrogation by ‘white van abduction’- Where the Tribunal relied on country information made a finding that ‘white van’ was a thing of the past-Whether the Tribunal failed to put the substance of the information in breach of the requirements of procedural fairness.
Appeal allowed – Tribunal was in breach of section 22(b) in that it failed to put the substance of the country information to the appellant.


APPEARANCES:


Counsel for the Appellant: J Gormly
Counsel for the Respondent: S Walker


JUDGMENT


INTRODUCTION


  1. The appellant filed an appeal against the decision of the Refugee Status Review Tribunal (“the Tribunal”) pursuant to s43(1) of the Refugees Convention Act 2012 (“the Act”) which states:

A person who, by a decision of the Tribunal, is not recognised as a refugee may appeal to the Supreme Court against that decision on a point of law.


  1. The Tribunal delivered its decision on 12 July 2016 affirming the decision of the Secretary for the Department of Justice and Border Control (“the Secretary”) that the appellant is not recognised as a refugee and is not owed complementary protection under the Act.
  2. The appellant filed an appeal in this Court on 25 November 2016 and the grounds of appeal were amended on 16 August 2017.

BACKGROUND


  1. The appellant is a 48 year old male born in Myliddi, Jaffna in Northern Province, Sri Lanka. He is of Tamil ethnicity and speaks Tamil language.
  2. The appellant received eight years of education in Sri Lanka. He then worked as a fisherman from 1984 to 1990. He lived in an area that was controlled by the Liberation Tigers of Tamil Eelam (“LTTE”).
  3. In 1986 when the appellant was 15, he and four other boys were told by the LTTE to put up posters in Myliddi. They were caught by the Sri Lankan army and detained for a month. He was released without any charges being laid. While in detention he was sexually and physically assaulted.
  4. Following his release, he felt aggressive towards the authorities and was motivated to do more work for the LTTE. He assisted with boat travel between camps, including loading and unloading the boat, transporting fuel and assisting with general labouring in the camps. He claimed to have become a member of the LTTE.
  5. The appellant’s brother Anton was a member of the LTTE between 1985 and 1990. He was trained to fight and served in the forerunner to the Sea Tigers, but the appellant is not sure if he did fight. He went to India in 1990 but lived in a different refugee camp so the appellant is not sure he was still involved with LTTE.
  6. The appellant’s brother Mariaranjan completed basic training with LTTE but did not provide any support. Another brother underwent forced military training but did not fight. He was told by the Sri Lankan authorities that he was required to remain in the Port Pedro area.
  7. The appellant told the Tribunal that anybody living in an area controlled by LTTE was required to provide any assistance asked of them. He and his family had provided support for LTTE in this context. The LTTE would also take a portion of their catch when they returned from fishing.
  8. The appellant was injured in a bombing raid carried out by the Sri Lankan authorities in Myliddi in 1990. He received shrapnel wounds to his leg and still bears but not overly prominent scars.
  9. The appellant became separated from his family during the fighting and went to India where he was recognised as a refugee and issued with a Sri Lankan Refugee Identity Card. He worked as a casual labourer from 1990 to 1998. He married while in India and has two teenage children. His family is still living in a refugee camp in Aliyar, Pollachchi in Tamil Nadu, India.
  10. The appellant talked to some Tamil political parties about problems in Sri Lanka but has remained politically neutral since 2000 when he converted to Pentecostal Christianity.
  11. From 2000 until 2014, the appellant worked as a self-employed contractor, a roofing labourer and a painter.
  12. The appellant took part in a demonstration in 2009 towards the end of the civil war in Sri Lanka. Everyone in the refugee camp protested against the treatment of civilians in LTTE areas of Sri Lanka.
  13. Anton returned to Sri Lanka in 2010 but became concerned that he would be questioned about his past. He decided to return to India but required a police certificate and clearance from the relevant Grama Sevaka before he could obtain a replacement National Identity Card and passport. He passed through Colombo airport at the time of arrival and departure.
  14. After his brother Anton departed for India, the appellant’s family in Port Pedro was questioned about why he had come back and where he had gone. The local security forces were familiar with the family so did not take the issue very seriously.
  15. The appellant’s mother died in Sri Lanka in 2011. He returned there briefly in 2012 to visit his father and see if he could return there with his family. He was questioned on arrival in Colombo airport for about an hour, but there was no mention of his scar. He made enquiries about obtaining a replacement National Identity Card and intended to apply for a passport. He was told by the Grama Sevaka that he required a police clearance to obtain the replacement. He decided not to go to the police station because he was concerned about what the real intention in referring him to the police station was. He had not expected that there would be any issues as he was only a helping hand for the LTTE, unlike his brother Anton.
  16. He was able to return to India by boat without incident despite the fact that his right to reside in India as a refugee should have ceased when he left. His father died in 2014 but his two sisters and three brothers remain in Sri Lanka and have settled in Point Pedro. In 1990, the family abandoned its land comprising two houses on one and a half acres between the road and the sea. The land is now occupied by the Sri Lankan army, who have used the land for a base and have not paid any rent. The land title passed from his father to his sister. Two other brothers, including Anton, live in India.
  17. The appellant fears persecution because of his Tamil ethnicity, particularly as a Tamil man who originates from the North. He also fears that he will be imputed with a political opinion in favour of the LTTE and/or against the Sri Lankan government because of his race, his and his family’s ties to LTTE, his time spent in refugee camps in India and his claim for asylum in Australia and Nauru. The appellant further fears persecution as a member of particular social groups, namely “failed asylum seekers in Sri Lanka”, “his family”, “family members/relatives of former members of the LTTE” and “Tamil men who have spent considerable periods in Indian refugee camps”.
  18. The appellant further claims that he would be subject to a real risk of torture, cruel, inhuman and degrading treatment and/or arbitrary deprivation of life if returned to Sri Lanka.

APPLICATION TO THE SECRETARY


  1. On 19 September 2014, the appellant attended a Transfer Interview.
  2. On 28 September 2014, the appellant made an application to the Secretary for recognition as a refugee and for complementary protection under the Act.
  3. On 9 October 2015, the Secretary made a determination that the appellant is not a refugee and is not owed complementary protection.

APPLICATION TO THE TRIBUNAL


  1. The appellant made an application for review of the Secretary’s decision pursuant to s 31(1) of the Act whiovides:ides:

A person may apply to the Tribunal for merits review of any of the following:


  1. a determination tion that the person is not recognised as a refugee;
  2. a decision to decline to make a determination on the person’s application for recognition as a refugee;
  1. a decision to cancel a person’s recognition as a refugee (unless the cancellation was at the request of the person).
  1. a determination that the person is not owed complementary protection.
  1. On 17 April 2016, the appellant made a statement and on 12 May 2016 his lawyers, Craddock Murray Neumann, made written submissions to the Tribunal.
  2. On 16 May 2016, the appellant appeared before the Tribunal to give evidence and present his arguments with his representative and an interpreter in Tamil and English languages.
  3. On 23 May 2016, the appellant’s lawyers provided further written submissions containing country information supporting the appellant’s claimed fear of persecution.
  4. The Tribunal handed down its decision on 12 July 2016 affirming the decision of the Secretary that the appellant is not recognised as a refugee and is not owed complementary protection under the Act.

GROUND OF APPEAL


  1. The appellant filed one ground of appeal which is:
    1. In determining that the appellant was not a refugee for the purposes of section 4 o Act, the Tribunal failefailed to comply with s 22(b) of the Act in that it did not act according to the principles of natural justice.
ign="center">Particulars


  1. The Tribunal did not give the appellant the opportunity of being heard in that it did not bring to the attention of the appellant or allow him the opportunity to ascertain and comment on the nature and content of adverse material:
  2. The information was credible, relevant and significant to the decision to be made because it was adverse to the appellant’s claims that he would be at risk of arbitrary arrest and interrogation by ‘white van abduction’ as one who invited suspicion as to his political sympathies because he was Tamil from the North who had resided outside of Sri Lanka for many years; and it would be a reason for the Tribunal’s findings at [67] that this scenario was “inconsistent with the country material before it”, and that there was no reasonable possibility the appellant would be subjected to harm as a Tamil from the North who had resided outside of Sri Lanka for many years.

SUBMISSIONS


  1. In addition to the submissions filed by the appellant and the respondent, they also made oral submissions which were of great assistance to me and I am indeed very grateful to both counsel.

CONSIDERATION


  1. Both parties made submissions that the common law requirements of natural justice are set out in DWN066 v The Republic[1] (DWN066). In DWN066 this Court adopted the test outline in Kioa v West where Brennan J of the High Court of Australia said[2]:

A person whose interests are likely to be affected by the exercise of the power must be given an opportunity to deal with the relevant matters adverse to his interest which the repository of the power proposes to take into account in deciding its exercise [citing Ridge v Baldwin]. The person whose interest is likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance...


Nevertheless in the ordinary case when no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.


  1. In DWN066 it was stated at [34] as follows:

“Notwithstanding the error by the Tribunal in regards to the time the appellant was at home after the threat by the Taliban, I find there is no denial of natural justice as that was not the material finding. The material finding was whether the appellant came to harm after the 3-day ultimatum by the Tribunal.”


  1. Having stated the above at [38] the grounds of denial of natural justice was dismissed. DWN066 was subject to an appeal to the High Court of Australia and on 18 August 2016 the appeal was allowed by consent and the matter was remitted to the Tribunal for reconsideration. Neither the counsels nor I was aware of the appeal to the High Court of Australia and consequently both counsels based their submissions on DWN066 as being correctly decided.
  2. The counsel for the appellant submits that:

“If an appellant was not informed of the case he had to meet that is sufficient to establish practical injustice and relies on Dagli v Minister for Immigration and Multicultural and Indigenous Affairs[3] where it is stated:


“If a breach of the rules of natural justice is established an applicant would ordinarily be entitled to relief unless the Court was satisfied that the breach could not have had no bearing on the outcome: Stead v State Government Insurance Commission at [1986] HCA 54; 161 CLR 141 at 147; the Refugee Review Tribunal; ex parte Mansour Aala (supra) at 116 – 117. Accordingly, I reject the submission put by the solicitor for the Minister that this application must fail because of the failure on the part of the applicant to demonstrate by evidence that some practical unfairness accrued to him as a result of the procedures that were adopted. If the applicant was not informed of the case which he had to meet, that is sufficient to establish ‘practical injustice’ without the applicant having to prove what he would have done had he been informed of that case.”


  1. The counsel for the respondent submits that if a breach of natural justice is established then an applicant will not be entitled to the relief unless the court was satisfied that it could have had no bearing on the outcome of the decision made by the Tribunal as there was no practical injustice and relies on Stead v State Government Insurance Commission[4] where the High Court stated:

‘That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being:


“Would further information possibly have made any difference?”


  1. The High Court of Australia dealt with the issue of practical fairness in BRF038 v The Republic of Nauru[5] on an appeal from the Supreme Court of Nauru and stated at [57], [58], [59] ,[60] and [64] as follows:

[57] The appellant argued that the hearing before the Tribunal was concluded without reference to the appellant’s capacity to avail himself of effective police protection against mistreatment by reason of the fact that Somaliland police force included members of his tribe. The appellant argued that the country information relating to the tribal composition of the Somaliland was credible, relevant and significant to the decision the Tribunal would make. It followed that fairness required that the Tribunal ought to have put the substance of that information to him. Its failure to do so, the appellant argued, constituted a breach of the requirements of procedural fairness contemplated by s.22 of the Refugees Act.


[58] In Minister for Immigration and Border Protection v SZSSJ, this Court held that procedural fairness requires that a person whose interests is apt to be affected by a decision to be put on notice of ‘the nature and content of the information that the repository of power undertaking the enquiry might take into account as a reason for coming to a conclusion adverse to the person’[6].


[59] In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[7] Gleeson CJ, Kirby, Hayne and Callinan and Heydon JJ referred with the evident approval to the following statement by the Full Court of the Federal Court in Commissioner for Australian Capital Territory v Alphaone Pty Limited [8]:


“Where the exercise of a statutory power attracts a requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information in 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.”

[60] The respondent accepted, correctly, that procedural fairness requires a person to be given the opportunity to deal with all information that was “credible, relevant and significant” to the decision[9]. The respondent sought to argue that disclosure of such information was required only in relation to “the critical issue or factor on which the administrative decision is likely to turn’[10], and that the information to the tribal composition of Somaliland police was not a factor on which the Tribunal’s decision was likely to turn. It was said to be apparent from the Tribunal’s reasons that the Tribunal had already made findings sufficient to dispose of the appellant’s claim, namely, that he had no well-founded fear of persecution[11], before its reference to the tribal composition of the Somaliland police.

[64] Finally, it is to be noted that the respondent did not suggest, either in the Supreme Court or in this Court, that compliance by the Tribunal with this aspect of the requirements of procedural fairness could not possibly have made any difference to the outcome of the review by the Tribunal[12]


  1. The issue of procedural fairness was also dealt with recently by the High Court in HFM045 v the Republic of Nauru[13] (HFM 045) where the High Court stated at [46], [47] [49] as follows:

[46] The first way in which Nauru put the argument relies on R v The Chief Constable of the Thames Valley Police; Ex parte Cotton[14]. Cotton involved judicial review of a decision of the Deputy Chief Constable of the Thames Valley Police Force to dispense with Cotton’s services on the ground that he was not fit physically to perform the duties of a constable. The Deputy Chief Constable had acted on the basis of the recommendation in a report, which was not shown to Cotton. Slade LJ (with whom Stocker LJ agreed) considered that in the circumstances, the primary Judge had been entirely justified in dismissing the application because ‘there would have been no real, nor sensible, no substantial chance of any further observation on the applicant’s part in any way altering the final decision of this case’[15]. Bingham LJ, agreeing in the result, allowed that cases may arise in which the denial of an adequate opportunity to put a person’s case is not unfair, but observed that such cases may be expected to be of ‘great rarity’[16].


[47] The appeal does not present the occasion to consider any difference between the law of England and the law of Australia respecting the content of the obligation of procedure fairness in its application to Nauru[17]. Cotton was decided in circumstances in which the Deputy Chief Constable’s decision that Cotton was not physically fit to perform his duties could not be seen to be affected by any response Cotton might make. As the English Court of Appeal has more recently observed, the decision in Cotton was all but inevitable[18]. This is to be contrasted with the Tribunal’s assessment of the credibility and reliability of the appellant’s claim to fear persecution or other significant harm in Nepal. The Tribunal’s understanding that Chhetris are heavily represented in the Nepali’s army cannot be quarantined from this conclusion that the appellant is not at risk of harm on return to Nepal. Bound up in that conclusion is an assessment not only of the prospect of Maoist or other ethnic groups inflicting harm on the appellant, but of the willingness and capacity of the Nepalese authorities to take action to protect the appellant from threatened harm.


[49] The Tribunal was obliged to put the appellant on notice of the significance that it was disposed to attach to the reported level of representation of Chhetris in the Nepalese Army and to give him the opportunity to address the issue. The premise for Nauru’s alternative submission, the denial of natural justice, could not have deprived the appellant of a different outcome, is not made good. There is no good reason to decline to grant the relief that the appellant claims.


  1. From the decisions in BRF 038 and HFM 045, it is clear that the High Court does not approve of the appellant’s approach that to establish practical injustice all an appellant has to do is to establish that he was not informed of the case. To comply with the requirements of procedural fairness under s.22 of the Act the Tribunal is required to put the substance of the information to an applicant which is credible, relevant and significant and give him an opportunity to address the issue.

THIS APPEAL


  1. The appellant had provided to the Tribunal untranslated articles at the hearing including an article from JPV News dated 16 March 2016 which warned Tamils returning to Sri Lanka from overseas that people directly or indirectly connected with LTTE should avoid going to Sri Lanka, where white van abductions, torture and sexual abuses continue. The Tribunal discusses this at [55] of its decision.
  2. The Tribunal stated as follows at [56], [57] and [58] of its decision:

[56] The Tribunal notes in that regard the statement by United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, at the end of his Mission to Sri Lanka, dated 9 February 2016, which in part read:


‘The ‘white van’ abductions that operated outside all norms of law and order, and – as intended – instilled fear in the hearts of journalists, human rights defenders and others who dared criticise the Government or State security institutions, are now very seldom reported. The number of torture complaints has been reduced but new cases continue to emerge as two recent reports, detailing some disturbing alleged cases that occurred in 2015, have shown and police all too often continue to resort to violence and excessive force.’ (“the UNHCR statement”)


[57] In addition the July 2015 ITJP report added:


‘The new Sri Lankan government led by President Sirisena has repeatedly warned people that they do not want the “white van culture” of their predecessors to return. The Prime Minister, Ranil Wickremesinghe, stated in a speech to the Sri Lankan parliament on 3 June 2015 that these abductions were a thing of the past: “Today there are no white vans and as such we are happy that most people can express their views freely”.’(“the ITJP statement”)


[58] The Tribunal considers the contents of the above reports and those others to which it has been referred by the applicant and his representative to be broadly consistent with the information referred to in other sources before the Tribunal. In particular the Tribunal accepts that Tamils in Sri Lanka faced harassment, discrimination and in some cases persecution during the time of conflict between the LTTE and the Sri Lankan authorities and its immediate aftermath. The Tribunal further accepts that some Tamils and non-Tamils face a continuing risk of torture and persecution by the Sri Lankan authorities.

(footnotes omitted)


  1. The appellant submits that the UNHCR Report and ITJP Report were not put to him and they contained adverse information which was credible, relevant and significant to the decision and there was reasonable possibility that the appellant would be subjected to harm as a Tamil from North who had resided outside of Sri Lanka for many years.
  2. The respondent submits[19] as follows:

[44] However, it does dispute that:


  1. The information was adverse to the appellant;
  2. It was credible, relevant and significant;
  1. It ‘would be a reason’ for the Tribunal’s rejection of an unidentified particular claim made by the appellant; and
  1. The appellant was unaware of the nature and content of the information.

The respondent further submits that the Tribunal was not required to disclose the information as the information contained in UNHCR and ITJP Reports was consistent with the information provided to it by the appellant; as recognised by the Tribunal in passage [58] of the Tribunal’s reasons (see [43] above).


  1. The respondent submits that since the appellant was aware of the content of the information it was therefore not significant and it was not adverse to the appellant as it did not undermine his case. The respondent submits[20] that the appellant did not suffer any practical injustice as a result of being unable to comment on the reports as he already had a full and proper opportunity to respond to the information which they contained, and so no further opportunity was required. To draw the reports to his attention would have been an arid and completely and unproductive gesture.
  2. The Tribunal concluded at [58] that it had considered the two reports and other reports provided by the appellant’s advisors and found them to be broadly consistent with the information before it. Having noted the contents of the two reports, the Tribunal concluded that the threat of the ‘white van’ abduction that had existed was no longer a concern for the appellant.
  3. This finding by the Tribunal was adverse information which was credible, relevant and significant and the appellant was not put on notice of the adverse information. The appellant’s representative provided material prior to the hearing and post-hearing that contained information of ‘white vaning’ in 2016 and it seems that the Tribunal did not consider the material provided by the appellant’s legal advisors otherwise it would not have concluded that the two reports are broadly consistent with the information before it.
  4. The Tribunal was obliged to put the appellant on notice that it was going to rely on the two reports to reject his claim that he would be at risk of arbitrary arrest and interrogation by ‘white van abduction’, as one who invited the suspicion of a Tamil from North who had resided outside of Sri Lanka for many years.
  5. If the UNHCR and ITJP Reports were given to the appellant, the appellant could have made submissions:
    1. That the ITJP Report was a political statement made by the President and the Prime Minister and being political statements, they contained an obvious bias in exaggerating the absence of ‘white van’ abduction.
    2. The ITJP Report was in direct conflict with the UNHCR Report in relation to the ‘white van culture’ and that the UNHCR Report stated that ‘white van culture’ was still occurring but seldom reported.
    1. The ITJP Report was in July 2015 whilst the UNHCR Report was in February 2016.
    1. The advisors provided country information at BOD page 305 titled ‘Freedom from Torture Documents containing torture in Sri Lanka’ which was dated 6 May 2016 which stated that 10 Tamils were arrested by Terrorism Investigation Department (TID) following the return from European countries – Australia, Italy, Middle East and Canada at Bandaranaike International Airport.
    2. The advisors in their written submissions dated 23 May 2016 (BOD 303) stated ‘Another two Tamils in north east were abducted in white van on Tuesday, Tamil Guardian 28 April 2016’, (BOD 328) and ‘Family man abducted in ‘white van’ in Jaffna, 13 April 2016, (BOD 329), and the same van was found on 17 April 2016 where the advisors stated: ‘white van Jaffna found in CID 4th Floor.’
  6. The respondent submits that denial of procedural fairness could not have made any difference to the outcome of the decision by the Tribunal has no substance particularly in light of the matters discussed on [48] above.
  7. The appellant succeeds on this ground of appeal.

CONCLUSION


  1. Under s44(1) of the Act, I make an order remitting the matter to the Tribunal for reconsideration.

DATED this 13 day of December 2017


Mohammed Shafiullah Khan
Judge

[1] [2017] NRSC 23 (DWN066)
[2] (1985) 159 CLR 550, 628-9
[3] [2003] SCAFC 298 [91]
[4] [1986] HCA 54; [1986] 161 CLR 141 at 145-146
[5] [2017] HCA 44 18 October 2017
[6] [2016] HCA 29; (2016) 90 ALJR 901 at 915 [83]; [2016] HCA 29; 333 ALR 653 at 670; [2016] HCA 29
[7] [2006] HCA 63; (2006) 228 CLR 152 at 161-162 [29]; (2006) HCA 63,
[8] [1994] FCA 1074; (1994) 49 FCR 576 at 591-592
[9] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629; [1985] HCA 81. See also SZBEL [2006] HCA 63; (2006) 228 CLR 152 at 162 [32]; and Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at 256[2]] - 261] [19]; [2010] HCA 23
[10] Kioa v West (1985) 550 at 587. See also Alphaone [1994] FCA 1074; (1994) 49 FCR 576 at 591,
[11] BRF 038 unreported Refugee Status Review Tribunal, 15 March 2016 at [47] – [48]
[12] Cf Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145-146; [1986] HCA 54
[13] [2017] HCA 50, 15 November 2017
[14] [1999] IRLR 344
[15] R v The Chief Constable of the Thames Valley Police; Ex parte Cotton [1999] IRLR 344 at 350
[16] R v The Chief Constable of the Thames Valley Police; Ex parte Cotton [1999] IRLR 344 at 352
[17] Section 4(1) of the Custom and Adopted Laws Act 1971 (NR) provides, relevantly, that the common law and statutes of general application which were in force in England on 31 January 1968 are adopted as laws of Nauru.
[18] R v Lichfield District Council [2001] EWCA CIV 304 at [23]

[19] Respondent’s written submissions [44]
[20] Respondent’s written submissions [54]

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