BZAAW v Department of Immigration - [2013] FCCA 74

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAAW & ANOR v DEPARTMENT OF IMMIGRATION & ANOR

[2013] FCCA 74

Catchwords:
MIGRATION – Judicial review – independent protection assessment – whether Reviewer considered all grounds of claim to protection advanced by Applicant – all grounds considered – whether Reviewer erred in dealing with issues of credit – whether Reviewer conducted a fair hearing – whether Reviewer gave adequate reasons.

Legislation:
Migration Act 1958 (Cth), s.476

Cases cited:
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319

Applicants:

BZAAW & BZAAX

First Respondent:

DEPARTMENT OF IMMIGRATION & CITIZENSHIP

Second Respondent:

DR RON WITTON IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER

File Number:

BRG 297 of 2011

Judgment of:

Judge Jarrett

Hearing dates:

26 & 27 October 2011

Date of Last Submission:

27 October 2011

Delivered at:

Brisbane

Delivered on:

19 April 2013

REPRESENTATION

Counsel for the Applicants:

Mr Reidy

Solicitors for the Applicants:

Holding Redlich

Counsel for the Respondents:

Mr Bickford

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The amended application filed on 23 August, 2011 is dismissed.
The Applicants pay the First Respondent’s costs of the application fixed in the sum of $6,240.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 297 of 2011

BZAAW & BZAAX

Applicants

And

DEPARTMENT OF IMMIGRATION & CITIZENSHIP

First Respondent

DR RON WITTON IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The Applicants have applied for an order that the Respondents show cause why a remedy should not be granted, in the exercise of the Court’s jurisdiction pursuant to s.476 of the Migration Act1958, in respect of a future decision, or other action, by the First Respondent, or an officer under the Act concerning offshore entry persons following the making of a recommendation by the Second Respondent an Independent Protection Assessment Reviewer. The Second Respondent made a recommendation on 26 March, 2011 in respect of the Applicants to the Minister that they not be considered as persons to whom Australia owes protection obligations under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees
The Minister appears and opposes the application. The Second Respondent enters a submitting appearance.
The Applicants are husband and wife. They joined their claims for review in the one proceeding. At the commencement of the hearing of this application, the First Respondent applied to have the proceedings separated into two individual applications, but for reasons I gave at that time, I refused that application.
Some of the grounds agitated by each Applicant overlap. Some do not. After setting out some uncontroversial facts, I will consider the common grounds and then those grounds which are not common to each applicant.
The Second Respondent gave one set of written reasons that dealt with the review applications by both BZAAW and BZAAX. Both Applicants filed separate court books for these proceedings, which in some respects are different. The pages at which various documents appear in each court book are different. In these reasons, where I have referred to pages in a court book, that reference is to the court book for BZAAW, unless otherwise specified.

Background and some of the Applicants’ claims

BZAAW

BZAAW is 32 years of age. He claimed that the 25-year conflict between the majority Sinhala and the minority Tamils in Sri Lanka had resulted in the deaths of two members of his immediate family. His mother was killed by Indian Peace Keeping Forces in 1998. One of his brothers had been pressed into the service of the Liberation Tigers of Tamil Eelam and was killed by the Sri Lankan Army in 2000 when fighting for the LTTE.
BZAAW claimed that he had owned and operated an auto "rickshaw" (a type of small van) from 2003. He said that he was approached by the LTTE to carry items for them. When he refused the LTTE threatened his family.
In early 2009 he sustained injuries by shrapnel from shelling. He says that he found his way to a hospital where he was questioned by officers from the Sri Lankan Army. He claims that he was told by the officers that they considered that he was definitely from the LTTE.
He left hospital (there are differing version as to whether he was discharged or escaped) in June and Sri Lanka in July, 2009. He then heard that his wife had gone to Malaysia. A relative helped him arrange a passport and departure from Sri Lanka and he went to Malaysia and joined his wife.
He came to Australia from Malaysia with his wife, BZAAX, on a boat which arrived at Christmas Island on 20 March, 2010.
He lodged a claim for a refugee status assessment on 8 May, 2010. The assessment was undertaken by the Department of Immigration and Citizenship.
On 14 September, 2010 he was notified that an officer of the Department had determined that he was not a refugee as defined in the Convention.
He lodged a claim for an independent merits review of the refugee status assessment and interviews for that purpose were held on 16 February, 2011 with the assistance of a Tamil interpreter.
The Applicant claimed that he feared persecution because:
a)of his race – he was Tamil;
b)of his imputed political opinions – he thought that he would be considered a supporter of the LTTE;
c)he was a member of particular social groups, namely:
i)Failed asylum seekers;
ii)Tamils from Vanni.

BZAAX

BZAAX is 31 years of age and was born in Sri Lanka. She is of Tamil ethnicity and the Hindu religion.
The applicant attended school in Sri Lanka and for a period of three years, in India. At age 17 she went overseas for about 10 years.
In 2007, or the beginning of 2008, she returned to Sri Lanka and in May, 2008 she married her husband, the applicant BZAAW.
The applicant claimed that her husband’s brother had been forced into service with the Liberation Tigers of Tamil Eelam and was killed by the Sri Lankan Army during fighting between the LTTE and the Army.
After she was married, the applicant lived for 42 days in Vanni at her husband’s family’s home. She and her husband had “trouble” because he was from the Vanni area which was, at that time, an area controlled by the LTTE. Because of conflict in the area she went back to live with her mother, who was old and ill. She helped to look after her mother. She waited for her husband to join her.
After she had no contact with her husband for some time, on 12 March, 2009 she went to Malaysia. She left Sri Lanka using her own passport. She said that by the time she went to Malaysia she had had no contact with her husband since moving from Vanni. She claimed that he did not know that she had left for Malaysia. She also claimed that her husband had “problems” and that is why they both left the country. The “problems” stemmed from the fact that she was from the Vavuniya district and her husband was from the Vanni district of Sri Lanka.
The Applicant met up again with her husband in Malaysia and they lived there for about one year. They then paid a people smuggler to send them to Australia.
The Applicant came to Australia with her husband on a boat which arrived at Christmas Island on 20 March, 2010. She arrived without a passport. She lodged a claim for a refugee status assessment on 8 May, 2010. The assessment was undertaken by the Department of Immigration and Citizenship.
On 14 September, 2010 she was notified that an officer of the Department had determined that she was not a refugee as defined in the Convention.
She lodged a claim for an independent merits review of the refugee status assessment and interviews for that purpose were held on 16 February, 2011 with the assistance of a Tamil interpreter. She had given birth to a child in Darwin shortly before the hearing held by the Second Respondent.
The applicant claimed that she feared persecution because:
a)of her race – she was Tamil;
b)of her imputed political opinions – she thought that she would be considered a supporter of the LTTE;
c)she was a member of particular social groups, namely:
i)Failed asylum seekers;
ii)Tamil women; and
iii)Tamil women in northern Sri Lanka.

The Grounds of Review

The amended application filed on 23 August, 2011 raises 11 grounds of review in respect of each Applicant. By the written submissions delivered on behalf of each applicant on or about 14 October, 2011:
a)BZAAW abandoned his grounds 2, 3, 5(a), 6, 8(d) and 11 in the amended application; and
b)BZAAX abandoned her grounds numbered 2, 3, 4(b), 6, 8(d), 9(d), 9(e) and 11 in the amended application.
Six main contentions were advanced by BZAAW in his written outline of submissions, being those grounds set out in paragraphs 2, 3, 4, 5, 6 and 7 of his outline filed on 14 October, 2011. At the commencement of the hearing, BZAAW by his Counsel, abandoned the matters set out in paragraph 3 of the written outline which related to grounds 5(a)-(e) and 6(b)-(d) and 8(d) of the amended application (referred to in oral submissions as the “temporal test point”).
Four main contentions were advanced by BZAAX, being those grounds set out in paragraphs 2, 3, 4 and 5 of her outline of submissions filed on 14 October, 2011.

The Second Respondent’s Findings

Without intending to be exhaustive, the Second Respondent accepted the following claims and made the following findings in respect of the claims made by BZAAW:
a)that he was born and lived in the northern area of Sri Lanka;
b)that his mother had died in an army camp after mistakenly having been identified as an LTTE supporter;
c)that his brother had been pressed into service for the LTTE and had died as a result;
d)that he was injured in an attack in March, 2009 that led to his being hospitalised;
e)that while he was in hospital he was questioned by Sri Lankan military officers;
f)that given the situation of the civil war, it was likely that he was interviewed and photographed when he was transported by bus with his injuries;
g)that he was discharged from the hospital;
h)that although he was questioned by the authorities while in hospital, he was found not to be of interest to the authorities;
i)that he was able to depart from Sri Lanka using his own passport;
j)that upon return to Sri Lanka he may well be interrogated by the Sri Lankan authorities to determine whether he is considered a security threat;
k)that the authorities may even suspect upon that return that he is a failed asylum seeker;
l)that he would not attract undue attention from the authorities upon his return to Sri Lanka and the fact his brother had been a member of the LTTE would not, in and of itself, be a matter that would arouse the suspicion of the Sri Lankan authorities with regard to the BZAAW’s own sympathies;
m)that many Tamil families have suffered in the civil war and that this added factor would not significantly raise the level of the authorities’ suspicion;
n)that the cumulative effect of these factors would not impute to him a political opinion of sympathy for the LTTE;
o)that the interrogation he might undergo upon return to Sri Lanka would not be such as to amount to serious harm;
p)there was only a remote chance that he would face a risk of persecution in the reasonably foreseeable future in the event that he chose to return to Sri Lanka.
The Second Respondent did not accept the following assertions by BZAAW:
a)that he was accused of being an LTTE supporter by the authorities and by a paramilitary group while in hospital;
b)that officers told him that they believed he was definitely an LTTE member;
c)that he escaped from hospital and was not discharged from hospital;
d)that he bribed Sri Lankan authorities to allow him to leave Sri Lanka.
Without intending to be exhaustive, the Second Respondent accepted the following claims and made the following findings in respect of the claims made by BZAAX:
a)she was married to a person from a former LTTE controlled area;
b)her marriage may have aroused the curiosity or even concern of people with whom she associated;
c)she had fabricated her claims of threats and harassments before and after she left Sri Lanka in order to create a case for a protection visa;
d)on her own evidence, she was able to depart from Sri Lanka using her own passport and, in light of this, found that she was not suspected to be an LTTE supporter by the Sri Lankan authorities;
e)she had not, previous to the interview for the purposes of the independent merits review, stated that she had to pay bribes to depart Sri Lanka and her explanation for that failure was “unconvincing”;
f)her assertion that she had used a bribe to depart Sri Lanka was a fabrication to strengthen her claim, and found that when she left Sri Lanka using her own passport, she was allowed to depart by the authorities and that this indicated that the Sri Lankan authorities had never had an adverse interest in her;
g)upon return to Sri Lanka she may well be interrogated by the Sri Lankan authorities to determine whether she is considered a security threat;
h)the authorities may suspect that she is a failed asylum seeker;
i)it was significant and determinative that the applicant had no profile as an LTTE supporter, and was permitted to depart Sri Lanka using her own passport;
j)in light of the findings made in relation to her husband (BZAAW), she would not have a profile based on her connection to her husband, and that she would not attract undue attention from the authorities upon her return to Sri Lanka;
k)any interrogation she might undergo upon her return would not be such as to amount to serious harm;
l)there was only a remote chance that she would face a risk of persecution in the reasonably foreseeable future in the event that she chose to return to Sri Lanka.
The Second Respondent found that, given that her husband (BZAAW) was not an LTTE supporter, it was implausible that her marriage to him had aroused the level of adverse interest on the part of “unknown people” whom she suspected might be military or paramilitary groups, that she claimed.

The Court’s jurisdiction

The parties agree upon the basis of this Court’s jurisdiction to hear and determine this application. Both parties agree that the relevant principles to apply in considering the Applicants case are those set out by the High Court of Australia in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319.

The first common contention – the wrong Convention ground

This ground is common to both BZAAW and BZAAX.
The Applicants argue that the Second Respondent’s findings proceeded from a fundamental misunderstanding of the Applicants’ claims. They argue that their claims were incorrectly understood as being for the Convention reason of imputed political opinion, that is, presumed support for the LTTE.
They further argue that the Second Respondent failed to consider a relevant matter, namely, their race or ethnicity as the ground for fear of persecution. In their written submissions they posit that the question that the Second Respondent asked himself appears to be: “Does the applicant have a well-founded fear of persecution on the ground of imputed political opinion (due to presumed support of the LTTE) when the Sri Lankan government has defeated the LTTE some 18 months or more ago?” The real question, they say, was: Does the applicant have a well-founded fear of persecution because she/he is a Tamil or a Tamil from Vanni (in the case of BZAAW) or a Tamil or a Tamil woman (in the case of BZAAX)?
They further argue that because the Second Respondent did not deal with all of their claims of persecution as put by them, he considered the claims in a narrow context and failed to have regard to relevant considerations. They argued that their claims, when all factors are properly considered in context, sought to establish that their Tamil ethnicity of itself would attract harassment and accusations of sympathising with the LTTE, quite apart from any persecution arising from the identification of them as LTTE supporters.
Counsel for the Respondents conceded that if the Second Respondent failed to address one of the claimed bases for the Applicants’ fear of persecution, with the result that the Minister was not informed about a matter that bore upon the question that the Minister had asked the Second Respondent to consider, i.e. whether Australia owed the Applicants protection obligations, there would be a denial of procedural fairness, and therefore jurisdictional error sufficient to warrant granting the relief sought by the Applicants.

BZAAW

BZAAW put his claims of fear of persecution on four bases, namely:
a)That he was Tamil;
b)That he was Tamil from the Vanni area of northern Sri Lanka;
c)That a political opinion would be imputed to him, namely that he supported the LTTE;
d)That he would be identified as a failed asylum seeker.
The initial refugee status assessment sets out the preliminary investigation of BZAAW’s claim and the reasons for the First Respondent’s departmental officer rejecting that claim. At CB104 the following appears:
[BZAAW] fears returning to Sri Lanka because he is a Tamil from Vanni and would be suspected of supporting the LTTE. His wife fears returning as she is a Tamil woman who would be suspected of being a supporter of the LTTE and because her husband is from Vanni. I find that the Convention ground of imputed political opinion is the essential and significant reason for the harm feared.
In the letter from the Applicants’ solicitors to the Second Respondent dated 9 February, 2011, the Applicant’s solicitors summarised the Applicants’ claims thus:
(BZAAW and BZAAX) are Sri Lankan citizens of Tamil ethnicity. They fear persecution at the hands of the Sri Lankan Government and its supporters for reasons of race and imputed political opinion (support for the LTTE). Their claims are set out in detail in earlier written and oral submissions. They continue to rely on these claims. In addition, they fear persecution for reasons of their membership of a particular social group comprising failed asylum-seekers returned involuntarily to Sri Lanka
The Second Respondent set out relevant extracts from the original assessor’s report at CB144 to CB146. The Second Respondent set out relevant passages from the solicitors’ letter and submissions in support of their case at CB146 to CB152. The Second Respondent then set out the evidence given by the Applicants at their interview at CB152 to CB156, before considering the country information at CB156 to CB158. At CB158 to CB161, the Second Respondent set out his findings and reasons and at CB162 made his recommendation that the Applicants not be recognised as persons to whom Australia has protection obligations.
Having regard to that material, there can be no dispute that BZAAW advanced claims on each of the grounds identified above. The issue is whether the grounds based upon ethnicity alone, and membership of the social group comprising Tamils from Vanni were dealt with by the Second Respondent.

BZAAX

BZAAX claimed that she feared persecution because she was Tamil, she was a Tamil woman, because she would be seen as a failed asylum seeker and because a political opinion (support for the LTTE) might be imputed to her by reason of her:
a)race; and
b)marriage to a man from a once LTTE controlled area.

The Refugee Status Assessment Record (at CB101) records, in respect of BZAAX, that she:
…fears being detained, tortured, raped and possibly killed if returned to Sri Lanka because she is a Tamil woman and because she would be suspected of being a supporter of the LTTE. As a woman it would be difficult for her to travel around Sri Lanka. Tamils are immediately recognised through their language and are targeted and discriminated against. She would be at risk of physical abuse and harassment in any part of Sri Lanka and at further risk because of her marriage to man from the Vanni. She fears harm from the Sri Lankan authorities, including the Sri Lankan armed forces, CID and Police and also the Sinhalese in general.
That passage is consistent with her statement (at paragraphs 20 to 21 at CB78 in BZAAX’s application) made by her for the purposes of the Refugee Status Assessment. Under the heading “Who I think may harm/mistreat me if I was forced to return to Sri Lanka” she states:
23. I fear harm by the Sri Lankan authorities, including the Sri Lankan armed forces, CID and Police.
24. I also fear harm by the Sinhalese in general. A number of different Sinhalese groups continue to target Tamils. There are so many groups in Sri Lanka who continue to target Tamils. The men who questioned me have a mix of people who spoke Sinhalese and Tamil.
…
25. I fear that I would be at risk of being detained, tortured and possibly even killed if I was forced to return to Sri Lanka because I am a Tamil woman and because I would be suspected of being a supporter of or involved with the LTTE.
26. I would be at further risk of being targeted because my husband is from Vanni and would be suspected of being involved with or a supporter of the LTTE.
Her solicitor’s letter in support of her application for Independent Merits Review (reproduced in the Second Respondent’s reasons at CB146), restates BZAAX’s claims as follows:
…(the Applicants) are Sri Lankan citizens of Tamil ethnicity. They fear persecution at the hands of the Sri Lankan Government and its supporters for reasons of race and imputed political opinion (support for the LTTE). Their claims are set out in detail in earlier written and oral submissions. They continue to rely on these claims. In addition, they fear persecution for reasons of their membership of a particular social group comprising failed asylum seekers returned involuntarily to Sri Lanka.
Having regard to that material, there can be no dispute that BZAAX advanced claims on each of the grounds identified above. The issue is whether the ground based upon ethnicity alone was dealt with by the Second Respondent.

Consideration

All parties identify particular passages of the Second Respondent’s reasons as critical to the claims of each of the Applicants. Those passages are as follows (at CB 159- 160):
[BZAAW] fears that were he to return to Sri Lanka he would be detained by the authorities as a failed asylum seeker, and that he would face harm from the authorities who would suspect him to be an LTTE supporter as he is a Tamil is from a former LTTE controlled area and has previously been questioned by Sri Lankan authorities. The claimant has also referred to the fact that his brother had been a member of the LTTE and had been killed in 2000 and this would link him to the LTTE.
...
[BZAAX] fears that were she to return to Sri Lanka she would be detained by the authorities as a failed asylum seeker, and that she would face harm from the authorities who would suspect her to be an LTTE supporter as she is a Tamil and is married to someone from a former LTTE controlled area. She also fears harm as a woman.
The Applicants’ Counsel argues that the above statements demonstrate a misunderstanding of the basis upon which each applicant has made their claim for refugee status. He argues that the Applicants have not had the central part of their claim, namely their claim based upon their race, determined by the Second Respondent.
There are no other statements by the Second Respondent in his reasons that purport to identify the grounds relied upon by the Applicants. I accept that to state the grounds in the way set out above does not expressly recognise the Applicants’ separate claims based upon:
a)their race alone; and
b)their membership of the social group identified by each – Tamil women in the case of BZAAX and Tamils from Vanni in the case of BZAAW.
However, what is important is not whether the grounds have been stated in the reasons, but whether, on a fair reading of the reasons as a whole (and bearing in mind the statements in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291) the grounds have been properly considered.
BZAAW argues that the Second Respondent approached his analysis of the Applicants claim by treating it as a claim for protection on the ground of imputed political opinion only and paid no attention to the other aspects of his claim.
BZAAX argues that her separate grounds based upon her ethnicity and gender have not been separately and adequately considered by the Second Respondent. She argues that they have only been considered in the context of her other claim based upon imputed political opinion.
Both Applicants argue that whilst it is said that the Applicants’ race of itself might lead to an inference that they are LTTE supporters, their fear of harm is not limited to being identified as such. BZAAX’s claim was that Tamils generally, and Tamil women more specifically, are subjected to harm in the form of abduction, harassment, sexual violence and death from the ruling Sinhalese government. BZAAW’s claim was that Tamils generally, and Tamils from northern Sri Lanka, are subjected to harm in the form of abduction, harassment and death from the ruling Sinhalese government
The First Respondent argues that the difficulty for the Applicants is that the Second Respondent did have regard to all of the claims made by them, and in particular the claim based solely upon their ethnicity. When viewed in context, it is said that the critical passages set out above at [41] are completely in accordance with the cases advanced to the Second Respondent by and on behalf of the Applicants.
I do not accept the Applicants’ contentions that the Second Respondent did not turn his mind to their claims that by reason of their ethnicity or race alone, they would be subjected to serious harm should they return to Sri Lanka. At CB156 (in BZAAX’s application), the Second Respondent’s reasons record:
The reviewer accepts that the claimants fear harm from the authorities or paramilitary groups in Sri Lanka. However, the independent country information cited above and discussed at interview with the claimants indicates that the post-war situation is such that human rights abuses have declined since the time of the civil war and that the majority of people are beginning to live relatively normal, albeit post-conflict, lives. In making this finding, the reviewer has considered the country information provided by the claimants, including the observation by the Danish Immigration Service July 2010 report some level of deterioration in human rights. However, the reviewer, taking into consideration the lack of political profile of the claimants as discussed above, and the relatively large numbers of Tamils living in Sri Lanka, finds that the incidence of abduction and harassment not to be at a level such that there would be a real chance the claimants would in the foreseeable future be abducted or harassed if they returned to live in Sri Lanka.
That passage from the Second Respondent’s reasons reveals that he did give consideration to the Applicants’ claims of a risk of persecution by reason of their Tamil ethnicity alone. He considered their claims that upon return to Sri Lanka they would be at risk of being subjected to abduction and harassment and on the basis of the information referred to by him, rejected those claims. The information to which he has referred deals with the risk of harm to Tamils generally in post-conflict Sri Lanka. It is not information that deals with Tamils who are suspected or known to have links to the LTTE.
In my view, the Applicants have not demonstrated that the Second Respondent has not considered their claim based upon their ethnicity alone.
So too, the Second Respondent considered BZAAX’s claim based upon her being a Tamil woman. In his reasons (at CB 156) the Second Respondent said:
The reviewer has also considered the particular circumstances of the wife client and whether, as a woman, there is a real chance she would face serious harm.
The UNHCR has stated in July 2010 that given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria and there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country. They have also stated that despite the cessation of hostilities, incidents of sexual and gender-based violence against women and girls in conflict regions are still reported and that in addition, legal provisions outlawing rape and other forms of violence against women are reportedly not effectively enforced. However, they have also stated that those women with specific profiles may be at risk on the ground of membership of a particular social group depending on the circumstances of the individual case. Women specifically mentioned are female headed households, a number of women in IDP camps as well as former LTTE female cadres in detention centres. The reviewer finds the wife claimant does not fall within one of these identified groups. Whilst the reviewer accepts that the UNHCR has stated that incidents of sexual and gender-based violence against women and girls in conflict regions are still reported and that in addition, legal provisions outlawing rape and other forms of violence against women are reportedly not effectively enforced and the adviser has also included some information about the same, the reviewer finds that there is only a remote chance that she would face such a risk in the reasonably foreseeable future in the event that she does return to Sri Lanka.
Whilst BZAAX argues that her fear of harm because she is a woman, or a Tamil woman or a Tamil woman from the north of Sri Lanka was not considered, in my view, that claim was clearly considered by the Second Respondent. The Second Respondent has clearly referred to and considered the information from the UNHCR brought to his attention. What weight he gave to that information was a matter for him. His statement that he found that BZAAX did not fall within one of the specific groups identified by him from the UNHCR material, is of no consequence because, she did not identify with any of those groups and the Second Respondent in any event accepted “that the UNHCR has stated that incidents of sexual and gender-based violence against women and girls in conflict regions are still reported and that in addition, legal provisions outlawing rape and other forms of violence against women are reportedly not effectively enforced”.
BZAAW’s claim based upon his origin of Vanni was dealt with by the Second Respondent. The Second Respondent was clearly aware that BZAAW was from northern Sri Lanka and that Tamils from Northern Sri Lanka had, in the past been abducted and harassed by the Sinhalese government. Although mentioned in the context of BZAAX’s claim to a risk of persecution because she was a woman, the Second Respondent recorded, and later accepted that:
The UNHCR has stated in July 2010 that given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria and there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country.
The Second Respondent concluded his reasons:
In conclusion, the Reviewer is not satisfied that if the claimants return to Sri Lanka they would in the reasonably foreseeable future face a real chance of persecution by reason of their ethnicity, their political opinion (real or imputed), or for reason of membership of a particular social group or for any other Convention reason. The Reviewer is not satisfied the claimants satisfy the definition of a refugee as set out in the Refugee Convention.
In my view, the Applicants do not make out this ground of review. The Second Respondent considered the claims made by each Applicant that they now say he did not consider.
Additionally, BZAAW argues that by not dealing with the claims on the grounds of ethnicity and membership of a social group the Reviewer failed to take into account considerations that were otherwise relevant to his claim for refugee status.
The First Respondent accepts that the reviewer is required to consider the totality of the case put forward and, in doing so, must consider each integer of the claims made and the claims must be considered in conjunction with each other. But in my view that is what the Second Respondent has done in this case.
BZAAW points to a number of matters alleged to have been overlooked by the Second Respondent, and in particular:
a)The history of Tamil persecution by the Sinhala majority;
b)The past treatment of Tamil people;
c)Whether persecution of Tamil people alleged by the Applicant arose from the conduct of the State or State agents;
d)The connection between the State and paramilitary forces;
e)The inability or unwillingness of the State to protect its Tamil citizens;
f)The circumstances of the Applicant returning to Sri Lanka with his wife, his siblings and a child born in Australia and the attention this would attract;
g)The requirements of Article 33 of the Refugees Convention having regard to all those factors.
The Second Respondent’s reasons, however, make plain that, save for the last two matters, he had regard to those matters. They were recorded by him as part of the recitation of the submissions made by the Applicants’ advisers to the Second Respondent (see for example CB147, 148, 149). His reasons proceeded on the basis that Tamils, prior to the cessation of the conflict in Sri Lanka, had been subjected to persecution in the form of abduction and harassment by the Sinhala majority and the Sinhala government.
As to the last two matters set out above, neither were raised with the Second Respondent by either Applicant. I accept the First Respondent’s submission that the fact that the Second Respondent did not consider the possible consequences for BZAAW of returning to Sri Lanka, at or about the same time as his wife, his brother, his sister and his child and the attention that would be drawn to him in those circumstances is of no consequence because no such case was ever put to the Second Respondent. Moreover, it rests upon a proposition of fact about which there could be no certainty – namely, that BZAAW would return to Sri Lanka, at or about the same time as those others. There could be no certainty that any of them would be returned at or about the same time as any of the others.
The application of, or the requirements of Article 33 of the Refugees Convention was not the subject of submission to the Second Respondent.
In my view, these grounds of review cannot succeed.

The second common contention – no evidence for a critical finding

The Applicants point out that the initial refugee status assessment relied on country information about the passport verification system in place in Sri Lanka to arrive at a conclusion that the Applicants were not persons of interest to the authorities. This system employed a “wanted or stop” list for detaining persons under suspicion at the point of their departure from Sri Lanka. The Applicants argue that there was no evidence before the initial refugee status assessment assessor, however, that this system was in place when the Applicants left Sri Lanka in 2009.
The information used by the initial refugee status assessment assessor derives, it is said, from a report published by the Immigration and Refugee Board of Canada on 28 January, 2010 which relies on reporting from the Canadian High Commission in Sri Lanka dated 13 January, 2010. The Applicants argue that there was nothing in that document that supported a finding that the passport verification system was in operation in July, 2009 when BZAAW left Sri Lanka or April, 2009 when BZAAX left Sri Lanka.
The Applicants argue that the Second Respondent has implicitly adopted that finding by the refugee status assessment assessor as a “significant and determinative factor” in his finding that neither applicant would be a person of interest to the Sri Lankan authorities. Consequently, they argue, the Second Respondent has made a finding for which there was no evidence and on the basis of the material before him, it was unsafe to make. They argue that the finding that the Applicants were of no interest to the Sri Lankan authorities relied on them being able to leave Sri Lanka without being challenged at a time when a passport verification system was in operation.
However, in my view there is no basis for the submission that the Second Respondent made any implicit finding concerning the passport verification system. The Second Respondent did not refer to the passport verification system, or the assessor’s findings about that. He did rely upon the Applicants’ evidence that they were able to depart from Sri Lanka using their own passports without challenge to find that the Applicants were of no interest to the Sri Lankan authorities, but more than that, he also relied upon:
a)In the case of BZAAW:
i)The fact that he had been able to re-enter Sri Lanka from Malaysia and then depart again without challenge; and
ii)Had been questioned by the Sri Lankan Army whilst in hospital and not detained.
b)In the case of BZAAX:
i)The fact that she could not be considered to have a profile as an LTTE supporter; and
ii)Based upon her connection to her husband would have no profile as an LTTE supporter.
The findings by the Second Respondent that the Applicants could leave Sri Lanka using their own passports accords with the evidence given by both Applicants. That factual matter cannot be challenged. What is sought to be challenged is the inference that appears to have been drawn from that fact, namely that if either Applicant had been permitted to depart from Sri Lanka using their own passports they must not have been of interest to the Sri Lankan authorities. That inference, if it was drawn, was then part of the reasons used by the Second Respondent to make the critical finding that neither Applicant was of interest to the Sri Lankan authorities.
The inference was open on the evidence. Whether the Second Respondent drew the inference was a matter for the Second Respondent. Nothing in his reasons suggests that he relied upon any finding by the initial assessor to inform his decision to draw the inference.
In any event, if the inference was so drawn it is an inference or finding of fact. Even if the finding, either the implicit finding made as the Applicants’ assert, or the alternate implicit finding I have set out above, was made, it is not a finding as to a jurisdictional fact, an error in respect of which would lead to a grant of relief.
In my view, this ground of review cannot succeed.

The third common contention - the Second Respondent erred in law when dealing with issues of credit

Both Applicants contend that the Second Respondent erred when he decided certain factual questions against them. Each Applicant identifies two factual questions (specific to each Applicant) which it is said were decided adversely to them and in respect of which the Second Respondent erred.

BZAAW

BZAAW identifies two findings that were wrongly made:
a)First, the finding at CB159 that his account of an escape from the hospital was fabricated in order to strengthen his claims for refugee status; and
b)Secondly, the finding at CB159 that his claim about having paid a bribe to leave Sri Lanka was an “elaboration” of his earlier evidence that a relative helped him “arrange” a passport and his departure from Sri Lanka.
As to the first matter, BZAAW argues that the finding is wrong because it relies upon the Second Respondent’s view, or implicit finding, that his claim of escape from hospital was a recent invention. But the Second Respondent articulated no such view. What the Second Respondent actually said was:
In his evidence at the review interview, he said he was questioned by the police and by men in civilian clothes. In his statement of 8 May 2010 he states he was "discharged" from the hospital. At the interview, he described in some detail "escaping" from the hospital. As the reviewer put to him in the interview, one cannot characterise an "escape" from a hospital as a "discharge" and the reviewer finds that he has fabricated the claim of having to "escape" in order to strengthen his claims for refugee status. As stated above, the reviewer finds it quite plausible, and accepts, that he would be questioned in hospital by the authorities but accepts that he was in fact "discharged" and did not need to "escape" and that he has in fact fabricated his claim that he was questioned and accused to be an LTTE supporter by the authorities and by a paramilitary group while in hospital. The reviewer finds that he was questioned by the authorities while in hospital but that he was found not to be of interest to the authorities.
Whilst it may be the case that BZAAW told a representative of the Department at a very early stage that he had “escaped” from the hospital, the inconsistency between the assertion that he was discharged from the hospital and that he escaped from the hospital remains. The Second Respondent was entitled to use that inconsistency in the way that he did. Others might not have, but that is not to the point. There is no error of law, let alone jurisdictional error revealed by the Second Respondent’s approach.
As to the second matter, BZAAW argues that the finding about the bribe paid to depart Sri Lanka does not describe the account as a fabrication. It is found to be an “elaboration”. He argues that “elaboration” is the act of explaining something in detail. He argues that the act does not connote dishonesty and it is merely the act of providing particulars of something that has already been said.
Those submissions, both as to the approach of the Second Respondent and the meaning of “elaboration” are plainly correct. What the Second Respondent said was:
The reviewer notes that it is his own evidence that he was able to depart from Sri Lanka using his own passport and in the light of this finds that the claimant was not suspected to be an LTTE supporter by the Sri Lankan authorities. The reviewer notes that the claimant had not, previous to the interview, stated he had had to use a bribe to depart Sri Lanka. He did say in his initial interview that his relative helped him "arrange" a passport and his departure, but finds nothing in this to suggest that bribery was involved. The reviewer finds this claim to be an elaboration in order to strengthen his claims, and finds that he was, on both the occasions he has left Sri Lanka using his own passport, allowed to do so and that this indicates the Sri Lankan authorities have never had an adverse interest in him.
The First Respondent suggests that the use of the word “elaboration” by the Second Respondent was clearly an error and that the word “fabrication” was intended. I am not so sure. The passage makes sense and retains its meaning as it appears. BZAAW’s further explanation of the “assistance” he received from his relative is clearly an elaboration by him as explained in his submissions.
But as BZAAW argues, it is not clear whether the Second Respondent has treated the provision of more detailed information on a matter already raised as impugning his creditworthiness. On that basis alone, this ground must fail. It cannot be said that any error of law, let alone a jurisdictional error has been made.
BZAAW argues that it is illogical and not a rational approach to the treatment of the evidence to treat the provision of further particulars of a claim already made as either an inconsistent or false version. In my view, that is not necessarily so. An explanation or “elaboration” of a claim might, depending upon the circumstances of the case, be such as to lead a decision maker to doubt, or find against, the veracity of that claim. Even if the Second Respondent has been led into doubting the veracity of BZAAW’s claim on this point, or his claims more generally, by considering his “elaboration” to in some way tell against his credit, that approach discloses no error of law, let alone jurisdictional error.
These grounds demonstrate no error on the part of the Second Respondent warranting the grant of relief.

BZAAX

BZAAX contends that the adverse credit findings made by the Second Respondent should not have been made. She identifies two findings that she asserts are affected by error. The first is:
The reviewer accepts that the claimant is married to a person from a former LTTE-controlled area and accepts that this may have aroused the curiosity or even concern of people with whom she associated. However, given that her husband was not an LTTE supporter, the reviewer finds as implausible, and does not accept, that her marriage to him has aroused the level of adverse interest on the part of "unknown people" whom she suspects might be military or paramilitary groups. The reviewer finds that the claimant has fabricated her claims of threats and harassments before and after she left Sri Lanka in order to create a case for a protection visa.
The second finding which is challenged is:
The reviewer notes that it is her own evidence that she was able to depart from Sri Lanka using her own passport and in the light of this finds that the claimant was not suspected to be an LTTE supporter by the Sri Lanka authorities. The reviewer notes that the claimant had not, previous to the interview, stated she had had to use a bribe to depart Sri Lanka. The reviewer has considered her explanation that she had not mentioned this before as no one had previously asked about bribes but finds her explanation unconvincing given the level of detail she provided about her circumstances and finds her assertion that she had had to use a bribe to depart Sri Lanka, is a fabrication to strengthen her claims, and finds that when she left Sri Lanka using her own passport, was allowed to depart by the authorities and that this indicates the Sri Lanka authorities have never had an adverse interest in her.
As to the first finding, she argues that the Second Respondent’s recording of his exchanges with her in his Statement of Reasons do not support the premise from which the Second Respondent made his finding. It is said that the way that she puts the case, according to the recording in the Statement of Reasons (pages 148 to 149 of the Court Book), is that she has received threats; the men who made the threats have come in white vans; she does not know who they are and they may well not be from the government; she is afraid of what these men will do to her; they have said on their visits that she is married to a man from Vanni; she associates the threats with her marriage to her husband. And so it is. However, there is nothing that is confusing, as she suggests, about the exchanges recorded by the Second Respondent in his reasons.
BZAAX complains that she made a number of relevant concessions for which she was not given credit by the Second Respondent. But the Second Respondent was not required to record in his reasons the balancing process that might have led him to the findings that he made. His reasons must explain his decision and findings, but no more. Here the reasons provide an explanation. The reasoning process might not be as fulsome as she thinks is appropriate and she might disagree with the conclusions reached by the Second Respondent, but there is nothing, in my view, procedurally unfair about the findings reached by the Second Respondent. They might be wrong in fact, but that is not a reviewable error on this application.
As to the second finding, BZAAX submits that the Second Respondent was “hasty” in arriving at his conclusion and did not have careful regard to the material he had before him. She argues that the weight the Second Respondent placed upon the fact that she had not mentioned the payment of a bribe earlier than the interview with him was misplaced because she had given an account in which she said: “My mother assisted me in arranging departure from Sri Lanka” (Court Book at page 78).
She now argues that it is unsurprising that she, newly arrived in Australia, might be less than fulsome in descending into the detail of illegal activity (paying a bribe) when she is hoping to press a case for refugee status. It is argued that all that the issue demonstrates is that she had demonstrated reticence in disclosing embarrassing information.
Those arguments might all be entirely correct, but the weight to be given to any particular part of the evidence is a matter for the reviewer. There was nothing procedurally unfair to her by the Second Respondent giving weight to the fact that she had not disclosed the payment of a bribe earlier than she did.
Moreover BZAAX argues that the Second Respondent should have had regard to her earlier statement about receiving assistance from her mother before drawing the conclusion that this was the first time the payment of a bribe had been mentioned. She argues that it was unfair to put to her that she had never raised the issue of payment of bribes before without first putting to her statement appearing at page 78 of the Court Book (in her case) and giving her an opportunity to explain that statement. However, the Second Respondent put the ultimate finding to her for comment. She had the opportunity to raise the statement upon which she now places significance with the Second Respondent. She did not.
These grounds of review cannot succeed.

BZAAX’s additional contention - the UNHCR Guidelines of 5 July 2009 on sexual and gender-based violence wee misunderstood

The second of the primary grounds relied upon by the applicant is that the Second Respondent took into account an irrelevant consideration and failed to take into account a relevant consideration when he allegedly misconstrued the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka 5 July,2010.
The Applicant argues in her written submissions that the Second Respondent considered the risk of this type of violence to the Applicant, adopting the following approach:
a)The Guidelines noted incidents of sexual and gender-based violence against women in conflict regions.
b)The Guidelines also noted the lack of effective enforcement of laws against rape and other forms of violence against women.
c)The Guidelines “also stated that those women with specific profiles may be at risk on the ground of membership of a particular social group depending on the circumstances of the individual case.”
d)The specific profiles at risk were female headed households, a number of women in IDP camps and former LTTE female cadres in detention centres.
e)The Applicant did not fit those profiles.
f)Consequently, there is only a remote chance that the Applicant would face such a risk in the reasonably foreseeable future in the event that she was returned to Sri Lanka.
However, whilst the reviewer did find that there is only a remote chance that the Applicant would face a risk of sexual and gender-based violence against her in the reasonably foreseeable future in the event that she was returned to Sri Lanka, that finding was not consequent upon the Reviewer finding that the Applicant did not fit any of the particular profiles identified by him. I have set out the Second Respondent’s reasons on this aspect of the matter above, but two passages bear repeating:
…[The UNHCR] have also stated that despite the cessation of hostilities, incidents of sexual and gender-based violence against women and girls in conflict regions are still reported and that in addition, legal provisions outlawing rape and other forms of violence against women are reportedly not effectively enforced. …Whilst the reviewer accepts that the UNHCR has stated that incidents of sexual and gender-based violence against women and girls in conflict regions are still reported and that in addition, legal provisions outlawing rape and other forms of violence against women are reportedly not effectively enforced and the adviser has also included some information about the same, the reviewer finds that there is only a remote chance that she would face such a risk in the reasonably foreseeable future in the event that she does return to Sri Lanka.
Those parts of the earlier extracted passage form the Second Respondent’s reasons make it clear that the Reviewer has accepted that the Guidelines make it clear that women and girls in former conflict areas are at risk of sexual and gender-based violence. However, as the First Respondent points out, the Second Respondent was not bound by the Guidelines, or indeed any of the other evidence or information put before him. It was his task to assess that evidence and information and reach a conclusion about the Applicant’s claims.
In my view, the Second Respondent did not misunderstand the Guidelines. I accept the First Respondent’s submissions that even if he did, at its highest, this would amount to no more than an error of fact. Unless the fact is properly identified as a jurisdictional fact, such errors do not found any exercise of the jurisdiction of the Court.
The Second Respondent specifically dealt with the Applicant’s claim that there were still incidents of sexual and gender-based violence against women and girls in conflict regions, and that legal provisions outlawing rape and other forms of violence against women were reportedly not effectively enforced, but found that there was only a remote chance that the Applicant would face such a risk in the reasonably foreseeable future in the event that she returned to Sri Lanka. That finding was open to the Second Respondent.
The Applicant further argues that having regard to the “fundamental error” made by the Second Respondent in failing to appreciate the Convention ground relied upon by the Applicant and in misunderstanding the Guidelines, the Second Respondent failed to take into account of a number of relevant considerations. She argues that in considering the totality of the claim, the Second Respondent should have:
a)Not confined himself to a consideration of the post-conflict period;
b)Considered the history of the relationship between the Tamil minority and Sinhala majority;
c)Considered whether the persecution feared arose from the conduct of the State or agents of the State;
d)Considered whether the persecution feared arose from the conduct of paramilitary forces;
e)Considered the willingness or ability of the State to protect its Tamil citizens;
f)Considered the location of the family home in the Jaffna Peninsula;
g)Considered that the Applicant’s departure from Sri Lanka involved the payment of bribes;
h)Considered the consequences of the Applicant’s return to Sri Lanka with her husband, a child born in Australia, a brother-in-law and sister-in-law;
i)Considered the consequences of a return with her sister-in-law who had left Sri Lanka illegally;
j)Considered the profiles in the Guidelines.
The First Respondent accepts that the reviewer is required to consider the totality of the case put forward by the Applicant and, in doing so, must consider each integer of the claims made. The claims must be considered in conjunction with each other. But, in my view, that is what the Reviewer did. Having considered all of the matters raised by the Applicant he came to the view set out above. The Second Respondent may not have raised specifically each of the mattes set out above, but there was no obligation upon him to do so. His reasons must not be read with an over zealous eye to error.
I accept the First Respondent’s submission that the fact that the Reviewer did not consider the possible consequences for the Applicant of returning to Sri Lanka, at or about the same time as her husband, her brother-in-law and her sister-in-law and the attention that would be drawn to her in those circumstances is of no consequence because no such case was ever put to the Reviewer. In any event, it rests upon a proposition of fact about which there could be no certainty – namely, that the Applicant would return to Sri Lanka, at or about the same time as her husband, her brother-in-law and her sister-in-law. There could be no certainty that any of them would be returned at or about the same time as any of the others.
In my view, these grounds of review cannot succeed.

BZAAW’s first additional contention - The Reviewer should have told the Applicant what he meant by the expressions “supporter of the LTTE” and “political profile” so that the Applicant had a fair opportunity to respond before the Second Respondent made his determination.

BZAAW argues that integral to the process of reasoning applied to reach the Second Respondent’s recommendation was the forming of a view about the attributes and characteristics of a person who is either a “supporter of the LTTE” or who has a “political profile” in Sri Lanka. He argues that the Second Respondent found that he had no “political profile”. The Second Respondent also found that the authorities would not find that he was a “supporter of the LTTE”. BZAAW argues that these findings were critical to the determination that the Applicant could not be imputed with a political opinion that would bring him to the attention of the authorities.
Further, he argues that the reasons do not explain the attributes of a “supporter of the LTTE” or a person who has a relevant “political profile”. That is so. But, in my view, the Second Respondent was not using those terms as anything other than descriptors. They were not used as terms of art or in any technical sense.
The First Respondent submits that the expression “LTTE supporter” is self-explanatory. The words “political profile” are also self-explanatory. There is no suggestion that either expression was used in a way which confused BZAAW or his representative. I accept the First Respondent’s submission that in using the expressions “LTTE supporter” and “political profile,” the Second Respondent was doing no more than responding to the case advanced on behalf of BZAAW.
There was no failure by the Second Respondent to put to the Applicant matters which were prejudicial to her interests or likely to be dispositive of the case.

BZAAW’s second additional contention – the Second Respondent failed to give adequate reasons for his decision

To the extent that the Applicant argues that the Second Respondent’s reasons are inadequate, in my view they adequately explain the process of reasoning adopted by the Second Respondent and the findings made, when considered against the context in which the Applicant advanced his claims.
BZAAW argues that no reasons were given for the ultimate finding at page 161 of the Court Book that there was no real chance of persecution for the reason of ethnicity or the reason of membership of a social group. However, for the reasons I have given above, in my view, those matters were considered and explained by the Second Respondent in his reasons for the recommendation he made.

This ground of review must also fail.

Conclusion

The application of both Applicants must be dismissed with costs.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 19 April, 2013

Date: 22 April 2013