BZAAZ v Minister for Immigration

[2013] FCCA 38

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAAZ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 38

Catchwords:
MIGRATION – Judicial review – independent protection assessment – whether Reviewer considered all grounds of claim to protection advanced by Applicant – all grounds considered – tandem hearing – whether applicant denied procedural fairness by joint hearing – no procedural unfairness.

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

Cases Cited:
Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319

Applicant: BZAAZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: DR RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: BRG 308 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 Applicant: Mr Reidy

Solicitors for the Applicant: Holding Redlich

Counsel for the Respondents: Mr Bickford

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application filed on 23 August, 2011 is dismissed.

2. The Applicant 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 308 of 2011

BZAAZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DR RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant has 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 Act 1958, in respect of a future decision, or other action, by the Minister, or an officer under the Act concerning an offshore entry person, following the making of a recommendation by an Independent Protection Assessment Reviewer.  The Reviewer made a recommendation dated 29 March, 2011 that the Applicant not be recognised as a person to whom Australia owes protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

2. The Second Respondent in this case is the Independent Protection Assessment Reviewer. The Second Respondent enters a submitting appearance.

3. The application was filed on 20 April, 2011 and an amended application was filed on 23 August, 2011.

The Applicant’s journey to Australia

1. The Applicant arrived by boat at Christmas Island on 18 June, 2010.  After she arrived, she requested a refugee status assessment. 

2. She had departed Sri Lanka without proper travel documents by boat in 2008.  The boat took her to India where she went to Mandapam Refugee Camp, Raneswaram, Tamil Nadu in the south of India.  She stayed there for two years.

3. In Sri Lanka, the Applicant lived in a house situated at a junction which was guarded by the Sri Lankan Army. In her initial Interview Form, the Applicant set out extensive reasons why she left Sri Lanka and why she could not return. She says that she left Sri Lanka to avoid military harassment.  Her family attracted attention because one of her brothers had been forced to fight for the Liberation Tigers of Tamil Eelam.  She and other members of the family were caught between the Sri Lankan army and the LTTE.  She also gave other reasons.

4. In her reasons for not wishing to return, the Applicant said:

   They are saying the problem is over when it’s not. If anything happens, they will point at any Tamil people and Tamils always have problems there.

   …

   The persecution and harm that has been inflicted on us for so long is due to the fact that we are Tamils.

5. She is also fearful because she is a young woman:

   A lot of things have happened in Sri Lanka where girls go missing, are hanged, so many things for young girls.  Not only the LTTE, they [the Army] hate the Tamil community when they see Tamil girls they go mad ... They take Tamil girls and rape them and they disappear.

6. The Applicant secured a forged passport with the assistance of a third brother in Malaysia. She left the refugee camp in India then spent a week travelling to Nepal on a forged passport.  From Nepal, she went to Malaysia where she met her brother (the Applicant in BZAAY v Minister for Immigration [2013] FCCA 75). Together, they took the boat trip to Christmas Island.

7. Until embarking on the boat journey to Australia, the Applicant and her brother had not been together for two years. They left Sri Lanka at different times and under different circumstances.

8. At the initial refugee status assessment, the Convention reason relied upon by the Applicant in her claim for protection was her ethnicity or race.  She claimed that she was at risk of persecution because she was Tamil.

9. The Assessor published his outcome and the reasons for the outcome on 10 September, 2010.  The Assessor recorded that:

   The claimant fears harm from the Sri Lanka authorities because she is an ethnic Tamil.  I find that the Convention ground of ethnicity is the essential and significant reason for the harm feared.

   …

   The claimant asserted that, if she returns to Sri Lanka, she will be killed by the SLA and the Government because of her being a Tamil.  I find that the harm feared involves serious harm and systematic and discriminatory conduct which amounts to persecution.

10. The Assessor, however, was not satisfied that the Applicant’s fear of persecution was well-founded.  He found that the Applicant did not have a genuine fear of harm and that there was no real chance of persecution occurring.

11. Before the Second Respondent, the Applicant maintained that ground, but added another.  By a letter from Legal Aid Western Australia dated 20 October, 2010, the Applicant forwarded to the First Respondent’s Department an amended statement of her claims.  In that statement at paragraph 3. xii. the Applicant sets out her claims as follows:

    The Applicant is a young Tamil female, who fears that her ethnicity and imputed political opinion will cause her to be persecuted by the Sri Lankan authorities.

12. It is apparent from that statement that not only did the Applicant rely upon her ethnicity and race alone to ground her claim, but she also added a claim of imputed political opinion, being imputed support for the LTTE.  Paragraph 3 xiv. of her statement of claims sets out the matters relied upon by her to demonstrate that her fear of harm was well founded.  Three of those matters rely upon links or perceived links with the LTTE.

The Court’s jurisdiction

1. 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 Applicant ’s case are those set out by the High Court of Australia in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319.

The grounds in the Application for Review and the Applicant’s contentions

1. The Applicant’s amended application for review contains 11 grounds, but the Applicant indicated in the written submissions filed on her behalf that she did not press grounds 1(d), 2(a)-(c), 4(a) (except in one respect that relates to ground 1(f)), 5(e), 6(a), 6(e), 9 and 11 in the amended application for review.  In relation to paragraph 4(a), the Applicant’s case is that the Reviewer failed to take account of a relevant consideration (that she left the country illegally as a refugee) and failed to properly consider this and Article 33 of the Convention when determining the issue of punishment of the Applicant for leaving the country illegally.

2. The remaining grounds of review were grouped by the Applicant’s written submissions into five main contentions, namely:

   a)the Second Respondent made an error when he treated the Applicant’s claim as based on the Convention ground of imputed political opinion instead of her claim being for the Convention reason of the Applicant’s Tamil race or ethnicity.  This error involved the Second Respondent failing to take account of relevant considerations and, also, determining the application for protection on the basis of irrelevant considerations (grounds 1 (a)-(c) and (e) and 5(f)-(i) of the amended application);

   b)the Applicant was not given a fair opportunity to be heard because, when her case was heard in tandem with her brother’s case, she was not given a fair opportunity to present her own submissions (ground 3 of the amended application);

   c)the fair hearing rule was not complied with because the Second Respondent did not give the Applicant an opportunity to be heard in relation to a series of findings and propositions which turned out to be determinative of the outcome (Grounds 2 and 6(a)). There was also a failure to give reasons for the Second Respondent ’s determination on some of those matters, namely, the attributes that constituted being a “supporter of the LTTE”; the attributes required for a “political profile”; and the attributes that constituted the Applicant’s “personal profile” (grounds 8(a)-(c) of the amended application). This failure to give reasons is also said to be a breach of the fair hearing rule;

   d)the Second Respondent made a number of legal errors.  A temporal test of “reasonably foreseeable future” test was applied to determine a number of issues relevant to risk and “real chance” of persecution (Grounds 5(a)-(d)).  This aspect is also said to involve a breach of the fair hearing rule because the Second Respondent  did not give the Applicant an opportunity to be heard on this qualification to the “real chance” test (grounds 6(b)-(d) and 8(d) of the amended application);

   e)the Second Respondent made a number of findings which were critical to his determination but for which, there was no evidence (ground 7 of the amended application).

3. At the commencement of the hearing, the Applicant abandoned the grounds set out in paragraph 5 of her amended application (set out in subparagraph (d) above). Consequently, Counsel for the Applicant indicated that there were only four grounds pursued.

The Second Respondent’s Findings

1. The Second Respondent  made the following relevant findings:

   a)that the Applicant is a citizen of Sri Lanka;

   b)that the Applicant’s eldest brother had been forcibly recruited by the Liberation Tigers of Tamil Eelam and had subsequently died, and that her brother and her father were detained from May, 2009 to November, 2009 by the Sri Lankan Army;

   c)that the Applicant had never personally been politically active;

   d)that her brother and her father were released from detention in November, 2009 indicating that they were not considered a threat by the Sri Lankan authorities;

   e)that the Applicant was of no interest to the Sri Lankan authorities;

   f)that the Applicant left Sri Lanka illegally and used false documents;

   g)that her eldest brother’s forced involvement with the LTTE resulting in his death was known to the authorities at the time that her brother was detained with her father by the Sri Lankan Army, between May and November 2009, but did not appear to have been of such concern to the authorities as to keep her brother and her father in detention;

   h)that the association of her eldest brother with the LTTE would not be a factor leading to there being a real chance that the Applicant would be adversely viewed by the authorities, should she return to Sri Lanka, particularly as she had no political profile that would invoke the suspicions of the authorities;

   i)that the Applicant was relatively young, had an ID card that identifies her as coming from an area associated with the former LTTE leader, and had lived in an area of strong LTTE control;

   j)that whilst those matters might make the authorities view the Applicant with a level of suspicion, given her lack of political profile, there would not be a real chance that she would be imputed with an adverse political opinion and suffer serious harm, either upon arrival in Sri Lanka or upon return to her usual place of residence;

   k)that upon return to Sri Lanka, she may be interrogated by the Sri Lankan authorities to determine whether she is considered a security threat;

   l)that her personal profile was such that she would not attract undue attention from the authorities upon her return to Sri Lanka, and any interrogation she might undergo would not be such as to amount to serious harm;

   m)that she may face some penalty for having departed Sri Lanka illegally, and for having used false documents, however, any penalty she might receive for such actions would not be levied for a Convention reason;

   n)that her ID card identified her as coming from the birth place of the former LTTE leader and the fact that she has been away may make local people suspicious of her;

   o)that she feared abduction from Government or pro-Government forces and that she had left home to live with relatives;

   p)that the post-war situation in Sri Lanka was such that human rights abuses are declining such that people are beginning to be able to live normal lives again;

   q)that the end of the conflict in Sri Lanka had seen improvement in conditions;

   r)that censorship impedes the level of reporting of the situation in Sri Lanka;

   s)that there is not a real chance that the Applicant would suffer serious harm for a Convention reason if she returned to live in Sri Lanka;

   t)that the Applicant did not fall within one of the identified groups referred to in UNHCR Guidelines, and enumerated at CB125;

   u)that there is only a remote chance that the Appellant would face a risk of persecution, in the reasonably foreseeable future, in the event that she returns to Sri Lanka by reason of her membership of a particular social group, as a single woman;

   v)that independent country information indicated that there is widespread discrimination against Tamils, and that there are increasing numbers of Sinhalese moving to the Tamil areas of the north;

   w)that none of the independent evidence referred to in the Second Respondent’s reasons indicated there is such a level of systematic discrimination that, in the reasonably foreseeable future, there was a real chance that the Applicant would, herself, suffer discrimination in employment, housing or other essential services to a degree as would constitute persecution in the particular circumstances of her case;

   x)that if the Applicant returns to Sri Lanka, she would, in the reasonably foreseeable future, not face a real chance of persecution by reason of her ethnicity or political opinion (real or imputed);

   y)that the Second Respondent was not satisfied that if the Applicant returns to Sri Lanka she would face a real chance of persecution by reason of membership of a particular social group or for any other Convention reason;

   z)that the Applicant did not satisfy the definition of a refugee as set out in the Refugee Convention.

First Group of Grounds - The wrong Convention reason was considered

1. The First Respondent conceded that if the Second Respondent failed to address one of the claimed bases for the Applicant’s 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 Applicant protection obligations, that this would amount to a denial of procedural fairness, and therefore jurisdictional error.

2. The Applicant argues that the Second Respondent’s findings proceeded from an erroneous consideration of the Applicant’s imputed political opinion through presumed support of the LTTE.  No reference to such a claim appears in the initial refugee status assessment because the claim was not raised by her at that stage.  Her claim at that stage was based solely in her Tamil ethnicity (see for example her statement at CB 68). 

3. However, her claims had expanded by the time the Second Respondent was called upon to consider her request for a favourable refugee status assessment.  She clearly advanced a claimed based upon imputed political opinion as set out in her statement of claims dated 18 October, 2010.  The Second Respondent was bound to consider it and there was no error by so considering it.

4. It is argued, however, that the Second Respondent failed to consider the Applicant’s race or ethnicity as the ground for fear of persecution.   On a fair reading of the Second Respondent’s reasons, in my view, that proposition is not made out.

5. The Second Respondent was well aware of the claims made by the Applicant.  The Second Respondent set out extensive extracts of the evidence given by the Applicant at the refugee status assessment.  He set out the submission made prior to the review hearing by the Applicant’s legal and migration representative.

6. The Second Respondent set out in his reasons, in some detail, the evidence given by the Applicant and her brother at the hearing and the submissions made on their behalf by their representative at the hearing.  He recorded extracts from his letter of 9 February, 2011 to the Applicant, inviting further submissions in relation to possible findings which he might make from the evidence he had before him, and the independent country information upon which he intended to rely.

7. The Second Respondent set out in his reasons details of the Applicant’s agent’s responses of 2 March, 2011 and 6 March, 2011 and he refers to further documentation by way of six articles in the Tamil language, together with English translations thereof, forwarded by the Applicant’s representative on 8 March, 2011.

8. Whilst the Second Respondent considered and made findings about the Applicant’s claims concerning the LTTE’s dealing with her brother, her family and the wider Tamil community (see CB124 paragraph 7), no doubt that was because the Applicant relied upon those matters in support of her claim based upon imputed political opinion.  The Applicant does not contend that the Second Respondent did not deal adequately with that ground of claim.  Indeed, the Applicant’s case now seems to be that she did not ever raise such a ground.  If that is truly her assertion, for the reasons given above, it is clearly an erroneous assertion.

9. In his reasons (at CB 125 paragraphs 2, 3 and 4) the Second Respondent considers the claims made by the Applicant based upon her ethnicity or race.  It is true to say that in those paragraphs there is only one reference to the Applicant’s Tamil ethnicity but in my view, having regard to the extensive material referred to in his reasons, and the clearly articulated claims of the Applicant, the Second Respondent is clearly considering the Applicant’s claims of a risk of persecution by reason of her race.  The Second Respondent  says:

   In the light of the independent country evidence provided to the claimant, the reviewer accepts that upon return to Sri Lanka, she may be interrogated by the Sir Lankan authorities to determine whether she is considered a security threat. However, the reviewer finds that her personal profile, as discussed above, is such that she would not attract undue attention from the authorities upon her return to Sri Lanka and that any interrogation she might undergo would not be such as to amount to serious harm.

   The reviewer accepts that she may face some penalty for having departed Sri Lanka illegally and for having used false documents. However, the reviewer finds that any penalty she might receive for such actions would not be levied for a Convention reason.

   The reviewer accepts that the claimant's ID card identifies her as coming from the birthplace of the former LTTE leader, that the fact that she has been away may make local people suspicious of her, that she fears abduction from government or pro-government forces, and that her father currently has left home to live with relatives.  However, the independent country information provided to the claimant indicates that the post-war situation is such that human rights abuses are declining such that people are beginning to be able to live normal lives again. The reviewer has considered the information submitted by the claimant that human rights would appear to have recently again declined. However, the reviewer accepts the independent evidence cited from the UNHCR Guidelines of July 2010 that the end of the conflict has seen improvement. The reviewer has also considered his submission that censorship impedes the level of reporting of the situation in Sri Lanka. While the reviewer concedes this is the case, the reviewer is satisfied that the information available, including the material submitted by the claimant, has provided a sufficient basis of information for a finding to be made that there is not a real chance she would suffer serious harm for a Convention reason if she returned to live in Sri Lanka.

   The reviewer has also considered the situation of the claimant and whether there is a real chance she would suffer serious harm as a member of a particular social group as a single woman. 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.

1. The Second Respondent’s reference to the UNHCR statement of July 2010 is an express reference to the material before him that bore upon the issue of the persecution the Applicant might face by reason of the fact, and only the fact, that she was of Tamil ethnicity and originated from the north of the country.

2. Just as in her brother’s case (BZAAY) whilst the Applicant relied upon her ethnicity as a source of potential persecution should she return to Sri Lanka, she did not rely upon the systematic, long term persecution and discrimination against Tamils in areas such as university education, government employment, housing and in other matters controlled by the government.  She pressed her claim based upon persecution in the form of abduction, detention, and possible death at the hands of the controlling Sinhalese government in Sri Lanka.  Nonetheless, the Second Respondent considered both forms of possible persecution.  He said:

   The reviewer has considered the assertion that Tamils suffer systematic discrimination in university education, government employment and in other matters controlled by the government, and in housing. The reviewer notes that the representative states that the claimant has "not claimed persecution on the basis of denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech", but his representative states that such restrictions and attendant harassment have long term consequences and that as a member of the Tamil community he has suffered systematic discrimination on the basis of his race or ethnic origin. The claim is also made that the changing demographics of the north, i.e. the increasing numbers of Sinhalese moving north, makes it uncertain whether the claimant will be able to compete for economic opportunities and whether he will be able to access essential services. The reviewer has considered this claim. The reviewer accepts that the independent country information does indicate that there is indeed widespread discrimination against Tamils and that there are indeed increasing numbers of Sinhalese moving to the Tamil areas of the north. However, the reviewer finds that none of the independent evidence cited above indicates there is such a level of systematic discrimination that, in the reasonably foreseeable future, there is a real chance that the claimant would himself suffer discrimination employment, housing or other essential services to a degree as would constitute 'persecution in the particular circumstances of his case.

3. The Second Respondent  concluded:

   In conclusion, the Second Respondent  is not satisfied that if the Claimant returns to Sri Lanka she would, in the reasonably foreseeable future, face a real chance of persecution by reason of her ethnicity or political opinion (real or imputed). The Second Respondent  is not satisfied that if she returns to Sri Lanka she would face a real chance of persecution for reason of membership of a particular social group or for any other Convention reason.   The reviewer is not satisfied that the Claimant satisfies the definition of a refugee as set out in the Refugee Convention.

4. The Second Respondent considered both bases upon which the Applicant sought to advance her claims. In my view, this ground of review cannot succeed.

Second Group of Grounds - UNHCR Guidelines of 5 July 2009 on sexual and gender based violence were wrongly applied and other relevant considerations were overlooked

1. The Applicant submits that the Second Respondent  considered the risk of this type of violence to the Applicant by 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.

2. 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 Second Respondent finding that the Applicant did not fit any of the particular profiles identified by him.  The Second respondent’s reasons were:

   The reviewer has also considered the situation of the claimant and whether there is a real chance she would suffer serious harm as a member of a particular social group as a single woman. 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 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.

   (my emphasis)

3. The emphasised parts of the above passage make it clear that the Second Respondent 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, although he was bound to consider it.  It was the Second Respondent’s task to assess that evidence and information and reach a conclusion about the Applicant’s claims. 

4. 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.

5. In any event, the Second Respondent specifically considered the UNHCR information 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.

6. The Applicant further argues that the approach adopted (confining the risk categories to the profiles thought to be identified by the UNHCR as set out above) meant that the Second Respondent did not consider a number of relevant considerations to determine the risk of serious harm faced by the Applicant, namely:

   a)The Applicant is a young Tamil woman who had been previously subjected to threats by the Sri Lankan Army;

   b)The family home was at a junction patrolled by the Sri Lankan Army;

   c)When she left Sri Lanka she went to an Indian refugee camp and used a false travel document to travel to Malaysia via Nepal;

   d)The possible consequence for the Applicant of returning to Sri Lanka at about the same time as her two brothers, her sister-in-law and her niece who was born in Australia.

7. She also argues that another relevant consideration which was not dealt with in the Findings and Reasons of the Second Respondent was the possible consequence for the Applicant of returning to Sri Lanka at about the same time as her two brothers, her sister-in-law and her niece who was born in Australia.

8. The Applicant argues that the Reviewer also misdirected himself on the reason for punitive treatment on the Applicant’s return to Sri Lanka. She argues that the Second Respondent failed to take into account that the conduct of leaving unlawfully was engaged in because she was a refugee and that the reason that the Applicant left Sri Lanka illegally was, on her case, for a Convention reason. Punishment that might be meted out on her return because she broke the law fleeing the country as a refugee has a direct and necessary connection with a Convention reason. The Second Respondent’s treatment of the punishment of the Applicant for leaving illegally also fails to take account of Article 33 of the Convention.  She argues that the Second Respondent failed to consider this and she was therefore denied procedural fairness.

9. 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 Second Respondent did.  Having considered all of the matters raised by the Applicant he came to the view set out above.

10. I accept the First Respondent’s submission that the fact that the Second Respondent did not consider the possible consequences for the Applicant of returning to Sri Lanka, at or about the same time as her two brothers, her sister-in-law and her niece, who was born in Australia, 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 Second Respondent.  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 two brothers, her sister-in-law and her niece.  There could be no certainty that any of them would be returned at or about the same time as any of the others.

11. The Second Respondent expressly considered the circumstances of her unlawful departure from Sri Lanka and the possible consequences of her return, at CB125. He found that any penalty she might receive for having departed Sri Lanka illegally and having used false documents would not be levied on her for a Convention reason.  That finding was clearly open.  No submissions were put to the Reviewer in connection with Article 33 of the Convention.

12. These grounds of review cannot succeed.

Third Group of Grounds - Breach of procedural fairness occurred in the conduct of the tandem hearing

1. The Applicant argues that the Second Respondent was in error because he heard the Applicant’s case with her brother’s case.  The Applicant, however, accepts that such a course is not impermissible.  However, the Applicant contends that because of the differences in the case, they ought to have been heard separately and she was denied procedural fairness because they were not heard separately.

2. There were differences between the case of the Applicant and her brother, and in particular:

   a)The Applicant had escaped from Sri Lanka at a different time to her brother;

   b)She had taken a different route to get to the staging point for the boat journey to Australia.

   c)The Applicant is female, her brother male.

3. The Applicant suggests that the Second Respondent’s error in hearing the cases together is explicable by the Second Respondent’s approach of treating the only relevant Convention ground in each case as that of imputed political opinion.

4. However, and despite the submissions of the Applicant to the contrary, the review did not proceed on the mistaken basis that the Applicant and her brother were making their claim for protection on the ground of (imputed) political opinion only.  The fact was that both the Applicant and her brother pursued claims on that basis, as well as on the basis of their Tamil ethnicity alone.

5. Moreover, the course chosen for the hearing was chosen by the Applicants.  The Second Respondent spoke with the lawyer representing both the Applicant and her brother, and apparently advised them that he was happy to deal with each case either separately or together.   The lawyer for both the Applicant and her brother chose, presumably on instructions, to have the reviews heard together.

6. At the outset of this hearing, the Applicant sought leave to read two affidavits by her – one deposing to the hearing and the circumstances in which it came to be held in conjunction with her brother’s hearing and the other annexing recordings of the hearing.  I granted leave to the Applicant to read those affidavits on the basis that the affidavit that dealt with the hearing went only to what it was that the Applicant would have said if she had been given the opportunity to say what she wished to say.  To the extent that the affidavit dealt with others matters, such as the advice the Applicant did nor did not receive from her lawyer, the First Respondent indicated that if the Applicant was permitted to rely upon it, an adjournment would be necessary so the factual matters could be tested and the First Respondent given the opportunity to present his own evidence about those matters.  In the end, the Applicant sought to rely on the affidavit for the limited purpose I have just described.

7. Consequently, there is no evidence that the Applicant was not advised of the benefits and disadvantages of a joint or simultaneous hearing.

8. I do not accept the Applicant’s argument that the practical consequence of the joint hearing was that the Applicant was deprived of an opportunity to present her case.  The Applicant had an opportunity to present her case before, during and after the review hearing.  Prior to the review, her lawyer sent an extensive submission, dealing with the claims of she and her brother, to the Second Respondent.  She was given the opportunity to say whatever she wished to say during the review hearing.  Having listened to the audio of the review hearing, it is clear that the Applicant was not prevented by the Second Respondent, her lawyer, or her brother from saying anything that she wished to say.  Following the hearing, the Applicant was given the opportunity to comment on information that the Second Respondent thought was relevant.  She took that opportunity, through her lawyer’s letter of 2 March, 2011and then again by a letter from her lawyer of 6 March, 2011.

9. Whilst the recording of the hearing certainly indicates that the Applicant’s brother played a more active role than she did, in my view, it does not indicate that the Applicant was stifled in any way.  There was no example of the Applicant attempting to put anything to the Second Respondent and being prevented from doing so by her brother or her lawyer that was highlighted by the Applicant’s submissions.

10. I do not accept the Applicant’s submission that she was denied procedural fairness because she was not given a reasonable opportunity to make relevant submissions.  She in fact made a number of submissions as set out above.

11. In my view there is no merit in this ground.

Fourth Group of Grounds - 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.

1. The Applicant argues that integral to the process of reasoning applied to reach the reviewer’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.  The Second Respondent found that the Applicant had no “political profile”.  He also found that the authorities would not find that she was a “supporter of the LTTE”.  These findings were critical to the determination that the Applicant could not be imputed with a political opinion that would bring her to the attention of the authorities.

2. The Applicant 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.  As the First Respondent submits, 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 the Applicant or her 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 the Applicant.   

3. 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. 

4. To the extent that the Applicant argues that the Second Respondent’s reasons are inadequate, in my view they clearly explain the process of reasoning adopted by the Second Respondent and the findings made, when considered against the context in which the Applicant advanced her claims.

5. This ground of review must also fail.

6. The application must be dismissed with costs.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 19 April 2013.

Date:  19 April 2013