BZABB v Minister for Immigration
[2012] FMCA 1028
•9 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZABB v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1028 |
| MIGRATION – Judicial review – recommendation made by Independent Merits Reviewer – whether applicant to be recognised as a person to whom Australia owes protection obligations – young Tamil male from northern Sri Lanka – failure to consider whole of applicant’s claims – reliance upon approach taken by previous IMR – failure to give a proper, genuine and realistic consideration to the whole of the applicant’s claims – application allowed. |
| Migration Act 1958, ss.36(2), 476 |
| Applicant WAEE v MIMIA (2003) 75 ALD 630 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Chen vMinister for Immigration and Multicultural Affairs (2000) 106 FCR 157 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 |
| Applicant: | BZABB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | JANET DUCKMANTON IN HER CAPCITY AS THE INDEPENDENT MERITS REVIEWER |
| File Number: | BRG 460 of 2011 |
| Judgment of: | Jarrett FM |
| Hearing date: | 9 February 2012 |
| Date of Last Submission: | 9 February 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 9 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Legal Aid Queensland |
| Counsel for the Respondents: | Mr McLeod |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
THE COURT DECALRES THAT:
In recommending to the first respondent on 20 April 2011 that the applicant be not recognised as a person to whom Australia has protection obligations, the second respondent made an error of law, in that the second respondent failed to deal with an integer of the applicant’s claim.
THE COURT ORDERS:
The first respondent, by his department, officers, delegates or agents be restrained by injunction from relying upon the recommendation of the second respondent.
The first respondent pay the applicant’s costs fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 460 of 2011
| BZABB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JANET DUCKMANTON IN HER CAPCITY AS THE INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a declaration and injunction in relation to a decision of the second respondent in her capacity as Independent Merits Reviewer. By that decision made on 20 April 2011, the second respondent found that the applicant did not meet the criterion for a protection visa as set out in s.36(2) of the Migration Act 1958 and she recommended to the first respondent that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the status of refugees as amended by the 1967 Protocol relating to the status of refugees.
Having regard to the application for review, the written submissions of both parties and the oral submissions made by them, the issues for determination appear to be:
a)Whether the second respondent considered all of the integers of the applicant’s claim;
b)Whether the second respondent failed to address one of the claimed bases of the applicant’s fear of persecution;
c)Whether the second respondent gave a proper, genuine and realistic consideration to the applicant’s claim;
d)Whether a particular finding made by the second respondent was supported by evidence.
Background
The applicant entered Australia as an unauthorised boat arrival and was taken to Christmas Island on 10 December, 2010. On 11 February, 2010 an entry interview was conducted between the applicant, an officer of the Department of Immigration and Citizenship and an interpreter in the Tamil language. The applicant was further interviewed by a refugee status assessment officer on 23 February, 2010.
By letter dated 24 May, 2010 the applicant was advised by the first respondent’s department that following a Refugee Status Assessment it was determined that he was not a refugee as defined in the 1951 Convention and the 1961 Protocol relating to the status of refugees. An assessment record and detailed reasons for the assessment accompanied that notification.
Subsequently the applicant sought review of the decision. The review took place and on 11 October, 2010 the Independent Merits Reviewer determined that the applicant did not meet the definition of a refugee as set out in Article 1A of the Convention and Protocol.
On 2 February, 2011 the applicant was advised that he was scheduled to have a fresh Independent Merits Review and that he could provide additional or amended information, along with commenting upon the adverse or negative findings and information (including country information) contained in the report of the first Independent Merits Reviewer made on 11 October, 2010. The applicant availed himself of the opportunity, provided further documentation and submissions were made on his behalf.
By letter dated 4 May, 2011 the applicant was advised that on 20 April, 2011 the second Independent Merits Reviewer (the second respondent in this case) had decided to recommend that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention and Protocol. The applicant was further notified by that letter that the first respondent’s department had accepted the recommendation. A statement of reasons was provided in support of the determination.
The applicant’s claims
At the core of his application is the applicant’s claim that he was fearful of being returned to Sri Lanka were he would face persecution in the form of abduction, serious harm and death at the hands of unofficial underworld groups that have government links. He would attract that attention, he said, because of his suspected association with the Liberation Tamil Tigers of Eelam (LTTE) owing to the fact that he is a young male ethnic Tamil. The applicant claims that he was unable to seek protection from the authorities in Sri Lanka as it is the authorities from whom he fears persecution as they are responsible for the abduction and killings of many young ethnic male Tamils suspected of being members of or associated with the LTTE. He claims that it is persecution on account of his race and possible imputed political opinion due to his Tamil ethnicity that gives rise to his claims to refugee status.
The second respondent’s report
The written submissions of the first respondent adequately summarise the second respondent’s report as follows:
Recommendations of the Reviewer
12. The Reviewer set out the relevant legal position and documentation. She then proceeded to detail the nature of the applicant’s claim and the evidence in support, as provided to the First Reviewer.
13. The Reviewer expressly noted the Independent Country Advice contained in the First Reviewer’s report and recommendation which the applicant was invited to comment upon.
14. The reasons record that the applicant was interviewed on 11 February 2011 with the assistance of an interpreter in the Tamil and English languages in the presence of the applicant’s agent. The applicant proceeded to provide various answers to questions asked by the Reviewer.
15. The Reviewer afforded the applicant’s agent the opportunity whether any further questions should be directed to the applicant and whether any further submissions would be forwarded. These opportunities were not taken up.
16. The Reviewer noted that the essence of the applicant’s claims for refugee status was based on his well-founded fear of persecution in Sri Lanka because of his imputed political opinions (suspected LTTE involvement) and his Tamil ethnicity.
17. A number of findings were made by the Reviewer. Relevantly, it was held that the applicant:
(a) had never had any association with the LTTE; and
(b) he was found to be a refugee by the UNHCR in Malaysia in July 2008.
18. The Reviewer accepted it was possible that:
(a) he and his girlfriend were arrested on Black Tigers’ Day on 5 July 2006, taken to the local police station by the Sri Lankan Air Force some 15 kms from their home, whilst attempting to visit an Infant Jesus Catholic Church; and
(b) they were subsequently held overnight at a police station, interrogated and beaten and released on payment of a bribe by the applicant’s mother.
19. However, the Reviewer went on to hold that she was not satisfied that the applicant, along with his girlfriend, were taken to Court the day after their arrest and were then remanded in custody for a further 14 days on the orders of a magistrate. In reaching this conclusion the Reviewer stated:
“…as the [applicant’s] answers to my (several times) repeated question as to whether he had in fact been taken to Court at this time and whether or not a magistrate or Court official had heard his case were initially incomprehensible and obfuscatory. Moreover, the [applicant] told me towards the end of his Interview that he had never been taken to Court or charged with any offences because he had paid bribes on each occasion of his arrest.”
20. In addition, the Reviewer held that even if the said incident occurred, she was not satisfied that it forced the applicant to “flee for his life” from Sri Lanka, because on his own evidence, no charges were ever laid against him. Further, the Reviewer was satisfied that the authorities had released the applicant because, after investigation, they held that he and his family had no LTTE connections and that his arrest (if it occurred as claimed) was related to general security issues, and he and his girlfriend were not personally targeted for a Convention-related reason. Finally, the Reviewer held:
“….despite having a valid Sri Lanka passport at the time, the [applicant] did not leave Sri Lanka until seven months after this incident, and he continued to work at his aunt’s wine shop as a cashier. These are not the actions of a man who is living in fear of his life.”
21. The reasons then proceeded to deal with the applicant’s claims that in January 2007, two of his cousins were abducted by masked men. The Reviewer found, inter alia, that the applicant had failed to advance any Convention-related reason for the said abductions. In particular she held:
“I find it implausible that am (sic) satisfied that the [applicant’s] claim that at the time his cousins were abducted, the abductors asked for him by name and hence put his life in danger. And I give no weight to the documents submitted to the previous Reviewer by the [applicant’s] agent under cover of a letter dated 6 October 2010, as, like the previous Reviewer, I am not satisfied of their authenticity.”
22. The Reviewer noted the applicant’s contention that he had been arrested several times in Colombo, because as a Tamil, he was suspected of being involved with the LTTE, yet he was later released after paying a bribe. However, the Reviewer held, after setting out various matters, that she was satisfied that the applicant had never suffered serious harm amounting to persecution whilst residing in Sri Lanka.
23. The Reviewer also had regard to independent country information and concluded the situation in Sri Lanka had changed significantly since the applicant had left in February 2007 and this was demonstrated by the fact that thousands of Tamils were returning home to lead relatively safe and productive lives. She did conclude that acts of criminality continue to occur and that Tamils as well as other Sri Lankan citizens are sometimes innocent victims.
24. In conclusion, the Reviewer stated that she was satisfied that:
(a) the Sri Lankan authorities do not suspect the applicant of formerly having any links to the LTTE or other politically-based group:
(b) gave no weight to the applicant’s story that when he was in an Indonesian jail he (along with other Sri Lankan inmates) were impliedly threatened by a Sri Lankan Minister;
(c) there was no Convention-related reason why the applicant could not return and live in relative safety in Colombo; and
(d) on the totality of the evidence, the applicant had never suffered persecution in Sri Lanka because of his imputed political opinions, his Tamil ethnicity and there was no real chance that he will so suffer in the foreseeable future.
(footnotes omitted).
The grounds of review
Initially, the applicant’s application was in a very general form. He appeared on the first occasion when the matter was listed for hearing, but successfully sought an adjournment so that he could file an amended application with the benefit of legal assistance. An amended application was filed which sets out five grounds of review. One of those grounds has been abandoned and so four grounds of review remain for consideration.
The first ground of review is that “the second respondent failed to address one of the claimed bases of the Applicant’s fear of persecution and/or to consider and/or deal with an integer of the claims and/or a relevant consideration and/or the case as put and/or an essential element of the Applicant’s claims being the claim of the latest abduction in 2008 of the cousin which was part of the applicant’s case that he had a well-founded fear of persecution”.
The second ground of the applicant’s claim is that “the second respondent misunderstood the claim advanced and/or failed to consider and/or deal with an integer of the claims and/or a relevant consideration and/or the case as put and/or a central element of the Applicant’s claims and/or misconstrued a Convention nexus in relation to the abduction of the 2 cousins in 2007 regarding the perpetrators being members of a paramilitary group associated with the Sri Lankan army, given that it was always the Applicant’s case that they came in a ‘white van.’.”
I will deal with these two grounds together.
It cannot be in dispute that the second respondent was under a duty to consider the various ways a claim for refugee status can be articulated from the material before it, whether or not that ground is mentioned by the applicant himself: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; Chen vMinister for Immigration and Multicultural Affairs (2000) 106 FCR 157: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28. The Tribunal must consider claims unarticulated by the applicant but “raised squarely” by the material available to the Tribunal. The Tribunal is obliged to consider any claim that is apparent on the face of the material before it.
The applicant’s case was that he feared persecution because by reason of his Tamil ethnicity he was likely to be suspected as connected with the LTTE. In support of that contention he claimed that he was arrested with his girlfriend in 2006 whilst on their way to Church, that he had been arrested on other occasions and tortured and beaten and that two of his cousins had been abducted in January, 2007 from a shop owned by his Aunt at which they were then working. The claims he made in his initial statement for the purposes of the RSA contained the clear claim that the men who abducted his cousins wore balaclavas and were travelling in a “white van.” Further, he pointed to the abduction of another cousin in January, 2008 as further evidence that he was at risk.
There was evidence before the Tribunal in the country information which connected men in white vans with abductions of suspected LTTE sympathisers. The country information suggested that the government generally failed to investigate allegations of abductions by armed men in white vans on the grounds that white vans are too common for those incidents to be effectively investigated: (supplementary court book Vol 1 pages 195, 211, 343, 345, 346, 512: supplementary court book Vol 2 pages 585 – 6, 576, 595, 757, 758, 1009).
As to the incident involving a white van and the abduction of the applicant’s cousins, the second respondent noted in her reasons:
“The claimant then said that there was a later incident which occurred on 8 January 2007 which had caused him a problem. He said that on that day, two of his cousins were abducted by masked men from the wine shop (owned by his aunt) in which he worked as a cashier. He said that although he was not there at the time, two of the other workers in the shop who had escaped the abductors had told him that the abductors had asked for him [the claimant] by name. He said that the abductors were part of a para-military group associated with the Sri Lankan Army.
I then asked the claimant to comment on my suggestion that the abduction of his cousins (if it occurred) was more likely to have been conducted for criminal purposes, rather than for any suspected LTTE connections. I also advised him that: (1) there was no evidence at all that at that time that the authorities suspected either him or his cousins of having ties to the LTTE; and (2) as he was not present and the abductors were purportedly masked, how did he know that they were members of a para-military group associated with the Sri Lankan Army?
The claimant then stated that his aunt had told him that when the abductors came to her wine shop, she was in her home above her wine shop and she was threatened by the abductors, and that they asked her about the claimant’s whereabouts. I reminded the claimant that he had told me earlier that the 2 witnesses who had escaped the abductors (not his aunt) had told him that the abductors had asked for him by name. I also advised him that I found it difficult to believe that his aunt was in a position to identify any group to which the masked men belonged. The claimant’s response was that because the abductors carried arms and blindfolded his cousins, his aunt suspected that they came from “a collaborative group”.
The second respondent concluded:
“The claimant claims that in January 2007, two of his cousins (who worked with him in his aunt’s wine shop, which she operated until 2009) were abducted by masked men. However, his statements relating to how and why this occurred and how it impinged on him were inconsistent, and he had not at any time during the course of the Refugee Status Assessment process advanced any Convention-related reasons for the purported abductions, or for the abductors purportedly asking for him by name. As I advised the claimant, I am satisfied that if these abductions took place as described by the claimant (who was not present but merely relaying what he had purportedly been told), the abductions were more likely to have been carried out for a criminal purpose, rather than for any suspected LTTE/political reason as: (1) there was no evidence at all that that either he or his counsins were suspected of having ties to the LTTE; and (2) as the claimant was not present and the abductors were purportedly masked, and he told the previous Reviewer that he did not know who the purported attackers were as they wore balaclavas, he was not in a position now to credibly claim that the abductors were members of a para-military group associated with the Sri Lankan Army.
I find it implausible that am satisfied that the claimant’s claim that at the time his cousins were abducted, the abductors asked for him by name and hence put his life in danger.”
It is clear from the report of the first Independent Merits Reviewer that the abduction of the applicant’s cousins in January, 2007 was significant to the applicant’s claims. The suggestion that a “white van” was involved in the abduction of his cousins in January, 2007 provides the connection between the applicant’s claim that the abductions were carried out by men associated with the government and his Tamil ethnicity or his suspected links to the LTTE. That matter, and the subsequent abduction by another of his cousins in 2008 was simply not considered by the second respondent. They are not mentioned in her report.
The first respondent argues that the claim now raised by the applicant is opportunistic because there was no suggestion before the Reviewer to the effect that the existence of the “white van” claim was the core of his case. Whilst that is so, reference to the above authorities demonstrates that the second respondent was obliged to consider all aspects of the applicant’s case. The existence of the white van and the second occasion of abduction of one of his cousins in 2008 were integral parts of his claim. Neither was considered by the second respondent. The report of the second respondent demonstrates a struggle on her part to find a connection between the abductions in January 2007 and the Government. She speculates that the abductions could have been carried out in furtherance of unrelated criminal activity. But that speculation was without foundation, and had the significance of the claims raised by the applicant about the presence of the white van been considered, the missing connection may have been supplied.
To raise the arguments in the way in which the applicant now does, involves no reformulation of his claim. Whilst it is plainly not necessary for the second respondent to refer to every piece of evidence and every contention made by the applicant (see Applicant WAEE v MIMIA (2003) 75 ALD 630 at [46]) the existence of the white van and the abduction of his cousin in 2008 were not merely pieces of evidence to be considered by the second respondent but formed an integral part of the factual makeup of the applicant’s claims.
In my view these grounds have been made out.
Ground 3
The third ground relied upon by the applicant is that “the second respondent failed to give the Applicant’s evidence in the form of the documents submitted to the previous reviewer “a proper, genuine and realistic consideration” and/or that the Second Respondent’s reasons do not show an active intellectual engagement with the issue by its simple and unexplained conclusion expressed- “as like the previous Reviewer I am not satisfied of their authenticity” and/or it implicitly adopted the reasoning of the previous IMR without bringing an independent mind to the process”.
The applicant argues that by reason of the decision in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 the second respondent was obliged to give the evidence before it proper, genuine and realistic consideration. In that case, the High Court said:
“[29] In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs, the Minister accepted that a statutory provision requiring a Tribunal to give an applicant an opportunity to appear before it and give evidence implies that such evidence is to be given proper, genuine and realistic consideration. The Minister reiterated that position in this case.
[30] In Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45] Basten JA (with whom Allsop P agreed) noted Khan’s case and said of the language of “proper, genuine and realistic consideration: “That which had to be properly considered was “the merits of the case.” Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merits review.”
I accept that if the applicant is able to demonstrate that the second respondent has not given proper, genuine and realistic consideration to the merits of the case, then it may be that the applicant can make out a ground of jurisdictional error.
This part of the applicant’s challenge centres upon the rejection by the second respondent of certain documents provided by him to the first Independent Merits Reviewer. There were two categories of documents provided by the claimant’s agent under cover of a letter dated 6 October, 2010. Some were letters and reports and others were press articles from local newspapers. There is a discussion about the relevant documents at paragraph 38 of the first Reviewer’s report. Ultimately, and dealing with the documents other than the newspaper articles, the first Reviewer concluded that he could not accept the relevant documents as “evidence that the claimant’s life will be in danger if he returns to Sri Lanka” (at CB 99). He gave reasons for his rejecting the documents as evidence. As to the media articles, the Reviewer determined that he could not treat them as conclusive evidence “that the claimant’s life will be in danger if he returns to Sri Lanka.”. Thus, he treated the two categories of documents differently.
I accept the first respondent’s submission that the applicant had been advised of and understood the recommendations of the first Reviewer and the reasons given by the first Reviewer for rejecting the authenticity of the relevant documents. He was aware of the matters that were adverse to his review application. However, I am not satisfied that simply because the applicant provided no further evidence to dispel the findings made by the first Reviewer in respect of the authenticity of the relevant documents, the second respondent in this case was entitled simply to rely upon the findings made by the first Reviewer.
The second respondent in her report makes reference to the reasons of the first Reviewer for rejecting the authenticity of the relevant documents, but it is by no means apparent that the second respondent has given the authenticity of those documents any consideration herself beyond relying upon the conclusions reached by the first Reviewer. Whilst it is certainly true that the second respondent was not obliged to conduct further investigations into the authenticity of the documents she was nonetheless obliged to turn her own mind to the authenticity of the documents rather than simply rely upon the conclusion that the first Reviewer had reached. What she said was:
“And I give no weight to the documents submitted to the previous Reviewer by the claimant’s agent under cover of a letter dated 6 October, 2010, as, like the previous Reviewer I am not satisfied of their authenticity.”
(at CB 174)
In Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Kirby J said:
“The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.”
Even bearing in mind the caution issued by Kirby J set out above, it is clear that the second respondent has not appreciated that the documents in question were of different types and provenance and that the first Reviewer had treated the two general categories of documents differently by referring to and rejecting the authenticity of one category and accepting the authenticity of the second category but choosing to give them little weight.
By adopting the approach that she did, it is not at all clear that the second respondent gave any consideration to the relevant documents or turned her own mind to the way in which they ought to be treated. Without turning her own mind to the documents, but merely relying upon the first Reviewer’s approach to just one of the relevant categories, the second respondent has failed to consider all of the applicant’s evidence in the form of the documents submitted to the previous Reviewer and in that way can be said to have failed to give the applicant’s case a proper, genuine and realistic consideration.
This ground, too, is made out.
Ground 4
The Tribunal recorded that:
“As I also advised the claimant, independent country information (as above and upon which the claimant was given the opportunity to comment) indicates that since he left Sri Lankan (sic) in February 2007, the situation which may have given rise to his earlier fear of harm has significantly changed since the defeat of the LTTE in May 2009, and that thousands of Tamils are returning to their home country and are now leading relatively safe and productive lives.”
The applicant asserts that there was no supporting evidence for the finding contained within that paragraph “that thousands of Tamils are returning to their home country.” Further, the applicant contends that finding was integral to the decision ultimately reached by the second respondent.
I accept the first respondent’s submissions that to succeed on a “no evidence ground” the applicant must show that there was no evidence at all upon which the finding could have been based: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356. Even assuming for the moment that the relevant statement amounts to the finding of a jurisdictional fact and was integral to the ultimate finding made by the Tribunal, I am satisfied that there was evidence before the Tribunal in the country information from which such a finding might have been made.
The first respondent submits:
“47. Thirdly, the Reviewer set out extracts from relevant independent country information and invited the applicant to comment upon the stated information. In particular, the Reviewer extracted references from the “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, 5 July 2010, which stated:
“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 or complementary forms of protection solely on the basis of risk or indiscriminate harm. In light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans or Tamil ethnicity originating from the North of the country …the security situation in Sri Lanka had significantly stabilized, paving the way for a lasting solution for hundreds of thousands of internally displaced person (IDPs) in the country’s north and east. In August 2009 the Sri Lankan government began to organize the return or release for IDP camps of som 280,000 persons, who were forced to flee their homes during the final phase of the conflict. Many of the initial restrictions on the freedom of movement of IDPs have been lifted and by mid-June 2010, approximately 246,000 persons have left the displacement camps to return to their places of origin or live with host families, relatives and friends ….” (underlining added)
48. It is submitted when regard is had to the information set out above there was plainly an evidentiary foundation for the statement made by the Reviewer. There were also a number of other references in the country information to the return of displaced persons which supported the Reviewer’s findings. Accordingly, there is no substance to this ground of review.”
(footnotes omitted).
I accept that submission. There is no merit in this ground of review.
Conclusion
I am satisfied that the applicant has made out grounds 1, 2 and 3 of his application. In the circumstances, I make the declarations and orders set out in the commencement of these reasons.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 9 November 2012
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