BZACY v Minister for Immigration
[2013] FCCA 646
•28 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZACY v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 646 |
| Catchwords: MIGRATION – Independent reviewer challenged – claims of bias by independent reviewer – claims of denial of procedural fairness – dismissal. |
| Legislation: Migration Act 1958, ss.36, 91R, 91S, 476 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 B90 of 2003 v Refugee Review Tribunal [2004] FCA 1557 |
| Applicant: | BZACY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | DAVID CORRIGAN IN HIS CAPACITY AS AN INDEPENDENT MERITS REVIEWER |
| File Number: | BRG 839 of 2012 |
| Judgment of: | Judge Coates |
| Hearing date: | 10 December 2012 |
| Date of Last Submission: | 10 December 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 28 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Barataraj |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Spark Helmore Lawyers |
ORDERS
That the Application filed 18 September 2012 and Amended Application filed 8 November 2012 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 839 of 2012
| BZACY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| DAVID CORRIGAN IN HIS CAPACITY AS AN INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
By Amended Application filed 8 November 2012, and pursuant to s.476 of the Migration Act1958 (the Act), the applicant challenges an Independent Merits Review decision made 7 May 2012, finding that:
a) He does not meet the criteria for a Protection (Class XA) Visa as set out in ss.36(2)(a) & (aa) of the Act; and
b) The recommendation that he not be recognised as a person to whom Australia has a protection obligation.
There was no challenge to the application being made under s.476.
The applicant was notified of the decision on 9 May 2012 by correspondence.
The applicant seeks orders that:
a)An order that the decision of the Tribunal or Minister be quashed;
b)A writ of mandamus directed to the Tribunal or Minister requiring them to determine the applicant’s Application according to law;
c)A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law by reason of the grounds of this Application;
d)An injunction restraining the Minister, by himself or his department, officers, delegates or agents, from relying upon the recommendation of the independent protection assessment reviewer; and
e)An order declaring the applicant meets s.32(2) of the Migration Regulations 1994.
I will make the observation that all of the grounds in the pro forma application document have been marked by the applicant but not all of those orders could be made in such a case.
The applicant is Sri Lankan, who arrived in Australia on 7 February 2010 and on 18 April 2010 made a request for a Refugee Status Assessment (RSA) and later on 12 June 2010 made a request for an Independent Merits Review of that decision.
On 15 August 2011 a declaration was made in the Federal Magistrates Court of Australia that the recommendation of the first reviewer was affected by legal error. Apart from the order made on 15 August 2011, I was not referred to that matter.
The matter returns after that declaration.
The grounds of the Application stated are:
“1. The Second Respondent is not an officer appointed as an executive of the First Respondent or a delegate of the First Respondent but merely an independent Reviewer appointed under a contract.
2. There is a bias or perceived bias by the Second Reviewer in favour of the 1st Respondent so as to maintain the contract. He is not bound by the relevant provisions of the Migration Act or relevant decisions of the Australian Courts.
3. There is a bias or perceived bias by the Second Respondent in favour of the 1st Respondent so as to maintain the contract.
4. There is a procedural error in that the Second Respondent
a) erred in law by failure to take relevant considerations in making the decisions.
b) erred in law by taking irrelevant considerations in making the decision.
c) placed too much weight on irrelevant considerations to make the adverse decision.”
By way of background, the statement of reasons addresses:
a)That the review was of a negative refugee status assessment made by a delegate of the Minister for Immigration and Citizenship made on 25 May 2010;
b)That an Independent Merits Review was affected by a legal error by a decision of the then Federal Magistrates Court of Australia on 15 August 2011;
c)That an Independent Merits Review was considering afresh all claims for protection;
d)The relevant law being:
i.The criteria for a Protection Visa stated in s.36 of the Act and Part 866 of Schedule 2 of the Migration Regulations1994;
ii.That a claimant must meet one of the alternative criteria in ss.36(2)(a), (aa), (b) or (c); and
iii.Whether the claimant is a person to whom the Minister is satisfied Australia has protection obligations for under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (Refugees Convention) or on other complementary protection grounds, or is a member of the same family unit as a person to whom Australia has protection obligations under s.36(2) and that person holds a Protection Visa.
e)In paragraphs 6 to 14 the reviewer addresses the definition of a refugee and in doing so refers to Article 1A(2) of the Refugees Convention, Australian court decisions/authorities on the definition, the qualification of some aspects of Article 1A(2) with reference to ss.91R & 91.S of the Act, and the key elements of the Convention (the person is outside their country, the person fears persecution, the persecution feared is one or more of the reasons contained in the Convention definition being race, religion, nationality, membership of a particular social group or political opinion and that the fear of persecution is well-founded and that person is unable or unwilling because of the fear to avail themselves of protection in their country or the terms of the country);
f)In paragraphs 15 to 20 the reviewer addresses harm that may emanate to a person from non-state agents which could amount to persecution under the Convention, and then an address of s.36(2)(aa), the complimentary protection provision and other provisions of the Act being ss.36(2), (3), (4), (5) & (5A);
g)The reasons then address claims of the evidence based on the alleged facts that:
i.the applicant was of Tamil ethnicity;
ii.he was a young Tamil from the north of Sri Lanka;
iii.he was a member of particular social group, being a young Tamil male and/or a young Tamil male from the north of Sri Lanka;
iv.that there was imputed political opinions of him being a supporter of the Liberation Tigers of Tamil Eelam (LTTE) against the Sri Lankan government and militia because of his Tamil ethnicity, arising from his identification as a LTTE member or supporter by an LTTE informant in May 2007;
v.the authorities subsequent suspicion about his whereabouts for the last three years and his illegal departure from Sri Lanka and asylum claim in Australia;
vi.he fears his unlawful departure would cause him to face discriminatory treatment beyond normal punishment;
vii.a letter from a Father John Mavulis of St Thomas Church, Point Pedro, Sri Lanka dated 30 June 2010 recording that the claimant was known to the priest and that he underwent several hardships by unknown armed groups during the conflict situation;
viii.he had to leave the country for safety reasons; and
ix.a copy of a letter from the Munai Fisherman’s Co-operative Society which was undated stating that the applicant joined the Society and fished from May 2007 and that he was searched by an armed group and that he fears his life would be in danger if he returns.
h)That the applicant was born in Jaffna in 1983, that he is Catholic, and in 1990 he and his family relocated to the army controlled area of Pariithithurai after they were displaced because of fighting in the civil war;
i)That in May 2007 the applicant saw that people in his village were being rounded up by the Sri Lanka Army and that there was a LTTE informant inside a vehicle and when he looked in the vehicle he was arrested by SLA officers;
j)That he said he was taken to the Jetty army camp in Pariithithurai, blindfolded, interrogated as to whether he was affiliated with the LTTE and recent bombings against the SLA. That he was severely beaten but was unable to provide information. That he was stripped and tortured by having needles pushed under his fingernails and pliers were used to pull out his pubic hair;
k)That he convinced them that he was a fisherman and they stopped torturing him but kept him in the camp for 15 days where he had to dig bunkers and move sandbags and tree trunks;
l)That he had to report once a week to the SLA which he did for three months before he went into hiding because other young Tamil men were killed. He said he did not go back to the family home because the SLA were looking for him;
m)The arrangements made to leave the country, organised by a man named Kamal for the payment of 100,000 rupees which would get him passage on a boat to Australia. The reasons recount his claims that the CID has searched his home in Sri Lanka and have taken his passport;
n)Pre-interview submissions made prior to the IMR interview;
o)The interview;
p)Country information such as an Amnesty International Report dated 5 March 2012 as presented in the claimant’s case and especially the information on security and human rights situation in Sri Lanka and treatment of those suspected of being associated with the LTTE and the reference to reports of the treatment of returned asylum seekers;
q)Further submissions received on 21 March 2012 and that the monitoring of returnees by the United Kingdom was limited to providing a telephone number and that a report dated 21 March 2012 by a Mr Albert Adakpoku, a social worker and counsellor, of the Malaleuca Refugee Centre – Trauma and Torture Survivors Services were submitted which went to the assessment of the applicant as experiencing symptomatology consistent with complex post-traumatic stress disorder;
r)That on 8 March 2012 an officer of the IPAO advised the agent by email that a copy of the entry interview could not be provided and the application for it should be made under FOI;
s)More country information relied on and the situation for ethnic Tamils and LTTE suspects which included reports from the United Kingdom Foreign and Commonwealth Office and the US Department of State, newspaper reports, the UNHCR and a letter from the British High Commission at Colombo dated 19 January 2011 specifically stating that 5,686 people have been released from their rehabilitation / reintegration programs after the Civil War and that 4,658 ex-combatants detained in the 9 rehabilitation centres remained. That the Sri Lankan military operated the camps and the detainees continued to be released in batches over the next few months;
t)That paramilitary groups treat Tamils badly and the treatment of Tamil returnees and reports from the Human Rights Watch stating eight asylum seekers in the United Kingdom had been taken into custody and abused upon their return;
u)Country information from the Canadian Immigration and Refugee Board, Danish Immigration Service information and Australian Department of Foreign Affairs and Trade assessments; and
v)Consideration of past and future claims of harm, from paragraphs 66 through to 79, before the assessor reached the conclusion that the applicant was a not a person to whom Australia had a protection obligation under the Refugees Convention.
Given the grounds stated in the Amended Application, the first three grounds do not challenge or dispute the findings. It is only the last ground which does that and there was very little reference in submission to any risk presented because the applicant departed Sri Lanka illegally, as the court dealt with in the Orders it made on 15 August 2011 – see page 160 of the Court Book.
In the written outline of argument, counsel for the applicant said the two issues in dispute were the lack of credibility of the applicant and that it was now safe for asylum seekers to return to Sri Lanka. I must say I find it difficult to relate those stated issues to the first three stated grounds.
In a reference to Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41, it appears that the applicant’s counsel was stating that the first three grounds could be made out individually or together because the reviewer was an independent contractor working on a contract with the Department of Immigration and not an officer appointed under the Public Service Act. The submission was that such raised the possibility of whether the applicant was afforded procedural fairness considering what was said at paragraph 78 of that decision and particularly the words:
“78. … Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.”
The argument was further developed that the reviewer was not making a decision by the Minister and nor was he appointed under the Act and so there was no obligation on part of the second respondent to follow the rules made under the Act.
The written submissions recognise that the Plaintiff M61 case did not make such a decision. In submission it was put that there is the possibility of apprehension of bias or bias in favour of the Minister, as the decisions would finally impact upon the respondent’s continuation of the contract and so the applicant may not be afforded procedural fairness. The written submissions seemed to then state that the issues, being credibility, and that it was now safe for asylum seekers to return to Sri Lanka, are tied up somehow in the first three grounds as stated.
In trying to understand the case, I sought submissions orally because counsel for the applicant, Mr Barataraj, had first said the arguments in this case were on the same lines as a case I had heard immediately before this case.
Such submission was not appropriate and I really needed to know the submissions as they related to this case. Mr Barataraj said this:
“So I will stand by this – my outline of agreement which can be take as read, your Honour, and the question of credibility – of course, we have already addressed the fact that the independent contractor and the fact that where I’ve quoted that High Court case where a decision made by independent contractor is not a decision and that it has to be referred to the Minister and the Minister actually makes that decision. I’m not going any further with it because we have addressed the issues. …”
I asked if it was addressed in the outline and Mr Barataraj said yes and then said:
“Well, here again, as I said, there is a possibility of apprehension of bias in favour of the Minister as the decisions would finally impact on the respondent’s continuation of the contract and so the applicant may not be afforded procedural fairness. …”
Mr Barataraj then goes on to the issues about credibility and it is clear to me that he was not claiming the first three grounds went to credibility or in fact whether it was safe to return to Sri Lanka.
Returning to the first three grounds, a case as to bias would and must be particularised.
The transcript of proceedings were not put before the court so that I could be taken to any comment made by the assessor from which it could be determined that there was a bias shown, or that any words would give rise to a perceived or an apprehended bias.
I was not taken to the alleged contractual arrangements between the assessor and the Minister, from which I could then make a consideration that such arrangements could lead to a finding of perceived or apprehended bias.
I have considered whether the argument was directed at the wording of s.476 of the Migration Act, which allows for relief to be granted by this court on the same basis that the High Court may exercise power under s.75(v) of the Commonwealth of Australia Constitution Act (the Constitution). Section 75(v) gives the courts power to determine relief against "an officer of the Commonwealth" either by mandamus, prohibition or injunction.
However, if the assessor's independence or lack of independence is at issue on this basis, no argument, evidence or case was presented that there was no power for a contractor to make the decision. The case was stated to be one of bias, and in the terms as I have set out above.
It is impermissible to merely raise a situation in the terms that this has been raised – that there may be a possibility of the applicant not being afforded procedural fairness because the assessor was an independent contractor working on contract.
There has to be more than a mere claim. There is an obligation on the part of the assessor to follow the rules made under the Act and as stated in the authorities, and this is what must be identified as not having occurred, because of some bias, on the case put forward.
So much was said in the Plaintiff M61 case as to what has to be shown.
That there is an alleged perceived bias by the assessor in favour of the Minister so that he can maintain his contract is a case which cannot be made out as stated in ground two.
Ground one and three are formulated along with ground two as a catch all wording on these arguments going to bias.
As I have stated there needs to be something more put before the court before any finding of bias could be made. Mr Reilly, for the respondents, referred the court to the decision in the Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at paragraph 20, stating that a merits review is not within the court's power, nor was a review on a wrong finding of fact, or unsound reasoning which were not errors of law.
He said in terms of bias the case noted, at paragraph 18, that it is rare. Paragraph 18 states:
“18. It is a rare case in which a Court will find that a decision maker has breached the natural justice hearing rule by exhibiting bias based simply upon the decision maker’s reasons: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [44]. The same is the case in relation to apprehended bias. Ordinarily a party would need to show some conduct on the part of the decision maker, apart from the decision maker’s expression of the decision maker’s reasons, which would indicate that the decision maker has been guilty of pre-judgment or was in any way biased.”
However, the decision is also challenged on the ground that there has been procedural error in that that there has been a failure to take into account relevant considerations, irrelevant considerations or that too much weight was placed on irrelevant considerations.
The applicant made several submissions on this point.
The first one appearing in the written submissions is that the assessor was given a submission to the effect that there were variances or inconsistencies in explanations at first instance and those given at interviews later by the applicant.
Mr Barataraj said the applicant had been on a boat for 17 days when rescued and to impugn his credibility because of inconsistencies was to ignore his psychological conditions.
It was put that he had not had the ability to rest, eat and fulfil his psychological and physiological needs and had time to contemplate and be able to answer questions properly and so initial statements that conflict with later statements should not be considered.
Mr Reilly for the respondents addressed the matter in this way - that a finding of credit is not open as an error and he referred me to McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 paragraph 67 states:
“67. In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.”
Mr Reilly submitted that paragraph 21 of the decision and the second and fifth dot points, where the reviewer referred to statutory declarations of the applicant dated 18 April 2010 and 25 June 2010, displayed that the reviewer had regard to what the applicant had stated and regard to perceived inconsistencies made at the claimant’s entry interview and his later evidence.
Further, he said at paragraph 66 the reviewer accepted that:
“66. In considering a claimant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth, especially in the context of entry interviews constrained by time and the inherent limitations of interpretation and often before a claimant fully appreciates what is relevant and the degree of detail required. However nor can significant inconsistencies or embellishments be lightly dismissed. Specific difficulties are dealt with below as they arise in relation to particular claims. I acknowledge that, in assessing the claimant’s credibility, I must be sensitive to the difficulties faced by claimants in presenting their claims (including the passage of time, time spent in detention and the effects of trauma). I am not, however, required to accept uncritically any and all claims made by a claimant.”
The reviewer than came to a conclusion at paragraph 67 that the applicant was not a credible witness "in relation to a large proportion of his claims due to a number of substantial inconsistencies". In that paragraph the review then lists his factual findings as to what were the inconsistencies, listing them under 5 dot points.
I cannot see an error there, based on the authorities, that these findings of fact constitute errors of law which can be reviewed by this court. I must say that I could not see a link to this argument and the grounds of appeal, but that is how the case was presented.
Mr Barataraj also submitted that he speaks Tamil and there were incorrect translations of what the applicant stated at his entry interview but of course, quite rightly in upholding an objection, evidence from the bar table is not receivable and there was no expert evidence to tell the court that such mistakes even existed.
Although the claimant says in an affidavit he filed on 19 November 2012 that there were issues regarding the interpreting of his statements, he really had to produce expert evidence which would tell the court that there had been a mistake and that such amounted to a lack of procedural fairness.
The applicant's counsel raised issues regarding some of the findings as to credibility stated at paragraph 67, stated after scenarios had been put to the applicant at interviews and during the review, in this manner:
“Any normal person would have said yes as the question would have triggered his memory particularly he said there were two in the bus in an earlier statement. In his affidavit sworn on 14 November, he explains the situation. The two officers that checked him were different from the two officers who were in the bus. It is obvious he must have been confused. It is normal to recall specific events that happened to him but it is difficult to recall fine details considering his health situation. In regards to the lodge situation he has provided a satisfactory explanation.”
I do not accept that. That seems to be expert evidence which has to be given by an expert as to some confused state of mind affecting the applicant. The reviewer stated that he would be careful in placing undue weight on statements made at an early stage when a claimant may be confused, and he then stated how he came to his decision as to credibility.
Mr Reilly said there was no principle of law that entry interviews should not be considered in the matrix of the other evidence before the reviewer.
But the reviewer went further, at paragraph 68 he stated:
“68. In making these findings I have had regard to the RRT Guidelines on Credibility and also on Vulnerable Persons. I am conscious that the claimant spent a consideration period of time in detention in Australia and I am mindful of the effects that trauma can have on an individual. I have also had regard to the counsellor’s report that states, inter alia, that he experienced symptomatology consistent with complex post-traumatic stress disorder and that the claimant had a concentration span of 30 minutes and that his behaviour would be suggestive of disassociation. I have also taken into consideration the International Health and Medical Services reports concerning the claimant. These, inter alia, state that the claimant had been placed on a multiple psychological support program due to threatened and actual self-harm and that he has reported low mood, sleep disturbances and stress and that he receives regular medications. However, given my overwhelming concerns with the credibility of a substantial part of his evidence that I have set out above, I do not accept that these considerations means that his key claims are true.”
The submission by Mr Reilly was that the reviewer did take into account RRT Guidelines, psychological evidence and came to a conclusion. Mr Reilly’s submission was that the reviewer determined the credibility and it is not open to now claim that a finding of fact amounts to some sort of legal error. I state that because the applicant’s submissions highlight the medical assessment at pages 221 of the Court Book, as well as 228 to 256 and to self harming occasions and suicide attempts. His counsel's submission was that if he were merely an economic refugee than he certainly would be strong enough to refrain from self harm or suicide.
The reviewer has, in my view, taken all relevant matters into account but he cannot, as the court cannot, take into account what someone who would be described as an economic refugee may or may not do.
As to the issue of "safety for deported asylum seekers returning to Sri Lanka" as the applicant’s submissions are headed, I was told that there must be consideration of the mental or emotional state of a person who is likely to be deported, as well as consideration that they may come from a different social and cultural environment and experience bewilderment and anxiety, or that they may have had traumatic experiences or suffer a disorder or illness which affects their ability to give evidence, their memory or their ability to observe and recall specific events.
That is impermissible unless there is evidence applicable to this applicant from an expert or experts.
As to returning to Sri Lanka, paragraph 76 of the decision examines country information and concludes that without a history of association with the LTTE, Department of Foreign Affairs and Trade information indicates that he would not be of interest to the authorities. As to illegal departure, the same paragraph states that illegal departure could be a possible characteristic as to how he may be treated at the airport on arrival, but that is anecdotal evidence only and the weight of information suggests that he will not face a risk of serious harm now or in the reasonably foreseeable future.
What this shows is that the very issues of concern to the applicant have been considered.
The assessor set out numerous reports and documents which he considered on country information, especially at paragraph 76.
His assessment was challenged by the submission that he had some references on country information to support his conclusion and that the applicant spent 15 days mandatory training with the LTTE.
The submission was that it was difficult to comprehend why the reviewer failed to accept that this training itself is the criteria for Sri Lankan authorities to arrest him on arrival at the airport.
If there was some failure to take into account a relevant matter, such as mandatory training with the LTTE as claimed by the applicant, such would possibly be the matter. However, a close reading of the reasons, at paragraph 76 which I have just referred to and to paragraph 72, show that the reviewer did consider this issue. At paragraph 72 he states:
“72. I accept that in 1990 the claimant and his family (whilst he was young) relocated to Pariithithurai due to government-LTTE fighting. I accept that the claimant worked as a fisherman and in 2003 was required to do 15 day mandatory LTTE training which included digging bunkers and carrying guns and ammunition. I accept that he sometimes attended meetings the LTTE had with fishermen. I also accept that he attended a Pongu festival as a spectator in 2004. I accept in 2006 he saw an armed group dressed in civilian clothes shoot a young Tamil boy. I also accept that in 2007 he saw one of his neighbours shot by members of an armed group dressed in civilian clothes about 100 meters away from where he was having tea. However, I do not consider that these events mean that he faces a real chance of persecution in the reasonable foreseeable future in Sri Lanka. Nor do I accept that this means there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to a receiving country that there would be a real risk of the claimant suffering significant harm for these reasons. The fighting which led to his family having to flee occurred over 20 years ago when the claimant was a boy and country information set out below indicates that the war has ended and an improved situation for Tamils. Further, the claimant described the LTTE training as mandatory for all fishermen and it and his attendance at meetings with the LTTE occurred 9 years ago well before the end of the war. As previously found, I do not accept that he was of any interest to the authorities or paramilitary groups in the years after these events. Whilst he may have been photographed at a Pongu festival as a spectator this occurred in 2004 (a substantial period of time ago) and nothing personally happened to him in the years afterwards indicating that he was not and would now not be of any interest to the authorities for his attendance at this event. Whilst I accept that he saw two Tamil males murdered, these incidents occurred prior to the ending of the war, the claimant does not know who the perpetrators were and why the victims were targeted and the claimant has not indicated that he was targeted.”
I was also taken to Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 where McHugh stated:
“the decisions … also established that a fear may be well founded for the purposes of the Convention and Protocol even though persecution is unlikely to occur …
Mr Reilly referred me to the case B90 of 2003 v Refugee Review Tribunal [2004] FCA 1557 at paragraph 28 where Dowsett J said:
“28. …where circumstances are said to have changed for the better since any incident testified to by an applicant, the Tribunal should exercise care in ensuring that such changed circumstances relate to the circumstances in which the incident occurred and recognize that change is, almost inevitably, relatively gradual, incremental and unlikely to take effect in a uniform way throughout any particular geographical region. …”
Mr Reilly submitted that the reviewer made a decision based on the evidence and once the conclusion was reached that the applicant would not be suspected of links with the LTTE and that such a finding is a basis of fact, there is no indication of legal error, but merely a factual judgment.
To my mind, the reasons show the reviewer has taken the LTTE mandatory training into account and considered the weight of all of the evidence stating that the war had now ended, the situation for Tamils was improved, that the claimant said all fisherman had to attend at mandatory training and this occurred well before the war ended over nine years ago, that in the intervening years he was of no interests to authorities or paramilitary groups.
It was on all this evidence upon which the reviewer has determined that his fear of persecution is not well-founded and at paragraph 79 the reviewer say his claims have been considered cumulatively.
In my view, he has not made out a case on any ground as claimed.
Finally, as to the relief sought, with each box in the pro-former application ticked, Mr Reilly submitted, and I accept, and there being no opposition, that the only relief available is a declaration and he referred me to Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 as to why it is the only relief available.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Coates
Associate:
Date: 28 June 2013
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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