DZAAI v Minister for Immigration
[2011] FMCA 886
•16 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZAAI v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 886 |
| MIGRATION – Application for review of decision of Independent Merits Reviewer – whether Reviewer failed to take into account relevant information – whether Wednesbury unreasonableness – whether accordance of weight given to evidence by Reviewer subject to judicial review – inferences. |
| Migration Act 1958 (Cth) The Constitution |
| Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41 Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 |
| Applicant: | DZAAI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | DR RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File number: | DNG 14 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 26 October 2011 |
| Date of last submission: | 26 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 16 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. B. Lawrence S.C. |
| Solicitors for the Applicant: | Ward Keller Lawyers |
| Counsel for the Respondent: | Mr T. Anderson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
DNG 14 of 2011
| DZAAI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| DR RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a single male Tamil form the North East of Sri Lanka who travelled to Australia by boat arriving in early March 2010. As an arrival at a place outside Australia’s migration zone he had no right to seek Australia’s protection under the provisions of s.36(2) of the Migration Act 1958 (Cth) (the Act). However, by ministerial fiat such arrivals are entitled to seek an assessment as to whether they would be persons who met the criteria for a protection visa and be recognised as a person to whom Australia owed protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. In the event that the assessment requested is unfavourable a person such as the applicant is entitled to seek review of the merits of that decision from an Independent Merits Reviewer. If the Reviewer considers that the applicant does meet the criteria for a protection visa he so advises the Minister who may then consider lifting the bar contained in s.46A(1) of the Act pursuant to s.46A(2) of the Act. The High Court of Australia has determined in Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41 that decisions of an IMR are susceptible to judicial review under s.75(v) of the Constitution and such reviews are capable of being conducted by this court pursuant to s. 476 of the Act. In the instant case, the initial assessment made by an officer of the Department of Immigration and Citizenship concluded that the applicant did not meet the definition of a refugee in Article 1(A) of the Convention. On 13 September 2010 the applicant applied for review of that decision which was carried out by the second respondent who reported on 12 April 2011 with a recommendation to the Minister that the claimant not be recognised as a person to whom Australia owed protection obligations.
At [43] of his decision:
“The reviewer accepts that the claimant and his family come from an LTTE area in Sri Lanka, that he tried to avoid being recruited by the LTTE, that his father was taken by the LTTE in his stead, that the claimant was eventually taken by the LTTE but that he continued to refuse to be trained by them and was physically abused by them, that he escaped from the LTTE and was subsequently detained by the Sri Lankan army and was questioned and beaten by the army and CID for three days before he was able to escape, that he made his way to Colombo and departed by boat for Australia.”
The reviewer also accepted at [45]:
“In the light of the independent country evidence discussed with the claimant, the reviewer accepts that upon return to Sri Lanka, he may well be interrogated by the Sri Lankan authorities to determine whether he is considered a security threat. The reviewer accepts that the authorities may even suspect that he is a failed asylum seeker. However, the reviewer finds as significant and determinative that the claimant was never actively involved with the LTTE and indeed resisted their recruitment and escaped from them after being held for 14 days. Presumably if the Sri Lankan authorities have records of his interrogations by them, this is what he had told them.”
The reviewer went on to note the improving situation in Sri Lanka, in particular, the release of many thousands of Tamils who had previously been held and interrogated by the authorities including members of the applicant’s own family. He concluded that he could not be satisfied
“that there is a real chance that the claimant’s background is such as to arouse a level of suspicion on the part of the authorities such that he will suffer serious harm when he is questioned on return to Sri Lanka.” [46 CB 129]
In relation to the applicant’s detention by the army the reviewer said at [47]:
“The reviewer accepts that the claimant fears harm from the army in Sri Lanka. However, the independent country information discussed with the claimant indicates that the post-war situation is such that human rights abuses are declining and that the majority of people are beginning to live relatively normal, albeit post-conflict, lives. In making this finding, the reviewer has considered the country information provided by the claimant and accepts that there are indeed incidents of harassment of Tamils and people suspected of LTTE support. The reviewer has also take [sic] into account the claimant’s assertion that he has been told by his mother that there are people in army uniforms asking after the claimant. It may well be that the claimant is on their records as having been once detained and that now there is no longer any record of his current whereabouts. However, the reviewer is not satisfied that upon his return and after his case being investigated upon arrival, as discussed above, that there is a real chance the claimant will remain at risk of serious harm from the authorities. However, the reviewer, taking into consideration the lack of political profile of the claimant as discussed above, finds that the incidence of abduction and harassment not to be at a level such that there would be a real chance that the claimant would suffer serious harm in the foreseeable future for a Convention reason if he returned to live in Sri Lanka.”
On 17 May 2011 the applicant filed an application in this court for review of the IMR decision. On 25 October 2011 there was filed an amended application. There were five grounds of application each of which is particularised. The grounds, excluding the particulars, are as follows:
1. The Reviewer failed to take a relevant consideration into account in his exercise of power; namely, the Applicant’s status as a LTTE suspect by reason of being a fugitive of the Sri Lankan authorities.
2. The making of the decision was an improper exercise of the power in that it was so unreasonable that no reasonable person could have so exercised the power.
3. The Reviewer failed to give sufficient weight to the relevant aspects of the evidence before him relating to the level of risk facing the Applicant.
4. The Reviewer gave excessive weight to the evidence of country information provided by the First Respondent in the Application.
5. The Reviewer did not give procedural fairness to the Applicant by failing to respond to the Reviewer’s ultimate presumption that during the Applicant’s numerous interrogations with the Army and the CID, he would have stated that he had ‘never been involved with the LTTE’
These grounds and the particulars all relate to the findings by the reviewer that the applicant would not have a real chance of suffering serious harm upon his return, notwithstanding that he was an escapee from detention by the Sri Lankan army. The five grounds are ways of expressing the form of jurisdictional error into which the IMR is said to have fallen in coming to that conclusion. I shall deal with each in turn.
Ground 1
The applicant argues that the reviewer accepted his claim that he was detained and interrogated by the army and the CID on account of the suspicion that he was involved with the LTTE. But in fact that is not quite what the applicant says in his own statement. In his statutory declaration [CB 41] he says:
“After walking in the jungle my family and I were able to get to Nodumgani which was an area controlled by the Sri Lankan Forces. They separated the males and females and I was questioned and my photograph was taken. They told me that they would kill me and threatened me in order to find out if I was a LTTE member. After this, I was taken to the refugee camp which was under the control of the Sri Lankan Forces.
My family were at the camp but I was separated from them. I was regularly beaten and questioned in the refugee camp by the CID. In April 2009, the CID came and took me at night. The CID had an area within the camp where they would take us question us. I was beaten and questioned by them. They beat me for three days before I was able escape [sic].”
The distinction between being beaten because you were suspected of LTTE involvement and being beaten because your persecutors wish to find out whether you were involved, may be subtle but is important. In the applicant’s words he was beaten for the latter reason and not the former. He does not claim that he broke under the beating and told the CID that he had been involved with the LTTE. In the transcript of the interview with the reviewer the following discussion takes place (at [P-21]) concerning the camp:
“DR WITTON: You say you were held in a camp like probably the majority of people, but you ran array from the camp.
MR A: Yes.
DR WITTON: That would, of course, make the authorities suspicious, but many people, I suspect, are coming back to Sri Lanka, Tamils, and people have been overseas and some of them have run away from situations like you were in. There are not reports of large numbers being held upon return to Sri Lanka. There is, I think, a chance that I think it is very unlikely that they will want to interrogate you further when you get back, but I think there is no evidence that you were ever with the LTTE, so I will have to think whether your statement that you will definitely be tortured and killed is in fact whether I believe that because I do have to consider whether there is a real chance you will suffer serious harm on return so that is what I will be thinking about.
MR A: Yes.
DR WITTON: So I’m happy to hear what you want to say and what your adviser wants to say because I have no further questions. Is there anything you want to still say to me?
MR A: (indistinct) in Sri Lanka, if they approach, I don’t know could happen. They might take me anywhere. They will disappear or they will – I will be killed. My address will be erased – my address.
DR WITTON: His address?
MR A: Address, my address – my (indistinct)
DR WITTON: Yes, okay. Okay. Okay. Now I understand that this is your fear. Okay. Is there anything else you want to say to me before I ask your adviser?
MR A: The area in which we were living, most under the control of the LTTE. They will look at that – if that’s the end. Some were arrested. They are (indistinct) this too. They destroy all those in the – and those who were working for the LTTE and their purpose is to destroy all of them who were living in that area.”
The applicant proffered no evidence of what occurred in the interrogations at the camp to support the fear he was articulating.
The applicant argued further under this ground that the reviewer had available to him independent country information that indicated that Tamils from the North who were suspected of having links to the LTTE may be at risk on the grounds of membership of a particular social group. He argued that the reviewer construed “persons suspected of having links with the LTTE” as those with evidence of actual involvement with the LTTE and did not consider that the applicant, as a person who had escaped from detention, would render him an LTTE suspect. I am unable to see any basis upon which I could find that the reviewer misconstrued the meaning of persons suspected of having links with the LTTE and it seems to me that the reviewer did consider that the applicant might be thought of as an LTTE suspect even though, as I have made clear above, that was not the applicant’s suggestion. In my view it is clear from [47], extracted above, that the reviewer did take these matters into consideration but they were overborne by the lack of the applicant’s political profile and the improvement in the current situation. I do not believe that the applicant has made out ground 1 of his grounds.
Ground 2
The High Court considered this ground of application in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 where at [123] Crennan and Bell JJ opined:
[123] Judicial review has commonly been relied on to set aside a discretionary decision which "is so unreasonable that no reasonable authority could ever have come to it" or decisions "which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful". As remarked by Gaudron J in Abebe v The Commonwealth:
"[I]t is difficult to see why, if a statute which confers a decision-making power is silent on the topic of reasonableness, that statute should not be construed so that it is an essential condition of the exercise of that power that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it."
This Court has observed with reference to s 75(v) of the Constitution and jurisdictional error that where a statutory power is conferred the legislature is taken to intend that the discretion is to be exercised reasonably and justly.
[124] More recently it has been suggested that statutory tribunals must not only act reasonably as intended by the legislature, they must also act rationally. If rationality is a separate freestanding common law standard for good administrative decision-making it seems at least related to the implied standard of reasonableness following the articulation by Lord Greene MR of what has come to be known as "Wednesbury unreasonableness". It appears closely allied also to the requirement in Avon Downs that extraneous reasons should not be taken into consideration but relevant considerations must be. It appears to be allied as well to the principle that fact finding must be based on probative material, one correlative of which is that a decision based on no evidence displays jurisdictional error. Accepting rationality, as a freestanding common law requirement in decision-making, with the consequence that irrationality may attract judicial review, is complicated by three considerations. First, describing reasoning as "illogical or unreasonable, or irrational" may merely be an emphatic way of expressing disagreement with it, and to describe a conclusion that a decision maker is not satisfied as "irrational" might mean no more than that, on the material before the decision maker, the court would have reached the required state of satisfaction.
[125] Secondly, the word "irrationality" is conventionally defined as "the quality of being devoid of reason", "illogicality" is conventionally defined as "unreasonableness" and "unreasonableness" is conventionally defined as "irrationality".
[126] In reliance on a statement made by Sir Thomas Bingham MR in R v Secretary of State for Home Department; Ex parte Onibiyo the authors of de Smith's Judicial Review have remarked: "Although the terms irrationality and unreasonableness are these days often used interchangeably, irrationality is only one facet of unreasonableness."
[127] Thirdly, in England "irrationality" as a basis for judicial review appeared to emerge first as a redefinition of Wednesbury unreasonableness. Whilst not material to this appeal, further developments in England have included reference to the principle of proportionality in administrative decision-making, being a component of administrative law in a number of European countries. The principles of reasonableness (as derived from Wednesbury) and proportionality are now said to "cover a great deal of common ground".
Before stating at [133]:
“However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.”
The applicant argues that the reviewer gave a disproportionately low level of consideration to his background and country information relating to the level of hostility, inquiry and vigilance surrounding young Tamils and that a reasonable person, having knowledge of the evidence before the reviewer of the applicant’s background and situation in Sri Lanka, would not have found that there is “not a real chance” of the applicant facing significant harm upon return to Sri Lanka.
There is always a danger in making submissions such as this that one can be seen to be trying, by sleight of hand, to obtain impermissible merits review. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] Gleeson CJ and McHugh J issued this salutary warning:
“The essence of the suggested illogicality or unreasonableness in the Tribunal's decision, as observed by Hill J, and accepted by Davies and Burchett JJ, although strongly contested by Whitlam J, is said to lie in the process of reasoning by which the Tribunal came to regard the information given by Mr Eshetu as to the December 1991 incident which led to his departure from Ethiopia as implausible. It was considered by Hill J that the Tribunal failed to give sufficient weight to certain information before it, especially information from EHRC, and attached unwarranted importance to the absence of any independent record of the alleged occurrences. Whitlam J was of the view that the reasoning displayed no error. Even if it did, however, there is a serious question whether the suggested error is of the kind to which the Wednesbury principle is directed. We are not here concerned, for example, with the unreasonable exercise of a discretion, and it is difficult to characterise the Tribunal's decision, even on Hill J's view of it, as an abuse of power. Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as "illogical" or "unreasonable", or even "so unreasonable that no reasonable person could adopt it". If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.” [emphasis added]
I concede that it would be open to another reviewer to conclude that a person who had escaped from CID custody might fall under suspicion upon his return from Australia and even fall into the category of persons considered to be in danger in the UNHCR Directive. But what another reviewer may have done has never been an indicator of jurisdictional error; it should certainly not be so in this case where the reviewer has provided his reasons for coming to a different conclusion at [47 CB 129]. In my view, the applicant has not demonstrated that any error on the part of the reviewer in his decision making meets the criteria set out in SZMDS and thus crosses into the area of jurisdictional error.
Ground 3
This ground cannot succeed because the question of weight is one solely for the reviewer: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Abebe v The Commonwealth (1999) 197 CLR 510 at [197] (Abebe), SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231, NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10-11], SZNHS v Minister for Immigration and Citizenship [2009] FCA 1254.
Ground 4
This is likewise a ground based upon the weight given by the reviewer to certain evidence, independent country information, and for the reasons expressed above and on the authorities there referred to the ground cannot be sustained.
Ground 5
The applicant argues that at no time in the 90-odd minute interview did the reviewer ask the applicant what he had told the CID during his interrogations, yet, in his reasoning he based his decision on the basis that “presumably if the Sri Lankan authorities have records of his interrogations by them this is what the applicant had told them”. He argues that this statement constituted an inference for which there was no evidence or a presumption which constitutes a gargantuan leap from the available evidence and that the fact that the applicant was not asked what he told the CID constituted an unfairness which fell into the category of jurisdictional error. The respondent says that the only determinative feature of the reviewer’s statement at [45] CB 128 was that the “claimant was never actively involved with the LTTE and indeed resisted their recruitment and escaped form them after being held for 14 days”. The respondent argues that the reference to “records of the applicant’s interrogation” was just an aside, not an inference. The respondents also argue that there is evidence to substantiate any such inference in the applicant’s statutory declaration found at [CB 41] and repeated by the reviewer at [CB 120], extracted at [5] of these reasons, where the applicant tells that he was threatened in order to find out if he was an LTTE member and was questioned and beaten by the CID in the refugee camp. I do not think that this can substantiate an inference that the applicant told the CID that he had no involvement with the LTTE. It was something upon which there was just no evidence.
It is perhaps best if the sentence is looked at carefully, although not with an eye attuned to the perception of error. The reviewer does not presume that the Sri Lankan authorities have the records of interrogation; he assumes that if they do then the applicant told them that he was not involved with the LTTE. As already noted the applicant did not advance a case that he had told them anything else, in particular that he confessed that he was associated with the LTTE, which would have caused him to have been in danger. It is for the applicant to satisfy the reviewer that he is a person to whom Australia owes protection obligations: Abebe, Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166. Looked at in this way, and noting what the applicant had told the reviewer about his conduct whilst in the LTTE camp, the inference is capable of being drawn.
It should be noted that the reviewer was conscious throughout his decision-making process of the fact that the applicant was an escapee from the CID and weighed that in the balance. At [47] the reviewer said “it may well be that the claimant is on their records as having been once detained and that now there is no longer any record of his current whereabouts”. The extract from [P-21] in which the reviewer refers to people who have “run away from situations like you” would also appear to be a reference (at least in the reviewer’s mind) to the fact that the applicant escaped from the CID. It is the fact of this escape and the consequences for the applicant of him being given a purported political opinion as a result that is the issue. In my view, the transcript reveals that the applicant had enough opportunity to make the best case he could about this imputed political opinion but his efforts were insufficient to overcome the strength of the independent country information relied upon by the reviewer. This court cannot interfere with the reviewer’s factual finding that whilst the applicant may come under suspicion when he returned to Sri Lanka he was unlikely to suffer serious harm as a result.
The applicant has been unable to persuade me that the reviewer fell into jurisdictional error in the manner in which he reached his decision and in those circumstances the application must be dismissed and the applicant shall pay the respondent’s costs which I assess in the sum of $6,000.00.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 16 November 2011
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