DZAAI v Minister for Immigration and Citizenship (No 2)

[2012] FCA 1316

FEDERAL COURT OF AUSTRALIA

DZAAI v Minister for Immigration and Citizenship (No 2) [2012] FCA 1316

Citation:		DZAAI v Minister for Immigration and Citizenship (No 2) [2012] FCA 1316
Appeal from:		DZAAI v Minister for Immigration & Anor [2011] FMCA 886
Parties:		DZAAI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
File number:		NTD 1 of 2012
Judge:		DOWSETT J
Date of judgment:		26 November 2012
Catchwords:		MIGRATION – appeal from decision of Federal Magistrate – claim based on appellant fearing persecution for having sought asylum – Sri Lankan citizen of Tamil ethnicity and a Hindu by religion – Minister’s power to allow protection visa pursuant to s 46A of the Migration Act 1958 (Cth) – Independent Merits Review – alleged breach of procedural fairness.
Legislation:		Migration Act 1958 (Cth) s 46A
Date of hearing:	3 May 2012
Place:	Brisbane (via video link) (Heard in Darwin)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	34
Counsel for the Applicant:	Ms N Karapanagiotidis
Solicitor for the Applicant:	Northern Territory Legal Aid Commission
Counsel for the First Respondent:	Mr T Anderson
Solicitor for the First Respondent:	Australian Government Solicitor
No appearance for the Second Respondent, at the hearing, he having indicated that he would abide any order of the Court, save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 1 of 2012

BETWEEN:

DZAAI
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	26 NOVEMBER 2012
WHERE MADE:	BRISBANE (VIA VIDEO LINK) (HEARD IN DARWIN)

THE COURT ORDERS THAT:

1.the appeal be dismissed; and

2.the appellant pay the first respondent’s costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 1 of 2012

BETWEEN:

DZAAI
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	DOWSETT J
DATE:	26 NOVEMBER 2012
PLACE:	BRISBANE (VIA VIDEO LINK) (HEARD IN DARWIN)

REASONS FOR JUDGMENT

THE APPLICATION

1. The applicant is a single male, born on 26 April 1981 in the north-east of Sri Lanka. He is of Tamil ethnicity and a Hindu by religion. His parents and siblings remain in Sri Lanka. Because of the circumstances in which he arrived in Australia he is not entitled to apply for a protection visa. However the first respondent (the “Minister”) may grant such a visa pursuant to s 46A of the Migration Act 1958 (Cth) (the “Act”). An administrative procedure has been developed for dealing with persons who seek the exercise of this discretion. The first step involves the preparation by a departmental officer of a Refugee Status Assessment (“RSA”). The purpose of the assessment is to determine whether or not Australia owes protection obligations to that person pursuant to the United Nations Convention Relating to the Status of Refugees and or/the Protocol Relating to the Status of Refugees. If the RSA is unfavourable, the person may seek an Independent Merits Review (“IMR”). The IMR is subject to judicial review. In the present case, the applicant’s RSA was unfavourable, as was the subsequent IMR. The IMR was conducted by the second respondent (the “Reviewer”). The applicant sought review of the IMR in the Federal Magistrates Court but was unsuccessful.

   LEAVE TO APPEAL

2. The appellant did not appeal within the prescribed time but then applied for an extension of time in which to do so.  For reasons which I have given, I granted such an extension, but only in respect of grounds 1 to 6 in annexure CO1 to the affidavit of Carl O’Connor filed on 24 April 2012.  I shall hereafter refer to the applicant as the “appellant”.  The Reviewer has indicated that he will abide any order of the Court, save as to costs.

   THE CLAIM

3. The appellant asserts that in 2006 a terrorist insurgent organization (the “LTTE”) commenced to recruit young Tamils to fight in its insurgency campaign in Sri Lanka.  At that time the appellant had his own business.  He gave it up because he knew that if he were caught by the LTTE, they would force him to fight for them.  He hid on his family’s farm, assisting his father.  When the LTTE visited he would hide in the jungle.  In 2008, during one such visit, the LTTE abducted his father and forced him to work for them by digging bunkers.  The appellant asserts that they did so in order to encourage him to fight for them.  In November 2008, whilst visiting his parents, he was captured by the LTTE who took him to a camp in order to train him.  He refused to undergo training.  They punished him with hard manual labour.  He was held at the camp for approximately 14 days.  One night, during an air attack by government forces, he escaped and was reunited with his family.  They fled to a location which was controlled by government forces.  Males and females were separated.  His photograph was taken.  He was threatened in order to find out if he were an LTTE member.  He was then taken to a refugee camp where he was kept apart from his family, regularly beaten and questioned.  He claims to have been beaten for three days before escaping from that camp.  He travelled via Vavunia and Colombo to the coast, and then to Australia by sea.  He has seen many young Tamils killed by the Criminal Investigation Department (“CID”) or the Sri Lankan armed forces.  The parents of such victims were told that their children had escaped. 

4. The appellant claims to fear that he will be killed if he returns to Sri Lanka.  He fears the government forces, including the CID, and LTTE members.  He says that he will be killed by government forces because he is a Tamil, has lived his life under LTTE control and is therefore suspected of being an LTTE member.  Alternatively, the LTTE will kill him because he did not support them during the insurgency.

5. The Reviewer noted that since 19 May 2009 when the government declared victory over the LTTE, security conditions in Sri Lanka had improved.  Although many persons were displaced by the insurgency and counter-insurgency operations, they were being returned to their original regions.  Emergency legislation had been relaxed, but military check points remained on main roads.  There was a highly visible military presence, reportedly to prevent the re-establishment of the LTTE by cadres still at large.  The government had established a “Truth and Reconciliation Commission” to examine “lessons to be learnt from events” between February 2002 and May 2009.  The Secretary General of the United Nations had appointed a panel of experts, mandated to advise on the question of accountability with regard to any alleged violations of international human rights and humanitarian law during the final stages of the conflict.  The United Nations High Commissioner for Refugees (the “UNHCR”) considered that established refugee status should not presently be withdrawn.  The UNHCR further considered that all claims by asylum seekers from Sri Lanka should be considered on their individual merits, taking into account up-to-date and relevant country information.  Some groups required particularly careful examination.  Those at potential risk included persons suspected of having links with the LTTE, journalists and other media professionals, civil society and human rights activists, women and children with certain profiles and lesbian, gay, bisexual and transgender persons. 

6. The appellant claims also to fear persecution for reason of his having sought asylum.  The Reviewer noted that the Australian High Commission in Colombo had advised the UK Foreign and Commonwealth Office that there were no procedures in place to identify failed asylum seekers.  The government would learn that a failed asylum seeker had returned to Sri Lanka only if the relevant airline or the IOM (“International Organization for Migration”) notified it, or if the person was under escort.  The UNHCR expressed no concern about the treatment of Tamil returnees at Colombo airport, although some failed asylum seekers were being interviewed by the CID.  A suspect would be subjected to a quick, and usually non-problematic interview with the CID, involving questions as to why he or she had left Sri Lanka and how long he or she had been away.  High profile cases, such as persons suspected of having involvement with the LTTE, might be taken away for further questioning, usually by the police.

7. In August 2009 the United Kingdom Foreign and Commonwealth Office undertook a survey of commentators concerning the manner in which Tamil returnees were processed at Colombo Airport.  It found that enforced returnees of whatever ethnicity were referred to the CID at the airport for nationality and criminal record checks.  This process might take more than 24 hours.  All enforced returnees were fingerprinted.  Depending upon the case, the person might be referred to the State Intelligence Service (“SIS”) and/or the Terrorist Investigation Department (“TID”) for questioning.  Anyone wanted for an offence would be arrested.  Those with criminal records or LTTE connections would face additional questioning and might be detained.  There was general agreement that Tamils from the north and east of the country were likely to receive greater scrutiny than others, and that factors which would increase the risk of encountering difficulties were:

   ·outstanding arrest warrants;

   ·criminal records;

   ·connection with the LTTE;

   ·illegal departure from Sri Lanka;

   ·involvement with media or NGOs; and

   ·lack of an ID card or other documentation.

8. The Reviewer accepted that:

   ·the appellant and his family came from an LTTE area in Sri Lanka;

   ·he had tried to avoid being recruited by the LTTE;

   ·his father was taken by the LTTE in his stead;

   ·the appellant was eventually taken by the LTTE, but refused to be trained and was physically abused;

   ·he escaped from the LTTE and was subsequently detained by the Sri Lankan army, questioned and beaten (by the army and the CID) for three days before he was able to escape; and

   ·the appellant then made his way to Colombo and on to Australia. 

9. The Reviewer also appears to have accepted that the appellant feared that, if returned to Sri Lanka, he would be detained, tortured and killed by the authorities as a perceived LTTE supporter, such perception being based on the fact that he came from a former LTTE area, had escaped from army custody and had departed Sri Lanka illegally.  The Reviewer accepted that upon return, the appellant might well be interrogated by Sri Lankan authorities to determine whether he was a security risk, and that the authorities might suspect that he was a failed asylum seeker.  However the Reviewer considered that it was “significant and determinative” that he had never actually been involved with the LTTE, had resisted their attempts to recruit him and had escaped from their custody.  Of some importance is the following sentence in para 45 of the Reviewer’s decision:

   Presumably if the Sri Lankan authorities have records of his interrogations by them, this is what he had told them.

10. The Reviewer also noted that many thousands of Tamils who had previously been held and interrogated by the authorities, including members of the appellant’s own family, had been released and were now leading normal, albeit “post-conflict” lives.  The Reviewer accepted that independent country information indicated that human rights abuse was declining in frequency, and that the majority of people were beginning to live relatively normal lives.  The Reviewer also took into account the appellant’s lack of any political profile.  The Reviewer was not satisfied that upon the appellant’s return, and following any investigation, there would be any real chance that he would be at risk of serious harm from government forces or agencies.

11. Concerning the appellant’s claim to fear harm from the LTTE, the Reviewer considered that the UNHCR’s analysis demonstrated that the LTTE had been decisively defeated, and that the Sri Lankan army was firmly in control of former LTTE areas.  Hence the Reviewer concluded that there was no real chance that the LTTE would harm the appellant.  The Reviewer also considered that there was no real chance of a resurgent LTTE being able to cause such harm.

12. Thus the Reviewer rejected the appellant’s claim to refugee status.

    THE APPLICATION FOR REVIEW

13. The Federal Magistrate identified five grounds for review.  I shall consider separately the way in which the Federal Magistrate dealt with each ground. 

    Ground 1 – The Reviewer failed to take a relevant consideration into account in his exercise of power; namely, the [appellant’s] status as a LTTE suspect by reason of being a fugitive of the Sri Lankan authorities.

14. The appellant submitted that the Reviewer had accepted his claim to have been detained and interrogated by the army and the CID because he was suspected of being involved with the LTTE but had, nonetheless, concluded that he would not be at risk of serious harm if he were returned to Sri Lanka.  The Federal Magistrate observed that the appellant had actually claimed to have been interrogated and beaten in order to discover whether he was involved with the LTTE, rather than because of any actual suspicion.  His Honour considered the distinction to be important.  However it is not clear to me that in drawing the distinction, the Federal Magistrate was factually correct.  In his initial claim (which appears at para 12 of the Reviewer’s reasons) the appellant asserted that the interrogators threatened him in order to discover whether he was an LTTE supporter.  However in his interview with the Reviewer (noted at para 20 of the Reviewer’s reasons) he claimed that the army had accused him of being an LTTE supporter.  I shall return to this matter at a later stage.  His Honour also noted that the appellant had not suggested that, in his interrogation, he had pretended to be an LTTE sympathizer or supporter, presumably to avoid further violence.  Any such pretence may have led to a well-founded fear of future harm at the hands of the Sri Lankan authorities. 

15. The Federal Magistrate understood the appellant’s complaint to be that the Reviewer had not considered whether his escape from the custody of the Sri Lankan authorities might, upon his return, create a suspicion of LTTE involvement.  His Honour found that the Reviewer had taken this matter into account.

    Ground 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.

16. The Federal Magistrate directed himself that the exercise of the power would be improper if no reasonable person could have so exercised it, and that a decision-maker must act reasonably and rationally.  His Honour then observed that the appellant submitted that the Reviewer had given a disproportionately low level of consideration to his background and to country information relating to the “level of hostility, inquiry and vigilance surrounding young Tamils”.  The appellant had also submitted that a reasonable person, having regard to the evidence of his background and situation in Sri Lanka, would not have found that there was “not a real chance” of his facing significant harm in the event that he returned to Sri Lanka.  The Federal Magistrate observed that such a submission might amount to an invitation impermissibly to review the merits of the decision.  His Honour concluded that whilst it may have been open to another reviewer to reach a different conclusion, “what another reviewer may have done has never been an indicator of jurisdictional error …”.  In other words, he concluded that the decision did not demonstrate unreasonableness in the sense that there had been no proper exercise of the power.

    Ground 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 [appellant].

17. The Federal Magistrate rejected this submission on the ground that “the question of weight is one solely for the reviewer”. 

    Ground 4 – The Reviewer gave excessive weight to the evidence of country information provided by the First Respondent in the Application.

18. The Federal Magistrate rejected this submission, also upon the basis that the weight to be given to evidence was a matter for the Reviewer.

    Ground 5 – The Reviewer did not give procedural fairness to the [appellant] by failing to respond to the Reviewer’s ultimate presumption that during the [appellant’s] numerous interrogations with the Army and the CID, he would have stated that he had “never been involved with the LTTE”.

19. This ground of appeal emerges from para 45 of the Reviewer’s reasons which reads:

    In the light of the independent country evidence discussed with the [appellant], 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 [appellant] was never actively involved with 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.

20. The appellant’s submission seems to have been that he was not given an opportunity to comment upon the Reviewer’s inference that if there were any record of his interrogation, it would presumably demonstrate that in his interrogation, he denied involvement with the LTTE and asserted that he had resisted recruitment and escaped after 14 days.  The Federal Magistrate concluded that it could not be inferred from the appellant’s claim that he had told his interrogators that he had no involvement with the LTTE.  However his Honour then observed that the appellant had not advanced any particular account of his responses under interrogation and that, in those circumstances, it was open to the Reviewer to infer that, if there were a record, it would reveal that he gave an account of his time in the custody of the LTTE which reflected the account given to the Reviewer.  The Federal Magistrate dismissed the application for review.

    NOTICE OF APPEAL

21. As appears from the affidavit of Carl O’Connor filed on 24 April 2012, the grounds of appeal are as follows:

    1.His Honour erred in finding that [the Reviewer] had considered the [appellant’s] status as an LTTE suspect by reason of being a fugitive of the Sri Lankan authorities.

    2.His Honour should have held that the [Reviewer] erred in law in failing to consider whether the [appellant] would be an LTTE suspect by reason of escaping the Sri Lankan authorities.

    3.His Honour erred in finding that the decision of the [Reviewer] was not unreasonable.

    4.His Honour should have held that it was unreasonable for the [Reviewer] to conclude that a person who had escaped from the Criminal Investigation Division (“CID”) custody might not fall under suspicion upon his return from Australia and/or be at risk of serious harm.

    5.His Honour erred in finding that the [appellant] had not been denied procedural fairness by reason of the [Reviewer’s] failure to raise with him matters concerning his interrogation by the Sri Lankan Army and the CID (ground 3).

    6.His Honour should have held that the failure to raise the issue of the [appellant’s] interrogation by the Sri Lankan Army and the CID constituted a breach of procedural fairness.

1. For reasons which I have given, I gave leave to file a notice of appeal on the above grounds.

   GROUNDS 1, 2, 3 AND 4

2. Grounds 1, 2, 3 and 4 are related.  They arise out of the fact that, prior to the appellant’s departure for Australia, he had escaped from the custody of the Sri Lankan authorities.  The appellant submits that such escape might, by itself, or in conjunction with his Tamil ethnicity, his prior residence in LTTE dominated areas, his period of detention by the LTTE and his illegal departure from Sri Lanka lead to suspicion, or increased suspicion that he is, or was an LTTE supporter or sympathizer.  It is said that the Federal Magistrate:

   ·erred in finding that the Reviewer had considered this matter;

   ·should have held that the Reviewer erred in law by failing to consider the matter;

   ·(presumably alternatively) erred in concluding that the Reviewer’s decision on this matter was not unreasonable; and

   ·should have held that it was unreasonable for the Reviewer to have concluded that a person who had escaped from custody might not fall under suspicion and/or be at risk of harm as an LTTE supporter or sympathizer.

3. As this argument was developed in the appellant’s written outline, it was that the appellant’s claim to fear persecution for reason of his escape from custody was rejected by the Reviewer on the basis that he had no “political profile”.  The Reviewer referred to the appellant’s circumstances, including his detention by the authorities, his interrogation, his escape and his illegal departure from Sri Lanka, but was not satisfied that he would suffer serious harm in any interrogation upon his return to Sri Lanka.  It cannot be said that the Reviewer failed to take into account the appellant’s escape from custody.

4. The appellant then argues that the Reviewer acted unreasonably in not finding that he might be suspected of LTTE involvement because he had escaped from custody, and therefore be at risk of serious harm.  As I have demonstrated, the Reviewer clearly understood that the appellant claimed to fear persecution for, amongst other things, his escape from government custody.  However, because of the decline in human rights abuse and the absence of any evidence of actual LTTE support on the part of the appellant, he was not satisfied that the appellant was at risk of such harm.  The Reviewer accepted, however, that upon his return to Sri Lanka, the appellant might be interrogated.  In other words, the Reviewer accepted that the appellant had been previously detained for interrogation because he was a young Tamil male from a particular part of the country, but did not accept that it was likely that he would suffer serious harm in any later interrogation or otherwise. 

5. Implicit in this view is the proposition that the circumstances in Sri Lanka are now such that there is no real risk that a person in the position of the appellant will suffer serious harm.  That “position” is of a young Tamil male from a previously Tamil-dominated area, who has no “profile” as a Tamil supporter, notwithstanding that he was previously detained and interrogated by the Sri Lankan authorities, escaped from custody, left the country illegally and sought asylum in Australia.

6. The appellant points to information contained in the UK Foreign and Commonwealth Officer report dated August 2009 which suggests that a person who had “jumped bail” or escaped from custody would, upon return to Sri Lanka, be stopped and produced to the court.  On that basis, he submits that the Reviewer’s decision that there was no real risk of serious harm was unreasonable.  It is not immediately clear to me that the reference to custody was custody of the sort experienced by the appellant.  It is more likely that the reference was to a person who had escaped from custody whilst held on a charge.  In any event, apprehension and production to a court could hardly constitute persecution, at least in the conditions which, as the Reviewer found, now prevail in Sri Lanka.

7. The Reviewer’s reasons disclose no jurisdictional error.  Grounds 1 to 4 must fail.

   GROUNDS 5 AND 6

8. These grounds arise out of para 45 of the Reviewer’s reasons.  I have previously set out that paragraph.  The appellant submits that the Reviewer denied him procedural fairness by failing to raise for comment the possible inference contained in the last sentence of para 45, namely that the appellant had, during his interrogation, given the authorities an account of his contract with the LTTE which was similar to that given to the Reviewer.

9. There appears to have been no direct evidence as to what the appellant told his interrogators.  Curiously, in an affidavit filed in the Federal Magistrates Court on 20 July 2011, the appellant claimed that, under duress, he had admitted that he had “some connection to the LTTE”.  The affidavit was affirmed on 15 July 2011, after the IMR decision and the application for review, but before the hearing in the Federal Magistrates Court.  The intended purpose of the affidavit may have been to indicate that, had the appellant been asked, he would have said that he had confessed to an LTTE connection, but only under duress.  In any event, neither party has relied on the affidavit, either before the Federal Magistrate or in this Court.

10. The Federal Magistrate appears to have accepted that there was no direct evidence as to what the appellant had told his interrogators but considered that there was, nonetheless, a basis for inferring that any record of his interrogation probably contained a version of events consistent with the information given by him to the Reviewer.  Given that the appellant had not suggested that he feared persecution because of any false admission to the authorities of involvement with the LTTE, it was reasonable to infer that he had either made no such admission or had actively denied such involvement.  However that inference does not dispose of the procedural fairness question.  That question, in effect, depends upon whether the appellant should reasonably have understood that the Reviewer would infer from his account that he had told his interrogators that he had no links to the LTTE or perhaps, that his only contact was as, in effect, a prisoner. 

11. The appellant told the Reviewer that he had no connection with the LTTE apart from its attempts to recruit him and the period spent in its custody.  He also told the Reviewer that he was interrogated by the Sri Lankan authorities concerning his association with the LTTE but said nothing about the content of the interrogation.  In the absence of any evidence to the contrary, the Reviewer would naturally have inferred that the appellant gave his interrogators the same information as he gave to the Reviewer.  Had the case been otherwise, the appellant would surely have said so.  In effect, the appellant invited the Reviewer to draw the inference which he, in fact, drew.  As I have said, an alternative inference might have been that he told them nothing.  Either inference would have led to the conclusion that whatever was said, it was unlikely to lead to enhanced suspicion or future persecution.  One must make some allowance for the difficulties under which the appellant laboured at the interview, but he had assistance.  In my view the rules of procedural fairness did not require that he be given an opportunity to assert that he had made false admissions to the authorities or to deny that he had given his interrogators an account which was similar to that given to the Reviewer.  

12. Grounds 5 and 6 must fail.

    ORDERS

13. The appeal must be dismissed with costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       26 November 2012