DZABX v Minister for Immigration - [2012] FMCA 1157

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZABX v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1157

MIGRATION – Judicial review – independent merits review – whether failure to provide country information – whether failure to provide opportunity to comment on country information – whether failure to deal with claims of risk of persecution – whether error of law – whether denial of procedural fairness.

Migration Act 1958 (Cth), ss.5, 476
1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees

Applicant M87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs & Ors (2005) 214 ALR 310; [2005] FCA 23
Applicants M1015 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 225 CLR 88 [2005] HCA 72
Darabi vMinister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371
DZAAZ v Minister for Immigration & Anor [2012] FMCA 39
Kioa & Ors v West& Anor (1985) 159 CLR 550
Minister for Immigration & Citizenship v MZYLE (No. 2) [2011] FCA 1467
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Muin v Refugee Review Tribunal & Ors (2002) 190 ALR 601; [2002] HCA 30
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2005) 144 FCR 1; [2005] FCAFC 263
Plaintiff M61/2010E & Ors v The Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41
Re Minister for Immigration & Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489; [2001] HCA 77
SZMDS v Minister for Immigration & Citizenship & Anor (2010) 243 CLR 611; [2010] HCA 16
SZQEK v Minister for Immigration & Anor [2011] FMCA 628
SZQNF v Minister for Immigration & Anor [2011] FMCA 965
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) ALD 559; [2004] FCAFC 82

Applicant:

DZABX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

ANNE GRANT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 59 of 2011

Judgment of:

Lucev FM

Hearing date:

30 March 2012

Date of Last Submission:

30 March 2012

Delivered at:

Perth

Delivered on:

7 December 2012

REPRESENTATION

Counsel for the Applicant:

Ms N Karapanagiotidis

Solicitors for the Applicant:

Northern Territory Legal Aid Commission

Counsel for the Respondents:

Mr T Anderson

Solicitors for the Respondents:

Australian Government Solicitor

DECLARATION AND ORDER

The Court declares that the Second Respondent, in his capacity as an independent merits reviewer, denied the Applicant procedural fairness by failing to provide to the Applicant adverse country information contained in the UK Border Agency, Country of Origin Information Report, Sri Lanka, of 11 November 2010.
The Court orders that the First Respondent, whether by himself or by his servants, officers, delegates or agents, be restrained from relying upon the Second Respondent’s recommendation of 25 August 2011.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

DNG 59 of 2011

DZABX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

ANNE GRANT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Application

The applicant seeks relief under s.476 of the Migration Act 1958 (Cth),[1] in respect of a recommendation made by an independent merits reviewer.[2] The IMR recommended that, as the applicant does not meet the criteria for a protection visa under the Migration Act, he not be recognised as a person to whom Australia owes protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.[3]
[1] “Migration Act”.
[2] “IMR Recommendation” and “IMR” respectively. The IMR Recommendation is at Court Book (“CB”) 146-166
[3] “Convention”. See CB at 165-166, para.65.

Relief sought

Pursuant to an amended application filed 28 February 2012 the applicant seeks the following relief:
a)a declaration that the IMR Recommendation was not made in accordance with law, by reason of the grounds of the amended application;
b)an injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the IMR Recommendation;
c)an order remitting the matter to the IMR (differently constituted) for determination according to law;
d)any other orders which the Court thinks fit; and
e)costs.

Jurisdiction

The amended application, which seeks injunctive relief in this Court in relation to the still to be completed decision-making process by the Minister in relation to the IMR Recommendation, is within this Court’s jurisdiction for relief in relation to a migration decision.[4]
[4] Migration Act, s.476(1); Plaintiff M61/2010E & Anor v The Commonwealth of Australia & Ors (2010) 243 CLR 319 at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”); Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at para.31 per Nicholls FM (“Darabi”).

Grounds of application

There are two grounds of the application which are set out below together with the parties’ submissions and the Court’s consideration in relation to each ground.

Background leading to the IMR Recommendation

The applicant is an offshore entry person, as defined in s.5 of the Migration Act. He arrived at Christmas Island on 10 May 2010 and submitted claims in support of a request for a Refugee Status Assessment[5] on 7 August 2010.[6]
[5] “RSA”.
[6] CB 30-73.
The applicant claims that:
a)he was born in Sri Lanka and is of Tamil ethnicity and Hindu religion;
b)in 1999, in Sri Lanka the applicant was detained as he didn’t have his identification pass and the army were checking passes because of an incident. The applicant was taken to a camp, beaten and tortured and then ultimately released when his mother brought his identification pass;
c)there were no other incidents with the army until 2005, when:
i)one day there was an explosion in his town;
ii)the applicant’s house was situated near the army camp;
iii)after the explosion the military came and asked for the applicant’s van for their own use;
iv)the applicant refused to give the van to the soldiers, and one of them slapped him, and they took the van;
v)when the applicant refused to give the army the van he was accused of sympathising with the Liberation Tigers of Tamil Eelam;[7]
[7] “LTTE”.
vi)his father went to the army camp to get the van; and
vii)his father paid them and they stated to him that his “son is favouring the LTTE and we will always have our eye on the LTTE”;
d)a day after the applicant’s father had collected the van the Eelam People’s Democratic Party[8] came to the applicant’s house and asked about the applicant. His mother called him and told him to go to his uncle’s house. The applicant stayed at his uncle’s house for about a month and a half;
e)at the beginning of February 2006 there was an ambush of a navy bus in which 62 people died near Pesalai. The applicant was caught in this incident and beaten up by the Sri Lankan army. The ambush was believed to have been conducted by the LTTE;
f)after this incident, the applicant left Sri Lanka and went to India with his wife. In India he lived as a refugee in a camp, with no formal status. He has not returned to Sri Lanka since that time. He separated from his wife whilst they were in India;
g)after the applicant left his village, the applicant’s cousin was taken away and detained twice by paramilitary groups;
h)the applicant claimed he could not return to Sri Lanka because paramilitary groups were still taking revenge on people who cheated them. He feared being arrested or killed. The applicant agreed that the LTTE had been eliminated but claimed that the paramilitary groups were still active and waiting to do him harm;
i)in addition to the claims outlined above, the applicant claimed that his wife had since re-married in India, and that her new partner was a member of the People’s Liberation Organisation of Tamil Eelam.[9] The applicant claimed to have previously had an argument with this man about politics and feared harm because of this;
j)in 2009 local authorities came to his home looking for him, and when they could not find him they detained his brother-in-law, who was released after about three days following payment of a bribe;
k)he believes he is still of interest to the authorities and would be at risk of detention if he returned to Sri Lanka now;
l)a friend of his who had experienced similar problems, was detained at the time of his departure for India, subsequently released, and then detained again under the emergency regulations in October 2010 and that his current whereabouts are unknown;[10] and
m)the applicant also claimed to be at risk of persecution in Sri Lanka if returned as a failed asylum seeker.
[8] “EPDP”.
[9] “PLOTE”.
[10] CB 140-141 and 150.
The applicant was told by the people smuggler to say that he had come directly to Australia from Sri Lanka.[11]
[11] CB 152.
On or about 29 May 2010, the applicant participated in an entry interview.[12]
[12] CB 6-30 (“Entry Interview”).
On 31 August 2010, the RSA found that Australia did not owe the applicant protection obligations.[13] Relevantly, the RSA Decision cited[14] the “UK Home Office, Country of Origin Report – Sri Lanka – 18 February 2010”,[15] and found that, “apart from being questioned in line with normal official security procedures, … the claimant would not be of interest to the authorities if he were to return to Sri Lanka”.[16]
[13] CB 76-87 (“RSA Decision”).
[14] CB 78.
[15] “UK HO February 2010 Report”.
[16] CB 87.
On 10 September 2010 the applicant requested an independent merits review of the RSA Decision.[17] The applicant made written submissions to the IMR via his solicitors on 9 February 2011.[18] Relevantly, the submissions addressed the situation of returnees, quoting the Executive Summary of the Report of the Foreign and Commonwealth Office[19] information gathering visit to Colombo, Sri Lanka on 23 to 29 August 2009, dated 22 October 2009,[20] as quoted in a decision by the Refugee Review Tribunal.[21] The most recent authoritative source of information on the subject of returned asylum seekers in the UK HO February 2010 Report was the FCO October 2009 Report,[22] and the UK HO February 2010 Report quoted the Executive Summary in full, as had the Tribunal.[23]
[17] CB 95-97.
[18] Supplementary Court Book (“SCB”) 1-7 (“9 February 2011 Submissions”).
[19] “FCO”.
[20] Further Supplementary Court Book (“FSCB”) 1-47 (“FCO October 2009 Report”).
[21] “Tribunal”, 1002652 [2010] RRTA 557 at para.53; SCB 6.
[22] FSCB 60-64 paras.33.21-33.26.
[23] FSCB 61 para.33.22.
The applicant also relied on the content of email exchanges between his adviser and the IMR.[24]
[24] CB 102-103.
The applicant admitted to the IMR that he had not previously provided an accurate account of his history because of the advice of the people smuggler.[25]
[25] CB 140-141 and 150.
The IMR conducted an interview with the applicant on 7 June 2011.[26] During the IMR Interview the applicant directed the IMR’s attention to further material supporting the proposition that some returned Tamil asylum seekers were detained and tortured by the Sri Lankan authorities.[27] After the IMR Interview the applicant gave the IMR an article dated 5 December 2010 titled “Sri Lanka: Deported asylum seekers face torture, gaol” published by Green Left Weekly.[28]
[26] “IMR Interview”; CB 146.
[27] CB 153 at para.18 (fourth last dot point). The transcript of the IMR Interview (“IMR Transcript”) is Annexure A to the affidavit of Marg Le Sueur affirmed 27 January 2012. See IMR Transcript, page 23.
[28] CB 154 at para.22; FSCB 65-67.
After the IMR Interview additional material was provided by the applicant to the IMR as follows:
a)birth certificate for the applicant’s son born in Tamil Nadu, India in 2006;
b)Human Rights Commission of Sri Lanka card with numbers apparently representing a file;
c)Department of Defence receipt for person arrested under the Emergency Regulations or the Prevention of Terrorism Act, showing a date of arrest as “2010.10.02”;
d)internet article entitled: Migrant who had returned to Motherland Abducted and Killed by Burning referring to an incident said to have occurred on 17 April 2011;
e)Green Left Weekly article of December 5, 2010 entitled: Sri Lanka: Deported asylum seekers face torture, gaol;
f)Tamilnet article dated 18 March 2011 referring to 5653 cases of ‘disappeared’ persons pending in Sri Lanka;
g)submission relating to the question: is there a return to some level of normality for much of the Tamil population (this submission contains reference to several different articles);
h)an email attaching his Mandapam Camp (India) identity card which identifies the applicant and his then wife as refugees from Sri Lanka and appears to bear an issue number of 162/06; and
i)email dated 11 June 2011 including links to a number of online articles.[29]
[29] CB 153-154.

IMR Recommendation

On 25 August 2011 the IMR recommended that the applicant not be recognised as a person to whom Australia has protection obligations.[30]
[30] CB 166 at para.65.
The IMR accepted the applicant’s account of his experiences in Sri Lanka,[31] but was not satisfied on the basis of that account that “he is at risk of persecution in the reasonably foreseeable future for his actual or imputed political opinions, or due to suspicion of links with the LTTE he if he were to return to Sri Lanka”.
[31] CB 159-163 at paras.39-56.
Dealing with the applicant’s claim that he feared persecution as a failed asylum seeker, the IMR:
a)noted that his fear was predicated upon being suspected of having links with the LTTE;[32]
b)quoted the Executive Summary of the FCO October 2009 Report, as put to her by the applicant,[33] noting that it was “generally consistent” with the UK Home Office, Country of Origin Information Report – Sri Lanka – 11 November 2010”,[34] a report earlier referred to by the IMR,[35] and described as her “principal source of information”;[36] and
c)concluded that “there is not a real chance that [the applicant] will be persecuted as a member of a particular social group (returned asylum seekers)”[37] as he would not be identified as a person suspected of having links to the LTTE, consistent with her earlier findings.[38]
[32] CB 165 at para.62.
[33] CB164-165 at para.61.
[34] “UK HO November 2010 Report”, a copy of which appears at CB 269-517; CB 165 at para.62.
[35] CB 157 at para.35.
[36] CB 164 at para.60.
[37] CB 165 at para.64.
[38] CB 165 at para.62.
The IMR referred extensively to independent country information.[39]
[39] CB 154-159 at paras.23-37.
The IMR noted that there were a number of variations over time in the applicant’s story and a number of new claims made in the interview before the IMR. Notwithstanding these findings the IMR ultimately found the applicant to be “generally credible” and accepted the applicant’s factual claims.[40]
[40] CB 161 at para.46.
In relation to the applicant’s factual claims, the IMR:
a)stated:
I accept that [the applicant] experienced each of these incidents forming the basis of his claim.[41]
[41] CB 161 at para.46.
b)made the following finding:
However, I find that none of the incidents he described and experienced suggest that [the applicant] himself was specifically targeted on any occasion because of any suspected support for, affiliation or link with the LTTE. I am not satisfied that the incidents, even when considered as a whole, support a finding that he would be imputed as having supported the LTTE or with having had links to the LTTE during the conflict. Even taking into account the comment by the army officers at the time of the van incident, I find that, when considered together, there is nothing which indicates that [the applicant] is reputed to be or likely to be imputed to be a member of the LTTE, or a supporter of the LTTE if he came to the attention of the authorities or paramilitary organisations in Sri Lanka. I note particularly that all three incidents are singular and unrelated to each other.[42]
c)accepted that the EPDP had attended the applicant’s house,[43] but noted that the applicant “told me during my interview …. that his family had not had any recent difficulties with the authorities despite residing in the same area”;
d)did not accept that there was any evidence to indicate that the applicant remained of interest to or was sought by the EPDP as a person formerly affiliated with or supportive of the LTTE;[44]
e)did not accept that the detention of a relative of the applicant supported the conclusion that the applicant had a profile or was of interest as the authorities had released the relation almost immediately upon the payment of a bribe;[45]
f)found that the applicant and his former partner and her husband may bear a personal motivation to cause the applicant difficulty if he returned to Sri Lanka, but considered this to be remote and speculative given both lived in India;[46] and
g)accepted that the applicant subjectively feared serious harm, but found that they were not well founded fears, given the nature of the incidents as described by the applicant, and based on country information.[47]

Grounds of review

[42] CB 161-162 at para.47.

[43] CB 162 at para.48.

[44] CB 162 at para.48.

[45] CB 162 at para.49.

[46] CB 162 at para.50.

[47] CB 162-163 at paras.53-55.

Ground 1

Ground 1 is as follows:
1. The reviewer denied the applicant procedural fairness by failing to provide the applicant with adverse country information and/or an opportunity to comment upon adverse country information
Particulars
(a)    The reviewer referred to and relied upon the UK Border Agency, Country of Origin Information Report, Sri Lanka, of 11 November 2010.
(b)    In particular, the report was relied upon by the reviewer to support the finding that the applicant would not be at risk of persecution on the grounds of being a failed asylum seeker.
(c)     The information in the report was relevant, credible and adverse to the applicant.
(d)    The reviewer’s failure to disclose the information to the applicant constituted a denial of procedural fairness.

Applicant’s submissions

The applicant submits that:
a)the common law rules of procedural fairness apply to IMR assessments. The duty upon a decision-maker is to put to the applicant information that is adverse to his interests and is credible, relevant and significant to the decision to be made;[48]
[48] Citing Kioa & Ors v West& Anor (1985) 159 CLR 550 at 628-629 per Brennan J; Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 225 CLR 88 at 95-96 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; [2005] HCA 72 at paras.16-17 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ (“Applicant VEAL”); Plaintiff M61 CLR at 356-357 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.91 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
b)the applicant claimed that he was at risk of persecution on the grounds of being a failed asylum seeker. As summarised by the IMR, the claim was as follows:
The argument has been raised in this case that a person with a profile as what may be termed ‘a failed asylum seeker returning from a western country to Sri Lanka’ would also be at risk of being subject to persecution (illegal detention, torture and assault) on return as a consequence of having been unsuccessful in their application for asylum, and the suspicion that their lack of success may be based on their perceived involvement with the LTTE and or political views.[49]
[49] CB 157 at para.34.
c)the IMR referred to and relied upon the UK HO November 2010 Report,[50] which had not been referred to in the RSA Decision, the applicant’s submissions, or by the IMR at the IMR Interview;
[50] CB 157 at para.35 and CB 269-517.
d)in particular, the UK HO November 2010 Report was relied upon by the IMR to support the finding that the applicant would not be at risk of persecution on the grounds of being a failed asylum seeker. The IMR stated:
I could find no independent evidence that supported a finding that a failed asylum seeker was at risk of persecution solely by reason of having failed in an application for protection if he or she was to return to Sri Lanka … I note the UK Border Agency Home Office Country of Origin Information Report: Sri Lanka 11 November 2010 as referred to above reports that returned asylum seekers are likely to be detained and questioned if their name appears on a watch list, or if they have a record as a detention escapee, former LTTE member or a criminal warrant. There is no evidence before me suggesting that [the applicant] fits within those criteria and I find that he does not.[51]
e)the only time this issue was raised at IMR Interview was as follows:
Ms GRANT: In the submission that’s before me from your agents they suggested that you might also fear persecution because if you’re returned to Sri Lanka as a failed asylum seeker – do you have anything that you want to say about that?
[APPLICANT]: Yes, I think they’ll be a (indistinct) because there was a story that (indistinct) to my lawyer that there’s 52 Tamil people living in the boat asking (indistinct) or because they were suspected as intend to go to Australia, so that’s (indistinct) of the people waiting – living in Colombo (indistinct) so it can remind you that the person claimed to be a refugee in Australia and going back to Sri Lanka, so that sort of treatment that person is going to face it’s (indistinct) and not only that, all those 52 people (indistinct) LTTE members. There’s also a number of (indistinct) the person that speaks (indistinct) Colombo has – he doesn’t have any problems living in Sri Lanka, but he has gone through torture and gaol.[52]
f)the only time the IMR referred to country information in the IMR Interview reference was made only to broad propositions concerning “the main people who would be at risk” of a profile and no reference was made to any particular source;[53] and
g)in light of the relevance and importance of the material in the UK HO November 2010 Report, and the manner in which it was used, the IMR was required to bring it to the attention of the applicant, and also raise it as an issue that required determination.
[51] CB 164 at para.60.
[52] IMR Transcript, page 23.
[53] IMR Transcript, page 22.

Minister’s submissions

The Minister submits that:
a)the substance of the UK HO November 2010 Report:
i)was known to the applicant;
ii)known to him to be considered relevant;
iii)was addressed by him; and
iv)further, was not, and was not considered by him to be adverse,
and there was, therefore, no obligation to draw the UK HO November 2010 Report to the applicant’s attention. Alternatively, he suffered no practical injustice;
b)the authorities requiring a decision-maker to put the substance of adverse information that is credible, relevant and significant to an interested party are well known and largely uncontentious. They have recently been applied by this Court on numerous occasions in cases such as this.[54] On the relevant facts set out above, the applicant’s contention that he was denied procedural fairness because the UK HO November 2010 Report was not drawn to his attention is without merit. There are five reasons for this:
i)first, the relevant substance of the UK HO November 2010 Report was known to the applicant. The substance of the information conveyed by the relevant section of the UK HO November 2010 Report, which deals with the treatment of returned failed asylum seekers, is set out in the Executive Summary of the FCO October 2009 Report, which is extracted in full in the UK HO November 2010 Report.[55] The very same information was quoted by the applicant to the IMR in his solicitors’ submissions;[56]
ii)second, the very same Executive Summary was extracted in full in the earlier version of the UK HO November 2010 report, the UK HO February 2010 Report.[57] The RSA Decision put in issue the question of whether in the absence of the identified risk factors the applicant would be of any interest to the authorities if he were to return to Sri Lanka;
iii)third, the applicant addressed this issue in his solicitors’ written submissions to the IMR by quoting the Executive Summary in full and emphasising the risk of detention for someone with LTTE connections. Further, the subject was addressed during the interview,[58] and by the provision to the IMR of the Green Left Weekly article, which on its face was consistent with the Executive Summary;
iv)fourth, the information was not adverse to the applicant, nor did he consider it adverse, as demonstrated by the fact that he referred the IMR to it in support of his claims. His claims were always premised on being considered to have LTTE connections. His solicitors emphasised those aspects of the information considered relevant to and supportive of his claims. It was never contentious, or at least never put by the applicant, that a returned asylum seeker had a well-founded fear of persecution in the absence of one of the identified risk factors; and
v)fifth, and in the alternative, no practical injustice has arisen by virtue of the IMR’s failure to specifically direct the applicant’s attention to the UK HO November 2010 Report. The applicant’s solicitors had already made written submissions and provided such other information as was available to support the applicant’s claims. There was nothing more the applicant’s solicitors could or would have said in response to the fact that, like the Tribunal and the UK HO February 2010 Report, the UK HO November 2010 Report drew upon the FCO October 2009 report as the best source of authoritative information on returning asylum seekers. In the circumstances of this case, the absence of evidence to the contrary is compelling;[59]
c)further, the Court should not draw the inference drawn in SZQEK v Minister for Immigration & Anor[60] that the currency of the UK HO November 2010 Report was of sufficient significance to require an express reference to it during the IMR process. The report was no more current than the UK HO February 2010 Report or the Tribunal decision quoted by the applicant in that each of them relied principally upon the FCO October 2009 Report. As in SZQNF,[61] there was nothing new or different about the UK HO November 2010 Report; and
d)in contrast to SZQEK, this case has significant parallels with cases such as SZQNF and DZAAZ v Minister for Immigration & Anor.[62] A similar outcome should result. Ground 1 should be dismissed.
[54] Citing, for example, Darabi.
[55] CB 465-466 at para.33.12.
[56] SCB 6.
[57] FSCB 61 at para.33.22, cited in the RSA Decision.
[58] IMR Transcript, page 23.
[59] Citing Re Minister for Immigration & Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489 at 501 per Kirby J; [2001] HCA 77 at para.54 per Kirby J; VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) ALD 559 at 563-564 per Gyles and Conti JJ; [2004] FCAFC 82 at paras.15-16 per Gyles and Conti JJ; Applicants M1015 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309 at para.52-54 per Weinberg J (“M1015”); SZQNF v Minister for Immigration & Anor [2011] FMCA 965 at para.54-61 per Smith FM (“SZQNF”).
[60] [2011] FMCA 628 at para.46 per Smith FM (“SZQEK”).
[61] SZQNF at paras.64-66 per Smith FM.
[62] [2012] FMCA 39 (“DZAAZ”).

Consideration – ground 1

There is no doubt that the common law rules with respect to procedural fairness apply to the hearing and determination resulting in the IMR Recommendation.[63]
[63] Plaintiff M61 CLR at 356-357 and 358 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.91 and 98 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
In Plaintiff M61 the High Court said, in respect of the requirement to provide procedural fairness in relation to country information, that:
… procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims. The Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides (s.424A(1)) that the Tribunal must give an applicant "clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". But that obligation is subject to qualifications. In particular, it does not extend (s.424A(3)(a)) to information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". Hence country information is treated as a class of information which need not be drawn to the attention of applicants for review by the Refugee Review Tribunal. But those provisions were not engaged in respect of Independent Merits Reviews of the kind now under consideration or, we would add, in respect of the initial Refugee Status Assessments. The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not.[64]
[64] Plaintiff M61 CLR at 356-357 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.91 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell.
The obligation to disclose and invite comment in relation to significant new country information relied upon in a refugee determination was referred to in Re Minister for Immigration & Multicultural Affairs & Anor; Ex parte Miah[65] as follows:
99. The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her. Mr Miah was not given the opportunity to put a case by reference to the change in government in Bangladesh or to answer the case made against him by reference to that change. Procedural fairness required that he be given that opportunity.[66]
[65] (2000) 206 CLR 57; [2000] HCA 22 (“Miah”).
[66] Miah CLR at 86 per Gaudron J; HCA at para.99 per Gaudron J.
What was required of the IMR was to give the applicant a reasonable opportunity to present his case and to answer any material that the IMR had which ran contrary to his case, and for the IMR to then determine the applicant’s case in the particular circumstances of the case. That required that the applicant be afforded the opportunity to deal with adverse country information which the IMR proposed to take into account. In cases such as Miah and Muin v Refugee Review Tribunal & Ors[67] the Refugee Review Tribunal failed to afford an opportunity to deal with new information on fundamental matters.[68]
[67] (2002) 190 ALR 601; [2002] HCA 30 (“Muin”).
[68] Miah CLR at 80 and 86 per Gaudron J; HCA at paras.77 and para.99 per Gaudron J; Muin ALR at 634 per Brennan J; HCA at para.137 per Brennan J.
The basic rule as set out above with respect to procedural fairness applies. There is no rule that adverse country information must be disclosed only if it is “of crucial importance”, “determinative” or “decisive” of an application.[69]
[69] Applicant M87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs & Ors (2005) 214 ALR 310 at 319 per Kenny J; [2005] FCA 23 at para.28 per Kenny J.
In M1015 the Federal Court observed as follows:
Whether or not there has been a denial of procedural fairness in any given case is largely dependent upon the particular facts of that case. Where the decision-maker has relied upon adverse information, without providing any opportunity to comment upon it, the question whether the decision is vitiated will depend upon a range of factors. These include the importance of the material to the ultimate decision, as well as the nature of that material. Some information is purely factual and entirely incontrovertible. There may simply be no answer to it. Other information may involve a combination of fact and opinion, and may be contentious. In relation to information of that kind, the denial of the opportunity to comment upon it may give rise to procedural unfairness. Moreover, some matters are so blindingly obvious as not to require any comment or submission. In such cases, the fact that there has been no opportunity to comment will be of little or no significance.[70]
[70] M1015 at para.54 per Weinberg J.
In M1015 the application was dismissed because the Federal Court accepted that there was no practical injustice arising by the applicant not being afforded the opportunity to comment upon country information to which the Refugee Review Tribunal had referred, and accordingly there was no denial of procedural fairness.[71]
[71] M1015 at para.61 per Weinberg J.
In SZQEK the Court, having cited various passages from Plaintiff M61 and Miah, concluded that prerogative relief ought to be granted, and then went on to observe that:
… it is necessary to examine the particular circumstances, before concluding that there is an obligation to invite comment on country information identified as relevant by a refugee decision-maker. The factual issues arising in the review, the path of reasoning adopted by the decision-maker, and the novelty, credibility and materiality of the information to the decision, all need to be considered before concluding that there has been a failure of procedural fairness. Underlying the assessment is a basic concern for a fair procedure.[72]
[72] SZQEK at para.31 per Smith FM.
In SZQEK it was only in respect of the 2010 UNHCR Guidelines that a denial of procedural fairness was found. In relation to other documents the Court relevantly found:
a)with respect to two of those documents that:
50 … In short, they were both documents which had been cited in the RSA assessment, and the applicant was sufficiently on notice as to their existence and potential materiality.[73]
b)with respect to a fourth document that it was not sufficiently significant or material to the ultimate decision to warrant a finding that a failure to disclose it constituted a denial of procedural fairness.[74]
[73] SZQEK at para.50 per Smith FM.
[74] SZQEK at para.54 per Smith FM.
SZQEK shows that it is possible for the obligation to afford the applicant procedural fairness with respect to relevant country information to be met by that country information being referred to in the reasoning in, and the list of country information consulted set out in, the decision the subject of the independent merits review. In SZQEK it was the 2010 UNHCR Guidelines concerning Afghanistan, which contained new and up-to-date information which had not been put to the applicant, whose case had been run on the basis of the equivalent 2009 Guidelines.[75] SZQEK is but an example of a circumstance where an application for prerogative relief was granted on the grounds of denial of procedural fairness because the decision maker failed to invite an applicant to comment upon new information.
[75] SZQEK at paras.11, 22, 24, 37 and 44-48 per Smith FM.
The critical issue in this case is whether it was necessary for the IMR to put to the applicant the UK HO November 2010 Report, and, if so, to what extent. The UK HO November 2010 Report is a lengthy document of some 248 pages,[76] dealing, initially, with general matters of Sri Lankan geography, economy, history, and constitutional and political development.[77] Thereafter, it deals with a plethora of human rights issues under 27 separate headings, including, relevantly “Security Forces”, [78]“Arrest and Detention – Legal Rights”,[79] “Political Affiliation”,[80] “Ethnic Groups – Tamils”,[81] “Exit and Return – Treatment of returned failed asylum seekers”,[82] and “Annex C: Political Organisations”.[83]
[76] CB 269-517.
[77] CB 275-329.
[78] CB 332-354 at paras.8.01-8.76.
[79] CB 367-374 at paras.12.01-12.20.
[80] CB 379-382 at paras.15.01-15.14.
[81] CB 399-400 at paras.20.06-20.12.
[82] CB 465-471 at paras.33.11-33.23.
[83] CB 481-489.
The difficulty that arises in this case is that although the UK HO November 2010 Report is referred to by the IMR, the Minister says:
a)that the substance of what is relied upon by the IMR from the UK HO November 2010 Report in the IMR Recommendation is in fact country information that was already contained in, or substantially contained in, the UK HO February 2010 Report;
b)this information was a repetition, substantially, of the relevant country information in the FCO October 2009 Report; and
c)that the country information contained in the latter two reports was put to, and commented upon, by the applicant, thereby fulfilling the IMR’s obligations with respect to procedural fairness to the applicant.
In order to determine this issue it is necessary to trace through the history of the claim, and the use, in context, of country information, particularly the FCO October 2009 Report, the UK HO February 2010 Report and the UK HO November 2010 Report, both in the RSA Decision, by the IMR, and in the IMR Recommendation.
In the RSA Decision the UK HO February 2010 Report is cited.[84] It is not otherwise, however, expressly referred to or quoted from.
[84] CB 78.
With respect to the applicant’s return to Sri Lanka, the RSA, having set out the relevant history, concluded that the applicant’s profile was not such that he would be of interest to the Sri Lankan authorities or any Tamil groups, and that “apart from being questioned in line with normal official security procedures, … [he] would not be of interest to the authorities if he were to return to Sri Lanka.”[85] The RSA went on to observe that, taking into account country information in relation to recent developments, he was not satisfied that the applicant had a well founded fear of persecution from the Sri Lankan authorities and forces in Sri Lanka, and was therefore not satisfied that the applicant was a refugee.[86] Again, there was no specific reference to the FCO October 2009 Report or the UK HO February 2010 Report in relation to the RSA’s findings.[87]
[85] CB 87.
[86] CB 87.
[87] The UK HO November 2010 Report had yet to be published at the time of the RSA Decision.
More than five months later the applicant’s lawyers made the 9 February 2011 Submissions on the applicant’s behalf.[88] The 9 February 2011 Submissions asserted that the RSA Decision “failed to give sufficient weight to the ongoing harassment and detention of suspected LTTE members in Sri Lanka and failed to adequately consider the reasonably foreseeable future when reaching … [a] decision on … [the] application.”[89]
[88] See, generally, SCB pages 1-7.
[89] SCB 1.
Under the heading “Returnees” the 9 February 2011 Submissions submitted that:
There is also evidence that Tamils returning from overseas are the subject of heightened suspicion and consequent persecution.[90]
[90] SCB 6.
Having cited one Tribunal decision, the 9 February 2011 Submissions then cite another Tribunal decision, as well as information contained in the FCO October 2009 Report, as follows:
RRT decision 1002652 [2010] RRTA 557 (15 July 2010) 14 gave weight to information in an August 2009 … UK FCO report on the treatment of returns which surveyed a number of commentators and concluded:
Sources agreed that all enforced returns (of whatever ethnicity) were referred to the Criminal Investigations Department (CID) at the airport for nationality and criminal record checks, which could take more than 24 hours. All enforced returns were wet-fingerprinted. Depending on the case, the individual could also be referred to the State Intelligence Service (SIS) and / or Terrorist Investigation Department (TID) for questioning. Anyone who was wanted for an offence would be arrested. Those with a criminal record or LTTE connections would face additional questioning and may be detained. In general, non-government and international sources agreed that Tamils from the north and east of the country were likely to receive greater scrutiny than others, and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities, including possible detention:
outstanding arrest warrant

criminal record

connection with LTTE

illegal departure from Sri Lanka

involvement with media or NGOs

lack of an ID card or other documentation[91]
[91] SCB 6 (emphasis in original).
During the IMR Interview:
a)the IMR told the applicant that he was free to disagree with anything that he did not think the IMR had “got … right”;[92]
[92] IMR Transcript, page 5.
b)the IMR asked the applicant why he did not think he could go back to Sri Lanka to which the response, as transcribed, was as follows:
As you know that still the (indistinct) groups are still accessing the old ones and they are always taking revenge on the people that cheated them and even one of my friends who was already being (indistinct) he still (indistinct) he still end up in the gaol. So I’ll be getting the same kind of treatment if I go back to Sri Lanka.[93]
The IMR then asked the applicant what it was that he feared if he went back to Sri Lanka, to which the applicant responded:
I am very certain that they’ll arrest me or they’ll have my life, so kind of (indistinct) way to ---.[94]
c)the IMR asked the applicant about country information that suggested that the situation in Sri Lanka had improved since the end of the conflict between the LTTE and the government, the applicant said that both para-military groups and the government were threatening to do harm to him;[95] and
d)there was an exchange, set out at paragraph 22(e) above, with respect to the applicant returning to Sri Lanka as a failed asylum seeker.
[93] IMR Transcript, page 17.
[94] IMR Transcript, page 17.
[95] IMR Transcript, page 22.
Very generalised submissions were made to the IMR by the applicant’s agent with respect to country information including US State Department reports and the “latest Human Rights Report”, to the effect that the current Sri Lankan government was “much more generally repressive”.[96]
[96] IMR Transcript, page 34.

In setting out country information the IMR referred to the UK HO November 2010 Report and said that it:
… reports that there is little evidence to suggest that returnees are at risk of being detained or harmed solely because they are identified as returning unsuccessful protection applicants. They are likely to be detained and questioned if their name appears on a watch list, or if they have a record as a detention escapee, former LTTE member or a criminal warrant.[97]
[97] CB 157 at para.35.
The next reference to the UK HO November 2010 Report is in similar terms indicating that it:
… reports that returned asylum seekers are likely to be detained and questioned if their name appears on a watch list, or if they have a record as a detention escapee, former LTTE member or a criminal warrant. There is no evidence before me suggesting that … [the applicant] fits within those criteria and I find that he does not.[98]
[98] CB 164 at para.60.
The IMR Recommendation goes on to say that it has taken into account the specific submissions put by the applicant’s agent, including the reference to the FCO October 2009 Report “which also referred to risks facing returnees”[99] and went on to set out the quote from the FCO October 2009 Report set out in the 9 February 2011 Submission made by the applicant. A comparison of the two quotes shows that they are identical.[100]
[99] CB 164 at para.61.
[100] See CB 165 at para.61 and SCB 6. The relevant quote is set out above at para.41.
The IMR Recommendation then continues as follows:
I note that this report is generally consistent with the report I have referred to above, but of earlier date than the UK Home Office Report. [The applicant] … and his agent’s submission rely on my accepting that … [the applicant] is a person who is or would be of interest to the authorities as having a connection with the LTTE as support for there being real risk that he might be identified and detained as a failed asylum seeker on return to Sri Lanka. No information about any of the other risk factors was provided. As noted above, I find that … [the applicant] has provided no evidence that he is on a ‘watch list’ or likely to be listed as a person of interest or having a connection with the LTTE and thus at risk of being detained at the airport on returning to Sri Lanka.[101]
[101] CB 165 at para.62.
The UK HO November 2010 Report deals with the “Treatment of returned failed asylum seekers” in more than a dozen paragraphs citing information from a variety of sources, including the UK FCO October 2009 Report. By reference to that report it sets out the same passage as is set out above, and which is repeated in the 9 February 2011 Submission.[102]
[102] See para.41 above.
The UK HO November 2010 Report also indicates the sources interviewed for the FCO October 2009 Report, but nothing turns on that information for relevant purposes. The UK HO November 2010 Report then goes on to deal with particular aspects of the procedures in place in relation to returnees, including the identification of failed asylum seekers at the airport upon their return. It does so by reference to the FCO October 2009 Report, and refers to a further 17 paragraphs of that report, parts of which are extracted over three pages of the UK HO November 2010 Report. Those paragraphs deal with very detailed information in relation to:
a)procedures in place to identify failed asylum seekers at the airport, and those who are wanted by the authorities, including reference to:
i)the entry of all returnees’ details into a log book by the Sri Lankan Department of Immigration and Emigration;[103]
[103] “DIE”.
ii)the referral of returnees to the Criminal Investigation Department[104] and sometimes to the State Intelligence Service;[105]
[104] “CID”.
[105] “SIS”.
iii)passport checks to see whether or not the person had left illegally;
iv)reference to the DIE’s alert list which included information relating to court orders, warrants of arrest, jumping bail, escaping from detention and information from Interpol; and
v)reference to the SIS computer system, the latter having records dating back 60 years available at the airport to SIS officers, and on request, to CID officers;[106]
[106] CB 466.
b)the checks undertaken on returnees, including:
i)the introduction of a new set of procedures for dealing with deportees introduced by the CID in August 2009, which included photographing and wet finger-printing all deportees, and their being held while checks were conducted in the person’s area of origin, until which time they would be held until clearance had been obtained from the local police;[107] and
ii)the profile of Tamils detained or interrogated on arrival at Colombo Airport;[108]
c)what specific factors would affect the way an individual was treated upon return at the airport, including:
i)that a person would be handed over to the Terrorist Investigation Department[109] if suspected of being associated with the LTTE, and in some instances referred to the Colombo Detection Bureau headquarters or the CID in which case a detention order for 90 days could be issued;
ii)that the SIS would probably check with local police from the returnee’s Sri Lankan place of origin, and if the returnee was wanted the returnee would be detained, and if not wanted, the returnee would be released;
iii)if the returnee was wanted, the returnee would be arrested, and produced before a local magistrates court; and
iv)the International Organisation for Migration representative indicated that people who did not have an ID card faced security checks as the national ID card was the only document that could prove identity, and a national ID card could not be applied for in Colombo if the person originated from Kilinochchi (where the applicant’s family lived when he was born) and Vavuniya (the site of the navy bus bombing).[110]
[107] CB 467.
[108] CB 467.
[109] “TID”.
[110] CB 468.
The UK HO November 2010 Report then goes on to detail over a further five paragraphs specific information in relation to returnees obtained from a letter from the British High Commission in Colombo dated 30 August 2010.[111]
[111] CB 468-470 (“August 2010 BHC Letter”).
The UK HO February 2010 Report is also in evidence. It contains, like the UK HO November 2010 Report, an extensive section dealing with the “Treatment of returned failed asylum seekers”.[112] Relevantly, the paragraphs dealing with the FCO October 2009 Report in the UK HO February 2010 Report are identical to those contained in the UK HO November 2010 Report. There is, however, no reference in the UK HO February 2010 Report to the August 2010 BHC Letter, as the former preceded the latter by more than six months.
[112] FSCB 55-64 at paras.33.12-33.28.
In this case, save for reference to the August 2010 BHC Letter, each item of country information relevantly referred to, as between the FCO October 2009 Report, the UK HO February 2010 Report and the UK HO November 2010 Report is identical, or so substantially identical to make any differences of no consequence, and, in each case, has been either set out in the list of information consulted by the RSA, or has been the subject of specific submissions by the applicant, and the subject of specific comment and reasoning in relevant respects in the IMR Recommendation.
The question arises as to whether any of the information in the August 2010 BHC Letter is information which ought to have been put to the applicant because it was information adverse to his interests. Material contained in the August 2010 BHC Letter shows that much of it is, for practical purposes, the same as that in the FCO October 2009 Report and the UK HO February 2010 Report, insofar as it relates to the procedures and checks adopted for returnees at airports in Sri Lanka. Other parts relate to irrelevant information in relation to how UK returnees are specifically dealt with. In two respects however, the material in the August 2010 BHC Letter differs from that contained in the FCO October 2009 Report and the UK HO February 2010 Report. Those differences relate to the fact that the procedures adopted following the FCO October 2009 Report were in fact relaxed.[113] Specifically, it is observed that:
a)“in the beginning of 2010, partly due to the large number of Sri Lankans being returned from around the world and causing logistical problems, CID procedures were relaxed in that they no longer had to detain returnees until written confirmation was received from the local police. … Checks are initiated with local police, but returnees are released to a friend or relative, whom CID refers to as a surety.”[114] and
b)“in general, the situation regarding all returnees regardless of race or creed appears to be more relaxed than was reported following the … [FCO October 2009 Report]. There is though still inconsistency in the way individuals are dealt with.”[115]
[113] CB 469-470 at para.33.20 and CB 470 at para.33.21.
[114] CB 469-470 at para.33.20.
[115] CB 470 at para.33.21.
Because this country information indicates that procedures were relaxed from the beginning of 2010, that information is adverse to the applicant as it might make it more difficult for the applicant to prove a well founded fear of persecution, and is therefore information that ought to have been put to him. The question is whether or not it was in fact put to him, either at all, or in sufficient terms. Further, there is no doubt that the information is credible and material, but is it sufficiently novel in the context of the factual matrix to warrant a conclusion that failure to put it to the applicant constitutes a breach of procedural fairness?[116]
[116] SZQEK at para.31 per Smith FM; DZAAZ v Minister for Immigration & Anor [2012] FMCA 39 where this Court, echoing what was said in SZQEK, said that in “…determining whether there is an obligation to invite comment … the factual issues arising in the review, and the novelty, credibility and materiality of the information concerned all need to be considered …” at para.79 per Brown FM.
The information contained in the 9 February 2011 Submission is information originally appearing in the FCO October 2009 Report, and replicated in the UK HO February 2010 Report. The UK HO February 2010 Report was material relied upon by the RSA in making the RSA Decision and therefore information which was available to, and within the knowledge of, the applicant and the IMR.[117] The UK HO November 2010 Report was however, a new report. Furthermore, it contained a significant letter, the August 2010 BHC Letter, which had not previously been referred to in the materials.
[117] SZQEK at para.50 per Smith FM.
The August 2010 BHC Letter repeats much of what is otherwise contained in the FCO October 2009 Report and the UK HO February 2010 Report. It does, however, add the new proposition that the procedures for returnees, including failed asylum seekers, to Sri Lanka had in fact been relaxed. There is nothing to indicate that the proposition that the procedures with respect to returnees, including failed asylum seekers, to Sri Lanka, had been relaxed since the beginning of 2010, was put to the applicant by the IMR, or was otherwise within the knowledge of the applicant. The applicant was, therefore, not given the opportunity to put a case by reference to that proposition of a relaxation in the procedures for re-entering returnees. It was a proposition which was, in fairness, required to be put in its terms because it was new, novel and previously unexpressed. Procedural fairness required that the applicant be given an opportunity to deal with that proposition.[118]
[118] Plaintiff M61; Miah CLR at 86 per Gaudron J; HCA at para.99 per Gaudron J; Muin ALR at 634 per Brennan J; HCA at para.137 per Brennan J.
It might be said that this information was not relied upon by the IMR, and was therefore not an aspect of, or part of the substance of, the matter required to be put to the applicant. That, however, ignores the fact that in setting out the country information, and referring to the UK HO November 2010 Report, the IMR does not distinguish between the “little evidence” suggesting returnees are at risk of being detained or harmed because they are returning unsuccessful protection applicants,[119] the evidence referrable to the FCO October 2009 Report and the UK HO February 2010 Report in the UK HO November 2010 Report, and that evidence referrable to the August 2010 BHC Letter. The findings and conclusions only make generic references to the UK HO November 2010 Report, and do not make the distinction referred to above. In the circumstances, the distinction ought not be implied, particularly as there is nothing to indicate that it was in fact a distinction operable in the mind of the IMR.
[119] CB 157 at para.35.
The Court is, therefore, of the view that the failure to refer to that part of the UK HO November 2010 Report under the heading “Treatment of returned failed asylum seekers” dealing with the contents of the August 2010 BHC Letter, and in particular the post-2010 relaxed requirement for re-entry of returnees, including failed asylum seekers, was a denial of procedural fairness by the IMR, in respect of which the applicant ought to be afforded relief.

Ground 2

Ground 2 is as follows:
2.The reviewer failed to deal with the claims of the applicant and thereby committed an error of law and breached procedural fairness.
Particulars
(a)The reviewer failed to consider the applicant’s claim that he was at risk of persecution for reasons of being a failed asylum seeker, who had been absent from Sri Lanka since 2006, thereafter living as a refugee in India before travelling to Australia.
(b)The reviewer failed to consider whether the applicant was at risk of persecution for reasons of having departed Sri Lanka illegally.

Applicant’s submissions

The applicant submits that:
a)the applicant claimed that he left Sri Lanka in 2006 and had been living in a refugee camp in India for several years before travelling to Australia;
b)in considering whether the applicant would be at risk of persecution as a failed asylum seeker the IMR failed to consider the applicant’s extended period of absence from Sri Lanka;
c)the IMR failed to consider whether the applicant would face a risk of persecution by reason of departing Sri Lanka illegally;
d)there was country information before the IMR,[120] and submissions made by the applicant,[121] that indicated that those who had illegally departed Sri Lanka would encounter difficulties with the authorities; and
e)the issue or claim arose on the materials and the IMR was required to consider it.[122]
[120] CB 466.
[121] CB 164-165 at para.61.
[122] Minister for Immigration & Citizenship v MZYLE (No. 2) [2011] FCA 1467 at para.28 per North J (“MZYLE (No. 2)”).

Minister’s submissions

The Minister submits that:
a)the claims alleged in grounds 2 (a) and (b) were not clearly articulated or did not clearly emerge from the material before the IMR. They did not therefore require consideration by the IMR;[123]
b)NABE (No. 2) establishes the principles concerning implied claims.[124] In summary, even a claim which may be seen as arising on the material need not be considered unless it can be characterised as a “substantial clearly articulated argument relying on established facts” which “clearly emerge[s] from the materials”.[125] A decision-maker “is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it”;[126]
c)as the IMR correctly observed, the applicant’s claim with respect to his fears as a returning asylum seeker relied upon the IMR accepting that he “is a person who is or would be of interest to the authorities as having a connection with the LTTE”;[127]
d)the applicant now seeks to rely on the Executive Summary to the FCO October 2009 report referring to illegal departure from Sri Lanka as a factor which would increase the risk that an individual could encounter difficulties with the authorities as establishing an implied claim. As NABE (No. 2) demonstrates, without more that reference is insufficient to give rise to an obligation on the part of an IMR to consider such an alleged claim. As the IMR noted, “no information about any of the other risk factors was provided”;[128]
e)the dissimilarities between the case made on behalf of the applicant in MZYLE (No. 2) and the case made on behalf of the applicant in this matter are striking;
f)at no point in the process has the applicant clearly articulated any claimed fear of persecution upon his return to Sri Lanka as a consequence of the period of his absence, or his time spent in India prior to travelling to Australia; and
g)as no separate, distinct or additional claims were “clearly articulated” or clearly emerged from any of the material before the IMR, the IMR had no obligation to consider the alleged claims.[129]
[123] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263 (“NABE (No. 2)”).
[124] NABE(No. 2) FCR at 17-22 per Black CJ, French and Selway JJ; FCAFC at paras.55-63 and 68 per Black CJ, French and Selway JJ.
[125] NABE (No. 2) FCR at 22 per Black CJ, French and Selway JJ; FCAFC at para.68 per Black CJ, French and Selway JJ.
[126] NABE (No. 2) FCR at 19 per Black CJ, French and Selway JJ; FCAFC at para.60 per Black CJ, French and Selway JJ.
[127] CB 165 at para.62.
[128] CB 165 at para.62.
[129] NABE(No. 2) FCR at 19-20 per Black CJ, French and Selway JJ; FCAFC at paras.60-62 per Black CJ, French and Selway JJ.

Consideration – ground 2

Ground 2 needs to be addressed in two parts in relation to the particulars of that ground as set out.

Consideration – ground 2(a)

It is asserted there was an error of law and a denial of procedural fairness by reason of the IMR failing to consider the applicant’s claim that he was at risk of persecution for reasons of being a failed asylum seeker who had been absent from Sri Lanka since 2006, thereafter living as refugee in India before travelling to Australia.
During the IMR Interview the applicant told the IMR that he had lived in Sri Lanka until 2006, and thereafter lived as a refugee in a camp in India, with his wife and son, and that he managed to support them by finding work.[130]
[130] CB 150 at para.18.
In the country information the IMR specifically made reference to a report released in February 2010 by the Immigration and Refugee Board of Canada concerning the status of Sri Lankan Tamil refugees in India, including information on their repatriation to Sri Lanka.[131] Further, the IMR made reference to country information which indicated that Sri Lankan refugees in India who departed India illegally might be refused re-entry to India if they sought to return.[132]
[131] CB 157-158 at para.36.
[132] CB 158-159 at para.37.
In his findings and reasons the IMR specifically noted that the applicant had failed to disclose his time in India in order to bolster his claim for protection.[133] The IMR also referred to the fact that he had considered the “accumulation of … [the applicant’s] circumstances” and had “looked at [them] as a whole”, and that those circumstances included the fact that it was more than five years since the applicant had left Sri Lanka after two encounters with the Sri Lankan armed forces.[134]
[133] CB 160 at para.40.
[134] CB 165 at para.63.
Looking at the IMR Recommendation as a whole, and noting that:
a)the IMR set out the circumstances of the applicant’s going to and living in India in a camp as a refugee;
b)the IMR referred to country information concerning the status of Sri Lankan refugees in India;
c)the references in the IMR’s findings and reasons to the applicant having failed to disclose his time in India in order to bolster his claim for protection;
d)the applicant’s circumstances had been considered cumulatively by the IMR, and that in that consideration regard was had to the fact that it was more than five years since the applicant had left Sri Lanka; and
e)the IMR knew that the applicant left Sri Lanka and went to India,
the Court does not consider that the IMR failed to have regard to the fact that the applicant lived as a refugee in India before travelling to Australia. If anything, the contrary is true. In any event, there is sufficient in the IMR Recommendation, when looked at as a whole, or, alternatively, when looked at without an eye to the perception of error,[135] to indicate that the IMR did consider the applicant’s absence from Sri Lanka since 2006, and his time in India, in determining this matter. Ground 2(a) is, therefore, not made out.
[135] SZMDS v Minister for Immigration & Citizenship & Anor (2010) 243 CLR 611 at 623-624 per Gummow ACJ and Kiefel J, at 634, footnote 73 per Heydon J; [2010] HCA 16 at para.35 per Gummow ACJ and Kiefel J, at footnote 73 per Heydon J; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh & Gummow JJ (“Wu Shan Liang”); Miah CLR at 67 per Gleeson CJ and Hayne J; HCA at para.23 per Gleeson CJ and Hayne J.

Consideration – ground 2(b)

It is true that there was country information before the IMR, and submissions made by the applicant, that indicated that those who had illegally departed Sri Lanka would encounter difficulties upon re-entry with the authorities. The difficulty with that general proposition is, however, that there was never any claim made by the applicant that he had departed Sri Lanka illegally. There is no doubt that he departed from Sri Lanka for India with his wife and son, but there is no claim that it was illegal for him to do so, or that it was done illegally. Nor is there any evidence to suggest that the applicant left Sri Lanka illegally.
Ground 2(b) is, therefore, not a claim made, or properly made, and is, in any event, without the necessary factual basis to sustain it. Ground 2(b) is not made out.
It follows that ground 2 as a whole has not been made out.

Conclusions and relief

The Court has concluded that:
a)ground 1 alleging a denial of procedural fairness has been made out, and that injunctive relief ought to follow restraining reliance by the Minister and others on the IMR Recommendation; and
b)ground 2 alleging a denial of procedural fairness has not been made out.
A denial of procedural fairness having been made out it is appropriate to grant declaratory and injunctive relief to the applicant. The Court will not, however, make an order that the matter be remitted to be heard by an independent merits reviewer other than the IMR, as the Court has no power, in the absence of an ability to issue writs of mandamus and certiorari, to compel a re-exercise of the independent merits review.[136] It follows therefore that the Court has now power to compel by whom any further independent merits review might be conducted.
[136] Plaintiff M61 CLR at 358-359 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.99-100 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

Costs

The Court will hear the parties as to costs.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date: 7 December 2012