MZYNQ v Minister for Immigration
[2014] FCCA 655
•4 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZYNQ v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 655 |
| Catchwords: MIGRATION – Offshore entry person – Review of Independent Merits Reviewer’s recommendation – grounds for review allege Independent Merits Reviewer failed to apply proper legal principles and/or did not afforded natural justice to the Applicant – challenge to Court’s jurisdiction – High Court determination that Court has jurisdiction – grounds for review not sustained – application for review, as amended, dismissed. |
| Legislation: Migration Act 1958, ss.46A, 91H, 195A, 474(7), 476(1), 476(2)(d) |
| Cases cited: Plaintiff M61/2010E v Commonwealth (2010) 272 ALR 14 Re JRL: Ex parte CJL (1986) 361 CLR 342 SZQHF v Minister for Immigration and Citizenship [2012] FC A 251 |
| Applicant: | MZYNQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | JANET DUCKMANTON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 939 of 2011 |
| Judgment of: | Judge O'Dwyer |
| Hearing dates: | 13 April 2012 and 10 July 2012 |
| Date of Last Submission: | 10 July 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 4 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms De Ferrari |
| Solicitors for the Applicant: | Baker & McKenzie |
| Counsel for the First Respondent: | Mr Horan |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The application for review filed on 5 July 2011, as amended, is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 939 of 2011
| MZYNQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| JANET DUCKMANTON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 5 July 2011, later amended, the Applicant seeks judicial review of a recommendation dated 17 May 2011 made by the Second Respondent (“the Reviewer”) to the First Respondent (“the Minister”) that the Applicant not be recognised as a person to whom Australia has protection obligations.
The subject recommendation was the second made in respect of this Applicant; the first having been made prior to the decision in Plaintiff M61/2010E v Commonwealth[1] (“Plaintiff M61”). After that decision, the Minister offered the Applicant another independent merits review (“IMR”) by a different reviewer, which of necessity also included another interview. The recommendation of the Reviewer was the same as the first reviewer.
[1] (2010) 243 CLR 319
Procedural history
This review was first before me on 13 April 2012 where, over a day, Counsel for both the Applicant and the Minister made lengthy submissions. However, during the hearing, two issues arose which required additional material and submissions. One related to the question of which Ministerial guidelines were used by the Reviewer and the other was the affect of the change in the Applicant’s migration status as a result of the Minister granting the Applicant, on the previous day, a Bridging visa and Temporary Safe Haven visa (“TSH”).
Consequentially, orders were made at the end of the day for the filing of material relevant to these issues and liberty was granted to apply to further address the Court, should needs be, following the filing of affidavits and further submissions. The Applicant exercised the liberty and the matter was relisted for further hearing on 10 July 2012.
On 10 July 2012 Counsel for the Applicant contended that this Court lacked jurisdiction to hear and determine the review application before it. Counsel for the Applicant challenged the Court’s jurisdiction on two bases. First, the Applicant’s Counsel contended that the Full Federal Court in SZQDZ v Minister for Immigration and Citizenship[2] (“SZQDZ”) was wrong when it determined the Federal Magistrates Court (as it was then known) had jurisdiction. In making that submission Counsel was careful to identify it as a formal objection to jurisdiction for she acknowledged that this Court was bound by the authority of SZQDZ.
[2] [2012] FCAFC 26
The Applicant’s second basis for challenging the jurisdiction of this Court arose, it was said, from the changed migration status of the Applicant when he was granted the Bridging and TSH visas.
The Applicant contended that by granting these visas, notwithstanding the decision of SZQDZ, the Minister had denied this Court jurisdiction for the following reasons:
a)the granting of a TSH visa was pursuant to s.195A of the Migration Act 1958 (“the Act”) made it fall outside of the scope of the decision in SZQDZ and that, based on the authority of Plaintiff M61, this Court only has jurisdiction to the extent of a prayer for injunctive relief directed to the Minister preventing the Minister, or his officers, taking into account the IMR assessment and recommendation in any consideration of the exercise of the power under s.46A of the Act;
b)the jurisdiction of this Court in migration matters is bestowed pursuant to s.476(1), s.476(2) (in particular subsection 467(2)(d)) and s.474(7). Section 476(2) sets out the exclusions to this Court’s migration jurisdiction. Subsection 476(2)(d) by reference to s.474(7) of the Act refers to s.195A, which section excludes from the Court’s jurisdiction capacity to review a decision of the Minister to exercise or not exercise the power under s.195A to grant a person a visa; in this instance, the TSH visa pursuant to s.91H. The Applicant contended that this clear exclusion of the jurisdiction precludes this Court from determining this review; and
c)SZQDZ found that the IMR recommendation was not a migration decision, but it could be a possible threatened future decision of the Minister.
Without informing my Chambers, the question of the Court’s jurisdiction was referred to the High Court for determination. It was only through serendipity that I became aware of that referral and that the parties were awaiting the outcome.
To enliven the High Court’s involvement, after the hearing on 10 July 2012, the Applicant applied for a Protection visa, contrary to the provisions of the Act applying to an off shore entry person that prohibit such an application, and then asked the High Court to find it a valid application.
In short, the Full High Court[3] considered the power of the Minister to grant a TSH visa. Should it be found that he did not have such power; the consequence would have been to make the application for a Protection visa valid. The High Court determined the Minister validly granted the Applicant a TSH visa and that the application for a Protection visa was invalid. In effect, this Court’s jurisdiction was affirmed by the Full High Court.
[3] Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24
The Applicant’s application for review now falls to me to determine on the basis of the contentions previously made, other than those touching on this Court’s jurisdiction which is now beyond challenge.
Background
The Applicant is a Sri Lankan of Tamil and Hindu ethnicity.
He arrived on Christmas Island on 7 February 2010 without a valid visa as an unauthorised maritime arrival. Upon his arrival he was treated as an “offshore entry person” and availed himself of the Refugee Status Assessment (“RSA”) process which proved negative to his application for refugee status. That was followed by the first IMR where the recommendation was again negative in respect of Australia’s obligation to provide protection.[4]
[4] Under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol (“the Refugee Convention”)
The Applicant is 28 years old and is one of nine siblings; two of whom were claimed to have been killed while fighting with the Liberation Tigers of Tamil Eelam (“the LTTE”), whilst a third was an active member who was in hiding. His parents continue to reside in Sri Lanka. Whilst living in Sri Lanka, the Applicant claims his family were forced to move to different parts of the country to avoid fighting and the militia.
During October 2009 the Applicant claimed that a significant incident occurred whereby the Applicant was abducted from his house by two members of the Karuna Party because of his involvement in the Pongu Tamil Martyr’s Day celebrations from 2004 to 2006. During the course of his abduction, and whilst still in the van used to transport him, his abductors stopped at some shops. The driver went into a shop and whilst he was away, the other told him to go after the Applicant had begged to be released. His abductors had earlier, it was claimed, threatened to shoot him. After his escape he travelled to his cousin’s house where he hid until he was able to leave with the help of a people smuggler.
On 19 January 2010 the Applicant began his escape from Sri Lanka with the assistance of a people smuggler who, having been paid approximately AUD$17,000, arranged for his travel from his home town Trincomalee to Colombo, then to Negombo where he boarded a boat destined for Australia.
On 19 April 2010, the Applicant made a request for a RSA. On 9 June 2010, the Minister’s delegate determined that the Applicant did not meet the requirements of a refugee under Article 1A of the Refugees Convention.
On 28 June 2010, following the negative determination, the Applicant made an application for an IMR, which occurred. However, the recommendation dated 11 November 2010 did not recommend the Applicant be recognised as a person to whom Australia has protection obligations under the Refugees Convention (“the first IMR”). Following the High Court’s decision in Plaintiff M61, the Applicant was offered a second IMR, which was done and which is the subject of this review as the Reviewer’s recommendation was the same as the first IMR.
Extension of time
The Applicant applied for an extension of time in which to file his review application, but this is not necessary following SZQDZ.
Key findings of Reviewer
The Reviewer accepted that it was possible that the Applicant had three older brothers who fought with the LTTE, two of whom were killed. However, the Reviewer concluded that the Sri Lankan authorities did not know of his brothers membership of the LTTE at the time that he departed Sri Lanka in January 2010, and that the chances of the authorities discovering such a connection were reasonably remote.
Accordingly, the Reviewer found that the Applicant had never suffered serious harm amounting to persecution because three of his brothers served with the LTTE, and that there was no real chance that he would suffer harm on account of these brothers if he were to return to Sri Lanka.
In light of the Applicant’s “inconsistent and implausible evidence” about his claimed abduction by Karuna Party members in October 2009, the Reviewer did not accept that the Tamil Makkal Vidutha1 Pulikal had come to the Applicant’s house as claimed with a photograph of him or that he had been kidnapped and subsequently escaped from their custody.
Consequently, the Reviewer did not accept that the Sri Lankan authorities had begun searching for the Applicant after he departed Sri Lanka in January 2010 and did not accept that the CID had accused his family of sheltering a LTTE member.
The Reviewer was satisfied that there was “no substance to the [Applicant’s] claim that the Sri Lankan authorities suspect that he is a former LTTE supporter and that he therefore has a profile which grounds a well founded fear of persecution if he were to return to Sri Lanka.”
The Reviewer referred to country information which indicated that conditions in Sri Lanka have improved, that there were no procedures in place to identify failed asylum seekers, and that Tamils returning to Colombo after seeking asylum in Australia would be under no more scrutiny than any other Sri Lankan Tamil returning to Colombo from another country.
The Reviewer was not satisfied that the Applicant had a profile which would put him at risk of suffering persecution if he were to return to live in Trincomallee, where his family had lived in safety since 2002.
The Reviewer concluded that the Applicant had not suffered harm in Sri Lanka because of his imputed political opinions, his Tamil ethnicity, his membership of a particular social group comprising young Tamil males from the north and east of Sri Lanka, or for any other Convention reason. The Reviewer found that the Applicant did not have a well-founded fear of persecution in Sri Lanka.
Issues arising and heard on 10 July 2012
As indicated, at the close of the hearing on 13 April 2012 Counsel for the Applicant indicated there were two issues that had arisen that require further material and argument; namely, the nature of the ministerial guidelines being used by the Reviewer and the jurisdiction of this Court as a consequence of the change in the Applicant’s migration status immediately prior to the hearing on 13 April 2012.
In respect of the ministerial guidelines, it was contended by the Applicant that the Reviewer used the same guidelines as the first reviewer, which guidelines proved to be wrong in law after the determination of the High Court in Plaintiff M61. The Applicant also contended that an examination of the guidelines gives insight into the proper process to be adopted by the Reviewer in the second IMR.
Grounds of review
Following Plaintiff M61, an applicant can challenge an adverse recommendation, in the broad, by disclosing jurisdictional error in an IMR if it is shown that the IMR failed to apply correct legal principles and/or to provide an applicant natural justice/procedural fairness. Accordingly, the Applicant’s contentions were framed to address an alleged failure on the part of the Reviewer to follow correct legal principles and also a failure to provide natural justice/procedural fairness. Those grounds were:
1.The Applicant was denied natural justice, by reason of breach of the rule against bias.
Particulars
The hypothetical fair-minded layperson, properly informed as to the nature of the proceeding before the Second Respondent, the matters in issue, and the conduct of the Second Respondent, might reasonably have apprehended that the Second Respondent might not bring an impartial mind to the question of what recommendation she should make to the First Respondent regarding whether the Applicant is a person to whom Australia owes protection obligations under the refugee’s convention.
The conduct of the Second Respondent consisted of:
(a) requiring the Applicant to displace the first recommendation, which was adverse to the Applicant;
(b) framing the merits review hearing as being for the purpose of the Applicant addressing her upon the first recommendation, which was adverse to the Applicant;
(c) stating that, like the previous merits reviewer, she disbelieved the Applicant’s claim of having been kidnapped;
(d) requiring the Applicant to prove, by “objective evidence”, what the Sri Lankan authorities knew;
(e) after stating her view that the Applicant was let go by his kidnappers because they were convinced he had no LTTE connections (a view based on nothing more than her presumption as to the kidnappers thinking), stating that there was “not much that you can say really”, which could change her view.
2.In recommending to the First Respondent that the Applicant not be recognised as a person to whom Australia owes protection obligations, the Second Respondent failed to apply correct legal principles.
Particulars
Following the decision in Plaintiff M61/2010, the authorities on the interpretation on 36(2) of the Act must be correctly applied in a merits review.
Under Australian law, the test for when a person satisfies the definition of refugee in Part 1A of the Refugees Convention is a person to whom Australia owes protection obligations, requires consideration of whether there is a real chance of persecution if an Applicant were returned to his or her country of origin. A fear of persecution may be well founded even though persecution is unlikely to occur. What is required is a possibility, rather than a probability, of risk of persecution.
The Second Respondent was required to conduct a merits review hearing of the “Refugee Status Assessment”, and make a recommendation following consideration of the Applicant’s claims. The guidelines which apply to the conduct of the merits review hearing and making of a recommendation require the Second Respondent to “Consider afresh all claims for protection”.
The Second Respondent wrongly:
(a) viewed her task as one where she might make a recommendation to the First Respondent that the Applicant is a person to whom Australia owes protection obligations, if the Applicant persuaded her to reach a different view from that reached by the previous merits reviewer (as expressed in the first recommendation);
(b) departed from the “real chance” test, including by:
(i)requiring “objective proof” that the Sri Lankan authorities knew about the involvement of the Applicant’s brothers with the LTTE; and
(ii)dismissing, rather than considering, the possibility that the Sri Lankan authorities either then knew, or might at a later time come to know (for example, at the time the Applicant was returned to Sri Lanka as a failed asylum seeker), that the Applicant’s brothers had been members of the LTTE.
3.In recommending to the First Respondent that the Applicant not be recognised as a person to whom Australia owes protection obligations, the Second Respondent failed to apply correct legal principles and/or to afford natural justice.
Particulars
The Second Respondent failed to address the Applicant’s claim of well-founded fear of persecution by reason of membership of a particular social group. The particular social group is a family that included six brothers (the Applicant being one of the brothers) with three of those brothers having fought with the LTTE.
4.In recommending to the First Respondent that the Applicant not be recognised as a person to whom Australia owes protection obligations, the Second Respondent failed to apply correct legal principles and/or to afford natural justice.
Particulars
The Second Respondent failed to address a number of the claimed bases for the Applicant’s fear of persecution in Sri Lanka:
(a) the claim that the Sri Lankan authorities, in June 2010 (being a date after the Applicant’s arrival in Australia and after the interview with the delegate of the First Respondent as part of the “Refugee Status Assessment” process), went to his family home and asked his sister where all of her brothers (including the Applicant) were;
(b) the claim that the Sri Lankan authorities, in June 2010, were accusing the Applicant’s family and the Applicant of having, in 2008, provided support and/or shelter to a member of the LTTE.
Contentions and consideration
As well as lengthy oral submissions made before me, I have had the benefit of written submissions from both parties. Much of the contentions made had application across various grounds.
Ground 1
The contention under this ground centred on an allegation the Reviewer conducted the review process exhibiting apprehended bias. There were various aspects of how the review was conducted that were said to have created a reasonable apprehension of bias.
First, the Applicant contended that an examination of the statement of reasons provided by the Reviewer, together with a reading of the transcript of the interview, leads to a conclusion, it was said, that the Reviewer imposed upon the Applicant a requirement to displace the first recommendation. In support of this contention reference was made to the introduction by the Reviewer to the Applicant which sought to explain the process about to be undertaken and which informed the Applicant that he would be given an opportunity to respond to the first reviewer’s recommendation.[5]
[5] In submissions by the Minister, it was suggested that the Applicant through his advisers introduced consideration of the first recommendation and therefore cannot later complain about the Reviewer’s consideration of the first reviewer’s recommendation. However, I note that the reviewer first wrote to the Applicant prior to the interview indicating that submissions could be made in response to the first recommendation. It is not unfair to say that the reviewer, at that stage, before the interview, introduced the concept of a response to the first recommendation and to the first reviewer’s statement of reasons. In those circumstances, the Applicant’s representatives cannot be criticised for setting out a response to the first recommendation and the findings of the first reviewer prior to the interview and by so doing are responsible for that focus on the first recommendation.
There were various elements said to indicate, it was said, that the Reviewer misconstrued the nature of the task before her. One element was an alleged failure to apply the appropriate ministerial guidelines, by commencing the interview by setting out the primacy of the first Reviewer’s recommendation as a starting point for the review, which, it was said, was manifest when regard is had to the invitation offered to the Applicant to respond to the first reviewer’s recommendation and statement of reasons. The proper approach to the review process for the Reviewer, it was said, was not to have started the interview by reference to the first reviewer’s recommendation, but should have conducted “afresh” a new review without regard to that first recommendation and the statement of reasons supporting it; that the correct process to be followed in the interview was not to commence it using the first reviewer’s recommendation as the starting point of the new review. By doing as she did, the Reviewer set a framework which, of necessity, precluded her from looking at the claims afresh and conducting a full merits review; to conduct a hearing de novo.
The Applicant made issue, and attempted to draw a distinction, between the process to be adopted in the first instance of a review in respect of the delegate’s decision and a second review in respect of that delegate’s decision. It was said that the Reviewer should, in effect, clear her mind, so to speak, of the first recommendation and not commence the second review by reference to the first recommendation with an invitation to respond. This contention, in my view, ignores other review processes under the Act, such as that addressed in respect of a Refugee Review Tribunal review of a delegate’s decision. I see no reason why, because it is a second review of that delegate’s decision that regard not be had to the first review, its recommendation and the statement of reasons supporting it; particularly when testing the veracity of claims made. The earlier process is rightly looked at to see whether inconsistencies arise.
An element of this contention was, in my understanding, the alleged application of the wrong/incorrect ministerial guidelines to be applied in an IMR. The Applicant seemed to suggest that such guidelines were prescribed and a binding constraint on the power or the function of an IMR. It was suggested that inconsistency with the ministerial guidelines apparently used by the Reviewer that failed to apply the known law subsequent to Plaintiff M61, constituted the adoption of a wrong process by the Reviewer. Implicit in this contention is the suggestion that the ministerial guidelines are themselves binding.
This is clearly not the case. They are not binding. They do not provide a reviewable limit or constraint on the process that a reviewer may adopt save to the extent identified in Plaintiff M61; namely the need for procedural fairness and for the application of correct legal principles. In any event, a departure from the guidelines, in my view, does not constitute a jurisdictional error unless it could be shown that that departure constituted procedural unfairness or a failure to apply correct legal principles. In any event, I am satisfied that the guidelines used by the Reviewer were appropriate, as the earlier guidelines were variously amended and communicated to reviewers by email correspondence. There is no suggestion that the Reviewer misstated the applicable law
An issue is whether it was improper for the reviewer to have regard to the first recommendation and the statement of reasons supporting it. For there to be any force to this contention, and extending the logic, the Applicant seemed to be saying that, in order for compliance with the guidelines that stipulated the review should explore “afresh” the claims made, the Reviewer should not be appraised of the first reviewer’s statement of reasons because of the risk of the Reviewer adopting them. Alternatively, there should not have been a focus on the first recommendation as evidenced by the Reviewer’s introduction. In my view, both these contentions are untenable as a matter of principle and practice. The task undertaken by the Reviewer is to review, and the focus of the review process is to consider the claims afresh. The decision under review in this instance is that of the Minister’s delegate. In doing so, the Reviewer, in my view, was entitled to also examine the first reviewer’s decision and its basis as disclosed in the statement of reasons. To ignore the first IMR and the recommendation made, is to deny the Reviewer a necessary tool to evaluate the claims made; in particular to ascertain any conflicts in the evidence given in the first IMR and the second. A reviewer, in my view, should be entitled to examine not only the delegate’s primary decision, but also be cognisant of any other review process associated with the Applicant’s claim for protection. In any event, it also follows that the Applicant be given an opportunity to respond to the earlier delegate’s decision and also the first reviewer’s recommendation. Indeed, should the Reviewer not have extended an invitation to respond to the first recommendation and the statement of reasons supporting it, it may very well have raised anxieties in the Applicant that the earlier decision would be adopted without an opportunity to address perceived errors in that earlier decision[6].
[6] See MZAOQ v Minister for Immigration & Citizenship [2011] FMCA 869 where complaint was made that an applicant was not provided with a transcript of an interview. Although not directly analogous, the case does highlight that a failure to be able to address issues raised in the decision under review may be procedurally unfair,
The contention by the Applicant that the Reviewer was in error in looking at the first recommendation and at the statement of reasons of the first reviewer, and thereafter inviting the Applicant to respond, is not something that could be classified as an error or a misconstruing of the process to be adopted. By way of analogy, the Refugee Review Tribunal can have regard to the primary decision of a delegate when conducting a merits review of that decision. In no circumstances is it considered, by doing so, that it constitutes a failure to provide a full merits review. The review process is to consider the decision under review.[7] In this instance, the decision under review is that of the delegate and the Applicant should get the benefit of a process that considers the claims afresh. In my view, it was not inconsistent with providing a full merits review, or as put, a consideration of the claims “afresh”, to invite comment or response by reference to another decision concerning the decision under review. It certainly would have been wrong, however, for the Reviewer to make statements to the effect of, “unless you persuade me to the contrary, I am going to adopt the same decision”. That clearly reflects a closed mind and a process that does not involve looking “afresh” at the claims being made. This is not the case in this matter.
[7] See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, which decision makes it clear that the actual issues in a merits review current leased initially framed by the decision that is under review.
Further, in support of this ground of review is an allegation that there was a wrong focus in the review process adopted by the Reviewer. It was contended that the Reviewer required the Applicant to displace the first recommendation. Support for this was said to lie, in part, with the way the review process was framed; namely, emphasis on the first recommendation as a pivotal consideration for the Reviewer at the expense of looking “afresh” at the claims being made and ensuring a full merits review. The structure of the interview, the nature of the questions concerning the first recommendation and the focus, it was said, on displacing the first recommendation exhibits a process that is not reflective of a review looking at the claims “afresh”. The process adopted, it was said, would have caused an informed, reasonable observer to form the view that the Reviewer had a closed mind to the claims being made and had predetermined the outcome.
In my view, a fair reading of the statement of reasons and the transcript of the interview clearly shows an approach on the part of the Reviewer that would not create an apprehension of bias in a properly informed, reasonable observer. I am satisfied that the Reviewer, through her questioning, exhibited a genuine enquiry as to the credibility of the claims being made[8]. For example, the Reviewer, after informing that she will entertain responses in respect of the first reviewer’s statement of reasons and consequent recommendation, then embarked upon a lengthy series of questions about the kidnap claim; which was a very critical claim. No reference at all was made to the first reviewer’s statement of reasons or findings on this claim until after the lengthy questioning concluded, when the Reviewer stated “well, I disbelieve that claim, like the first reviewer”. The Applicant queried why the Reviewer had formed that conclusion, and the Reviewer thereafter identified her reasons for that finding. Those reasons were different reasons from the first reviewer. There was not a picking up, or adoption, of the first reviewer’s findings and reasons on this factual issue. The Reviewer came, in my view, to her finding after examining afresh the claim being made in respect of the kidnapping. It was an independent consideration of that issue. In my view, the conduct of the interview does not reflect a closed mind, or prejudgement, on the part of the Reviewer.
[8] Although there might have been vigorous questioning, the observation of Robertson J in Nufarm Australia Ltd v Dow AgroSciences Ltd (No 2) [2011] FCA 757 is apposite when at {89] he said “robust questioning of or hostility towards a particular argument or scepticism about an argument does not mean the Tribunal has a closed mind.”
It cannot be concluded from the Reviewer’s statement of reasons, even though the findings on the claims of the Applicant reflect the same as the first reviewer, that ipso facto, the Reviewer had structured the interview as one that required the Applicant to displace the findings of the first reviewer, or that the Reviewer approached her task with a closed mind. The fact that the same recommendation was made can just as easily reflect the strength (or lack thereof) of the merit of the Applicant’s claims. The Reviewer explored each of the claims, in my view, in an impartial way and that impartiality extended to giving an opportunity to the Applicant to respond to the earlier recommendation.
The fact that the Reviewer came to disbelieve the Applicant was kidnapped as claimed, which was also a finding of the first reviewer, is not in my view reflective per se of a closed mind. The conclusion reached by the Reviewer was that the Applicant lacked credit, which the Reviewer inform the Applicant of during the interview.
As a further element in support of the general contention that there was an apprehension of bias, the Applicant drew attention to the requirement of the Applicant to provide “objective evidence”.
The contention here was that the Reviewer was imposing on the Applicant an onus of proof which needed to be satisfied by such “objective evidence”. It is trite law to say that there is no onus of proof imposed upon an applicant in these administrative proceedings.
There is significant authority to say that it is not improper of a Reviewer (usually a tribunal) to look to objective evidence to buttress a claim being made. In any event, in this case, when the expression “objective evidence” was used, it was in the context of rejecting a claim because there was no objective evidence to support the claim, bearing in mind the adverse finding if the Applicant’s credit.
Again, the Applicant, in my view, takes out of context the reference to the Reviewer stating “there is not much you can say”. It was suggested that this expression was indicative of the fact that there was not much the Applicant could say to disabuse the Reviewer of a concluded view. The reference to there being not much the Applicant could say was, in the context of questioning from the Reviewer, about the intent of third parties. My reading of the context, and the statement complained of, is that it is clearly suggesting that there is not much the Applicant could say as to the thinking of third parties; that such thinking is not within the knowledge of the Applicant. It was an acknowledgement, in my view, by the Reviewer that she had asked a question that the Applicant could not sensibly answer because it was not within his knowledge.
It did not reflect a closed mind.
For the above reasons I am of the view that a reasonable observer, properly informed of the facts and process would not have apprehended that the Reviewer acted in a biased manner; that she approached the hearing with a closed mind, particularly as the authorities stipulate that when considering an allegation of apprehended bias, such must be “firmly established”[9] and that a conclusion that there was apprehended bias is not to be “drawn lightly”[10].
[9] Re JRL: Ex parte CJL (1986) 361 CLR 342 at 352
[10] Vakauta v Kelly (1989) 167 CLR 568 at 584-585
Ground 2
Under the second ground the Applicant contends that the Reviewer failed to apply a correct legal principle in that the Reviewer misapplied the law on the need for a “well-founded fear” of persecution and the “real chance” test.
This ground contends that the Reviewer departed from the “real chance” test by first requiring “objective proof” that the Sri Lankan authorities knew about the involvement of the Applicant’s brothers with the LTTE. It was said that this requirement by the Reviewer blinded the reviewer to the task of determining whether, if he is returned to Sri Lanka, the Applicant faced a real chance of being persecuted. I took the Applicant to be saying that there should not have been a need for “objective proof” and that the claim concerning the
Sri Lankan authorities should be considered as constituting a real chance that the Applicant would be, or potentially would be, persecuted on his return to Sri Lanka. In similar vein, the Applicant contended the Reviewer failed to properly consider, when dismissing the claim concerning the Sri Lankan authorities’ knowledge of the Applicant and his brothers, the real chance of the Applicant coming to the attention of the Sri Lankan authorities as a consequence of his return as a failed asylum seeker. It was suggested that this, if it was not already within the knowledge of the Sri Lankan authorities, might very well alert the authorities on his return about his brothers’ involvement with the LTTE.
This ground ignores the clear findings of fact made by the Reviewer, upon which consequential findings were made.
The Reviewer articulated her finding in the following manner:
“I am satisfied that the claimant’s evidence leads me to conclude that when the applicant departed from Sri Lanka for Australia in January 2010 the authorities did not know of his brothers membership of the LTTE. The chance of the authorities now investigating and then discovering such a connection is reasonably remote.”
There is no real doubt expressed by the Reviewer and none can be inferred.
Accordingly, the finding about the Sri Lankan authorities discovering the connection between his brothers and the LTTE translates, under the “real chance” test, to a finding that there is no real chance of suffering harm on account of the three brothers. I am satisfied that this was a finding of fact, open to the Reviewer, and that the Reviewer then considered and applied the “real chance” test by reference to the future risk the Applicant may face in Sri Lanka, concluding that there was no real chance of him facing the risk of persecution. The Applicant when making submissions about an alleged requirement of the Reviewer to provide objective evidence contended that, to insist on such, the Reviewer failed to consider the real chance test by failing to consider the likelihood of the Sri Lankan authorities having knowledge of his brothers’ involvement with the LTTE. The Applicant contended that the Reviewer improperly applied the law and the real chance test by requiring more than a possibility that the Sri Lankan authorities know, or might come to know, in the not too remote future having regard to his connection with his brothers who had been members of the LTTE.
In SZQHF v Minister for Immigration and Citizenship[11] Smith FM considered a similar case to the present where reference was made by the reviewer to evidence and findings of an earlier IMR and where complaint was made about such references exhibiting a failure of the reviewer to perform the task of a de novo independent review. Similarly, the reviewer made the observation that “there is no evidence before me that convinces me”.
[11] [2011] FMCA 774
Smith FM referred to cases where he and another judge had not detected material error, from the presence of findings which address the prospect of future persecution which are made in language which superficially might not demonstrate an appreciation of the risk. He went on to highlight that both he and Riley FM (as she then was) in MZYNB v Minister for Immigration[12] treated as unfortunate, but not fatal, findings which superficially appear to have required compelling evidence to support the refugee claim, but on full examination had probably used those words only as symptomatic of not being satisfied that the real chance test was met. Smith FM went on to say:
“In short, it is necessary to examine the context of the decision-makers language when making findings in the course of arriving at a conclusion of a refugee claim, including how the claimed fear of persecution was made, what preceding findings have been made and how the ultimate conclusion is framed by the decision maker.”
[12] [2011] FMCA 714
In the case before me the problem identified by the Applicant is not so much with the ultimate finding of a “real chance” which was, in fact, expressed in appropriate language, the problem was with the earlier finding relating to whether the authorities knew of the brothers’ involvement which was said to require objective evidence; which is an expression similar to ‘compelling evidence’ considered by Smith FM. He found that the expression used was not sufficient, in the context of that review, to indicate departure from the correct application of the real chance test. Similarly, I am of the view, that the expression by the Reviewer of a lack of ‘objective evidence’, in the context of the review and earlier findings, did not constitute a failure to apply the real chance test.
Smith FM further said:
“It is not necessary for me to summarise the reasoning of the initial RSA assessment, nor that of the first IMR reviewer, although I shall below refer to some particular passages from their statements of reasons which are relevant to the grounds of review. It is not disputed that Ms Duckmanton’s report accurately recited the history of the matter and identified all the Applicant’s claims and evidence before explaining her findings and reasons for her adverse recommendation. The narration included recitation of the first IMR reviewer’s description of relevant country information and the whole of his findings and reasons.”
SZQHF is a case in which, not only is there a passing reference made during an interview to a first IMR, there appears to have been a replication of the entire findings and reasons of the first IMR.
SZQHF is also authority for the proposition that there is nothing wrong with the reference to and the use of the first IMR’s report.
In response to the submissions made by the Minister using the authority of SZQHF, Counsel for the Applicant submitted that the case was overturned on appeal to the Federal Court[13]. On reading the Federal Court decision it is evident that the appeal was granted after consideration of an amended ground of appeal; namely, the reviewer failed to determine a discrete integer of the appellant’s claims.
There was no consideration by the Federal Court of the other two grounds that first contended the reviewer, in requiring “objective evidence” erred in applying a standard of proof or turn her mind to the assessment of the “real chance” test applied by the reviewer. The other ground which was not considered was that the reviewer erred in law and exceeded her jurisdiction by imposing a test which required evidence to “convince”. As the original grounds were not ventilated and considered, and did not form a basis for upholding the appeal, the comments of Smith FM have application to the second ground of this review.
[13] SZQHF v Minister for Immigration and Citizenship [2012] FCA 251
In my view, the Reviewer did not fail to apply correct legal principles and did not fail to apply the “real chance” test. Accordingly, this ground is not made out.
Ground 3
This ground relates to an alleged failure by the Reviewer to address the Applicant’s claim that he had a well-founded fear of persecution by reason of his membership of a particular social group; namely, his family which included six brothers, three of whom had fought for the LTTE.
In MZXHY v Minister for Immigration and Citizenship[14], the Federal Court, when considering whether a Tribunal had considered membership in a particular social group said:
“Even if the tribunal was obliged to consider the membership of a particular social group, the tribunal had already rejected the Applicant’s claims on the basis of imputed political opinion, such that even if the tribunal considered the claims on the ground of a particular social group, the outcome would have been the same. As such, even if there technically was an error, relief should still be withheld on discretionary grounds because it would be futile to remit the matter to the decision maker in light of the tribunal’s findings.”
[14] [2007] FCA 622
The Minister also relied upon Appellant B v Minister for Immigration and Multicultural Affairs[15] which considered whether there was a well founded fear of persecution because of political persecution of membership of a particular social group where it was contended, with a strong adverse finding as to credit, that such a credibility finding undercut the appellant’s ground of review as it was held that findings of such nature do not only go to the question whether the Applicant held any particular political opinion, they also go to the question of his connection with relevant groups.
[15] [1998] FCA 1237
These cases the Minister contended, highlight that if one rejects persecution because of the brothers’ involvement giving rise to an imputed political opinion, one necessarily rejects a risk of persecution from the brothers’ involvement constituting a membership of particular social group. I accept that the Reviewer rejected that persecution arose in consequence of the brothers’ involvement with the LTTE and therefore there is no substance to then argue that there was a failure to consider this aspect of the Applicant’s persecution if he was to return to
Sri Lanka.
In any event, it is clear from a fair reading of the statement of reasons, the Reviewer dealt with the claims which are now said to have been overlooked. A significant finding by the Reviewer was that the
Sri Lankan authorities were not looking for the Applicant.
The Reviewer simply found that “I do not believe” this to be true.
It could be said that that conclusion was inadequate or insufficient, but when, in my view, considered against the earlier findings of the Reviewer about his creditworthiness, the reasons justifying such a finding were implicit from the earlier findings by the Reviewer. It may be perhaps said that the reasoning process did not expose why that belief was there, but there is no room to infer that the claim was overlooked or not dealt with because there is an express finding.
This ground is not made out and should dismissed.
Ground 4
Under this ground it is alleged that the Reviewer failed to address a number of claims which formed the basis of the Applicant’s fear of persecution in Sri Lanka. The first of such claims, it was said, was that after his arrival in Australia the Sri Lankan authorities had gone to his family home and enquired of his sister where all of her brothers were, including the Applicant.
In respect of this claim, the Reviewer did not accept that the
Sri Lankan authorities or anyone else had searched for the Applicant after he left Sri Lanka. It was a finding of fact, open to the Reviewer to make. It cannot sensibly be said that the Reviewer did not address this integer of his claim.
The other element under this ground is the contention that the Reviewer had not considered the Applicant’s claim that in 2008 the Applicant and his family provided support and shelter in 2008 to a member of the LTTE. This is manifestly not a true reflection of the Reviewer’s statement of reasons. This claim was considered and rejected by the Reviewer.
This ground is not sustainable.
Conclusion
For the above reasons, the grounds set out in the amended application, are not made out. Accordingly, the application filed on 5 July 2011, as amended, is dismissed.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge O'Dwyer
Associate:
Date: 4 April 2014
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