MZYQA v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 374
•24 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYQA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 374 |
| MIGRATION – Independent review of refugee claims of off-shore entry person – Tamil refugee from Jaffna – reviewer failed separately to address risk of persecution as a member of a particular social group constituted by young male Tamils from the North – declaration of error made. |
| Migration Act 1958 (Cth), ss.36(2), 46A, 476 |
| Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Applicant S v The Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387 Applicant S v Minister for Immigration and Multicultural Affairs [2001] FCA 1411 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 SZPZI v Minister for Immigration & Anor [2011] FMCA 530 SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 |
| Applicant: | MZYQA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PENELOPE HUNTER IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1222 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 24 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Jackson |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | Sparke Helmore |
THE COURT ORDERS THAT:
Declare that, in recommending to the first respondent that the applicant be not recognised as a person to whom Australia has protection obligations, the second respondent made an error of law, in that the second respondent failed to consider in her report whether the applicant had a well-founded fear of persecution in Sri Lanka by reason of membership of a particular social group constituted by young Tamil males from the North of Sri Lanka.
Application otherwise dismissed.
The first respondent pay the applicant’s costs in the amount of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
MLG 1222 of 2011
| MZYQA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| PENELOPE HUNTER IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived at Christmas Island on an intercepted boat in June 2010, with some identity documents but no travel documents allowing entry to Australia. After an interview on 17 July 2010, he was assisted to make an application for recognition of refugee status under procedures which were established within the Department of Immigration to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would be allowed to make an application for an onshore protection visa (the ‘RSA’ procedure).
A negative assessment was notified to the applicant on 11 November 2010, and the applicant then applied for independent merits review (‘IMR’) under the same administrative procedures. The application for review was addressed by Ms Hunter in a report to the Minister which is dated 25 July 2011. In her report, Ms Hunter found that the applicant did not meet the criterion for a protection visa under s.36(2) of the Migration Act 1958 (Cth), and recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.
Throughout the RSA and IMR procedures, the applicant was assisted by migration agents from Melbourne. At the relevant times of interviews during the RSA and IMR procedure, he was held at Christmas Island and Scherger Immigration Detention Centre near Weipa. The present application was filed in Melbourne on 24 August 2011, and was transferred to Sydney on 12 January 2012 on the application of his present Sydney solicitors. He was represented today by counsel, and I was informed that the applicant was last known to be held in detention in Tasmania.
In his amended application, the applicant seeks a declaration that the recommendation of the independent merits reviewer was not made in accordance with the law, and an injunction restraining the Minister by himself or by his department officers, delegates or agents from relying upon the recommendation of the independent merits reviewer. The grant of such relief falls within this court’s jurisdiction under s.476 of the Migration Act, which is to be exercised in accordance with Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319. The existence of that jurisdiction has recently been accepted by a Full Court of the Federal Court, which held that no time limit arises by reference to the date of the IMR report (see SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26).
The ground of review
The application before me, as presented by counsel, focused admirably upon the best contention of error of law affecting Ms Hunter’s report. It was pleaded as follows:
1.The IMR failed to consider an integer of the applicant’s claim, and failed to take into account an aspect of the Applicant’s claim, which was that he was a member of a particular social group, being “young Tamil males from the North of Sri Lanka”, being those of fighting age during the Sri Lankan civil conflict.
1.1The IMR considered only the Applicant’s ethnicity and imputed political opinion, and did not consider his heightened risk of Convention-based persecution arising out of his membership of a particular social group of young male Tamils.
The ground relies upon a well-recognised error of law in relation to refugee determinations, which has also been held to be jurisdictional error in relation to the exercise of a statutory power to determine refugee status. This error is the failure “to make a finding on ‘a substantial, clearly articulated claim relying upon established facts’”. In Plaintiff M61 (supra) at [90], the High Court characterised the error as denial of procedural fairness. The relevant principles were discussed by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [52]- [63]. Their Honours said:
[63] It is plain enough, in the light of Dranichnikov, that a failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected”: Applicant WAEE at [47]. But as the Full Court said in WAEE (at [45]):
… If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.
In that case the appellant, who was an Iranian citizen, put to the tribunal that the marriage of his son to a Muslim woman in Iran had ramifications for him and his family. The tribunal made no express reference in its discussion and findings to the claimed fears of persecution which arose out of the marriage by the appellant’s son to a Muslim woman although it made reference to the claim in its overview of the appellant’s case. The court held that the tribunal had failed to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied. The court held that the tribunal had therefore failed to discharge its duty of review and had made a jurisdictional error.
In relation to refugee claims raising expressly or by clear implication the Convention ground of persecution which would be constituted by a “well-founded fear of being persecuted for reasons for ... membership of a particular social group” the High Court has explained the findings that are required to be made by a decision-maker. In Applicant S v The Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387, Gleeson CJ and Gummow and Kirby JJ, summarised the effect of the previous judgment in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 as follows:
[36] Therefore, the determination of whether a group falls within the definition of “particular social group” in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. second, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. third, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”. As this court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand.
Several judgments in the High Court have emphasised that, where a “particular social group” claim is raised, the decision-makes should make findings defining the relevant group and its characteristics which might attract the risk of persecution. McHugh and Kirby JJ, explained in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [31]:
31.In a case like the present, defining the particular social group and the type of harm feared is fundamental in determining whether a member of that group has a well-founded fear of persecution. Only by defining the group and its characteristics or attributes, actual or imputed, can a tribunal of fact determine whether the harm feared is well-founded and is causally related to the particular social group. So in determining whether there is a real chance that a discreet or non-discreet homosexual man in Bangladesh will suffer persecution, consideration must be given to:
· the characteristics and attributes of the particular social group;
· the nature, severity and likely repetitiveness of the harm feared;
· the extent to which, if at all, the individual will encounter the harm feared;
· the existence of a causal relationship between the harm feared and one or more of the characteristics or attributes, real or imputed, of the social group; and
· the extent to which the individual can be expected to tolerate the harm without leaving or refusing to return to the country of nationality.
Applicant S (supra), itself illustrates a case where a decision-maker, while purporting to address the fears of persecution presented by a claimant, failed to recognise that there was a separate basis for possibly finding satisfaction of the Convention definition arising from the accepted circumstances of the claimant by reference to membership of a particular social group which, in the opinion of the court, was clearly raised by the material (See Applicant S (supra) at [13] and [50] and the previous findings, at first instance, in Applicant S v Minister for Immigration and Multicultural Affairs [2001] FCA 1411 at [42] to [48]).
The general principles which I have referred to above were not the subject of any controversy in the present matter. The applicant’s counsel confined himself to inviting me to follow these principles, which I previously applied in SZPZI v Minister for Immigration & Anor [2011] FMCA 530. The Minister’s counsel did not submit that my reasoning in that case revealed any error or misconception of law.
It is necessary, therefore, to address the present grounds of review, by considering how the present applicant presented his relevant fear of persecution if he returned to his country of nationality, Sri Lanka, and to consider how it was addressed by Ms Hunter.
The applicant’s refugee claims
The notes of the applicant’s entry interview referred to a personal history which essentially was accepted by the RSA assessor and by Ms Hunter, albeit that Ms Hunter formed an opinion that the applicant had embroidered some particular incidents occurring in 2006.
However, clearly Ms Hunter accepted that the applicant was a male born in 1980, and had been raised in the area of Jaffna in Sri Lanka during the period that it was subject to the LTTE insurgency and security operations of agents and supporters of the Sri Lankan Government. She accepted that the applicant’s father was a village headman in an area which passed between control of the LTTE and the SLA, and which currently is regarded as a high security area from which the applicant’s family is still excluded.
The applicant was a boy during the late 1990s period of conflict, and personally encountered the fighting, although not taking part in it. During the subsequent ceasefire, he was able to obtain an education, including qualifications as an electrician, and to commence his own business as an electrician. However, the applicant claimed at his entry interview that, after the renewal of conflict in 2006, he encountered more than the previous attentions of the security authorities in the course of his work. In particular, he claimed that in late 2006, he had been questioned by military intelligence agents after being stopped returning home with electrical tools and wires. Although they released him, he was left with concerns as to his future safety, and he did not return home. His concern appeared vindicated, because shortly after this incident “people in white van came to my home looking for me”. He and his family thought that these might be paramilitary supporters of the Sri Lankan Government, who were known to be responsible for abductions and disappearances of persons they suspected as being LTTE supporters. The applicant’s family then sent him to live in Colombo, using bribes to get necessary residence documents. However, his situation in Colombo was felt to be insecure, and in 2008 he obtained passport with the use of a people smuggler and then lived as a refugee in Malaysia for two years before coming to Australia.
In his statutory declaration, which was attached to his RSA application, he introduced himself and his fears as follows:
1.I am a 30 year old Sri Lankan national of Tamil ethnicity from Jaffna District. I make this Statutory Declaration in support of the assessment of my claims to be a refugee under the Refugees Convention. Below I set out my fears for being persecuted if forced back to Sri Lanka.
2.I fled Sri Lanka on 26 September 2008, because I was fearful of my life. I was persecuted because I am Tamil, and also because I am a young Tamil man from Jaffna district.
He then sketched his personal history, and that of his family in the 1980s and 1990s. He said that his “problem became even more serious around 2006”. He described being stopped at a checkpoint in August 2006, and being interrogated for one hour before being released. He referred to a white van coming to the family house one week later, when his parents were threatened and questioned about his whereabouts. In later evidence, he said that it was impossible to identify the people in the white van, because they were hooded. He said that and his father were told by the police that they could not give him protection. His statutory declaration recounted the payments made by his father for him to live in Colombo and then travel to Malaysia. He described his fears of returning to Sri Lanka at the end of his statutory declaration as follows:
14.If I were forced to return to Sri Lanka, I will definitely be arrested and tortured and perhaps killed. The Sri Lankan government has announced that those who had gone overseas are all LTTE members. They have already questioned me for being a LTTE member, and also interrogated me about my electric tools and suspecting me or placing bombs for the LTTE.
15.I fear that there is no guarantee of my safety in Sri Lanka. The Sri Lankan Government says that the war is over, but they keep arresting young Tamils for suspicion of being a LTTE member. The SLA is establishing new camps in the North and the East even though they declared that the way is over. Also, they are extending the Emergency Act. Under the Emergency Act, they can kill, shoot, abduct or arrest anyone and no one can question that. I do not believe that the situation in Sri Lanka has changed for the better. I have read this on the newspaper article from the internet dated the 4th of August 2010.
16.I cannot to go to Colombo because I have to register with the police. There is nowhere safe in Sri Lanka. I believe that the Sri Lankan Police or the SLA will arrest me upon my return. As a young Tamil man from Jaffna, I will certainly be suspected of being a LTTE member wherever I go in Sri Lanka. I am fearful of my life. I cannot go back to my country.
17.When I left Sri Lanka, I had no intention of coming to Australia. All I want is somewhere I can live peacefully. I hope the Australian government let me stay here.
(emphasis added)
There is no evidence of any relevant backgrounding information being presented in support of his claims to be at risk because of his personal background, before they were addressed by the Departmental Assessor. However, the assessor’s report referred to some such information. This included an extract which I shall refer to below, from the UNHCR eligibility guidelines for assessing asylum claims of Sri Lankan Tamils, which referred to “according to some reports, young Tamil men, particularly those originating from the North and East of the country, may be disproportionately affected by the implementation of security and anti-terrorism measures on account of their suspected affiliation with the LTTE”, and to references to the fact that “few Tamils from these regions are without ties to the LTTE” if they have come from areas which have been under the control of the LTTE.
The RSA assessor appears to have largely accepted the applicant’s history, including the claimed events of late 2006. However, he concluded that there was country information “that the situation for the Tamils in Sri Lanka has significantly improved and continues to improve”, and was therefore not satisfied that he faced a real chance of persecution. The decision maker did not perform any analysis of the risk faced by the applicant by reference to the Convention ground of membership of a particular social group to which the applicant might belong. The assessor did considered the risks facing the applicant as a returning failed asylum seeker in Australia, but it is unnecessary for me to examine this part of the case.
During the review by Ms Hunter, the applicant’s agents made a lengthy written submission. They expressly relied upon his statutory declaration as the principal source of his claims to fear persecution. After summarising his history, they submitted:
…
(b)[The applicant] fears that if he is returned to Sri Lanka, he will suffer persecution in the form of abduction or arbitrary arrest and, detention, imprisonment, physical assault and torture, and possible death, at the hands of the Sri Lankan authorities; or by various non-State agent militia backed by the Sri Lankan government and operating with impunity throughout Sri Lanka on account of;
a.His actual and/or imputed political opinion in support of the LTTE, for independence from Sri Lanka for the LTTE-controlled parts of the country and of equal and just mistreatment of ethnic Tamils by the Sri Lankan authorities and against the activities of the Sri Lankan authorities and the systematically brutal treatment of ethnic Tamils resulting from;
i. His Tamil ethnicity;
ii. His profile as a young Tamil male from the North of Sri Lanka;
iii. His actions in having travelled to Australia and sought asylum
b.His Tamil ethnicity; and
c.His membership of the particular social group(s) ‘returnees’; ‘Tamil returnees’ and/or ‘failed asylum seekers’
(c)We submit that the situation in Sri Lanka is one in which human rights are not respected and that people with profiles such as the applicant, as detailed above, are at risk of persecution.
(d)Known country information indicates that the applicant’s fears of persecution for the above reasons are well-founded. The situation in Sri Lanka remains volatile and dangerous notwithstanding the end of the civil war in May 2009 and Tamils suspected of support or collusion with the LTTE remain at risk of persecution as the Government attempts to eradicate all possibility of an LTTE resurgence.
(e)Given the applicant’s circumstances and the nature of his claims against the Sri Lankan authorities, it would be neither reasonable to expect, nor possible, for him to relocate to another area within Sri Lanka. Country information indicates that Tamils suspected of LTTE support or collusion face a real chance of persecution throughout Sri Lanka.
Under the general heading ‘The applicant’s fear of harm on account of his ethnicity, profile as a young Tamil male and actual/imputed political opinion against the Sri Lankan government and in support of the LTTE’, the agents’ submission extracted various parts of pertinent country reports. This material included reference to a recent US State Department report dated 8 April 2011, which contained the following paragraph:
In the east and the north, military intelligence and other security personnel, sometimes working with armed paramilitaries, carried out documented and undocumented detentions of civilians suspected for LTTE connections. The detentions reportedly were followed by interrogations that frequently included torture. There were reported cases of detainees being released with a warning not to reveal information about their arrests under the threat of rearrest or death if they divulged information about their detention. There were also previous reports of secret government facilities where suspected LTTE sympathizers were taken, tortured, and often killed.
The agents’ submission also referred to a UK Human Rights report of March 2010 which contained the paragraph:
Reports of abductions and disappearances of civilians continued throughout 2009. In the vast majority of cases the reported victims are Tamil civilians. There have been persistent allegations of Sri Lankan security-force involvement.
The submission also said:
The most recent USSD report also states that “Tamils throughout the country, but especially in the conflict-affected north and east, reported frequent harassment of young and middle-age Tamil men by security forces and paramilitary groups.
(emphasis in the submission)
They also referred to similar information about the criminal activities of non-government agents apparently supporting government concerns about a revival of the LTTE, found in reports of Human Rights Watch and Amnesty International and other sources. They gave emphasis to the part in the UNHCR Guidelines which had been cited by the RSA assessor, suggesting a heightened risk of ‘security and anti-terrorism measures’ facing ‘young Tamil men, particularly those originating from the North and East of the country’.
Towards the conclusion of this part of the submissions, the agents submitted:
The above country information raises serious concerns for the treatment of Tamil persons who are suspected of involvement with the LTTE or who have been targeted by paramilitary groups such as the Karuna Group. We submit the situation may indeed be worse as there are serious restrictions on freedom of the press and access to certain areas.
The agents’ submission then addressed the applicant’s fears of being targeted and extensively interrogated at Colombo airport if he returned from having sought asylum in Australia unsuccessfully. As I have noted, this is not relevant to the present ground of review.
The agents submitted a supplementary statement by the applicant, which addressed some particular details of events in 2006. He also submitted a statement from an unidentified person on letterhead of a Division of the ‘Grama Niladhari’s Office’, i.e. presumably the government agency supervising the activities of village headmen. This person gave direct evidence that the applicant was known to the author from birth, and “hails from a respectable family”. The letter said:
In August 2006 I was asked by the security officials to investigate into his movement and to submit a report for them on suspicion arose that has link with the LITTE cadre consequent of his daily journey to work from Mallakam to Killinochchi (LITTE Occupied Area) via Muhamalal Security Centry point.
During my investigation I came to understood from his father to say that his son was wanted by unidentified armed youths came to his house in a white van on August 2006 and on the same day two other boys from this area were abducted by them and their whereabouts is not yet known. Thus, his son lived in hide-outs and left abroad for his own personal safety. Still now the investigates is being continue.
The applicant attended an interview by Ms Hunter, held at Scherger IDC on 20 April 2011, at which his agent was present. A transcript of the interview is not in evidence, but Ms Hunter included a lengthy description in her report.
According to her description, she closely questioned the applicant about his history, including details of what happened in 2006. She then suggested to the applicant that there was country information which showed that “there was no longer a need for a group based protection mechanism or a presumption of eligibility for Sri Lankans of Tamil ethnicity from the north”. The applicant was invited to explain what he feared:
62.I then asked the claimant who he was afraid of. He advised that he was afraid of the SLA and also the paramilitary groups. He cannot identify the people that came looking for him but he has heard that they are still operating. The report from Human Rights Watch indicates that they are active in most parts of his country. I put to the claimant that the paramilitary organisations were separate from state authorities such as the police and army. He advised that the paramilitaries were always operating with the army. He advised that the EPDP were active in his area. In addition there is also an army camp in his area.
63.I then put to the claimant that his family were able to work and study and he had earlier advised me that they did not have any concerns for their security. The army or paramilitaries had not caused them any problems. He responded that because of him his family had had a problem. Also when he speaks to them they do not want to tell him anything that is going on at home as they do not want to worry him.
The applicant claimed that he was still at risk as a result of events in 2006, and referred to other difficulties he would face if he returned. According to Ms Hunter’s account of the interview, at the very end of the interview, the applicant’s agent made some submissions, including:
69.The agent conceded that in the context of the questions I have asked I could adopt the approach that there does not have to be a strong likelihood that he will be attacked by the Sri Lankan army but there is a probability it will happen. If he goes to Colombo or somewhere else to live the chances of it happening are the same. He should not have to live in a country where he has to pay bribes. He needs to genuinely be able to access protection. Even now the army continues to search houses in his area. It is not good for Tamil males like the claimant who are young. This searching is not only due to past activity. The claimant did leave because he had a genuine fear of persecution. If he is forced to return to Sri Lanka a similar thing will happen and his fears are well founded and there is a real chance that lie would be subject to harm and it would be appropriate to grant protection.
Ms Hunter’s report
Ms Hunter’s report is dated 25 July 2011, and was notified to the applicant shortly thereafter. Her report contains a statement of reasons which, for the reasons I have explained in earlier cases, is appropriately treated as the equivalent of a statement of reasons given by the RRT, since the Minister’s guidelines required a similar level of detail for its findings and reasons. In SZPZI (supra), I concluded:
[13] In this context, it is appropriate, in my opinion, to treat Mr Connolly’s report as an equivalent to a statement of reasons given by a migration tribunal under its duties as to the content of reasons described in ss.368(1) and 430(1) of the Migration Act, at least for the evidentiary purposes of drawing inferences as to what evidence and issues were or were not considered by Mr Connolly when making his recommendation. It is well established that an inference of error by reason of a failure to consider a legally relevant matter may be drawn from the omission of discussion of a significant or essential issue raised by s.36(2) of the Migration Act, although drawing that inference requires caution and careful examination of how the refugee claims were raised and responded to by the decision-maker (cf. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [34]-[35], [68]-[69], [75]; WAEE v Minister for Immigration (2004) 75 ALD 630 at [47]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 at [33]-[36]; and Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 at [43]-[49], [55], [72], [91]-[92], [98]).
Ms Hunter’s present report contains a full recitation of the evidence and submissions presented by the applicant and his agents, both as to the applicant’s personal circumstances and of relevant country information. This includes references to the evidence which, in my opinion, raised and supported the ‘particular social group’ claim which the present ground of review focuses upon. However, Ms Hunter’s references to this evidence were made without any apparent focusing upon whether it required consideration separate from the risks attaching to either his particular past personal history, or to his general identity as a displaced Tamil. I therefore regard these parts of her report as ‘neutral’ as evidence showing whether or not she appreciated a need for a separate consideration whether the applicant faced a heightened risk of persecution as a member of an identifiable social group of ‘young Tamil males from Jaffna’.
In relation to the relevant country information identified by Ms Hunter, it is relevant to note that in her five page discussion of the general background to the current situation in Sri Lanka, she included the part of the July 2010 UNHCR eligibility guidelines which included the reference to the possibility of young Tamil men from the North and East of the country being disproportionately affected by security measures. However, she extracted it without any apparent focusing upon the issue whether it might support an assessment of a heightened risk facing the applicant merely from his attributes as a young male. After extracting some background from this publication, she said:
77.Prior to the developments outlined above the UNHCR had maintained, even after the end of the civil war, that all Tamil asylum seekers in and from the North should be recognised as refugees under the 1951 Convention, absent clear and reliable indicators that they did not meet the criteria. New guidelines were issued in July 2010 by the UNHCR for the assessment of international protection needs for asylum seeks from Sri Lanka. These guidelines were issued in the context of the improved human rights and security situation. The UNHCR report further states that there is no longer a need for international protection for Sri Lankans originating from the North of the country solely on the basis of indiscriminate harm. While it was noted that the situation was still evolving a certain number of profiles within the general population however were identified as having particular risks including those suspected of having links with the LTTE.
In the immediate post-conflict period, there have been allegations of enforced disappearances of persons suspected of LTTE links. Furthermore, the broad powers of arrest and detention under the Prevention of Terrorism Act (PTA) and the Emergency Regulations, have reportedly generated considerable controversy around issues such as the arrest and detention of persons suspected of LTTE links, in a number of cases allegedly on limited evidence and often for extended periods. Human rights observers have also expressed concerns regarding the broadly defined offences under the Emergency Regulations, which allow, inter alia, detention without charge for up to 18 months, and use of informal places of detention. In May 2010, the Government, however, relaxed the Emergency Regulations by withdrawing several provisions, including those dealing with the imposition of curfews, propaganda activities, printing of documents and distributing them in support of terrorism, as well as those restricting processions and meetings considered detrimental to national security.
Amongst issues relevant to the determination of eligibility for refugee protection are allegations by a number of sources regarding: torture of persons suspected of LTTE links in detention; death of LTTE suspects whilst in custody; as well as poor prison conditions, which include severe overcrowding and lack of adequate sanitation, food, water and medical treatment. According to some reports young Tamil men, particularly those originating front the North and East of the country, may be disproportionately affected by the implementation of security and anti—terrorism measures on account of their suspected affiliation with the LTTE.
In light of the foregoing, persons suspected of having links with the LTTE may be at risk on the ground of membership of a particular social group.
Ms Hunter also referred to other evidence showing that government agencies were searching for and detaining persons suspected of being LTTE sympathisers or operatives, and also to evidence of “unknown actors suspected of association with pro-government military groups” committing killings and assaults of civilians. She also extracted some information concerning how “Tamils returning to Sri Lanka” are treated at the Colombo airport.
In her findings and reasons, Ms Hunter expressed a general conclusion that “the claimant significantly embellished his evidence to assist his claim for protection” … “I do not consider the claimant to be a generally reliable witness”. However, it is apparent that she accepted a large part of the applicant’s basic narrative. She said:
84This application, the claims and the evidence of the claimant has been carefully considered together with the country information. I accept from the information contained in the Department file and the information presented by the claimant the following;
o The claimant was born on (date) 1980 in (location), Jaffna District, Sri Lanka.
o The claimant is of Tamil ethnicity.
o The claimant is a citizen of Sri Lanka and not any other country.
o The claimant left Sri Lanka on (date) 2008.
Ms Hunter said that she “accepted that the applicant and his family had been displaced when he was a child and had experienced ongoing security operations”. She then discussed the two incidents which the applicant claimed had occurred in 2006, and which he claimed had led to his leaving his home area. She accepted that he had been questioned by the CID about his movements and his electrical equipment, but did not accept that he had been threatened by a gun or threatened that “they would come and catch him later”. She said:
While I find that the claimant was questioned by the SLA at the checkpoint on this occasion I also find he was not threatened with harm. …
I find that the claimant was not at this time suspected of being a supporter or member of the LTTE.
She also accepted that the white van incident had occurred, but thought that it had been embellished by the applicant, and found “that no threats were made to his family”. However, she said:
Although I have concerns about the accuracy (sic) of the claimant’s evidence in relation to this incident I am prepared to give the claimant the benefit of the doubt and I find that five men in a white van did attend the family home of the claimant and ask questions as to his whereabouts in or around August 2006.
However, she found that this event was not related to his previous questioning by the SLA at the checkpoint, and said that she was not satisfied that they acted on the behest of the SLA. She also said: “I am not satisfied that on this occasion the claimant was being pursued for a convention reason.”
I found this part of her report difficult to understand, since Ms Hunter made no findings as to what other reasons were more likely to have motivated this incident targeting the applicant and no other member of his family. Nor did she discuss the broader implications of the conduct of the applicant and his family, when he immediately abandoned his home area, his family, and his business, and sought an unsettled life as a refugee firstly in Colombia and then Malaysia and now Australia. She undoubtedly accepted that his conduct was motivated by fear, since she found:
While I find there was no direct threat to the claimant I accept that his decision to leave the country was motivated in part by concerns for his safety due to increased hostilities between the LTTE and the Sri Lankan authorities.
Nor did Ms Hunter discuss the implications for an assessment of this incident, of the country information about the activities of paramilitary supporters of the government and criminal elements condoned by the government. However, these deficiencies in her reasoning concern the merits of her assessment of risk of persecution facing the applicant arising from his past history before leaving Sri Lanka, and do not directly bear on the present ground of review.
Ms Hunter’s conclusion as to the risks facing the applicant was:
95.I note that the claimant left the country in September 2008. At that time the Sri Lankan government was accelerating its effort to end the military conflict with the LTTE. After 26 years the civil war ended with the defeat of the LTTE in May 2009. Two years have now elapsed. While it is acknowledged that the overall human rights situation in Sri Lanka remains of concern, the UNHRC Guidelines report that the security situation continues to improve and both the UK and US State Department Human Rights reports record that reports of human rights violations continue to fall. The claimant considers that he will be persecuted as he is a male Tamil from the North of Sri Lanka and that he has been imputed with a political opinion of having an association with the LTTE I find that, considered cumulatively, the personal incidents of which the claimant has given evidence would not have created an adverse profile of the claimant as a LTTE member, or the imputed profile of a member, that would make him of any interest to Sri Lankan authorities if he returned. I consider that there has been a significant and durable change in the political situation in Sri Lanka. After 26 years the government is no longer in armed conflict with its citizens The claimant’s family has continued to reside in Jaffna without incident, his sisters undertake study and his father is a person, from the claimant’s evidence, of some authority in his village In light of the relaxation of the security situation in Sri Lanka I find that there is not a real chance that the claimant would be subject to persecution now or in the reasonably foreseeable future on the basis of his ethnicity or imputed political opinion if he is returned.
The reasoning in the above paragraph became the focus of the debate before me, whether Ms Hunter made findings which sufficiently addressed the applicant’s claim that he would be at separate risk of persecution if he returned, by reason only of his attributes as a member of a discernable particular social group comprising young male Tamils from the North, even if there was not a sufficient chance of persecution arising only from his past experiences or from his general attributes as a Tamil. I shall explain my conclusions in relation to this debate, after completing my description of Ms Hunter’s report.
Completing my description of Ms Hunter’s reasons, her subsequent paragraphs dealt with, and rejected, the applicant’s separate claims that “the Sri Lankan government has announced that all people who go to Australia by boat are terrorists”, and that he feared that he would be interrogated and persecuted upon his arrival in Colombo after unsuccessfully seeking asylum in Australia. In respect of the latter claim, Ms Hunter’ long discussion contained the sentence:
97.…While I accept the possibility that the claimant as a Tamil male from the North may be questioned on return, even if is he questioned I have found that the claimant would not be suspected of having a connection to the LTTE such that he might be viewed with suspicion upon return. I find that there is not a real chance that he will be detained or subject to persecution. …
Conclusions on the ground of review
Considering Ms Hunter’s reasoning in paragraph 95 in the context of her previous reasoning, I am unable to identify in it findings which address squarely, or at all, a discrete claim by the applicant that he would be at risk of persecution by security agents of the government or by their unofficial ‘paramilitary’ supporters or by criminals tolerated by the government, if he returned to Sri Lanka merely as a person who would be identifiable a member of a particular social group constituted by young male Tamils with origins in the North of Sri Lanka.
In my opinion, a concern concerning this sub-group of Tamils was expressly made by the applicant in his RSA application, and was supported by material pointed to by his agents in the applicant’s own history and in the country information, and did not evaporate nor disappear as a result of Ms Hunter’s rejection of his claims to have in the past been specifically targeted as a perceived LTTE associate.
In my opinion, a fair reading of Ms Hunter’s report shows that she did not perceive a need to make findings separately addressing this claim. I would draw this inference from the absence of any such findings in her report. In particular, I am not persuaded that she did made necessary findings obliquely in paragraph 95, nor that it was unnecessary for her to do so by reason of the findings she made in that paragraph.
In that paragraph, in my opinion, Ms Hunter addressed the applicant’s future situation as a displaced Tamil once his claims that he had been in the past “imputed with political opinion” were rejected. She did so, without separately focusing upon a particular sub-group of displaced Tamils to which the applicant claimed also to belong, which might place him – with all other members of the sub-group - at heightened risk of being persecuted as perceived LTTE associates.
The gap in Ms Hunter’s reasoning is shown in the language of the concluding sentence of paragraph 95, and also in the reasoning leading to it. The conclusion did not in its terms address the applicant’s claimed significant sub-group features of gender and age and origin, but only his ‘ethnicity’ generally and his personally ‘imputed political opinion’. Risks arising from his personal history were put aside because “the personal incidents of which the claimant has given evidence would not have created an adverse profile…”. Risks attaching to the applicant’s Tamil ethnicity were put aside because of “a significant ad durable change in the political situation”, and Ms Hunter’s opinion that other members of the applicant’s family had ‘continued to reside in Jaffna without incident’. However, this reasoning did not address the applicant’s sub-group claim.
As I understood the submissions of counsel for the Minister, he accepted that the applicant’s refugee claims, in particular his statutory declaration, and also his history including the white van incident, raised both the existence of a relevant particular social group, and the possibility of a discrete and heightened risk attaching to membership of the claimed sub-group in the future. However, he submitted that Ms Hunter in paragraph 95 had sufficiently identified that claim in her sentence in the middle of the paragraph: “The claimant considers that he will be persecuted as he is a male Tamil from the North of Sri Lanka and that he has been imputed with a political opinion of having an association with the LTTE.” He submitted that the conclusion of the paragraph should then be understood to have answered that claim, in its reference to “on the basis of his …imputed political opinion”. In counsel’s submission, this answered the claim, because the sub-group claim, in effect, suggested that all members of the sub-group were at risk of persecution for imputed political opinions.
However, I do not consider that in logic this inference must be drawn, nor that Ms Hunter in fact reasoned in that manner. In logic, the subgroup claim was that merely having the subgroup attributes carried a heightened risk of harm from both agents of the government and from non-agents whose actions would be condoned or tolerated by government, and did not necessarily suggest that all potential persecutors of the group would be motivated by reason of a perception of the political opinions of the targeted member of the sub-group.
Moreover, in the absence of discussion by Ms Hunter of the likely motivations of persecutors of the subgroup, I am not satisfied that she engaged in the analysis suggested by counsel for the Minister. The sentence in which she referred to the applicant’s fear as a male Tamil from the North appeared to treat this as part of his claim based on past experience. Moreover, I think it likely that she failed to appreciate that there was sub-group element in the applicant’s refugee claims required additional findings as to the existence of the sub-group as a particular social group, the likelihood that it would attract persecution from which the applicant would not be protected, and whether the risk attaching to the applicant by reason of his membership of the sub-group – whether in itself or cumulatively with his other circumstances – would amount to a ‘real chance’. In my opinion, if she had appreciated the need for these findings, then she would have made them in her report.
Nor am I able to read paragraph 95 of Ms Hunter’s report in a more generous manner by reason of her reference in paragraph 97 to the possibility that at Colombo Airport the applicant would be “questioned” by reason of being identified as a “Tamil male from the north”. Rather, this finding, in my opinion, points to the possible existence of a relevant sub-group which Ms Hunter failed to isolate when considering his future situation in Sri Lanka generally, and to assess separately the risks arising from his membership of that group which could attach to the applicant once he left Colombo Airport and circulated within Sri Lankan society.
I am therefore satisfied that the ground of review argued before me today has been established, and that the applicant has made out an entitlement to relief by way of a declaration of error by Ms Hunter in failing to address an integer of the refugee claims which were before her. I do not consider that it is necessary to give relief by way of injunctive relief, since my judgment should be sufficient to cause the Minister to cause a further review of the applicant’s refugee status.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 7 May 2012
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