MZYVM v Minister for Immigration - [2012] FMCA 762

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYVM v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 762

MIGRATION – Judicial review of Independent Merits Reviewer decision – natural justice point – applicant senior member of LTTE – reviewer’s findings of adverse credibility – whether finding based on country information not put to applicant – whether country information credible, relevant and significant – whether gist of information put to applicant – whether applicant obliged to put on evidence in rebuttal of country information to obtain relief.

Migration Act 1958 (Cth)

Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319
Kioa v West (1985) 159 CLR 550
Attorney-General v X [2011] 1 NZLR 721
SZQNF v Minister for Immigration and Citizenship [2011] FMCA 965

Applicant:

MZYVM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

CHRISTOPHER KEHER IN HIS CAPACITY AS AN INDEPENDENT MERITS REVIEWER

File Number:

MLG 184 of 2012

Judgment of:

Burchardt FM

Hearing date:

31 July 2012

Date of Last Submission:

31 July 2012

Delivered at:

Melbourne

Delivered on:

5 September 2012

REPRESENTATION

Counsel for the Applicant:

Mr J. Gormley

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Ms S. Burchell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 184 of 2012

MZYVM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of an Independent Merits Reviewer (“the Reviewer”) dated 20 January 2012. By his amended application filed on 13 July 2012, the applicant raises a natural justice point. Because of the legislative scheme, this is a common law point (see Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 (“Plaintiff M61”)).
The applicant submits that the Reviewer did not afford procedural fairness to the applicant in that the Reviewer did not bring to the attention of the applicant or allow him an opportunity to comment on information which was credible, relevant and significant and from which it is submitted the Reviewer drew conclusions adverse to the applicant’s claims. The information concerned were reports from the US Department of State (“USSD”) being Sri Lanka Country Reports on Human Rights Practices for the years 2003, 2004 and 2005.
For the reasons that follow, I have come to the conclusion that the first respondent is correct to submit that in the particular circumstances of the case, the Reviewer did not fail to accord the applicant with procedural fairness and it follows that the application must be dismissed.

Agreed and/or undisputed facts

Subject to two caveats as to paragraphs 12(c) and 12(f), the applicant’s written submissions expressly concede the factual background set out in the first respondent’s submissions filed 22 June 2012. The facts thus asserted are as follows:
a)The applicant was born on 17 November 1985 in Batticaloa in Sri Lanka. He was a member of the Liberation Tigers of Tamil Eelam (LTTE) from 2000 to 2006. He arrived in Australia as an offshore entry person on 10 December 2009.
b)In his entry interview and his statutory declaration made in support of his RSA request, the applicant claimed that:
i)He was kidnapped by the Karuna group in 2005 on his way to college in Batticaloa. They sought to recruit the applicant and he refused. He was beaten with fists and iron bars and escaped in March 2006.
ii)He fears that if returned, the Karuna group will force him to join their paramilitary group or kill him.
c)On 17 March 2010, an officer of the Department determined that the applicant was not a refugee as defined by the Convention. This assessment was withdrawn by the Department as new information was received, being the UNHCR RSD Assessment Form dated 18 February 2009, indicating that the applicant was a member of the LTTE.
d)A second interview was conducted on 20 April 2010 during which the applicant denied involvement with the LTTE. After the interview, the applicant admitted to another Australian agency that he was in fact a member of LTTE and that he had lied in his previous statements. He had heard while he was in Malaysia that Australia was refusing protection visas to Tamils who had been LTTE members.
e)A third interview was conducted on 2 September 2010 in order to provide the applicant with an opportunity to present submissions and evidence in relation to the provisions of the Refugees Convention under Article 1F.
f)On 11 May 2011, an officer of the Department determined that the applicant was not a refugee as defined by the Convention.
g)
The applicant requested an Independent Merits Review on

16 May 2011 for review of the delegate’s decision.
h)The applicant’s legal advisers subsequently provided written submissions to the Reviewer on 4 August 2011 which restated his claims and set out independent country information.
i)The applicant was interviewed by the Reviewer on 9 August 2011.
The Reviewer made the following findings which, as I have said, subject to minor caveats are not disputed:
a)He found that the applicant’s history of deception in presenting a false set of claims in his initial statutory declaration and interviews indicated that the applicant was prepared to not tell the truth to advance his claims.
b)The applicant was a member of the LTTE from 2000 to 2006 at the time it was a terrorist organisation involved in a war against the Sri Lankan government.
c)The Reviewer accepted that the applicant was an intelligence operative in the Kokkaduchcholai area under Colonel Ramanan. During this period, the applicant would approach civilians in the market, question them, direct their detention using force if necessary and knowing that those civilians would be shot on the direction of Colonel Ramanan and others (the applicant’s written submissions point out, correctly in my view, that only those civilians who were “found to be questionable” would be shot on the direction of Colonel Ramanan).
d)The Reviewer was satisfied that during February 2004 the applicant, due to his work and aptitude, was deployed to the external intelligence wing in Batticaloa to work in the government controlled area posing as a student. He regularly met with Colonel Ramanan and was given surveillance tasks on civilians considered suspect and he compiled reports on those people. The applicant attended meetings at which time it was determined who was to be investigated and killed.
e)He accepted that the applicant was a senior member of the LTTE as political leader of Batticaloa town in late 2004 to early 2006. In his senior position he knew that the LTTE was involved in detention, kidnapping, extrajudicial killings and disappearances.
f)The Reviewer was satisfied that the country information indicated that the LTTE committed numerous serious human rights abuses. This assertion is the subject of comment by the applicant’s written submissions which characterise the matter as:
“The Reviewer found the country information concerning the activities of the LTTE:
·     “coincided” with what the applicant had said of his activities and what the reviewer found to be the level of the applicant’s activity and involvement with the LTTE;
·     contained reports that the LTTE committed numerous human rights abuses including regular extrajudicial killings and civilian disappearances and was regularly accused of killing civilians;
·     in addition to the other findings, raised several areas of possible crimes including the crime against humanity of murder.”
g)The Reviewer was satisfied that there were serious reasons for concern that the applicant committed crimes against humanity as understood by Article 7(1)(a) of the Rome Statute.
h)The Reviewer was satisfied that the applicant had individual criminal responsibilities as a result of his activities as he facilitated the commission of murder through his actions of aiding and abetting as he undertook activities of detaining people, reporting on them and provided the means for the commission of crimes as provided for under Article 25(3)(d) of the Rome Statute.
i)He was satisfied that the applicant acted with intent and knowledge and he was aware of what he was doing and was aware of the consequences.
j)He accepted that it was in about early 2005 that the applicant had a realisation of the degree of suffering he was causing and he sought to change to the political wing.
k)He found that the applicant was not coerced to join the LTTE and he did not accept that there were threats made against his brother and his mother.
l)Based on the applicant’s submissions and the findings, the Reviewer had serious reason for considering that the applicant was actively involved in the commission of crimes against humanity and was excluded from protection of the Convention pursuant to Article 1F(a).

The applicant’s case as presented

The applicant’s case is a natural justice point. Counsel submitted that the following information relied upon by the Reviewer was material in the findings of the commission of murder:
a)the overwhelming evidence of the LTTE killings of more than 36 members of anti-LTTE political groups and alleged informants during the year 2003 as referred to in the 2003 USSD Report;
b)(i) the credible evidence of the LTTE killings of more than 81 members of anti-LTTE Tamil political groups, LTTE Cadres loyal to Karuna and alleged Tamil informants for the security forces, including the LTTE killings of 10 current and past anti-LTTE Eelam People’s Democratic Party (EPDP) members; and
(ii)indication from credible sources of the LTTE killings of an additional 43 members of breakaway military leader Karuna group:
all during the year 2004 as referred to in the 2004 USSD report;
c)(i) the credible reports of the LTTE killings of more than 106 members of anti-LTTE Tamil paramilitary groups, LTTE Cadres loyal to the Karuna faction, alleged Tamil informants for the security forces and civilians;
(ii)information of the LTTE killings of 18 current and past anti-LTTE Eelam People’s Democratic Party (EPDP) members;
(iii)indication from credible sources that the LTTE killed 45 members of the breakaway military Karunas group; and
(iv)credible evidence that the LTTE killed 15 members of the military intelligence apparatus in a targeted campaign;
all during the year 2005 as referred to in the 2005 USSD report.
It was submitted that all of this information was “credible, relevant and significant to the decision to be made” (per Brennan J in Kioa v West (1985) 159 CLR 550 at 628-629). It was submitted that this information was clearly adverse to the applicant’s interests and should have been put to him.
Counsel further submitted that this information was decisive in the Reviewer’s decision at paragraph 74 and that the Reviewer was in effect shoring up a weak merits decision by his own country information.
Counsel submitted that putting the gist of the information to the applicant in these circumstances was not enough.
The first respondent’s submission, by way of contrast, essentially took the position that the Reviewer’s decision must be read fairly and in context and that the USSD 2003 to 2005 reports were not credible, relevant and significant to the decision itself. It was further submitted that the country information was not novel and that the applicant had been given the gist of it.
Although I do not think the matter was addressed in terms, it was at least implicitly conceded by the first respondent that the Reviewer had relied on USSD reports from 2003, 2004 and 2005 and that they had not been put to the applicant.

What the materials actually show

It is appropriate at this stage to visit the materials in this case in rather more detail, as it is only by a thorough examination of everything that was put that the natural justice point the applicant makes can be understood.
At Court Book (“CB”) 15 it is recorded in the applicant’s initial application that he had had no contact with UNHCR. His answers were recorded by the interviewer as “no, I tried to register but I couldn’t do it. Where did you try to register? Malaysia.”
At CB 17 it was recorded that the applicant indicated that he had not been associated with any political group or organisation and had not been involved in any activities or protests against the government.
At CB 25 the interview sheet records the applicant’s assertion that he was initially kidnapped into the LTTE.
At CB 72-73 the applicant’s statutory declaration sets out his alleged history but fails to make any mention of his membership of the LTTE.
At CB 106 the applicant’s further statutory declaration asserts that he has not been involved in war crimes or crimes against humanity nor had he been associated with anyone else who could have been or could reasonably be suspected to have been involved in such activities.
At CB 122-125 the UNHCR RSD Assessment Form is set out. This records, contrary to the applicant’s statutory declaration, his active participation in the LTTE from 2000 - 2006. I note the following relevant extracts:
“The principal applicant joined the LTTE in 2000, when he was still studying. According to him, the reason he joined the LTTE on his own freewill was because when he was young, his father was killed and burnt by the Sinhalese, on account for being a Tamil.”
“Another aspect of his job was to get information from the public and share the information when he was required to report back at the Intelligence Office during the weekly meetings with Colonel Ramanan. During the meetings, the leader would make decisions and delegate the assignments/work. For instance, if a particular group or person affiliated with the SLA made frequent visits to the SLA in the area, he would inform Colonel Ramanan who would then decide what the next course of action to be taken; if a person was deemed “problematic”, Colonel Ramanan would order for him to be shot.”
At CB 129-131 the applicant’s further statutory declaration is set out. In this he expressly acknowledged lying in his previous statements and confirmed that he had joined the LTTE in 2000, although he still maintained that this had involved an element of coercion.
At CB 154, in part of a decision of the Supreme Court of New Zealand relied on by the applicant, the Supreme Court recorded that:
“While the Tamil Tigers is an organisation striving for political change which has been engaged in armed conflict against government forces, it has also committed many crimes against humanity during the period of conflict in Sri Lanka.”
At CB 159 in a further extract from the same judgment it is recorded:
“The information referred to what the Authority in its decision described as a consistent and flagrant pattern of human rights abuses committed by the Tamil Tigers. Its comprehensive decision contains summaries of more than twenty atrocities including attacks on large groups of civilians, on unarmed police or military personnel or involving assassinations. These incidents took place between 1985 and 1996.”
The RSA record runs from CB 206-236. I note inter alia that at

CB 213, the RSA assessor expressly referred to the USSD 2009 report on Sri Lanka and at CB 215 referred at item 34 to a document entitled “Sri Lanka – LTTE Torture Camp found” and at item 30, “Sri Lanka: US State Dept blasts LTTE over human rights violations.”
The RSA assessment records (CB 221):
“The claimant conducted covert operations which included approaching people in his area who were unfamiliar to him. He would question suspects about their reason for being in the area and if he considered that they were working with the SLA or groups affiliated with the Sri Lankan government, he would apprehend the person and take them to the Central Intelligence Unit, CI, of the LTTE.
The CI would question and investigate the person thoroughly and if evidence confirmed SLA or Sri Lankan government involvement, the person would be jailed. If their activities were deemed serious, for example if they were involved in the abduction or murder of young males or the rape of women, the person would be shot. The claimant, however, was not aware of handing over a person that was later shot…..
The claimant made weekly reports to Colonel Ramanan with regard to people of adverse concern to the LTTE, and the Colonel would identify people for surveillance to the claimant. While Colonel Ramanan also identified the people to be shot, the claimant was not tasked with killing people.”
At CB 222 the RSA assessment records:
“When asked to explain what he meant, he added that he provided information about people and they could have been affected. He later clarified that if the reports he made were proven those people would have been kidnapped or shot.
When asked if he could provide the names of those affected, the claimant stated “I don’t know names but there was possibility (sic) that some incidents could have happened.”
At CB 223 the RSA record refers to the LTTE’s human rights record in the following terms:
“According to the National Institute of Justice Report, the LTTE has killed more Tamils than Sinhalese or members of the military. They do not discriminate about who they kill, even their own leaders and cadres Mass executions occurred at the hands of the LTTE for various reasons including theft, abandoning equipment and lying to a leader …..
The US State Department has condemned the LTTE for egregious human rights abuses.
The LTTE continues to commit serious human rights abuses, such as politically motivated killings, arbitrary arrests, torture, harassment, abduction, disappearances, extortion and detention, the latest human rights report said.
In its report on Human Rights in Sri Lanka during the year 2004, the United States State Department said yesterday”
and the extract went on to detail various activities of the LTTE in critical terms. Further reference was made to other country information showing war crimes and human rights abuses by the LTTE.
At CB 231 the RSA assessment made the following finding about the applicant:
“The applicant states that he himself did not commit any of these acts. In considering this statement, I note that he consistently maintained that this was the case throughout the third RSA interview and in his final statement, as well as his UNHCR statement. However his actions, in identifying suspects, commanding a team of informants used to identify persons of interest, having them transported to interrogation centres, personally interrogating the suspects, preparing reports for his boss Colonel Ramanan and handing these people over to Colonel Ramanan for further interrogation, during which time the claimant was aware that some were executed or disappeared, demonstrates that the claimant was aware that the consequences of this conduct resulted in the persons of interest being subjected to treatment that amounted to crimes against humanity or war crimes.”
Further at CB 231, the RSA assessment states:
“The claimant claimed at his final RSA interview in his defence that the people he identified and interrogated were all spies for the SLA or Sri Lankan government. However given that country information describes the LTTE as a ruthless, paranoid and highly suspicious organisation that was responsible for the arbitrary arrest, detention, torture, execution or disappearance of Tamils and others suspected of acting against its interests, I do not accept that every person the claimant identified, interrogated and passed onto Central Intelligence for further interrogation were spies working with the Sri Lankan authorities. I am satisfied that some of these victims were simply civilians who were targeted by the claimant because they travelled from a government held area or for some other reason and it is highly likely that some were even mistakenly identified as being pro-government with no supporting evidence.
Furthermore, I am satisfied that the claimant participated either directly or as an accessory in crimes against humanity whilst operating as an intelligence operative for the LTTE in Batticaloa during 2002/2003/2004 which resulted in the imprisonment, torture, kidnapping, and forced disappearance and execution of civilians in Batticaloa during 2003/2004 when he was aged 18 and 19 years of age.”

The Reviewer’s decision runs from CB 263–286. At paragraph 42

(CB 270), the Reviewer recorded:
“I put to the claimant that if that was all he was doing why did he leave the LTTE, and further that this level of activity did not coincide with what he had previously said, and that he had left due to the harm he was causing other people. He responded, “it wasn’t an ordinary job and I did collect information on other people, and yes it is true that I previously said that other people have been killed and harmed as a result but I cannot say this with certainty.” I put to the claimant that if his activity was wrenching on his conscience so much why would he describe it in such a mundane manner. I put to the claimant what he had said previously and in particular as noted in the RSA decision dated

11 May 2007 at page 4 (second paragraph) wherein he is recorded as saying “The claimant was aware that CI (Central Intelligence) would imprison people of concern and shoot them if their activities were of major concern to the LTTE … The claimant is, however, unaware of any cases where a person he handed over to CI was subsequently killed. He said “no none of that happened”. I put to the claimant the content to paragraph 4 of the same decision wherein, it is recorded that he “would warn the person that if they continued their activities they would be kidnapped or shot by the Intelligence Unit and if he found that they ignored his warnings, he would inform Colonel Ramanan … he said there was a possibility that these people could have been subjected to being kidnapped or shot as a result of his actions in referring them to the Colonel”. He responded “I can say that something like this happened. But I would meet them and tell them how they should be and to lead a better life”.
Some criticism was advanced as I understood it by counsel for the applicant that the first part of that record was a distortion of what the transcript of the hearing showed, but from T-28 lines 35-42 it is clear that the Reviewer’s synopsis was accurate enough.
At CB 271 paragraph 44, the applicant confirmed that he was at meetings where there were discussions that people would be shot.
At CB 272 under the heading ‘Independent Evidence/Country Information’ the Reviewer recorded that:
“The country information is as detailed in the RSA Officer’s Assessment and the information provided by the claimant’s adviser Mr Benjamin in his submission. Country Information provided by Mr Benjamin generally coincides with the following general information”
The Reviewer then referred inter alia to the USSD country reports on Human Rights Practices/Sri Lanka for 2009-2010, which have been provided to the Court.
As earlier noted, at CB 276-277 the Reviewer set out the detailed materials said to have given rise to the natural justice point.
At CB 280 paragraph 58, the Reviewer, having examined the applicant’s claims and various inconsistent versions of events relevantly found:
“Having carefully considered the history of the claimant, his positions, training and deception in this process (his refugee application history in Australia) I do not accept that is at all reasonable to believe as true. Given the roles he had, and also what he has also admitted to UNHCR Malaysia, and to me, it is clear that he had a senior role in the LTTE in both the political and intelligence areas. In Batticaloa he was the head of the Political Wing and in charge of 35 people. He reported direct to Colonel Ramanan who is known to have been one of the most senior LTTE leaders. I do not accept that he could have achieved that position if he was involved in the benign and ordinary activity he portrays. I find that he gained that position due to the nature of his involvement in the LTTE, and that must have been because of his performance in his duties and value to the organisation. That could only be indicative of his knowledge and his involvement including the planning of the arrest, detention and killing of people suspected of being SLA, informers and including civilians so suspect. I find that he was actively involved in these decisions.
At paragraph 65 (CB 282) the Reviewer said:
“During his period of activity in both the Intelligence and Political wings of the LTTE by the very nature of his positions he was involved in, not just the gathering of information and preparation of reports as reported by him, but on my findings above also actively involved in the arrest and detention of civilian suspects including by force those who resisted, threatening people, and knowing that those he reported on were being killed and knowing that some had been killed. He was involved in meetings when this was discussed and decisions were made that people would be killed.”
It is against all of this material that one has to consider the Reviewer’s findings in paragraph 74 of the decision (CB 283).
As already noted, the UNHCR RSD Assessment Form (CB122 to 125) sets out that the applicant was significantly involved with the LTTE from 2000 until 2005. In his statutory declaration (CB129 to 131) the applicant expressly admitted lying in earlier statements and gave his reasons for this.
The Delegate accepted that the applicant faced a real chance of persecution but found that there were serious reasons for considering that the applicant had been involved in crimes against humanity.
An examination of the transcript of the hearing before the Reviewer shows the Reviewer more than once asking why the applicant should be believed (see at T10, T13 and T16 to 17). At T28 there was further discussion of whether or not persons who the applicant had reported on had been harmed. It is clear that the Reviewer was viewing these claims with scepticism (see T28 lines 25 and following and lines 44 and following).
At T29, the Reviewer said:
“This is what you described when it was recorded in the delegate’s decision dated 11 May 2011 on page 4. “The claimant was aware that Central Intelligence Unit”, this is who you were working for under the direction of a Colonel Ramanan, “that they would imprison people of concern and shoot them if their activities were of major concern to the LTTE. The people were accused of being involved with the Sri Lankan government in the abduction, beating and killing of young boys or the raping of young women. The claimant, however, is unaware of any cases where a person he handed over to CI was subsequently killed”. “Then you go on to say though that you said that you were transferred to Batticaloa town as a reward for your efforts.”
Challenge was made by the applicant and his adviser to the accuracy of that record but the Reviewer was plainly by no means convinced. At T32, the Reviewer said at line 8:
“I just get the impression today sir that what you’re trying to do is downplay that you really did anything. Based on what you’re telling me, in a whole year of working in internal intelligence you identified four or five people and you don’t really know what happened to anyone. And then when you were working for External Intelligence in Batticaloa you did a couple of reports on people, some of them took you two months, and you don’t really know what happened to anyone and you talked to people, not the people you were reporting on but just people in general and you gave them this gratuitous advice about their activities in life and told them they shouldn’t get involved in these groups, otherwise, you know, something might happen to them. I mean if that’s all you were doing, why would the LTTE even bother sending you anywhere?”
At T33 the applicant confirmed that he had been at meetings where there was discussion about people who were going to be shot.

The Reviewer’s decision

In paragraphs 52 to 59, the Reviewer dealt in detail with the applicant’s credibility. The reviewer said at paragraph 57:
“I do not accept that he was involved in benign activity with the LTTE, I find that in all of his roles he was actively involved in investigation, reporting, detention, intimidation, and threatening the civilians; and this with the full knowledge that those he reported on and detained had a real risk of being killed through his actions. He provided significant detail of his activities to UNHCR and also at the RSA interview and to me. In particular he was an operative in both the internal and external intelligence wings of the LTTE and had close association with the Military Intelligence; he was on his own evidence involved in the identification of civilians suspected of being SLA; he was involved in detaining those persons; questioning them and referring them on to others knowing that they may be shot. In Batticaloa he was involved in spying on people, writing reports on them, meeting with people and threatening them with being kidnapped and shot, and having meetings with Colonel Ramanan at which time troublesome people would be identified to be shot.
I am also concerned about the training of the claimant and his intelligence work, and how this impacts on his credibility. In particular, as discussed with him he is trained in deception, pretending to be someone who he is not and extracting information. This training I find clearly enabled the claimant to fabricate his initial history, and is also being used by him now to try and paint his activities as benign, and his claiming that he lacked any real knowledge of what was happening to those he reported on and detained. Having carefully considered the history of the claimant, his positions, training and deception in this process (his refugee application history in Australia) I do not accept that is at all reasonable to believe as true. Given the roles he had, and also what he has admitted to UNHCR Malaysia, and to me, it is clear that he had a senior role in the LTTE in both the political and intelligence areas. In Batticaloa he was head of the political wing and in charge of 35 people. He reported direct to Colonel Ramanan who is know [sic] to have been one of the most senior LTTE leaders. I do not accept that he could have achieved that position if he was involved in the benign and ordinary activity he portrays. I find that he gained that position due to the nature of his involvement in the LTTE and that must have been because of his performance in his duties and value to the organisation. That could only be indicative of his knowledge of activities and involvement in them including the planning of the arrest, detention and killing of people suspected of being SLA, informers and including civilians so suspect. I find that he was actively involved in those decisions.
In the light of those credit findings it is not perhaps surprising that the Reviewer found at paragraph 74 (CB 283):
I have carefully considered the evidence and am satisfied of the following:
·     the claimant was a member of the LTTE from 2000 to 2006 and at that time this was a terrorist organisation involved in a war with the Sri Lankan government;
·     during the period of about 2002 and 2003, he was an intelligence operative in the Kokkaduchcholai area under Colonel Ramanan, and during this period would approach civilians in the market, question them, direct their detention using if necessary force, and knowing that those civilians found to be questionable would be shot on the direction of Colonel Ramanan or others;
·     in February 2004 due to his work and aptitude he was deployed to the external intelligence wing in Batticaloa to work in a government controlled area and posing as a school student. During this period he would meet regularly with Colonel Ramanan, be given surveillance tasks on certain people who were civilian and considered suspect, compile reports on those people, attend meetings at which time it was determined who was to be investigated and killed; he also meet (sic) other civilians who were suspect and warn them that unless they did as he suggested he would inform Colonel Ramanan with a threat that they would be kidnapped or shot;
·     he was a senior member of that organisation as Political Leader of Batticaloa town area during the period late 2004 to late 2005 or early 2006. During that period by the nature of his senior position he implicitly was aware of the excesses of the LTTE and that they were involved in detention, kidnapping, extrajudicial killing and disappearances.
·     Country information concerning the activities of the LTTE coincides with what the claimant has said of his activities, and what I found above to be the level of his activity and involvement. During the period he was involved with the LTTE it is reported to have committed numerous serious human rights abuses... regularly committed extrajudicial killings, including killing prisoners taken on the battlefield, and also was responsible for disappearances, torture, arbitrary arrest, detentions, and extortion, was responsible for an undetermined number of civilian disappearances in the north and east and was regularly accused of killing civilians.”
At paragraphs 75 to 77, the Reviewer went on to consider whether there were serious reasons for considering that the applicant had committed a crime against humanity, namely murder. In paragraph 76, the Reviewer set out the reasons why he was so satisfied. At paragraph 77, the Reviewer found:
“Article 25(3)(d) provides that a person has individual criminal responsibility where they have acted “For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.” I am satisfied that the claimant has individual criminal responsibility as a result of his activities as he by his activity and involvement as detailed above facilitated the commission of murder through his actions and by aiding and abetting, in particular as he did undertake those activities of detaining people, and reporting on them and hence providing the means for its commission.”

Consideration

It must be accepted that in the circumstances in which the applicant finds himself, the natural justice obligation must be at its highest. He faces on any view a serious risk of harm in the event that he is returned to Sri Lanka and clearly this would be for a Convention reason.
The primary point taken by the applicant is that there was no predicate offence of murder proved on the material before the Reviewer. (See Attorney-General v X [2011] 1 NZLR 721 at [75]). The applicant denied that anyone had been killed as a direct result of his activities and this was not contradicted. The hypothesis, it was submitted, was open.
It was put that it was the country information that, as it were, sealed this hypothesis off.
Reading the reasons of the Reviewer as a whole I do not think that this submission is correct. There was, in truth, a wealth of material before the Reviewer, not least the applicant’s own history (given in various different ways at different times and significantly so) that would entitle the Reviewer simply not to believe the applicant. The Reviewer simply did not do so.
Paragraph 74, which both counsel accepted is perhaps the critical piece of reasoning in the decision, contains two components, namely the applicant’s own evidence and the country information. The critical passage reads:
(b)“Country information concerning the activities of the LTTE coincides with what the claimant has said of his activities, and what I have found above to be the level of his activity and involvement.” (emphasis added)
The general gist of the proposition that the LTTE was involved in murders throughout the period 2000 to 2006 was clearly known on the material provided to the applicant from time to time. Indeed there is a specific reference to a USSD 2004 report in the RSA assessment (see CB223). While the country information complained of was clearly credible and relevant, it was not in the circumstances of this particular case significant in the sense described by Brennan J in Kioa v West.
Nor in the particular circumstances I have described could the country information be said to have been novel or unexpected to the applicant given the materials already put to him.
In all the circumstances, in my view the applicant does not make out his case. He was not denied procedural fairness.

The first respondent’s point about affidavit material

Counsel for the Minister submitted that the application should fail because there was no material on file from the applicant or his adviser going on affidavit to say what evidence would have been put by way of contradiction in the event that an opportunity to comment on the country information had been provided. It was submitted that the decision of Smith FM in SZQNF v Minister for Immigration and Citizenship [2011] FMCA 965 required this. It suffices for present purposes to say that the observations of his Honour in that case seem to me to be limited to the particular circumstances in it and I do not think that there is any necessity for any general such requirement. The whole point about natural justice issues, such as these, is to provide to the applicant a process which is procedurally fair (see Plaintiff M61). If it is found to be procedurally unfair then it is not for the applicant, as it were, to prove the outcome. Rather, fairness requires remedial action to ensure that a fair process is provided unless on the facts of the case it is clear that no “practical injustice” has been visited on the applicant.

Conclusion

For the above reasons the application will be dismissed with costs.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 5 September 2012