MZYYB v Minister for Immigration - [2012] FMCA 900

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYYB v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 900

MIGRATION – Independent Merits Reviewer – whether the reviewer properly considered the effect of the applicant’s concession that he did not have an LTTE profile – whether the reviewer’s conclusions drawn from the applicant’s concession that he did not have an LTTE profile were a “natural and obvious evaluation” of the concession.

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576; (1994) 34 ALD 324; (1994) 127 ALR 699

Applicant:

MZYYB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

P. MCDERMOTT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File number:

MLG 634 of 2012

Judgment of:

Riley FM

Hearing date:

22 August 2012

Date of last submission:

22 August 2012

Delivered at:

Melbourne

Delivered on:

9 October 2012

REPRESENTATION

Counsel for the Applicant:

Louise Martin

Solicitors for the Applicant:

Victoria Legal Aid

Advocate for the First Respondent:

David Brown

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

The application filed on 31 May 2012 and amended on 30 July 2012 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 634 of 2012

MZYYB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

P. MCDERMOTT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a recommendation made by an Independent Merits Reviewer. The applicant is a Sri Lankan Tamil. He claimed, among other things, that:
a)as a young, Tamil male, he would be imputed with a political opinion of sympathy to the LTTE;
b)he was arrested in September 2007 and accused of helping the LTTE;
c)the authorities later pursued him because they thought he was connected to the murder of a government Minister in April 2008;
d)he fled to Qatar for one month in May 2008; and
e)he left Sri Lanka in September 2009.
The reviewer rejected the applicant’s claim to have been involved in, or suspected by the authorities of being involved in, the murder of a government Minister. The reviewer considered that the applicant’s claim to have an imputed political opinion in support of the LTTE was not plausible, on the evidence before the reviewer.

Ground 1

The first ground of review in the application filed on 31 May 2012 and amended on 30 July 2012 is:
In recommending to the first respondent that the applicant not be recognised as a person to whom Australia owed protection obligations, the second respondent failed to apply correct legal principles.
PARTICULARS
(a)The second respondent did not consider that the applicant had an imputed opinion in support of the LTTE and its pro-Tamil aims as he said that the evidence before him did not make such a claim plausible (CB 137 [106]).
(b)However, the second respondent failed to properly consider the evidence that was before him on this issue (CB 137 – 138 [106]-[110]).
(c)In particular, the second respondent’s finding that the applicant had, in his 1 July 2011 statement, “denied” having an LTTE profile (CB 138, [110]) represented a misunderstanding of the applicant’s claim that he had never been a supporter or member of the LTTE. As the applicant does not support or participate in the LTTE’s activities, he is precluded from having any LTTE profile.
This ground concerns the following passage from the reviewer’s recommendation:
106.There is a claim before me that the claimant has an imputed opinion in support of the LTTE and their pro-Tamil aims and against the activities of the Sri Lankan authorities and pro-government militias. I do not consider that the evidence before me makes such a claim plausible.
107.At the DIAC entry interview at Christmas Island the claimant declared that he had no involvement with the LTTE. He then made no claim that he would face persecution on his return to Sri Lanka because he is suspected of supporting the LTTE.
108.In his statutory declaration of 20 September 2010 the claimant declared in September 2007 at the Negombo police station he was accused of helping the LTTE because he was a Tamil. In that statutory declaration he claims on that occasion ‘they arrested me’. However, in his latest statement dated 1 July 2011 he has now effectively withdrawn that claim. He has stated ‘I was not arrested by the authorities on suspicion on (sic) any crime’. He states that he was taken to the police station for the purposes of registration as he had just recently arrived in Negombo. In his statement of

1 July 2011 he now states that in September 2007 that he was not of any specific interest to the Sri Lankan authorities.
109.In his statutory declaration of 20 September 2010 the claimant declared that if he returned to Sri Lanka he would suffer death or imprisonment because he is Tamil and the Sri Lankan authorities suspect that he is a LTTE member.

In that statutory declaration he also states that the Karuna Group suspected him to be a LTTE member because he was a Tamil from Vaduthalthevu. However, the statement of the claimant dated 1 July 2011 contains a denial that he had any LTTE profile. He states: ‘I consider that if I have any LTTE profile rather than being targeted for recruitment [by the Karuna Group], I would have been killed’. The claimant then denied the possibility of being killed by the Karuna Group because of any alleged LTTE profile.
110.The latest statement of the claimant is inconsistent with the contention that he has an opinion in support of the LTTE and their pro-Tamil aims. Having regard to his statement of

1 July 2011 which contains a denial that he has any LTTE profile I do not accept the claim that the claimant has an imputed opinion in support of the LTTE and their pro-Tamil aims.
111.There is a claim that the claimant has an imputed political opinion against the activities of the Sri Lankan authorities and pro-government militias.
112.There is no evidence that the claimant has any profile or is imputed to have a profile against the activities of pro-government militias. It is inconsistent with his contention that the Karuna Group wanted to recruit him.
113.I do not accept that the claimant has an imputed political opinion which is adverse to the Government of Sri Lanka. There is the allegation that he has such an opinion but there is no plausible evidence upon which I could base such a finding. A crucial fact that does not support the contention of the claimant that he has an imputed political opinion which is adverse to the Government is the fact that he twice left Sri Lanka while using his legal passport. The material before me does not support the contention that the claimant has an imputed opinion against the Government.
In relation to paragraph 107 of the recommendation, the applicant argued that the reviewer should not have seen any significance in the applicant not expressly stating in his entry interview on Christmas Island that he faced persecution in Sri Lanka because he is suspected of supporting the LTTE. The applicant argued that it was implicit in the applicant’s entry interview that the persecution he described stemmed from his imputed belief of support for the LTTE.
The relevant part of the summary of the applicant’s entry interview is set out at CB20. It states, in answer to the question about the applicant’s reasons for not wanting to return to Sri Lanka:
As I’ve been connected to the Minister’s murder, I ensure I wont be alive when I return back to Sri Lanka. Anything can happen to me @ anytime in Sri Lanka. I don’t have any other financial means to escape again. I’ve given everything. The problem from unknown armed groups also existing there. The groups are working alongside with the government. If I came here or to another country, I’ve never thought of returning back because of these reasons. (Q) What do you think will happen to you if you return? Can’t predict anything in particular, but it will be the same fate that happened to my friends. They can kill me. (Q) Why do you think they’ll kill you? Because they are frustrated not to find me, so if they get there definitely they’ll take my life. And other people are never seen after they’re taken away. (Q) Any other reasons for not wanting to return? These two reasons I gave you before are the reason I don’t want to return. Especially the Ministers case. (Q) Anything else? No. (Q) Before finish interview today, any other info or things you want to tell me? No. These are the important things I’ve said (Q) Noting else? No.
The “two reasons” the applicant referred to were:
a)the Minister’s murder; and
b)the unknown armed groups.
However, earlier in his entry interview, at CB12, in answer to the question about why he left Sri Lanka, the applicant said, among other things:
… the Karuna group they forced me to join them & they also accused me that maybe I am LTTE person & said “if you don’t join, we’ll shoot you”. … In 2005-2007, while I was working with my Father as fisherman, I was confronted by Navy in the sea, as we are suspected of supporting the LTTE smuggling, they abducted 2 of my friends whilst they were fishing till now they are nowhere to be seen. And the white van started searching for me, also LTTE demanded I join their campaign because of these reasons also, I left Negombo to come to A/A.
Nevertheless, the applicant did not actually say at his entry interview that he feared persecution in the future in Sri Lanka because he is suspected of supporting the LTTE. That is all the reviewer was saying at paragraph 107. It is not to the point that the applicant may have said that, in the past, he had been accused of supporting the LTTE and that, implicitly, he might face persecution for that reason in the future. The reviewer was simply making the point that the applicant did not expressly claim in his entry interview that he feared persecution in the future for reasons of his imputed political opinion of support for the LTTE.
The reviewer then went on to give a number of additional reasons for finding the applicant’s claim implausible. The reviewer did not say how much weight or significance he gave to each of his various reasons for finding implausible the applicant’s claim that he had an imputed political opinion of support for the LTTE.
In any event, questions of weight and the significance attached to particular items of evidence are matters for the reviewer, provided that there is some rational and probative evidence to support the conclusion. I do not accept that there is any proper basis for a challenge to the reviewer’s observation that the applicant did not expressly say during his entry interview that he feared future persecution for reasons of imputed political opinion, namely, support for the LTTE. As explained below, the reasons overall amount to a rational and probative basis for the reviewer’s conclusion in relation to the present issue.
The applicant then argued that the inconsistency the reviewer described at paragraph 108 of the recommendation need not have been seen as an inconsistency. The reviewer said at paragraph 108 of his recommendation:
108.In his statutory declaration of 20 September 2010 the claimant declared in September 2007 at the Negombo police station he was accused of helping the LTTE because he was a Tamil. In that statutory declaration he claims on that occasion ‘they arrested me’. However, in his latest statement dated 1 July 2011 he has now effectively withdrawn that claim. He has stated ‘I was not arrested by the authorities on suspicion on any crime’. He states that he was taken to the police station for the purposes of registration as he had just recently arrived in Negombo. In his statement of

1 July 2011 he now states that in September 2007 that he was not of any specific interest to the Sri Lankan authorities.
The applicant said at paragraph 11 of his statutory declaration made on 20 August 2010 (CB42) that:
In Negombo, my uncle was running an internet café and I started working there. The police, SLA and CID came many times while I was working to harass the people who worked at the café because we were Tamils and suspected of supporting the LTTE. On or about September 2007 they arrested me, my uncle and another worker and took us to the police station. We were threatened at the police station and questioned as to why we came to Negombo. They said that we were helping the LTTE because we were Tamils.
The refugee status assessor, in a decision dated 31 January 2011 (CB72), noted that the applicant’s claims included the following:
The claimant claims, as a result, he moved to live with his aunty in Negombo. In Negombo, the claimant states his uncle was running an internet café, so he started working there. He claims the police, SLA and Criminal Investigation Department (CID) came to the internet café many times while he was working there, to harass the people working there because they are Tamil and suspected of supporting the LTTE. In September 2007, the claimant claims he, his uncle, and another worker at the internet café, were arrested by the police and taken to the police station. He claims that they were threatened and question by the police about why they came to Negombo. He claims they were accused of helping the LTTE, being Tamil.
Later in the assessment (CB78), the assessor said:
… Firstly, the claimant maintains while working in his uncle’s internet café in September 2007, he was arrested by the police together with his uncle and another worker. He claims they were interrogated and threatened about coming to Negombo; and they were also accused of helping the LTTE because they were Tamil. …
The applicant said at paragraph 5 of his written statement made on

1 July 2011 (CB114-5) that:
In her negative decision the DIAC case officer found it unlikely that I would have been released following my arrest in September 2007 if I was of any interest to the Sri Lankan authorities. I fear there has been a misunderstanding on this point. I was not arrested by the authorities on suspicion of any crime. I was taken to the police station for the purposes of registration, as I had just recently arrived in Negombo. In any event, in September 2007 I was not of any specific interest to the Sri Lankan authorities. I only became of particular interest following the assassination of Jeyaraj Fernandopulle MP.
In these circumstances, the applicant submitted that the declaration of 20 August 2010 and the statement made on 1 July 2011 were not necessarily inconsistent, when read carefully, and when the involvement of interpreters was factored in.
In the applicant’s written submissions, the first two sentences of paragraph 11 of the applicant’s statutory declaration made on

20 August 2010 were omitted. Those sentences imply that the applicant’s uncle was living and working in Negombo before the applicant went there. That circumstance is confirmed by the assessor’s statement at CB72, that, as a result of other incidents, the applicant said:
he moved to live with his aunty in Negombo. In Negombo … his uncle was running an internet café, so he started working there.
The applicant claimed in his statement dated 1 July 2011, that he was not arrested on suspicion of any crime, but that he was:
… taken to the police station for the purposes of registration, [because he] had just recently arrived in Negombo.
That does not explain why the applicant’s uncle and a co-worker were also arrested, as the applicant claimed in his earlier statement. The uncle had not “just recently arrived in Negombo”. On the applicant’s evidence, his uncle had been living in Negombo for some time before the applicant’s arrival.
The reviewer is not under an obligation to resolve any ambiguity, or any gap in the evidence, in an applicant’s favour. It is for an applicant to make out his case, and put all the necessary material before the reviewer. It was open to the reviewer in this case to see an inconsistency in the two statements, and draw adverse conclusions as a result.
The applicant then challenged the conclusions in paragraphs 109 and 110 of the reviewer’s reasons. Those paragraphs state:
109.In his statutory declaration of 20 September 2010 the claimant declared that if he returned to Sri Lanka he would suffer death or imprisonment because he is Tamil and the Sri Lankan authorities suspect that he is a LTTE member. In that statutory declaration he also states that the Karuna Group suspected him to be a LTTE member because he was a Tamil from Vaduthalthevu. However, the statement of the claimant dated 1 July 2011 contains a denial that he had any LTTE profile. He stated: ‘I consider that if I have any LTTE profile rather than being targeted for recruitment [by the Karuna Group], I would have been killed’. The claimant then denied the possibility of being killed by the Karuna Group because of any alleged LTTE profile.
110.The latest statement of the claimant is inconsistent with the contention that he has an opinion in support of the LTTE and their pro-Tamil aims. Having regard to his statement of

1 July 2011 which contains a denial that he has any LTTE profile I do not accept the claim that the claimant has an imputed opinion in support of the LTTE and their pro-Tamil aims.
The applicant said in paragraph 10 of his statement of 1 July 2011 (CB116) that:
I am confused by the case officer’s reasoning in relation to my contact with the Karuna Group. I think that she is implying that only people with political profiles are targeted by the Karuna Group. This may be true in respect of their assassinations and ‘disappearances’, however I was being targeted for forced recruitment. I consider if I had any LTTE profile rather than being targeted for recruitment, I would have been killed.
The applicant argued that he had not “denied” that he had an LTTE profile but had simply been making a hypothetical statement. Consequently, the applicant argued that the “denial” did not have the significance that the reviewer believed it had. The applicant argued that, because he does not actually support or participate in LTTE activities, he is precluded from having an LTTE profile.
That submission misunderstands the notion of a profile, in the present context. Having an LTTE profile means having the characteristics or history that are perceived to reflect support for the LTTE. If the applicant does not have such characteristics or history, by definition, he would not be imputed with a political opinion of support for the LTTE.
It was open to the reviewer to treat the applicant’s assertion that he does not have an LTTE profile as a denial that he has imputed political opinion of support for the LTTE.
The applicant did not challenge the related conclusions in paragraphs 111 to 113 of the recommendation. Those paragraphs concern whether the applicant had an imputed political opinion of opposition to the authorities and pro-government militias. In that context, the reviewer noted that the applicant’s claim of an imputed political opinion adverse to the government was inconsistent with the applicant’s claim that the Karuna group wanted to recruit him and was inconsistent with the fact that the applicant twice left Sri Lanka legally.
Moreover, in ground 1, the applicant is essentially seeking merits review. The applicant is inviting the court to take a different view of the applicant’s statements to the view taken by the reviewer. The court is not permitted to do that. If the reviewer’s conclusions were open on the material before him, there is no jurisdictional error. It is not sufficient that another interpretation is also open. The reviewer has not relevantly “misunderstood” the claim, just because the applicant would prefer that the reviewer had put a different construction on the applicant’s statements.

For these reasons, ground 1 is not made out.

Ground 2

The second ground of review in the application filed on 31 May 2012 and amended on 30 July 2012 is:
In recommending to the first respondent that the applicant not be recognised as a person to whom Australia owed protection obligations, the second respondent failed to accord the applicant procedural fairness.
PARTICULARS
(a)As a result of the second respondent’s finding that the applicant had no LTTE profile, he found that the applicant could not be regarded:
i.as a person with an imputed opinion in support of the LTTE (CB 138 [110]);
ii.as a member of a group of persons suspected of having LTTE links (CB 139 [120]);
iii.as having a well-founded fear of persecution as a result of his membership of a particular social group of young Tamil men from the North (CB 140 [122]).
(b)Before drawing these adverse conclusions, the second respondent should have put to the applicant his concerns in relation to the applicant’s LTTE profile in order to allow the applicant to comment on them.
The applicant relied on the well-known passage from Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 591-2:
28. It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material - Dixon v Commonwealth (1981) 55 FLR 34 at 41. However, as Lord Diplock said in F Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369:
...the rules of natural justice do not require the decisionmaker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished.
A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it: Kioa v West at 587 (Mason J), 628 (Brennan J). Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case: Sinnathamby v. Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506 (Fox J), 513 (Neaves J). In Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469 at 499, Lockhart J expressly agreed with the observations of Fox J in Sinnathamby on this point. See also Geroudis v Minister for Immigration Local Government and Ethnic Affairs (1990) 19 ALD 755 at 756-7 (French J) and Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (supra) at 103 (Keely J), 119 (Gummow J).
29. The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi at 108-109:
1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West (supra) at 587 (Mason J); Sinnathamby at 348 (Burchett J); Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (Burchett J).
2. The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister for Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court 31 May 1990); Kioa v West at 573, 588 and 634.
His Honour observed that those qualifications may be no more than an application of the general requirement of procedural fairness in particular cases. As Gummow J there said (at 359): "...in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant's interests which the decision-maker proposes to take into account, even if the source of concern by the decision-maker is not information or material provided by the third party, but what is seen to be the conduct of the applicant in question."
30. Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. For a statutory exception to the latter proposition see the pre-decision conference process provided for in the Trade Practices Act1974 (Cth).
The applicant relied particularly on point 2 in paragraph 29 of Alphaone. The applicant acknowledged that he had told the reviewer that he, the applicant, did not have an LTTE profile. The applicant argued that it was not “an obvious and natural evaluation” of that concession to conclude that the applicant could not be regarded:
a)as a person with an imputed opinion in support of the LTTE (CB138 [110]);
b)as a member of a group of persons suspected of having LTTE links (CB139 [120]);
c)as having a well-founded fear of persecution as a result of his membership of a particular social group of young Tamil men from the North (CB140 [122]).
The applicant has oversimplified the matter. As explained above, the reviewer had a number of reasons for concluding that the applicant did not have an imputed political opinion of support for the LTTE. Similarly, the reviewer gave a number of reasons, besides the concession, for concluding in paragraph 120 of his recommendation that it was not plausible that the applicant would be regarded as having links to the LTTE, and for concluding in paragraph 122 of his recommendation that the applicant did not have a well-founded fear of persecution as a result of his membership of a particular social group of young Tamil men from the North.
The reviewer said at paragraph 120 of his recommendation:
The accounts that have been provided by the claimant as to whether he is suspected by the Sri Lankan authorities of having links with the LTTE are certainly contradictory. In his statutory declaration of 20 August 2010 he makes various assertions, including that in September 2007 the Sri Lankan police at Negombo had arrested him and accused him of helping the LTTE. In his latest statement of 1 July 2011 he has denied being arrested and stated that he was taken to the police station for registration. In his latest statement he now states that in September 2007 he was not of any specific interest to the Sri Lankan authorities. In his latest statement he has also effectively denied having any LTTE profile when he states: ‘I consider that if I had any LTTE profile rather than being targeted for recruitment, I would have been killed’. In his latest statement he has now effectively withdrawn from his previous assertion that in September 2007 he was accused by the police of having an LTTE (sic). He also denied having any involvement that he had an LTTE profile.
The reviewer said at paragraph 122 of his recommendation:
There (sic) a claim that the claimant faces danger as being a young Tamil man from the North. Having regard to the considerations that have been laid down by the High Court of Australia I consider that the group of young Tamil men from the North would be regarded as being a particular social group. The claimant would certainly be a member of such a group. I must consider whether the claimant has a well-founded fear of persecution by reason of his membership of the group. I consider that the claimant does not have a well-founded fear of persecution for being a member of this group if he was returned to Sri Lanka. The UNHCR guidelines do not suggest any difficulty for the claimant as a young Tamil man from the East. The claimant does not have a profile which would attract adverse attention from the authorities. He may be subject to the scrutiny on his return to Sri Lanka but he should not face any difficulty as he declared in the DIAC entry interview that he has not had any involvement with the LTTE. The statement dated 1 July 2011 contains also is an effective denial by the claimant that he was (sic) any LTTE profile when he stated: ‘I consider that if I had an LTTE profile rather than being targeted for recruitment, I would have been killed’.
In any event, it seems to me the reviewer’s conclusions on these three matters were the result of a “natural and obvious evaluation” of the applicant’s concession that he did not have an LTTE profile, especially when added to the other reasons given by the reviewer for each of his conclusions.
Nevertheless, the applicant submitted that the reviewer’s failure to accord procedural fairness was exacerbated by the fact that the 2010 UNHCR guidelines do not require that a person with perceived LTTE links have a high profile. Rather, the guidelines simply state that a person in Sri Lanka suspected of having links with the LTTE is at risk. That may be so. However, with this submission, the applicant is again seeking merits review.
For these reasons, ground 2 is not made out.

Conclusion

As neither of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Riley FM

Date: 9 October 2012