MZZES v Minister for Immigration
[2014] FCCA 758
•17 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZES v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 758 |
| Catchwords: MIGRATION – Application for review of RRT decision – whether threat per se amounted to serious harm or a real risk of significant harm – alleged failure to consider two integers based on membership of two particular social groups –whether finding made without evidence – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 36(2A), 36(2)(aa) |
| Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | MZZES |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1679 of 2012 |
| Judgment of: | Judge O'Dwyer |
| Hearing date: | 30 May 2013 |
| Date of Last Submission: | 30 May 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 17 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Albert |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The time for the filing of the application is extended to 24 December 2012.
The application for review filed on 24 December 2012 as amended, is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1679 of 2012
| MZZES |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application the Applicant seeks to review a decision of the Refugee Review Tribunal (“the Tribunal”) dated 5 November 2012; which decision affirmed an earlier decision by the Delegate of the
First Respondent (“the Minister”) to refuse to grant the Applicant a Protection (Class XA) visa.The application was out of time, but the Minister nonetheless agreed to it proceeding.
Background and claims
The Applicant arrived at Christmas Island as an unauthorised maritime entry claiming that he was a stateless citizen of Indian Tamil ethnicity. However, a copy of a passport identified him as a 35 year old Sri Lankan citizen of Indian Tamil ethnicity.
He gave a history of employment that included working as a waiter, a cashier and a van driver between the years 1995 and January 2000. Thereafter, he worked approximately one year as a shepherd, then as a salesman, before travelling to work in Saudi Arabia from August 2010 until October 2011. In October 2011 he returned to Sri Lanka and worked for his father-in-law as a van driver until leaving in February 2012 by boat to Australia.
Whilst in Saudi Arabia he claimed to have lived partially with his wife in Riyadh whilst maintaining an affair in Jeddah with a Sri Lankan woman whose husband was a policeman. He claimed that the affair commenced approximately six months prior to travelling to Saudi Arabia. The policeman discovered their affair and, it was claimed, threatened to kill both of them.
The Applicant also claimed that land his father-in-law owned, which was given to him as a dowry, was confiscated by the Sri Lankan Army in 1990. The father-in-law, and others similarly affected, held protests against the Sri Lankan Army. The father-in-law was assaulted after those protests.
Significantly, he also claimed to fear harm from the Sri Lankan Army and the Karuna Group because of an incident involving a distant cousin, known as Suresh. The Applicant claimed that Suresh and the Liberation Tigers of Tamil Eelam (“LTTE”) had stolen his van in 2005, which theft was reported to the police. He also claimed that in January 2006 he was arrested by the police and charged because of a family photograph in which he appeared with Suresh. The Applicant was subsequently found not guilty and was released in October 2006.
In May 2010 the Applicant claims that Suresh had joined the Sri Lankan Army and that members of the Army and the Karuna group were looking for him, saying they wanted to return his stolen van. The Applicant believed that his cousin wished to cause him harm because he had reported the original theft of the van to the police. He claimed that he was targeted by Karuna in Sri Lanka. He claims that in May 2010 he was visited at his home by the Sri Lankan Army and the Karuna Group. As a consequence, he had to flee Sri Lanka and go to Saudi Arabia. It is noted, however, he returned again to Sri Lanka in October 2011.
The Applicant also claimed to fear harm as a failed asylum seeker.
On arrival in Australia, the Applicant took part in a disjointed “entry interview” over two days. Significantly, in that interview the Applicant made reference to a man called Peiris who the Applicant informed the interviewer, that he was in charge of the boat and associated with people smugglers. He claimed, also, that Peiris threatened that if he was to tell the Australian authorities of his role, he and his family would be harmed, boasting that if he was to return to Sri Lanka, those associated with Peiris, would know of his return and cause him harm.
Tribunal’s findings
The Tribunal found that the Applicant was a citizen of Sri Lanka and that he had “deliberately lied” when he claimed that he was stateless. The Tribunal found that the Applicant had been consistently employed in Sri Lanka and did not accept that the Applicant would be subject to discrimination in relation to his employment or access to basic services which would amount to “serious harm” because of his Indian Tamil ethnicity.
The Tribunal also did not accept that the Sri Lankan Army’s occupation since 1990 of the land owned by his father-in-law, or the Army’s refusal to return the land to him or his wife, amounted to “serious harm”.
The Tribunal also accepted that the Applicant’s van had been stolen in 2005, but did not accept the Applicant’s claim that his distant cousin Suresh was responsible for the theft. The Tribunal did not accept that the Applicant had been arrested or imprisoned in 2006 because of his relationship with Suresh as it found it very difficult to accept that the police would have suspected that the Applicant was involved with Suresh on account of his distant familial relationship with him; nor did the Tribunal except that members of the Sri Lankan Army, Suresh, and the Karuna Group had come looking for him in May 2010.
The Tribunal accepted that the Applicant had an affair with the wife of a policeman and that that the Applicant had arranged for her to live with him in Saudi Arabia and that the policeman had threatened to kill both the Applicant and the policeman’s wife. However, the Tribunal did not accept that there was a real chance that the policeman would carry out these threats or otherwise harm the Applicant.
The Tribunal also did not accept that there was a real chance that the Applicant would be persecuted on his return to Sri Lanka as a failed asylum seeker or on account of any political opinion imputed to him on the basis of having sought asylum in Australia.
The Tribunal found that the Applicant did not have a well-founded fear of persecution for any Convention reason.
In considering the issue of complementary protection, the Tribunal was not satisfied there was a real risk that the Applicant would suffer “significant harm” on his return to Sri Lanka. The Tribunal did not accept that the Applicant faced a real risk of being subject to significant harm as an Indian Tamil, on account of the Sri Lankan Army’s refusal to return his wife’s land to him, on account of his claim concerning relationship to Suresh, or as a failed asylum seeker.
The Tribunal also did not accept that the Applicant faced a real risk that the policeman would make good his threat to kill the Applicant.
The Tribunal found that “people like the policeman may make all sorts of verbal threats, but this does not actually mean that they are going to carry them out”.
Grounds of review
In his amended application for review, the Applicant set out three grounds as follows:
1. The Tribunal erred by failing to consider whether unfulfilled threats could amount to “significant harm” as defined in the Migration Act 1958 (Cth). Alternatively, the Tribunal failed to ask the right question, namely, can threats alone amount to “significant harm”?
2. The Tribunal’s decision was affected by jurisdictional error in that the decision maker:
a. was required to determine whether there was a real chance of serious or significant harm in the reasonably foreseeable future for the Applicant from the policeman with whose wife the Applicant had an affair; and
b. made his ultimate determination based upon a finding of fact that the policeman would not carry out the threat to kill the Applicant, which threat was found to exist; and
c. had no evidence or other material from which he could reasonably be satisfied that the policeman would not carry out the threat to kill the Applicant; and
d. had evidence that the policeman, as a police officer, had both the means and the connections to carry out the threat.
3. The Tribunal failed to consider critical and discrete claims previously raised by the Applicant, namely that he would have a real chance of suffering serious harm because of his membership of a particular social group, being:
a. people opposed to the Sri Lankan government because they had land taken from them by that government; and
b. persons who informed Australian authorities in relation to people involved in people smuggling from Sri Lanka, as articulated at his entry interview with the first respondent’s officer.
Alternatively, that the Applicant would be at a real risk of significant harm for either reason.
Contentions and consideration
Ground 1
The Applicant commenced, as a foundation for the contention supporting this ground, by referring to Australia’s international obligations arising out of the Convention Against Torture and the International Covenant on Civil and Political Rights. By so doing, the Applicant sought to provide a broader understanding of “significant harm” as defined in the Migration Act 1958 (“the Act”) so that, in the context of the Applicant’s claim, a “threat” can be categorised as significant harm even though there may not have been the capacity to follow through on that threat. The Applicant contended that the Tribunal failed to even consider whether the threat by the policeman, in itself, amounted to significant harm.
The Applicant sought to rely upon the definition within the act of ‘significant harm’ where it is defined in section 36(2A) to include “cruel or inhumane treatment”. In turn, that expression is defined in s.5(1), as:
cruel or inhumane treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all of the circumstances, the act or admission could reasonably be regarded as cruel or inhumane in nature…
Further, the Applicant contended that the amendment of the Act to include the above definition and also section 36(2)(aa), reflect the obligation for Australia domestically to reflect its international obligations and in so doing also be alert to how international commentary interpret such. This was recognised by the Full Federal Court in Minister for Immigration and Citizenship v SZQRB[1] where the Court made the following statement:
The introduction of s.36(2)(aa) on 24 March 2012 is further evidence of Australia’s recognition of its international obligations to provide protection to those noncitizens who enter Australia and are entitled to protection. It is consistent with the scheme of the Migration Act generally, which is to recognise Australia’s international obligations and to afford protection to those entitled to protection under the Refugees Convention, the CAT or the ICCPR. [2]
[1] [2013] FCAFC 33
[2] ibid Per Lander and Gordon JJ at [100], with Besanko, Jaggot and Flick JJ agreeing.
The Applicant then gave various examples of how International Courts, applying the same International Conventions, are supportive of the proposition that certain threats alone can amount to cruel or inhumane treatment. An example given was where the European Court of Human Rights held that the threat to inflict rape and pain on a person suspected of murder, amounted to inhumane treatment, even though the threat had not been shown to “have had any serious long-term consequences for the [suspect’s] health.”[3] In Campbell v United Kingdom[4], the European Court of Human Rights stated that for a threat to constitute inhumane treatment it must be “sufficiently real and immediate”, and the threat itself must cause a level of suffering befitting the requirement of mental suffering. The Inter-American Court of Human Rights stated that a threat can cause “such a degree of moral anguish that it may be considered “psychological torture”[5]. That Court went on to make at [108] its pivotal summary as follows:
A threat of torture can amount to torture as the nature of torture covers both physical pain and mental suffering.
[3] See Gafgen v Germany , European Court of Human Rights Application No 22978/05
[4] European Court of Human Rights, Application No 7511/76
[5] Martitza Urruitia v Guatemala, Series C No 103 [2003] IACHR
The Applicant contended that not only should the Court take into account the above international interpretations of threat, there is also domestic authority to similar effect. I was referred to the statement of Cavanough J. in giving judgment in respect of compensation for victims of crime:
With respect, it is not to the point to say, as the Tribunal did, that a threat to kill by a 10-year-old child is more likely to be hollow than to be made with actual criminal intent. It did not matter whether K had the means or the intention of actually carrying out her threats, unless her lack of means and intention were apparent to BVB, and there is no suggestion of that. Indeed, the evidence showed that K fully intended by her threats to put BVB in fear of her life (and she did)[6].
[6] BVB v Victims of Crime Assistance Tribunal [2010] VSC 57 at [34].
It was contended that those authorities make it very clear that the terminology is similar to s.36(2)(aa) and make it clear that a threat to kill, as in this case, is or can be sufficient to fall foul of the prohibition on “significant harm”. It was contended that the statutory scheme does not limit significant harm exclusively to a real risk of threats to kill being carried out and that mere threats, of themselves, can amount to significant harm. It was then contended that the Tribunal erred by applying limited scope of what the statutory scheme envisaged
I make the following observation in respect of the contentions of the Applicant. In each of the international authorities relied on, there is a significantly relevant context. In my view, for a threat to amount to significant harm there has to be immediacy in respect of the threat to cause that mental anguish that might amount to significant harm and that there be no other factor which would militate against the likelihood of the threat being carried out, which was in the knowledge of the victim. The threat complained of in respect of the International cases cited were threats made with evident capacity to follow through with the threat in short time. In respect of BVB, again the context of that decision discloses a genuine belief in the victim that the threats being made were capable, and likely, in the mind of the victim, to be implemented. It was not so much her subjective assessment of the threat, but also the not unreasonable objective assessment of the context that gave foundation for the subjective assessment. In the case before me, the context does not reflect that immediacy and there are other circumstances, discussed below, that militate against the subjective belief of the Applicant as being a credible and real threat.
The Minister contended that the first ground of review is entirely hypothetical. At no stage was it claimed by the Applicant that Australia owed him “complementary protection” obligations on the basis that “there is a real risk that the Applicant will suffer ‘significant harm’ in the form of threats if he returned to Sri Lanka”. The claim made by the Applicant, which was considered and rejected by the Tribunal, was that the policeman, who had threatened the Applicant, would make good his threat; that he would kill the Applicant.
The Minister relied upon NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) as authority for the principle that a decision maker is only required to consider the claims made by a claimant that were sufficiently raised on the material before the decision maker, and not those depending for their exposure upon constructive or creative activity by the decision maker. Indeed, a conclusion that a decision maker has failed to consider a claim not expressly advanced is not to be made lightly.[8]
Further, as stated by Allsop J. (as he then was) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs:
Whatever adverb, or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims.[9]
[8] NABE (No 2) at [68]
[9] [2004] FCA 1695 at [15]
It is clear, in my view, that what the Applicant feared was that the policeman would make good his threat, and that is how his claim was put. It did not demand, in the circumstances of this case, for the Tribunal to entertain an enquiry as to whether the threat per se constituted significant harm. It is accepted that there are circumstances where a threat, in itself, constitutes significant harm, but only in particular circumstances could a threat be caught by the statutory description. In this case, the question of whether the threat per se constituted significant harm does not arise, in my view, in the context of the hearing, or in the context of the claims made. The Applicant’s claim was never along the line that he feared that should he be returned to Sri Lanka, he would be threatened again and that such a threat would be torture, or the cause of significant harm.
In my view, having regard to the requirement for the Tribunal under s.36(2)(aa) of the Act to assess the evidence to determine what the “foreseeable consequence” of the return of the Applicant from Australia would be and determine whether there is a real risk that the Applicant will suffer significant harm, I am satisfied, on a fair reading of the Tribunal’s decision, that the Tribunal fulfilled its task of looking into the future, and based on the evidence presented, made a determination as to the prospect of a “real risk” of significant harm.
Ground 1 is not sustainable and should be dismissed.
Ground 2
Under this ground, in essence, the Tribunal erred in making a finding that the policeman would not carry out the threat to kill the Applicant, in circumstances where there was no evidence to support this finding. Counsel for the Applicant took me through various passages of evidence given by the Applicant, establishing on the face of it a fear of the policeman, a fear that he had the capacity because of his status as a policeman to carry out his threat. Part of the Applicant’s evidence was that the threat was made in October 2011, at a time when he was in Sri Lanka, and that he thereafter departed in February 2012 for Australia.
The Applicant contended this was a very narrow window of opportunity in which the policeman could carry out his threat.Significantly, in my view, the threat was made both to the Applicant and to the policeman’s wife.
The Applicant relied on the statement of Black CJ (with whom Spencer and Gummow JJ agreed) in Curragh Queensland Mining Limited v Daniel and others[10] where his Honour said:
A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in the chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision maker to take one path in the process of reasoning rather than another, and so to come to a different conclusion.
If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed. Whatever the relative importance of the fact.
[10] [1991] FCA 244 at 221
Applying the above reasoning, the Applicant contended that there was simply no evidence upon which the Tribunal could make such a finding of fact and therefore the determination of the Tribunal is flawed.
In response, the Minister contended that there was evidence available to the Tribunal upon which it could draw the inference that the police officer would not make good his threat. There was a critical finding of fact to the effect that the policeman knew of the affair for some time, but did nothing about it. The inference the Tribunal drew was that from his experience, people often make death threats, but often don’t follow through.
In my view, the fact that the policeman knew of the affair for six months prior to his wife and the Applicant departing for Saudi Arabia and did nothing about it, and the fact that there was indeed a window of opportunity, in my view, not to be lightly dismissed, between October 2011 and February 2012 when the policeman could have followed through on his threat, is significant. It must remembered also, the threat was made to the policeman’s wife as well, but there was no evidence of it having been followed through in respect of her. It is open, in my view, for the Tribunal, in these circumstances, to draw the inference and make a finding of fact that the policeman would not follow through on his threat.
In my view, in the circumstances of this case, the statement of Mason CJ in Australian Broadcasting Tribunal v Bond[11] has application where he said:
So long as there is some basis for an inference, in other words, the particular inference is reasonably open, even if that inference appears to have been drawn as a result of the logical reasoning, there is no place for judicial review because no error of law has taken place.
[11] (1990) 170 CLR 321 at 356
For the above reasons, ground 2 is not made out and should be dismissed.
Ground 3
The third ground alleges that the Tribunal failed to consider two integers of the Applicant’s claims. The first was a failure, it was said, to consider the Applicant as a member of a particular social group, being people opposed to the Sri Lankan government because they had land taken from them by that government. The other integer alleged not to have been considered was the failure of the Tribunal to consider the Applicant as being part of a group of persons who informed Australian authorities in relation to people involved in people smuggling from Sri Lanka.
In respect of the first integer, the Applicant relied on the authority of NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) where the following statement by Gleeson CJ was made:
The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims, but, as is apparent, from Dranichnikov, extends to reviewing the Delegate’s decision on the basis of all the materials before it.
And further on, his Honour cited from an earlier decision of his where he stated:
Proceedings before the Tribunal are not adversarial, and the issues are not defined by pleadings, or any analysis process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis, which may occur to the Applicant, or an Applicant’s lawyers, at some later stage in the process.[13]
[13] S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1]
Counsel for the Applicant contended NABE was relevant in respect of the Applicant’s review on two bases; first, the fact the law does not require that there be pleaded claims; and secondly, the reference by his Honour to claims being made at some later stage. It was said that, in this case, the claim was not made at some later stage, but was made at the first available opportunity -that first available opportunity being the entry interview. Again, the Applicant relied upon NABE where his Honour at [63] said:
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 then 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 that is misunderstood or misconstrued by the Tribunal.
His Honour then went on to quote with approval the following from WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[14]
If the Tribunal fails to consider a contention that the Applicant feared 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 s414 to conduct a review of the decision. This is a matter of substance, not a matter of form of the Tribunal’s published reasons for decision.
[14]2003) 75 ALD 630 at [45]:
As the question of the Sri Lankan Army confiscating his father-in-law’s property, which was given to him as a dowry, was raised at the entry interview, the Applicant contends that the Tribunal should have considered the Applicant to be a member of a particular social group; namely, those whose land was confiscated by the government. Alternatively, the Applicant also contended that he would be at a real risk of significant harm for this reason, thus enlivening the complimentary provisions of the act.
The Applicant contended that the integer was clearly articulated, albeit at the entry interview only. It is to be noted, however, that in subsequent interviews the Applicant did not raise this issue again. When interviewed by the Delegate, the Delegate commenced the interview with an explanation of the purpose of the interview, stating that the Applicant would be given an opportunity to provide additional information to support his claims. Later in the interview the Applicant made explicit reference to matters from the entry interview about which the Delegate had not asked questions. In response, the Delegate said:
I just want to assure you whatever you have stated in both of your statements will be taken into consideration when I make my decision. So if we haven’t discussed it today, it doesn’t mean that I will not take it into my consideration.
Later the Applicant’s migration agent restated to the Minister’s Delegate that the Applicant relied on the material in his entry interview. The agent stated that the Applicant ‘feels that the substance of both the statement and the entry interview covers his claims’
The interview with the Delegate and the above quotations were in evidence before the Tribunal. At the hearing before the Tribunal, it was also made clear that the hearing was not limited to material which had already been stated to the Minister’s officers. The Tribunal said:
I’ve also had the opportunity of listening to the recording of the interview you had with the officer of the Department who made a decision on your application. What I propose to do today is to ask you some questions and you will have the opportunity to mention anything to me which you haven’t already mentioned to the Department.
It is to be noted that the reference to “the interview you had with the officer of the Department” was a reference to the Delegate’s interview and not to the entry interview.
The Tribunal was mindful of the circumstances surrounding the confiscation in 1990 of the Applicant’s father-in-law’s land and dealt with it, the Applicant contended, in a limited way. The Tribunal did not consider the fact that the Sri Lankan government had not returned the land to the Applicant and his wife amounted, for the purpose of the Refugees Convention to persecution. The Tribunal noted that the Applicant did not suggest that the land was needed for his livelihood. The limitation complained of was that the Tribunal only considered the Applicant’s position in respect of the land as not amounting to “serious harm” for the purposes of the Act.
It was contended that the Tribunal should have taken a further step of determining whether the Applicant was a member of a particular social group; that consideration should have been given to the prospect of persecution because of his actual or imputed membership of that particular social group, being those who oppose the government as a result of having their land confiscated by the Army.
In support of this contention, the Applicant referred to the statement of Dodd-Streeton J in MZYQZ v Minister for Immigration and Citizenship[15] where she said, after giving a history of how a claim had been made orally, but not considered in the RSA interview, or at all by the IMR which claim was not articulated in any written submissions:
It is not disputed that the conscription claim was not expressly raised either in writing or orally before the IMR. It was made only as an oral claim in the course of the RSA interview, first briefly by the appellant and then more substantially by his migration agent.
It was common ground that the RSA officer failed to deal with the conscription claim in his reasons, that the appellant (although represented by a firm of migration agents), did not complain of the omission or refer at all to the conscription claim in written or oral submissions to the IMR, although there were many logical occasions and ample opportunity to do so.The central question is whether the IMR’s opening statement (particularly after the appellant’s reliance on previous oral and written evidence and submissions) displaces the inference of abandonment that would otherwise arise from the failure to complain of the RSA’s omission or to repeat or refer to the conscription claim before the IMR.
In my opinion, in the circumstances of this case, the conscription claim was not abandoned before the IMR. The IMR not only failed to challenge the appellant’s express assertion that he relied on previous written and oral evidence and submissions, but reinforced it by his unqualified opening statement that he had “all the information previously provided by you and your adviser or referred to in the earlier decision” and would take it into consideration, whether or not it was specifically covered.
[15] [2012] FCA 948
The Applicant asserted that the circumstances of his case are very similar to that addressed in MZYQZ, where her Honour found that there was a failure to consider an integer of the appellant’s claim. Her Honour concluded that:
The [reviewer]’s obligation to consider information of a claim is raised only orally in the RSA interview arose from the unqualified statement he made, particularly in conjunction with the appellant’s foregoing statement that he relied on all previous oral and written submissions and evidence.
The unusual circumstances of this case demonstrate the importance of a decision maker not precisely describing what, if any, previously provided material he or she will consider. An unduly wide and imprecise statement may impose an obligation to take into account a claim raised only fleetingly in an inaccessible form, of which the decision maker is in fact unaware[16]
[16] ibid. [63]-[64]
Her honour also found that the failure of the appellant, and indeed the appellant’s representatives, to further address the claimed integer in events following the RSA interview, in the circumstances of the case, did not amount to an abandonment of that claim.
In similar vein, at the entry interview, the Applicant informed the officer of the role played by Peiris and the threat made by Peiris, and identified himself as a member of a particular social group, being persons who have informed Australian authorities in relation to people involved in people smuggling from Sri Lanka. This now claimed integer was not repeated or addressed again prior to the Tribunal’s decision.
Again, in the alternative, the Applicant claimed he would be at a real risk of significant harm because of his membership of that particular social group.
In response, the Minister first distinguished the decision in MZYQZ.
The Minister sought to distinguish MZYQZ on the basis that there was a different factual context between that case and this. That difference was the reassurance and affirmation given to the appellant in MZYQZ that all previous claims would be fully taken into consideration by the decision-maker and also by the fact that the appellant “expressly adopted all previous oral and written evidence and submissions”. There was an assurance given that all previously provided information would be considered. In this case, the Applicant did not state to the Tribunal that he relied upon all previously provided information; nor did the Tribunal state it would consider all previously provided information, including claims that were not even made before the Delegate. Whereas in MZYQZ the claim was made orally before the Delegate.
I agree with the Minister, and MZYQZ can be distinguished from this case.
The Minister contended that where a claim of feared persecution relates to membership of a “particular social group” (as is the case here), it is essential that the “particular social group” be identified with accuracy[17].
[17] See Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [36].
A particular social group must be identifiable by characteristic or attribute (other than the shared fear of persecution), that is common to all members of the group and which distinguishes the group from society at large. Further, although it is true that, in determining whether a claimant has a well-founded fear of persecution on account of his or her membership of a particular social group, the decision maker must follow the steps laid down by the High Court in Dranichnikov[18]namely, a decision maker is only required to consider the claims made by a claimant that were sufficiently raised on the material before the decision maker and not those depending for their exposure upon constructive or creative activity by the decision maker (NABE (No 2)). Also, as stated in NABE (No 2) a conclusion that a decision maker has failed to consider a claim not expressly advanced is not to be made lightly.
[18] Drachnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
The Minister also contended that, in order to make good a ‘particular social group claim’ there has to be some evidence that he was a member of a particular social group as stipulated by Gummow and Callinan JJ in Dranichnikov. It must also be shown that the Applicant was a member of a group or class which is capable of constituting a particular social group for the purposes of the Convention[19].
[19] ibid at [26]
At no stage did the Applicant claim that the relevant social groups existed and that he was a member of such groups. Although the Applicant gave evidence (which is recorded in the entry interview notes) to the effect that the Applicant’s father-in-law had been involved in protests against the Sri Lankan Army because it had confiscated land belonging to him, the Applicant did not explain how it was that such evidence meant that the Applicant fell within the putative social group of “persons opposed to the Sri Lankan government because they had land taken away from them by that government”. The Applicant did not explain why evidence of the father-in-law’s activities meant that the Applicant was a member of such a social group. Significantly, in my view, the Applicant did not present any evidence that suggested that the particular social group, “persons opposed to the Sri Lankan government because they had land taken away from them by that government” formed a particular identifiable social group in Sri Lanka.
Similarly, although the Applicant gave evidence that he was informed by someone at the detention centre, a person called Peiris (who had been involved in getting the Applicant to Australia) he could harm his family and his parents, if the Applicant returned to Sri Lanka, the Applicant did not give any evidence that suggested that the social group, “persons who informed Australian authorities in relation to people involved in people smuggling from Sri Lanka” formed a “particular social group” in Sri Lanka.
In my view, the contentions of the Minister in respect of whether there was indeed a particular social group as described, or whether the Applicant was a member of such a group, have merit.
The substantive contention of the Minister, however, in respect of the two bases for claiming to be a member of a particular social group, was that the Applicant had abandoned those claims, should they have existed.
Although the interview notes record that the Applicant had stated during the course of his entry interview, an interview that took place five months before the Tribunal hearing, that he had been threatened whilst in immigration detention by a person known as Peiris who had helped the Applicant travel to Australia and that his father-in-law had engaged in a protest regarding land confiscation, such “claims” were not repeated by the Applicant at any point during the course of the visa application and review process. The Applicant did not repeat and prosecute such claims during his interview with the Delegate that took place on 5 June 2012; nor did he refer to the “claims” during the course of the Tribunal hearing that occurred on 31 August 2012. It is to be noted, also, that when the Applicant’s adviser was asked during the course of the Tribunal hearing whether anything further needed to be discussed, which question afforded the Applicant an opportunity to prosecute his claim about the threat made by Peiris and his father-in-law’s land confiscation protests, the Applicant’s agent responded, “No, all aspects of the claims have been covered”. Thereafter, the Applicant proceeded to make further submissions about the Applicant’s complementary protection claims, where again the issue of the threat made by Peiris and the issue of the father-in-law’s land confiscation protests were not raised. There was also no mention in written submissions filed by the Applicant’s agent about either of the two claims that pivot on an alleged failure by the Tribunal to consider integers of the Applicant’s claims.
I agree with my brother Cameron FM (as he then was) where he stated in SZQFR. v Minister for Immigration and Citizenship[20]:
… the omission from the further evidence and submissions on review of any reference to [the social group claims] had the effect of abandoning it as an aspect of those claims. Consequently, the assertion that the Applicant was at risk of harm …because [of the matters raised in (a) and (b) of the third ground of review] could not be said to have been, at the [Tribunal] stage, “a substantial, clearly articulated argument relying upon established facts” as considered in Dranichikov or a claim which emerged clearly from the materials, in the sense discussed in NABE.
[20] [2011] FMCA 785 at [48]
After acknowledging that the Tribunal at the outset of the hearing invited the Applicant to take the opportunity to mention anything you have not already mentioned to the officer of Department, the Minister went on to make two points. First, that in the hearing before the Delegate , which took place on 5 June 2012, no evidence was given by the Applicant in relation to the particular social group claims now being made. They were not mentioned to the officer of the Department (i.e. the Delegate). Secondly, during the course of the hearing before the Delegate, the Delegate stated that “I just want to assure you whatever you have stated in both your statements. I will take into consideration when I make my decision,”. The Delegate did not state that he would have regard to what the Applicant said at his entry interview.
In my view, the Applicant’s contention that the Tribunal ought to have been aware of, and therefore to have considered the “particular social group claims”, should not be accepted. The Tribunal appears to have been aware only of what the Applicant said at the hearing before the Delegate, which did not include evidence of the particular social group claims. Also, it is evident that during the course of the Tribunal hearing, the Applicant neither gave evidence about the particular social group claims, nor complained about the fact that the Delegate did not deal with them. In those circumstances, I agree with the Minister’s contention that the only conclusion to be drawn is that the particular social group claims were not live issues that warranted consideration, a conclusion buttressed by the fact that, towards the end of the Tribunal hearing, the Applicant was asked whether anything further needed to be covered, to which a negative answer was given by the Applicant.
Having regard to the above, it is clear, in my view, that if such claims have ever existed, they were abandoned. In respect of the alternative set out in ground 3 that claimed the Applicant was entitled to complementary protection, that must also be considered to have been abandoned.
Ground 3 is not sustained and should be dismissed.
Conclusion
For the above reasons, the application for review filed on 24 December 2012, as amended, should be dismissed.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge O'Dwyer
Associate:
Date: 17 April 2014
[7] (2004) 144 FCR 1 at [58]
[12] [2004] FCAFC 263 at [61] – [65]
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