MZZGC v Minister for Immigration
[2014] FCCA 97
•31 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZGC v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 97 |
| Catchwords: MIGRATION – Judicial review – claim for protection visa – Sri Lankan national – Tamil ethnicity – Hindu religion – recommendation not to grant protection visa – whether failure to consider integers of claim – whether the right question asked – whether applicant denied procedural fairness – whether well-founded fear of persecution – whether jurisdictional or legal error in recommendation. |
| Legislation: Constitution (Cth), s.75(v) |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Collins v Repatriation Commission (1980) 48 FLR 198 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairsv Yusuf & Anor (2001) 206 CLR 323; [2001] HCA 30 MZYPW v Minister for Immigration & Citizenship [2012] FCAFC 99 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263 SZNOX v Minister for Immigration & Citizenship [2009] FCA 1233 The Victorian Chamber of Manufactures & Ors v The Commonwealth & Ors (1943) 67 CLR 335 |
| Applicant: | MZZGC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 176 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 30 August 2013 |
| Date of Last Submission: | 30 August 2013 |
| Delivered at: | Perth (by video to Melbourne) |
| Delivered on: | 31 January 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms N Karapangiotidis |
| Solicitors for the Applicant: | Victorian Legal Aid |
| Counsel for the First Respondent: | Ms E Latif |
| Solicitors for the First Respondent: | Clayton Utz |
| For the Second Respondent: | Submitting appearance, save as to costs. |
ORDERS
That the name of the first respondent be amended to read “Minister for Immigration & Border Protection”.
That the application be dismissed.
| FEDERAL CIRCUIT COURT AT PERTH |
MLG 176 of 2013
| MZZGC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a Hindu Tamil from the north of Sri Lanka who arrived in Australia on 1 December 2011.[1]
[1] Court Book (“CB”) at 254 at para.2 and 273-274 at para.62.
The applicant’s application is for judicial review of a recommendation[2] made by the second respondent, an Independent Protection Assessor,[3] on 12 October 2012.
[2] “IPA Recommendation”. The IPA Recommendation is at CB 253-284.
[3] “IPA”.
Section 46A of the Migration Act 1958 (Cth)[4] provides that the first respondent,[5] the Minister, may lift the bar on visa applications by an unauthorised maritime arrival,[6] which this applicant is, and under s.47 of the Migration Act 1958 the Minister is then to consider a valid application for a visa. Ultimately, the grant or refusal of a visa rests with the exercise of a discretion by the Minister as to whether the Minister is satisfied or not satisfied as to the criteria for the grant of the visa.[7]
[4] “Migration Act 1958”.
[5] “Minister”. Formerly the Minister for Immigration & Citizenship, now the Minister for Immigration & Border Protection.
[6] Migration Act 1958, s.5(1).
[7] Migration Act 1958, ss.36 and 65.
The IPA Recommendation found that the applicant does not meet the criterion for a Protection Visa (Class XA)[8] set out in s.36(2) of the Migration Act 1958, and therefore recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.[9]
[8] “Protection Visa”.
[9] “Convention”.
The application, which seeks relief in relation to the still to be completed decision-making process by the Minister in relation to the IPA Recommendation, is within this Court’s jurisdiction for relief in relation to a migration decision.[10]
[10] Migration Act 1958, s.476(1); Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319 at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”); Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at para.31 per Nicholls FM.
Procedural background to present review
On 29 February 2012 a Protection Obligations Evaluation[11] found that the applicant did not meet the definition of a refugee as set out in the Convention.[12]
[11] “POE”.
[12] CB 106-119.
On 13 April 2012 (and seemingly after the POE) the applicant participated in an Entry Interview.[13]
[13] CB 121-136.
On 25 July 2012 the IPA interviewed the applicant.[14]
[14] CB 212-213 (“IPA Interview”).
On 30 July 2012 the IPA invited the applicant to provide further information.[15] Accordingly, the applicant provided:
a) on 3 August 2012, a translation of a letter from his mother;[16] and
b) on 10 August 2012, a further submission.[17]
[15] CB 219-220.
[16] CB 224-227 (“Applicant’s Mother’s Letter”).
[17] CB 228-248; (“Applicant’s 10 August 2012 Submissions”).
In support of his claim, the applicant relied upon the following material:
a) statutory declaration of 29 January 2012;[18]
b) applicant’s undated submissions,[19] applicant’s submissions of 2 May 2012[20] and the Applicant’s 10 August 2012 Submissions; and
c) material provided at the IPA hearing: country information[21] and the Applicant’s Mother’s Letter.
[18] CB 15-17 (“Applicant’s Statutory Declaration”).
[19] CB 74-87 (“Applicant’s Undated Submissions”).
[20] CB 140-211 (“Applicant’s 2 May 2012 Submissions”).
[21] CB 214-216.
In the IPA Recommendation of 12 October 2012 the applicant was found not to meet the criteria for the grant of a Protection Visa under s.36(2) of the Migration Act 1958,[22] and the IPA therefore recommended that the applicant not be recognised as a person to whom Australia has protection obligations.[23]
Applicant’s claims
[22] CB 284 at paras.87-90.
[23] CB 284 at para.90.
Grounds
The applicant claimed to fear persecution on the following grounds:
a) race (Tamil);
b) religion (Hindu);
c) political opinion, imputed because of his links to, or as a supporter of, the Liberation Tigers of Tamil Eelam[24] arising from:
i)his past detention in 2009 and 2010;
ii)his Tamil race, unmarried status and his being resident in, and from, Vanni in the north of Sri Lanka; and
iii)his return from a Western country after a failed asylum claim, including a lengthy absence from which it might also be perceived that he was a traitor and spy; and
d) being a member of a particular social group, either:
i)a male Tamil; or
ii)a failed asylum seeker from Australia returning to Sri Lanka after a lengthy absence.[25]
[24] “LTTE”.
[25] CB 274 at para.63.
Bases for claims
The bases for the claims made by the applicant in the Applicant’s Statutory Declaration, and set out in the IPA Recommendation, are as follows:
a) the applicant is a Tamil from the north of Sri Lanka;[26]
b) in 2006 the LTTE attempted to have the applicant join them, but he managed to escape and return to his home;[27]
c) the applicant’s father went missing in 2009 during the fighting between the Sri Lankan Army[28] and the LTTE in Mullivaikal and was presumed dead;[29]
d) in May 2009 the Army rounded up all the young men on suspicion of being supporters of the LTTE and they, including the applicant, were taken to Rambaikulam. The applicant spent one month there, a further six months in the Vavuniya Camp, and was then transferred to Thirukonamadu in Polonnaruwa District where he spent the rest of his time. The applicant was released on 5 November 2010;[30]
e) on 10 November 2010 men in civilian clothes came to the applicant’s aunt’s home and took the applicant away blindfolded. When the blindfolds were removed the applicant found that he had been taken to an Army camp. The applicant was severely beaten by Army officers and accused of being an LTTE supporter and of having weapons. The applicant was eventually released;[31]
f) upon the applicant’s release he tried to contact one of his friends, but learned that his friend had also been taken away by the Army and had disappeared. The applicant went into hiding until arrangements were made with a smuggler for him to leave Sri Lanka. The applicant departed Sri Lanka on 1 January 2011;[32] and
g) upon arrival in Australia the applicant was told at the medical centre that a nerve in his spinal cord may have been damaged.[33]
[26] CB 273-274 at para.62.
[27] CB 277 at para.68.
[28] “Army”.
[29] CB 256 at para.20.
[30] CB 257 at para.20.
[31] CB 257 at para.20.
[32] CB 257 at para.20.
[33] CB 257 at para.20.
The IPA Recommendation
In the IPA Recommendation the IPA:
a) referred to relevant country information;[34]
[34] CB 264-273 at paras.47-61.
b) attached no weight to the Applicant’s Mother’s Letter as the IPA did not find the information accurate or reliable;[35]
[35] CB 274 at para.64.
c) accepted the applicant’s medical history and also accepted that the applicant, in 2009, along with other young men was rounded up by the Army and taken on suspicion of being an LTTE supporter and suffered physical harm as claimed;[36]
[36] CB 274-275 at para.65.
d) relied on country information that stated that in November 2009 a Sri Lankan government official announced all restrictions that had applied to persons in the heavily guarded Vavuniya camps would be lifted from 1 December 2009 and that the government intended to close all camps by the end of January 2010;[37]
[37] CB 275 at para.66.
e) accepted that the applicant was taken to various camps in Vavunyia as the Army suspected he may have been an LTTE supporter, but found that he left the last of the camps on 5 November 2010 and was not then under any suspicion by the authorities of having any association with or link with the LTTE;[38]
[38] CB 257 at para.66.
f) did not accept the applicant’s claims of single day abductions by plain clothes abductors and beatings by uniformed Army officers in an Army camp and a house in Vavuniya on 10 November 2010 and 13 November 2010 respectively, because:
i)the IPA considered it highly unlikely that five days after the applicant’s release from one of the Vavuniya displacement camps he had been in for 17 months under heavy guard by the military, that Army officers would abduct him, threaten him in the manner that he claimed that they did, and then release him that evening;[39]
[39] CB 275 at para.67.
ii)that if Army officer’s believed with sufficient conviction that the applicant was an LTTE supporter with knowledge of the location of weapons, such that they beat him and threatened him with his life if he did not cooperate, as he claims, it is implausible that they would release him on not only one, but two, occasions;[40]
[40] CB 275 at para.67.
iii)that the applicant’s account of the reason that he returned to his aunt’s house after the first claimed abduction, namely that he thought he had committed no crime, was implausible given that he had been unconditionally released only five days earlier from the displacement camp, and was then allegedly abducted, beaten, accused of serious matters and threatened with his life by uniformed Army officers on his account, and yet when he was released after the first claimed abduction he thought it would be safe to return to his aunt’s house as he committed no crime;[41] and
iv)his explanation as to why he was not killed, namely that the Army did not do so because his aunt had seen him abducted, and that the Army killed people without people knowing about it, at times such as when they went to the shops (about which he had read in the papers), was an explanation which lacked rationality,[42]
and found the applicant’s evidence of the events implausible and to “lack rationality”;[43]
g) did not, on the information before her, consider that the applicant would be perceived as having an association with or link to the LTTE, or that he was an LTTE supporter, arising from his Tamil ethnicity, age, gender, unmarried status and residence in the north or in Vanni;[44]
h) did not accept, on the basis of country information, that the applicant would be persecuted in the reasonably foreseeable future for his religion;[45]
i) accepted that there existed in Sri Lanka a particular social group of Tamil males and that the applicant was a member of this particular social group.[46] The IPA accepted that the applicant might encounter more difficulties than Sinhalese people encounter if he wished to apply for a government position or a student placement, and that he might be asked for identification, but did not consider such treatment to amount to persecution;[47]
j) did not accept that persons who are failed asylum seekers returning from Australia were, either separately or in combination with the fact of the lengthy absence from Sir Lanka, treated or perceived as being associated with the LTTE;[48]
k) did not accept that the questioning or security checks that the applicant might be required to undergo at the airport on his arrival in Sri Lanka would amount to serious harm;[49] and
l) did not accept that arising from the circumstance of the applicant’s family members being asked about him by the authorities, that the authorities would form any adverse view of him.[50]
[41] CB 275-276 at para.67.
[42] CB 275-276 at para.67.
[43] CB 275-276 at para.67.
[44] CB 276 at para.68.
[45] CB 277 at para.69.
[46] CB 277 at para.70.
[47] CB 277-278 at para.70.
[48] CB 280 at para.73.
[49] CB 281 at para.76.
[50] CB 281 at para.77.
The IPA considered the applicant’s claims cumulatively,[51] and also considered the applicant’s complementary protection claims.[52]
[51] CB 282 at para.78.
[52] CB 282-284 at paras.80-86.
Grounds of review
There are four particularised grounds of review. Each ground is set out and considered separately hereunder.
Ground 1
Ground 1 is as follows:
The … [IPA] committed an error of law and/or denied the applicant procedural fairness by failing to consider an integer of the applicants claims and/or by failing to ask itself the right question.
Particulars
(a)The applicant claimed that he was at risk of persecution on account of his profile as a young Tamil man from the north and his particular experiences of detention.
(b)The applicant claimed that on the day of his arrest, he tried to contact one of his friends but learned that he [the friend] had also been taken away by the Army and had disappeared.
(c)The claim in relation to his friend was clearly before the … [IPA] but the … [IPA] failed to make any findings in relation to it or consider the claim.
(d)The claim was relevant and significant to the applicant’s claims to fear persecution.
Applicant’s submissions
In relation to ground 1 the applicant submitted that:
a) he had been detained in camps from 2009 until November 2010 and thereafter he claimed to have subsequently been detained, beaten and interrogated on two occasions;
b) the IPA accepted the applicant had been seriously detained and mistreated in camps, but did not accept the applicants’ subsequent claims because of an assessment as to the plausibility and rationality of those claims;
c) at hearing the IPA questioned the applicant about why the authorities, if they had captured him, would not have killed him when they took him from his aunt’s house. The applicant responded that because he was registered with the International Committee of the Red Cross[53] they could not do it that way, and his aunt had also seen him taken away, so they could not do it that way, but rather would wait for the person to be released and then kill them without people knowing.[54] The applicant gave evidence of people being abducted and the IPA put information to the applicant that the victims of such abductions were a range of people but that “none of the profiles of the victims appear[ed] relevant to his personal circumstances.”[55] The applicant responded “the information in the papers [was] only about important people”;[56]
[53] “ICRC”.
[54] CB 261 at para.33.
[55] CB 261 at para.33.
[56] CB 261 at para.33.
d) the IPA ultimately rejected the subsequent claims of detention and interrogation and considered a number of factors including that it was unlikely that five days after being released from the displacement camp which had been heavily guarded by the military he would later be abducted, twice, and then released;[57]
[57] CB 275 at para.67.
e) the IPA did not accept that the applicant would be perceived, or imputed, as having an association with or link to, supporters of the LTTE arising from his past experience of detention in 2009 and 2010;[58]
[58] CB 280 at para.74.
f) in the Applicant’s Statutory Declaration, the applicant made the following claim:
on the day of my release I tried to contact one of my friends but learned that he had also been taken away by the Army and had disappeared.[59]
[59] CB 16 (“Friend’s Disappearance Claim”).
This declaration was reproduced in full in the IPA Recommendation;[60]
[60] CB 256-257 at para.20.
g) the Friend’s Disappearance Claim was:
i)noted in the POE;[61] and
[61] CB 108.
ii)formed part of the Applicant’s 2 May 2012 Submissions to the IPA;[62]
[62] CB 143.
h) aside from noting the Friend’s Disappearance Claim, the IPA made no finding in relation to it and failed to deal with it at all in the Findings and Reasons in the IPA Recommendation;[63]
[63] The Findings and Reasons appear at CB 273-284 at paras.62-86.
i) the Friend’s Disappearance Claim was relevant and important to the applicant’s claims for the following reasons:-
i)it involved a person known to him and in a similar situation to his (and one without the profile suggested as necessary by the IPA before becoming of interest to the authorities) being taken away by the Army and disappearing; and
ii)it raised a claim that those associated with the applicant were being targeted by the authorities;
j) the IPA made a similar error to that identified by the Federal Court in M51 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs.[64] In M51 the Tribunal adverted to, but failed to make any findings upon, the applicant’s claim that two of his colleagues also engaged in humanitarian work had been taken for interrogation by the security personnel and murdered.[65] The Federal Court accepted that the Tribunal had made no finding of fact regarding the alleged murder of the applicant’s colleagues.[66] The evidence bore directly on the issue of whether the applicant’s fear of persecution was well founded, and the failure of the Tribunal to make a finding on this issue raised the inference that it did not ask itself the right question.[67] The Federal Court concluded as follows:
In my view, a tribunal informed by a proper understanding of the law could not have considered that such a claim, if true, was not material to the question it was required by the Act to address, being whether the applicant had a well founded fear of persecution. I consider, therefore, that the failure to make a finding on this issue indicates that the Tribunal did not ask itself the right question and thereby fell into legal error.[68]
k) in this case, the IPA failed to deal with the Friend’s Disappearance Claim clearly made by the applicant and that bore upon his claims to fear persecution.[69]
[64] [2003] FCA 887 (“M51”).
[65] M51 at para.15 per Ryan J.
[66] M51 at para.17 per Ryan J.
[67] M51 at para.18 per Ryan J.
[68] M51 at para.26 per Ryan J.
[69] See also MZXBP v Minister for Immigration & Anor [2007] FMCA 77 (“MZXBP”).
Minister’s submissions
In relation to ground 1 the Minister submitted that:
a) the Minister accepts the IPA’s obligations of procedural fairness include an obligation to consider all claims and integers of claims;
b) broadly, the ground is made out where:
i)the matter relied upon is one the decision-maker was bound to consider;
ii)the claim was raised;
iii)the claim was not considered; and
iv)the claim may have been dispositive of the decision under review.[70]
[70] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1996) 162 CLR 24; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263 (“NABE (No. 2)”).
The Minister submits that these pre-conditions to relief are not satisfied;
c) the obligation to consider claims or integers does not extend to claims not expressly made by the applicant, or that do not arise clearly on the materials;[71]
d) the inference that the decision-maker has failed to consider an issue ought not be drawn readily in circumstances where the reasons are “otherwise comprehensive and the issue has at least been identified at some point”;[72]
e) broadly, the Minister relies upon the IPA’s findings in respect of the circumstances in which a person may be perceived as having a connection with the LTTE.[73] The IPA did not consider the applicant’s profile, on an individual or cumulative basis, would result in him being perceived as having a connection with the LTTE and, on that basis, he did not have a well-founded fear of persecution and there was not a “real risk” of “significant harm”. The Minister submits these findings were open and form a complete answer to the application for judicial review; and
f) the Court should not infer that the Friend’s Disappearance Claim was not considered in circumstances where:
i)the IPA was clearly aware of the claim;
ii)the IPA Recommendation is otherwise comprehensive;
iii)the Friend’s Disappearance Claim, though raised in the Applicant’s Statutory Declaration, was not the subject of any further evidence or argument and the applicant was on notice that his claims of detention in 2010 were the subject of credibility concerns;[74]
iv)the claim was somewhat vague and significantly did not include any indication the applicant’s friend had the same profile as the applicant or had been targeted by reason of his connection with the applicant; and
v)as a model litigant, the Minister concedes the claim relating to the friend was raised as being corroborative of the applicant’s claims of detention in 2010. However, the Minister submits the rejection of that claim on credibility grounds was open. In M51 and MZXBP the claim relied upon was raised with particularity, including that the associate and applicant had similar profiles and, in the case of MZXBP, that the friend was targeted by reason of the association.[75]
[71] NABE (No. 2) FCR at 18-19, 19-20 and 68 per Black CJ, French and Selway JJ; FCAFC at paras.58, 60-61 and 68 per Black CJ, French and Selway JJ; Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088 at 1100 per Kirby J; [2003] HCA 26 at para.78 per Kirby J (“Dranichnikov”).
[72] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 per French, Sackville and Hely JJ; [2003] FCAFC 184 at para.47 per French, Sackville and Hely JJ (“WAEE”).
[73] CB 262 at para.37, CB 278 at para.70 and CB 283 at para.85.
[74] CB 112-113 and CB 257.
[75] M51 at paras.17-18 per Ryan J and MZXBP at paras.15 and 18 per O’Dwyer FM.
Consideration
The applicable law is not in dispute in relation to ground 1, but rather its application to the facts of the matter.
In Dranichnikov the High Court found error founding relief under s.75(v) of the Constitution in circumstances where:
a) the Refugee Review Tribunal misunderstood, and failed to deal with, the case presented to it, by reason of Mr Dranichnikov being a member of a special group, not just of Russian business people, but of Russian business people involved in public protest against state sanctioned corruption and violence;[76]
b) the failure to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice;[77] and
c) a failure to respond to a substantial, clearly articulated argument relying upon established facts was also a constructive failure to exercise jurisdiction.[78]
[76] Dranichnikov ALJR at 1092 per Gummow and Callinan JJ; HCA at para.23 per Gummow and Callinan JJ.
[77] Dranichnikov ALJR at 1092 per Gummow and Callinan JJ; HCA at paras.24-25 per Gummow and Callinan JJ. See also Plaintiff M61 CLR at 356 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.90 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ where it was said that: “The failure to deal with the claim was a denial of procedural fairness”, because the Minister was not informed upon a question he had been asked to consider.
[78] Dranichnikov ALJR at 1092-1093 per Gummow and Callinan JJ; HCA at paras.24-25 and 32 per Gummow and Callinan JJ.
In Dranichnikov the High Court said that failures of the type identified above entitled a court exercising jurisdiction under s.75(v) of the Constitution to consider exercising the discretion to grant relief.[79]
[79] Dranichnikov ALJR at 1093-1094 per Gummow and Callinan JJ; HCA at paras.33-34 per Gummow and Callinan JJ.
In Htun v Minister for Immigration & Multicultural Affairs[80] the Federal Court observed, in the context of claims made with respect to an application for a protection visa, that:
To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.[81]
[80] (2001) 194 ALR 244; [2001] FCA 1802 (“Htun”).
[81] Htun ALR at 259 per Allsop J; FCA at para.42 per Allsop J.
Even where a claim is not necessarily articulated expressly in oral submissions at a hearing before the decision-maker, the “clarity of … expression of … fear in … [an] application for review and the existence of objective material put forward … to support … [a claim]” means that there is an extant claim.[82]
[82] Htun ALR at 259 per Allsop J; FCA at para.42 per Allsop J.
The claims made are “definitional with respect to the very question which comes before the relevant decision-maker.”[83]
[83] Li v Minister for Immigration & Citizenship& Anor (2008) 102 ALD 354 at 362 per Jessup J; [2008] FCA 902 at para.22 per Jessup J.
What is required of the decision-maker was described in practical terms by this Court in MZXIV v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2)[84] where the Court spoke of the decision-maker “embark[ing] on the process of actually fixing its mind upon the applicant’s claims”[85] and of “a specific consideration of the claim”.[86]
[84] [2006] FMCA 1454 (“MZXIV (No. 2)”).
[85] MZXIV (No. 2) at para.44 per Riley FM.
[86] MZXIV (No. 2) at para.45 per Riley FM.
The failure to expressly deal with a claim must however also be considered in the context of what was said by the Full Court of the Federal Court in WAEE, namely that:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.[87]
[87] WAEE ALD at 641 per French, Sackville and Hely JJ; FCAFC at para.47 per French, Sackville and Hely JJ.
In M51 the Federal Court was dealing with a claim by a Sri Lanka Tamil who said that he had been involved in humanitarian work raising funds for various Tamil groups in Sri Lanka. One of the bases for his alleged well-founded fear of persecution was that two of his associates who were involved in humanitarian work had recently been killed in Sri Lanka. After being taken for interrogation by security personnel they were found dead near a rail track in a Colombo suburb.[88] The applicant’s humanitarian work had principally been conducted overseas, and for five years prior to 1999 in and out of the Seychelles, but with returns to Sri Lanka.[89]
[88] M51 at paras.4 and 15 per Ryan J.
[89] M51 at paras.6, 7 and 8 per Ryan J.
In M51 the Federal Court was persuaded that the Tribunal had made no finding of fact regarding the alleged murder of the applicant’s colleagues, and that the conclusion to be drawn from that omission was that it did not regard this matter as material.[90] Where there was specific evidence concerning the deaths bearing directly on the issue of whether an applicant’s fear was well-founded, that evidence comprised a component integer of the applicant’s claim, and a failure to regard it as material raises an inference that the Tribunal did not ask itself the right question or had an erroneous understanding of what constitutes a well-founded fear of persecution.[91] The Federal Court observed that the likelihood of an applicant coming to the attention of authorities was certainly material to a question of a well-founded fear of persecution, but so was the treatment meted out to the applicant’s colleagues engaged in like activities, and a failure to take that into account was a possible failure to take into account a relevant consideration, and possibly a misapprehension of the question that it was required to ask upon which its powers was predicated, which could lead it into jurisdictional error of the type described in Yusuf.[92] Where there was a misapprehension of a question to be asked, as well as the consequent failure to consider relevant material, and where the question was central to the exercise of the Tribunal’s power under the Migration Act 1958 (as the question of whether the applicant had a well-founded fear of persecution was, and is) that error is jurisdictional, and results in a decision being made without jurisdiction, and therefore being a purported decision and not one made under the Migration Act 1958 for the purposes of s.474 of the Migration Act 1958.[93] The Tribunal had recited a summary of the applicant’s case, including his claim that two colleagues, whom he had named, had been killed after being detained by the security forces. Thereafter, the Tribunal failed to refer to the matter again in its findings, or anywhere else in its decision. The absence of a recorded finding gave rise to two possible interpretations. In some cases it might be possible to infer that having raised the issue and not referred to it again a Tribunal was not convinced that the claim had been made out, as in Yusuf where there had been a claim of three attacks on the applicant but the Tribunal commented only upon two, on the basis that it was persuaded that there had only been two attacks.[94] In M51 there were no findings by the Tribunal on events of a similar kind (as there had been in Yusuf in relation to the number of attacks) from which an inference could be drawn as to the Tribunal’s reasoning, and therefore there was available an inference that the Tribunal either fell into an erroneous understanding of what constitutes a well-founded fear of persecution or misdirected itself as to what further issues it needed to consider in light of its other conclusions.[95] In M51 the Federal Court went on to observe that:
The available inference from the Tribunal’s failure to make any finding on the applicant’s claims relating to the death of his colleagues is that, given its duty under s 430 to record its findings on all matters it considers material, it did not consider the alleged deaths material to the claims before it: Yusuf per Gleeson CJ at 330-1 [5], and per Gaudron J at 338 [35]. In my view, a tribunal informed by a proper understanding of the law could not have considered that such a claim, if true, was not material to the question it was required by the Act to address, being whether the applicant had a well-founded fear of persecution. I consider, therefore, that the failure to make a finding on this issue indicates that the Tribunal did not ask itself the right question and thereby fell into legal error.[96]
[90] M51 at para.17 per Ryan J citing Minister for Immigration & Multicultural Affairs v Yusuf & Anor (2001) 206 CLR 323 at 330 per Gleeson CJ and 338 per Gaudron J; [2001] HCA 30 at para.5 per Gleeson CJ and para.35 per Gaudron J.
[91] M51 at para.18 per Ryan J citing Htun ALR at 259 per Allsop J; FCA at para.42 per Allsop J and Yusuf CLR at 348 per McHugh, Gummow and Hayne JJ; HCA at para.75 per McHugh, Gummow and Hayne JJ.
[92] M51 at para.18 per Ryan J.
[93] M51 at para.19 per Ryan J citing Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 505-507 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at paras.74-78 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[94] M51 at paras.20-22 per Ryan J, citing Yusuf CLR at 353 per McHugh, Gummow and Hayne JJ; HCA at para.90 per McHugh, Gummow and Hayne JJ.
[95] M51 at para.23 per Ryan J.
[96] M51 at para.26 per Ryan J.
In M51 the Federal Court went on to observe that it was not able to accept a contention that a conclusion that, if the applicant were returned to Sri Lanka, he would not attract the attention of authorities, and it was, therefore, unnecessary for the Tribunal to consider what, if anything, befell the applicant’s associates who had also been engaged in humanitarian work. In M51, the Federal Court said that the issue on which there was a finding (that the applicant would not come to the authorities’ notice) and the claim as to which no finding was made (whether the applicant’s associates had been killed) were not sequential events, and “the finding as to the future matter did not impliedly negate the applicant’s claim as to the past events.”[97] There was, therefore, no alternative explanation for the Tribunal’s reasoning in M51 which was free from error of law, and there was therefore a jurisdictional error giving rise to appropriate relief.[98]
[97] M51 at para.27 per Ryan J.
[98] M51 at paras.26 and 33 per Ryan J.
In MZXBP the applicant contended that the Tribunal had failed to deal with his claim that his friend was murdered in circumstances where the friend had a similar role and profile to the applicant within the United National Party[99] in Sri Lanka, and where the friend was associated with him because he had helped the friend after he was beaten by attackers on one occasion.[100] There was no dispute that “during the conduct of the hearing, the question of the applicant’s friend was raised.”[101] In the Tribunal’s “Findings and Reasons” the matter of the friend who was killed was not considered, and no finding was made in relation to this part of the applicant’s evidence.[102] Evidence was led at the hearing to support the claim, including photographs of the funeral of his friend, and a more recent news item in a Sri Lankan paper reporting the killing of an organiser of the UNP.[103] The applicant’s case was that he was at risk of persecution because someone with a low profile within the UNP, such as his friend, was persecuted, and killed for his political belief, and that person had a similar political profile to the applicant, and was someone with whom the applicant was associated. The Federal Magistrates Court observed that:
19. … it was a material and significant aspect of the applicant’s case that his profile and his involvement with the UNP was similar to that of his deceased friend. It was important and material for the Tribunal to evaluate the significance of his friend and the circumstances of his friend’s death in the context of the case as put by the applicant for a protection visa.
20. It is not simply enough to refer to the friend in the “Claims and Evidence” section of the decision and not in the “Findings and Reasons” section where I consider that it was encumbered [sic] upon the Tribunal to make an appropriate finding.[104]
[99] “UNP”.
[100] MZXBP at para.12 per O’Dwyer FM.
[101] MZXBP at para.13 per O’Dwyer FM.
[102] MZXBP at para.13 per O’Dwyer FM.
[103] MZXBP at para.15 per O’Dwyer FM.
[104] MZXBP at paras.19-20 per O’Dwyer FM.
The Friend’s Disappearance Claim was made:
a) in the Applicant’s Statutory Declaration on 29 January 2012;[105]
b) in the POE on or before 29 February 2012;[106] and
c) before the IPA in the IPA Interview and subsequently by reference to the Applicant’s Statutory Declaration, by reason of the IPA’s knowledge of the POE, and also the Applicant’s 2 May 2012 Submissions.[107]
[105] CB 16.
[106] CB 108.
[107] CB 143.
The IPA Recommendation identified the Friend’s Disappearance Claim as a claim made by the applicant, inserting it under a section headed “Claims and Evidence”[108] and referring to the content of the Applicant’s Statutory Declaration as the applicant’s “claims”.[109]
[108] CB 256-257.
[109] CB 256 at para.20.
There is no doubt that there was a “claim”, and that, aside from being mentioned as such, it was never considered in the Tribunal Decision’s Findings and Reasons. The question arises as to whether if it had been considered could it have been dispositive of the review by the IPA?[110]
[110] WAEE ALD at 641 per French, Sackville and Hely JJ; FCAFC at para.47 per French, Sackville and Hely JJ.
It is relevant to note at the outset that the content of the Friend’s Disappearance Claim did not vary throughout: it remained, as set out above, a one-line claim that on the day of his release the applicant tried to contact one of his friends but learned that his friend had been taken away by the SLA and disappeared.
As submitted by the applicant it can be accepted for present purposes that the applicant’s “friend” was a person known to him, although, unlike the persons killed and assaulted in M51 and MZXBP the “friend” is not identified by the applicant with any particularity.
The applicant also submitted that the friend was in a similar situation to his, and did not have the profile the IPA suggested was necessary to be of interest to the authorities in Sri Lanka. The difficulty with accepting this submission is that there are no established facts to support it. The IPA, not under a duty to make inquiries to ascertain relevant facts,[111] is told nothing about the friend by the applicant, other than that the applicant learned that the Army had taken him and he had disappeared. The applicant, who must provide sufficient evidence and argument to properly establish his case,[112] goes no further than this. The IPA was not informed of:
a) the friend’s race, religion or nationality;
b) any particular social group of which the friend was a member;
c) of any particular political opinion that the friend held;
d) whether the friend shared any or all of these attributes with the applicant; or
e) whether the applicant had any knowledge of the friend’s attributes in respect of the above matters.
The IPA simply had no basis upon which it could be said that there was a substantial clearly articulated claim based upon established facts.[113] In this regard, the current case might be compared with the established facts upon which articulated claims of substance were put in M51 and MZXBP, which makes those cases distinguishable from this case.
[111] Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39.
[112] Minister for Immigration & Multicultural Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61; SZNOX v Minister for Immigration & Citizenship [2009] FCA 1233 at para.18 per Barker J.
[113] Dranichnikov ALJR at 1092-1093 per Gummow and Callinan JJ; HCA at paras.24-25 and 32 per Gummow and Callinan JJ; NABE (No. 2) FCR at 22 per Black CJ, French and Selway JJ; FCAFC at para.68 per Black CJ, French and Selway JJ.
The fact that the friend had been taken away by the SLA and subsequently disappeared, is not borne out by any corroborative evidence, as were the killings in M51, and even if accepted as an established fact the taking away and disappearance does little to assist the applicant because there is no basis for determining that his friend’s being taken away, and subsequent disappearance, has any Convention nexus, or had any connection with the applicant at all (noting that the applicant had only just himself been released from a period of detention which had lasted approximately 18 months).
The applicant also asserted that the fact that the friend had no profile was the basis, or part of the basis for the Friend’s Disappearance Claim, because that aligned him in terms of having no profile, with the applicant. The difficulty with that assertion is that there are no facts on which to conclude that the friend had no profile, and no facts to indicate that he had, or might have had, no profile. In those circumstances, to assert that the friend had the same profile as the applicant is erroneous, or at the very least, not a matter on which the IPA could make a factual finding to that effect.
In all the circumstances, this was not a clearly articulated claim based on established facts. The evaluation of significance and circumstance of which the Federal Magistrates Court spoke in MZXBP[114] is simply not possible because of the paucity of the factual matter concerning the applicant’s friend. Given that paucity of factual material there was, therefore, no basis for the IPA to make any proper conclusions on the basis of the Friend’s Disappearance Claim for the purposes of either the Convention claims or a consideration of complementary protection claims.
[114] MZXBP at para.19 per O’Dwyer FM.
Ground 1 is, therefore, not made out.
Ground 2
Ground 2 is as follows:
The … [IPA] committed an error of law and/or denied the applicant procedural fairness by failing to consider whether the applicant faced a real chance of persecution in the foreseeable future on account of his previous period of detention.
Particulars
(a)The … [IPA] accepted that the applicant had been detained from May 2009 to November 2010 on account of being a Tamil from the north and his suspected affiliations with the LTTE.
(b)The … [IPA] found that upon the applicants release from the camp he was not under any suspicion by the authorities of having any association with/link to/or that he was a supporter of the LTTE.
(c)The … [IPA] confined its assessment to the past treatment of the applicant and failed to consider whether, in the reasonably foreseeable future, the applicant would be at risk on account of his previous detention.
Applicant’s submissions
In relation to ground 2 the applicant submitted that:
a) on the evidence before it, the IPA concluded that at the cessation of the war when the applicant left the last of the camps he had been placed in he was not under any suspicion by the authorities of having any association with or link to, or that he was a supporter of, the LTTE. The applicant had not stated that he was subject to any restrictions or ongoing reporting requirements after he left the final camp and went to live with his aunt in Vavuniya;[115]
[115] CB 275 at para.66.
b) in the IPA Recommendation the IPA noted: “I do not accept that [the applicant] will be perceived (or imputed) as having an association with/link to/supporter of the LTTE arising from his part (sic) experiences of detainment in 2009 and 2010”;[116]
[116] CB 280 at para.74.
c) aside from these bold statements, the IPA failed to consider whether the applicant faced a real chance of persecution in the reasonably foreseeable future because of his previous detention;
d) this claim was clearly made and before the IPA. In the Applicant’s Statutory Declaration, under “Why I believe they will harm or mistreat me if I go back” he stated: “I was held in detention camps and also because I have fled the country”.[117] In addition, the applicant submitted before the IPA information about “threats, harassments and restrictions on former detainees and their families in Vanni” dated 11 May 2011. This article reported upon a number of restrictions including all ex-detainees interviewed complaining that the CID and SLA visited their homes at least once a week or once every fortnight;[118]
[117] CB 17.
[118] CB 215.
e) the IPA did note that the applicant had not made any complaint about being subject to restrictions upon release. The proper test is concerned with the future and not confined to the past;[119]
[119] DZACG v Minister for Immigration & Anor [2012] FMCA 377 (“DZACG”).
f) in Minister for Immigration & Ethnic Affairs v Guo & Anor[120] the High Court said:
… Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.[121]
g) in SBZF v Minister for Immigration & Citizenship & Anor[122] the Federal Court after making reference to Guo, said:
However, a finding that she has not previously been subject to persecution for a Convention reason does not necessarily answer the question as to whether there is a real chance that she will be subject to persecutory conduct in the future if she were to return to China for a Convention reason: Appellant S395/2002 216 CLR 473 per Gummow and Hayne JJ at 499.
In this case the Tribunal addressed the question of past conduct but did not consider the question of future conduct. That specific question had to be addressed and answered in that sense it did not exercise the jurisdiction which is bestowed upon it under the Act.[123]
h) relevantly, in the present case the applicant was released on 5 November 2010 and left Sri Lanka on 1 January 2011.[124] This was a situation where what had happened in the past could only marginally assist the IPA’s consideration given the applicant had only been released for a two month period.
[120] (1997) 191 CLR 559 (“Guo”).
[121] Guo at 574-575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
[122] (2008) 104 ALD 415; [2008] FCA 1486 (“SBZF”).
[123] SBZF ALD at 423-424 per Lander J; FCA at paras.51-52 per Lander J.
[124] CB 133.
Minister’s submissions
In relation to ground 2 the Minister submitted that:
a) the Minister concedes the IPA is required to consider an applicant’s claims for protection in the context of the reasonably foreseeable future.[125] The IPA Recommendation, properly construed, reveals a concern to establish the likely treatment of the applicant on his return, and in the reasonably foreseeable future, in light of his accepted profile and relevant country information. In so finding, the IPA sought to determine the likely treatment of the applicant immediately and in the reasonably foreseeable future;[126] and
b) alternatively, the IPA Recommendation suggests that the IPA was not persuaded the applicant’s past experiences of detention resulted in a profile likely to attract the adverse attention of the authorities.[127] The Minister submits the IPA’s approach was open and does not reveal error.
[125] Guo at 572-576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
[126] CB 278 at para.70 and 281 at para.77.
[127] CB 262 at para.37, CB 264 at paras.47-48, CB 265 at para.48 and CB 267 at paras.52-53.
Consideration
There is no doubt that in determining whether the applicant met the criteria for refugee status the IPA was obliged to answer the question as to whether there was a real chance that the applicant would be subject to persecution for a Convention reason in the future if returned to Sri Lanka. That required consideration of future conduct.[128]
[128] Guo at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; SZBZF at para.52 per Lander J.
In this case there is no issue that the claim as set out by the applicant above was made. That claim was identified as such by the IPA as one of the grounds upon which the applicant alleged a well-founded fear of returning to Sri Lanka.[129] The IPA had regard to country information concerning the camps in which the applicant had been detained and noted that from December 1, 2009 it was said that there would be no restrictions placed on displaced persons leaving those camps.[130] The IPA accepted the applicant’s claims that he had been detained in the camps between 15 May 2009 and 5 November 2010.[131] The IPA found that the applicant was not subject to any restrictions or ongoing reporting requirements after he left the final camp he had been forced to reside in, and at the time that he left the last of the camps he was not under any suspicion by the authorities of having links with the LTTE.[132] The lack of restrictions and suspicion of links with the LTTE are matters which are relevant to an assessment of likely future conduct by the authorities in Sri Lanka, in that they would tend to indicate that the applicant’s past detention would no longer give rise to any reason to persecute him for a Convention reason in the future. The IPA examined, extensively, matters related to the applicant possibly having LTTE links, and found that there was “not a real chance now or in the reasonably foreseeable future” that the applicant would be imputed or perceived as having any association or link to or support for the LTTE “arising from any of his circumstances”.[133] Reading the IPA Recommendation as a whole, and bearing in mind that the IPA Recommendation identifies the fact that the claim was made, and reviews country information relevant to the claim, a reference to “any of his circumstances” can be read to include the applicant’s detention in the camps. The word “any” in general usage, as here, is a word of wide import and one ordinarily excluding limitation or qualification and is to be given as wide a construction as possible.[134] This finding of the IPA is preceded by a reference to the reasoning in the following paragraphs, and succeeded by a reference to paragraph 74 of the IPA Recommendation. At paragraph 74 of the IPA Recommendation the IP again refers to the findings that the applicant was not under suspicion of LTTE links when he left the last of the camps, and goes on to “not accept … [that the applicant] will be perceived (or imputed) as having an association with/link to/ supporter of the LTTE arising from his part [sic – past] experiences of detainment in 2009 and 2010.”[135] The IPA went on to find that the applicant did not have a real chance now or in the reasonably foreseeable future of being persecuted because of imputed political opinion, not limited to supposed LTTE links, but “arising from any of his circumstances.”[136] The ground upon which the applicant is identified as alleging a well-founded fear of returning to Sri Lanka was that of imputed political opinion arising from possible LTTE links arising from his past experiences in detention in 2009 and 2010.[137]
[129] CB 274 at para.63 (“past experiences of detainment in 2009 and 2010”).
[130] CB 264 at para.47.
[131] CB 274-275 at paras.65-66.
[132] CB 275 at para.66.
[133] CB 278 at para.70.
[134] The Victorian Chamber of Manufactures & Ors v The Commonwealth & Ors (1943) 67 CLR 335 at 346 per Williams J. See also Collins v Repatriation Commission (1980) 48 FLR 198 at 213 per Fisher J and WZAPN & Ors v Minister for Immigration & Citizenship & Others (2012) 261 FLR 284 at 309 per Lucev FM; [2012] FMCA 235 at para.57 per Lucev FM.
[135] CB 280 at para.74.
[136] CB 280 at para.74.
[137] CB 274 at para.63.
The IPA finally considered the applicant’s claims cumulatively, and said:
I have considered … [the applicant’s] claims cumulatively. That is, whether a male Tamil who was unmarried and from the North, who resided in various Vavuniya District camps between 15 May 2009 and 5 November 2010 and who at the time when he left the last of the camps was not under suspicion by the authorities of having any association with/link to/or that he was a supporter of the LTTE, who departed Sri Lanka in January 2011 and is returning from Australia after having unsuccessfully sought asylum, faces a real chance of persecution on return to Sri Lanka and find that even when the claims are considered cumulatively there is no real chance … [the applicant] will be persecuted for a Refugee Convention reason in the reasonably foreseeable future and that his fear of persecution is not well founded.”[138]
[138] CB 282 at para.78.
A broad, beneficial and not overly critical analysis of the relevant paragraphs of the IPA Recommendation is appropriate on judicial review. This approach follows from the line of authority commencing with Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors.[139]
[139] (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611 at 623-624 per Gummow ACJ and Kiefel J, at 634, fn.73 per Heydon J; [2010] HCA 16 at para.35 per Gummow ACJ and Kiefel J, at fn.73 per Heydon J; DZAAR v Minister for Immigration & Anor (2012) 134 ALD 154 at 167 per Lucev FM; [2012] FMCA 847 at para.31 per Lucev FM.
When the IPA Recommendation is properly, that is broadly and beneficially read, and not overly critically analysed, it is the Court’s view that the IPA did not fail to consider whether the applicant faced a real chance that persecution in the foreseeable future on account of his previous period of detention. That period of detention was specifically recognised as a claim, country information in relation to it was considered, and, ultimately it was specifically adverted to by the IPA in the IPA’s cumulative consideration of the issue, which had particular regard for whether, or not, the applicant was likely to be considered an LTTE supporter or sympathiser, and whether in all of those circumstances he would face a real chance of persecution for a Convention reason on his return to Sri Lanka. In the circumstances, it cannot be said that the IPA confined its assessment to the past treatment of the applicant and failed to consider whether, in the reasonably foreseeable future, the applicant would be at risk on account of his previous detention. For these reasons ground 2 must fail.
Ground 3
Ground 3 is as follows:
The … [IPA] failed to consider an integer of the applicant’s claims, namely whether the applicant was at real risk of persecution as a Tamil failed asylum seeker who had previously been held in detention camps on suspicion of being a supporter of the LTTE.
Particulars
(a)The applicant claimed to fear persecution as a Tamil failed asylum seeker who had previously been detained on suspicion of being a supporter of the LTTE.
(b)In particular, it was submitted that the applicant’s details would be known to the Sri Lankan authorities given his past history.
(c)The … [IPA] failed to consider this claim or this cumulative [claim] that was clearly before it.
(d)The … [IPA] was required to consider whether the applicant faced a real chance of persecution on account of being a Tamil failed asylum seeker who had previously been held in detention camps on suspicion of being a supporter of the LTTE.
Applicant’s submissions
In relation to ground 3 the applicant submitted that:
a) the applicant claimed to fear persecution on his return to Sri Lanka as a failed asylum seeker. In the 2 May 2012 Submissions the applicant submitted that he:
… cannot be refouled, given he has a high chance of coming to harm immediately after arriving in Sri Lanka, particularly due to his asylum seeker status. It is likely that his identity is known to the SLA [Army], and therefore other Sri Lankan authorities.[140]
[140] CB 158.
b) the IPA accepted that the applicant had been detained previously, however, found that after he left “he was not under any suspicion by the authorities of having any association with/link to/or that he was a supporter of the LTTE”;[141]
[141] CB 280 at para.74.
c) the IPA separately considered the failed asylum seeker claim and concluded that the applicant would not be persecuted upon return. The IPA failed to consider whether the applicant’s previous detention, coupled with being a Tamil failed asylum seeker, might cause difficulties for the applicant.[142] The general cumulative finding[143] and the finding cited above did not deal with the issue;
[142] CB 280-281 at paras.74-77.
[143] CB 282 at para.78.
d) the claim the IPA considered was whether the applicant would be at risk as a returnee because “of an association with and/or link to the LTTE or that he is an LTTE supporter arising from (considered separately and cumulatively) his Tamil ethnicity, age, gender, unmarried status and residence in (or his being from) the north/Vanni”.[144] The only time the IPA considered the issue was under the separate and alternative ground for protection, namely complementary protection. The IPA made the following finding:
[144] CB 276 at para.68.
As I have previously found that when [the applicant] left the last of the camps on 5 November 2010 he was not under any suspicion by the authorities of having any association with (or link to) the LTTE, and I have previously not accepted any of [the applicant’s] evidence pertaining to the events he claims occurred on 10 November 2010 and 13 November 2010, I do not accept that as a Tamil male previously suspected of having LTTE affiliations [the applicant’s] treatment at the airport or thereafter will very likely amount to significant harm.[145]
This finding appeared to address a claim made by the applicant, namely, that:
… country information provided … on the treatment of returning asylum seekers shows that the Applicant will almost definitely be detained if refouled, and that, as a Tamil male previously detained on suspicion of LTTE affiliations, his treatment will very likely amount to significant harm.[146]
e) the IPA however does not deal with the risk of persecution pursuant to s.36(2)(a) of the Migration Act 1958 for reasons of being a Tamil failed asylum seeker, previously detained by the authorities on suspicion of having LTTE affiliations. This required separate consideration;[147]
f) additionally, at no stage did the IPA deal with the claim that the applicant would be known to the Sri Lankan authorities because of his accepted history; and
g) the IPA committed an error by failing to deal with an integer of the applicant’s claims.[148]
[145] CB 283 at para.85.
[146] CB 208.
[147] MZYPO v Minister for Immigration & Citizenship [2013] FCAFC 1 (“MZYPO”); MZXYN v Minister for Immigration & Anor [2013] FCCA 134 (“MZXYN”).
[148] WAEE ALD at 641 per French, Sackville and Hely JJ; FCAFC at para.47 per French, Sackville and Hely JJ; MZYPW v Minister for Immigration & Citizenship [2012] FCAFC 99 (“MZYPW”); DZADH v Minister for Immigration & Anor [2012] FMCA 1112 (“DZADH”).
Minister’s submissions
In relation to ground 3 the Minister submitted that:
a) the IPA made findings concerning the extent to which a person with the applicant’s profile would be at risk of persecution and findings concerning the impact of the applicant’s previous experience of detention.[149] The IPA found the applicant was not considered to be a supporter of the LTTE at the time of his release from detention. The IPA went on to consider the type of profile that might result in the imputation of such a profile and found the applicant had not undertaken any such activities;[150]
b) the IPA expressly considered the applicant’s past experience of detention in the context of considering his claim for complementary protection;
c) further, or alternatively, the IPA considered the applicant’s claims on a cumulative basis. The Minister submits the only fair and holistic reading of this cumulative consideration is that it included the accepted period of detention. The Minister further submits DZADH may be distinguished on this basis;[151] and
d) on balance, reading the IPA Recommendation fairly and as a whole, the IPA was aware of this claim, and was not persuaded it gave rise to a well-founded fear of persecution.[152]
[149] CB 275 at para.65, CB 276 at para.67 and CB 277 at para.68.
[150] CB 262 at para.37 and CB 284 at para.85.
[151] DZADH at para.33 per Reithmuller FM.
[152] See particularly CB 275 at para.65, CB 277 at para.68 and CB 283 at para.85.
Consideration
The law with respect to the failure to consider an integer of a claim is set out above.[153]
[153] See paras.21-31 above.
The fact that the IPA considered the applicant’s past experience of detention in the conduct of considering his claim for complementary protection does not assist the Minister to rebut ground 3. The Convention claim had to be considered separately to the complementary protection claim.[154] That raises the question of whether the claim was so considered, and in particular, whether the likelihood of the applicant being identified upon re-entry to Sri Lanka because of his past history of detention in the camps provided a basis for there being a real risk of persecution on re-entry, that is, whether there was therefore a well-founded fear of persecution.
[154] MZXYN.
As is evident from the Court’s consideration with respect to ground 2 the applicant’s period of detention in the camps was specifically considered by the IPA when determining whether the applicant had, on the basis of his previous period of detention, a well-founded fear of persecution in the future, if returned to Sri Lanka.[155]
[155] See paras.45-59 above.
The IPA also dealt with the issue of the applicant being suspected of being a supporter of the LTTE. In that regard the IPA found, more than once, and quite comprehensively, and with regard to recent country information as well as the applicant’s individual circumstances, that the applicant did not fit the profile of persons likely to be considered to be an LTTE supporter, and that there was no real chance that he would in the future be imputed, for a Convention reason, as having any LTTE association, and therefore no well-founded fear of persecution arose on that basis.[156] The IPA also found that when the applicant left the detention camps the authorities no longer suspected him of being an LTTE supporter.[157] The IPA went on to find that the applicant could not be imputed or perceived to be an LTTE supporter arising from his experience in the detention camps in 2009 and 2010.[158]
[156] CB 275 at para.66, CB 276-277 at para.68, CB 277-278 at para.70, CB 279-280 at para.73; CB 280 at para.74; CB 282 at para.78; CB 282-283 at para.83 and CB 283-284 at para.85.
[157] CB 275 at para.66; see also CB 280 at para.74.
[158] CB 280 at para.74.
The IPA also considered the security checks to which a failed Tamil asylum seeker being returned to Sri Lanka would be subject, and accepted independent country information that there were no reported difficulties for returnees who had been “adversely treated”.[159]
[159] CB 279-280 at para.73.
In any event it is evident from paragraph 74 of the IPA Recommendation that the IPA considered all of the circumstances applicable to the applicant including supposed links with the LTTE arising from past detention, and his status as a failed Tamil asylum seeker, and found no basis for a conclusion that there was a well-founded fear of persecution “arising from any of … [the applicant’s] circumstances”.[160] Those factors were again considered, this time cumulatively, at paragraph 78 of the IPA Recommendation which is set out above.[161]
[160] CB 280 at para.74.
[161] See para.47 above.
In the circumstances, the Court is of the view that the issue of whether the applicant had a basis for a well-founded fear of persecution by reason of his being a failed Tamil asylum seeker who had been held in detention camps on suspicion of being an LTTE supporter was considered by the IPA, both specifically and cumulatively, and in respect of each of the elements thereof. Moreover, the generality of the findings as to:
a) whether the applicant had a profile which would lend itself to suspicion of his being an LTTE supporter if returned to Sri Lanka; and
b) the treatment of failed Tamil asylum seekers when subject to security checks upon return to Sri Lanka,
is such as to subsume any suggestion that the applicant could have a well-founded fear of persecution on the basis put forward in ground 3. The Court’s view is reinforced by:
c) the reticence that the Court ought to have to draw an inference that the IPA has not dealt with an issue where the IPA Recommendation is otherwise comprehensive and the issues have been identified, not just at some point, but at various points throughout the IPA Recommendation;[162] and
d) the necessity to read the IPA Recommendation broadly and beneficially, and without an overly critical analysis, following the line of authority from Wu Shan Liang.[163]
[162] WAEE ALD at 641 per French, Sackville and Hely JJ; FCAFC at para.47 per French, Sackville and Hely JJ.
[163] See fn.139 above.
For all of the above reasons ground 3 is not made out.
Ground 4
Ground 4 is as follows:
The … [IPA] failed to consider an integer of the applicant’s claim, namely whether he was at risk of persecution by reason of the complaint lodged on behalf of the applicant to the Human Rights Commission of Sri Lanka.
Particulars
(a)The applicant claimed that since his departure the authorities had been looking for him and questioning his sister and mother.
(b)The applicant claimed that his mother had complained about this to the Human Rights Commission in Sri Lanka.
(c)The … [IPA] accepted as possible that the authorities had been in contact with his sister and mother asking about him.
(d)The … [IPA] did not accept the applicant faced a real chance of persecution for reasons including his absence, method of travel to Australia, presence and actions whilst in Australia, or his return being due to his unsuccessful asylum claim.
(e)The … [IPA] failed to make a finding, or consider, whether the applicant’s mother’s complaint concerning him to the Human Rights Commission in Sri Lanka would place the applicant at risk of persecution.
Applicant’s submissions
In relation to ground 4 the applicant submitted that:
a) at the applicant’s entry interview, when asked if there was anything else he wanted to tell the interviewer about the reasons why he left Sri Lanka the applicant is recorded as saying the following:
These are the reasons, there are nothing more, I was beaten and tortured. Even before I left Sri Lanka the Army even went to my sister’s house in Colombo looking for me, and they have been back to her house looking for me again even after I left Sri Lanka. They also went and pestered my mother after I had left Sri Lanka. After that my mother went and registered a complaint at the Human Rights Commission in Vavuniya.[164]
[164] CB 259 at para.29.
b) in the Applicant’s Statutory Declaration the applicant also made reference to this claim;[165]
c) at hearing the applicant provided to the IPA a number of documents, including a “statement by Human Rights Commission of Sri Lanka of complaint lodged by [the applicant’s mother] dated 14 September 2011”;[166]
d) the IPA dealt with this claim in the IPA Recommendation,[167] noting that the applicant claimed that the authorities were asking his mother about his whereabouts and for this reason she complained to the Human Rights Commission in Sri Lanka. The IPA accepted that it was possible that the authorities had been in contact with the applicant’s sister and mother in light of the independent information concerning the re-institution of a system of registering household members. The IPA however concluded:
I do not accept that arising from the circumstance of [the applicant’s] family members being asked about him by the authorities, that the authorities have formed any adverse view of him. Nor do I accept there is a real chance in the reasonably foreseeable future when [the applicant] returns to Sri Lanka and explains to the authorities where he has been during his absence and that he unsuccessfully applied for asylum, the authorities will adversely treat him for any reasons including his absence, method of travel to Australia, presence and actions whilst in Australia, and his return being due to his unsuccessful asylum claim.[168]
e) the finding did not deal with the complaint made on the applicant’s behalf to the Human Rights Commission in Sri Lanka and whether this complaint had the potential of placing the applicant at risk and whether he faced a real chance of persecution on this basis;
f) it is noted that the way in which the POE officer dealt with the claim was to observe that the “letter simply provide[d] a complaint number and state[d] that [the mother’s] complaint was registered.” The officer thus considered that it was plausible that it related to another issue entirely;[169] and
g) in contrast, the IPA in this case made no such finding and on the face of it, accepted the applicant’s claim that his mother had been harassed and had made a complaint in relation to this issue. The IPA was therefore required to consider whether this act would cause the applicant to be adversely considered or treated or whether consequently he was at risk of a real chance of serious harm in the future.
[165] CB 17.
[166] CB 260 at para.31.
[167] CB 281 at para.77.
[168] CB 281 at para.77.
[169] CB 117.
Minister’s submissions
In relation to ground 4 the Minister submitted that:
a) the IPA was aware of the claim and made express findings.[170] The IPA was not persuaded that any ongoing interest in the applicant by the Sri Lankan authorities gave rise to a “well-founded fear” for a Convention reason; and
b) there was no claim or evidence before the IPA that lodging a claim with the Human Rights Commission in Sri Lanka in and of itself creates a profile that gives rise to a well-founded fear for a Convention reason.
[170] CB 281 at para.77.
Consideration
At paragraph 77 of the IPA Recommendation the IPA deals with the applicant’s claim that the authorities have been asking after him at both his sister’s and his mother’s houses, and as a consequence, that his mother had complained to the Human Rights Commission in Sri Lanka. The IPA considered the circumstances of the making of the applicant’s travel arrangements prior to leaving Sri Lanka, and also notes that he is known to have resided in the same village as his mother. The IPA noted that a system of registration of household members at the local police station had been reinstituted in Colombo in May 2010, and that in the north of Sri Lanka in 2011 the Army and police had been registering civilians, and it is therefore possible that the applicant’s sister and mother have been asked about the applicant’s whereabouts.[171] The IPA concluded that she did:
not accept that arising from the circumstance of … [the applicant’s] family members having been asked about him by the authorities, that the authorities have formed any adverse view of him. Nor do I accept that there is a real chance in the reasonably foreseeable future when … [the applicant] returns to Sri Lanka, and explains to the authorities where he has been during his absence and that he unsuccessfully applied for asylum, the authorities will adversely treat him for any reasons including his absence, method of travel to Australia, presence and actions whilst in Australia, and his return being due to his unsuccessful asylum claim.[172]
[171] CB 281 at para.77.
[172] CB 281 at para.77.
The IPA had earlier noted that it had been provided with a statement concerning the complaint lodged by the applicant’s mother with the Human Rights Commission in Sri Lanka on 14 September 2011.[173]
[173] CB 259-260 at para.30.
The IPA considered the claim, for that is how the IPA characterised it at paragraph 77 of the IPA Recommendation, that the authorities had been visiting his mother and sister and that as a consequence the claim with the Human Rights Commission in Sri Lanka had been lodged by his mother. The IPA made an express finding that as a consequence of the applicant’s mother doing so, the IPA did not accept that the authorities would have formed any adverse view of the applicant, or that they would adversely treat him upon return to Sri Lanka “for any reasons”.[174] Noting the reference to “any reasons”, and the width of that phrase,[175] those reasons, must, by implication, include the making of the human rights complaint by the applicant’s mother given that that is the subject matter of paragraph 77 of the IPA Recommendation. The complaint made by the applicant that the IPA was required to consider was whether the act of making the complaint “would cause the applicant to be adversely considered or treated or whether consequently he was at risk of a real chance of serious harm in the future”, and was the subject of express findings at paragraph 77 of the IPA Recommendation.
[174] CB 281 at para.77.
[175] See para.46 and fn.134 above.
For the above reasons, ground 4 is not made out.
Conclusions and orders
The Court has concluded that none of the four grounds of review have been made out, and accordingly there will be an order dismissing the application.
The Court also notes that the Minister’s name has been changed to “Minister for Immigration & Border Protection”, and there will be an order that the name of the first respondent be amended accordingly.
The Court will hear the parties as to costs.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 31 January 2014
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