SZMSR v Minister for Immigration

[2009] FMCA 754

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 754

MIGRATION – Review of the Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

Migration Act 1958 (Cth), ss.412, 414, 424A

Abebe v Commonwealth [1999] HCA 14
Minister for Immigration & Citizenship & Anor v SZHXF [2008] FCAFC 36
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

Applicant: SZMSR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2343 of 2008

Judgment of: Lloyd-Jones FM

Hearing date: 3 February 2009

Delivered at: Sydney

Delivered on: 10 August 2009

REPRESENTATION

Counsel for the Applicant: Mr D Jenkins

Solicitors for the Respondents: Australian Government Solicitor (Mr Markus)

ORDERS

1. The application (as amended) on 28 November 2008 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2343 of 2008

SZMSR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant was born in Galle, in February 1968.  He is a Sri Lankan citizen, is Buddhist and of Sinhalese ethnicity.  The applicant claims that prior to coming to Australia, he was a diamond cutter and worked for the same employer from May 1987 to December 2007.  The applicant came to Australia as a representative of Stealth Force Security on a temporary business visa. 

2. The applicant claims that he attended school between 1974 and 1984 in Mawadiwila Maliyadewa Maha Vidyalaya and after school he joined the Janatha Vimukthi Peramuna (JVP) as his neighbour was an area leader of the JVP and he could not find any other work.  At that time, the JVP was a banned organisation.  The applicant claims that he and his neighbour were arrested in Ratmalana on their way to Colombo in 1984.  Consequently, the applicant was detained at the police station for one week where he was beaten and tortured and was then transferred to a camp in Iallekalle after a week.  The applicant claims that he was detained here for two years and was severely mistreated.  Eventually, the applicant’s brother in law, Ranbanda, organised his release.  After the applicant’s release, he lived with Ranbanda in Raddolugama, a national housing scheme.  Ranbanda secured employment for the applicant as a diamond cutter.  Ranbanda also persuaded the applicant to join the UNP.  Consequently, the applicant attained his own apartment in the Raddolugama Housing Scheme (an initiative of the then President Premadasa).

3. The UNP lost the parliamentary and presidential elections in 1994 and the People’s Alliance (PA) came into power.  The applicant worked and campaigned for Mr Premathiratna who was appointed as youth leader in 2000 of the UNP.  The applicant again campaigned for Mr Premathiratna again in December 2001 for the parliamentary elections.  Mr Premathiratna was elected as an MP.  After the 2001 elections, reports of extortion led by Mr Premathiratna were released.  In late October 2007, the applicant went to visit Mr Premathiratna who had joined the PA.  Mr Premathiratna threatened the applicant that if he did not join the PA there would be serious consequences.  Following this event, the applicant received threatening telephone calls in November 2007 ordering that the applicant join the PA. 

4. On 30 November 2007 while the applicant was travelling home a white van stopped and the occupant yelled “catch him, he is the one” and fired two gunshots.  The applicant claims that he escaped and sought refuge in a nearby tea shop and vacated the shop via the rear door. 

5. On 2 December 2007, the applicant was abducted by three people in another white van.  He claims that he was blindfolded and after travelling for one hour was taken to a house where he was beaten.  The three people threatened:

   ·that he would be killed if he did not join the PA;

   ·that he would be killed if he told anyone about Mr Premathiratna’s activities;

   ·that they would find out if he told the police and he would be killed;

   ·that they had contacts in the North with Tamils and accused him of helping the LTTE; and

   ·that he should join the PA within a week and support Mr Premathiratna.

6. The applicant agreed to join the PA but left Raddolugama and travelled to Colombo where his friend introduced him to an agent who helped him obtain an Australian visa.

7. The applicant arrived in Australia on 19 December 2007 and applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 18 January 2008.  A delegate of the Minister refused to grant a visa on 7 April 2008 and the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision.  The Tribunal affirmed the delegate’s decision so the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal decision.  It is this decision signed on 31 July 2008 that is the subject of this judicial review.

8. A Court Book (“CB”) prepared and filed by the first respondent solicitors is marked Exhibit “A” and is the only evidence before the Court. 

Tribunal decision

1. The applicant applied to the Tribunal for a review of the delegate’s decision on 18 April 2008 and attended a hearing before the Tribunal on 2 July 2008.  The applicant’s advisor had made written submissions to the Tribunal dated 1 July 2008.  The advisor made submissions in relation to the general security situation in Sri Lanka, past arrests of Sinhalese who were suspected of supporting the LTTE and the risk of prosecution of Sinhalese politicians or supporters who were opposed to the government.  The advisor submitted that there was evidence which suggested that Sinhalese from the south, such as the applicant, who were involved with politics and who had Tamil connections were subject to persecution in Sri Lanka. 

2. On 7 July 2008 the Tribunal wrote to the applicant inviting him to comment on information pursuant to s.424A of the Migration Act 1958 (“the Act”).   The applicant’s advisor requested an extension of time to comment but this was refused.  The invitation to comment was responded to on 24 July 2008.  On 12 August 2008 the Tribunal affirmed the decision under review.  In concluding that the applicant did not have a well founded fear of persecution, the Tribunal found that the applicant was not a credible witness, on the basis of inconsistencies in his evidence and in between his evidence and the independent information available to the Tribunal.  More specifically, the Tribunal did not accept he was an active member or supporter of the UNP, that he was associated with Mr Permathiratna, or that he was threatened or attacked as claimed.  The Tribunal was also not satisfied that the applicant faced a real chance of persecution on the basis of his past association with the JVP and his improvement.

3. The Tribunal found that the applicant’s chance of being harmed by the Sinhalese government for his past commercial association of Tamils was remote.  This was because the applicant had not claimed to have been pursued or harmed by the government for any imputed political opinion as a result of associating with Tamils and the advice from the Department of Foreign Affairs & Trade (DFAT) indicated that Sinhalese are not subject to arrest for such association.

Amended application

1. Mr Jenkins for the applicant sought leave to move on an amended application filed on 28 November 2008.  As there is no objection to this course the matter proceeded on the basis of the following amended application.

   1. The decision of the Second Respondent was affected by jurisdictional error in that the Second Respondent did not conduct a review within the meaning of section 414 of the Migration Act and did not deal with all the applicant’s claims, including that the applicant was subject to persecution on account of political opinions imputed to him.

Particulars

The applicant claimed before the Second Respondent that he was subject to persecution because he:

-Was Sinhalese

-Was ‘from the south’

- Was involved with politics;

- Had ‘Tamil connections’ and,

Had been accused of ‘helping’ the LTTE

2. The decision of the second respondent was affected by jurisdictional error in that the second respondent failed to comply with s.424(1)(b) of the Migration Act 1958.

Particulars

The second respondent failed to ensure, as far as was reasonably practicable, that the applicant understood why the information provided at paragraph 8 of the Second Respondent’s letter dated 7 July 2008 was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review.

Consideration

Ground one

1. Mr Jenkins in his written submissions submits that s.414 of the Act provides that in the absence of a certificate precluding review, if a valid application is made under s.412 for review of an RRT reviewable decision, the Tribunal must review the decision. When reviewing a decision, if the Tribunal fails to consider all claims made by an applicant, such a failure is a jurisdictional error: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1.

2. Mr Jenkins submits that the applicant’s material before the Tribunal regarding his abduction by three men, the beating of him and the threats that they made in relation to his connection with the Tamils and the Tamil tigers, amounted to a claim of persecution by the State, or something sanctioned the State, by reason of an imputed political opinion. The issue is whether the Tribunal dealt with that claim correctly and whether it properly apprehended its function under s.414 of the Act. Mr Jenkins submits that it is the applicant’s contention that the Tribunal failed to deal with that issue correctly and that, by failing to do so, committed a jurisdictional error.

3. The claims are centred on the events in and around December 2007, where the applicant was abducted, beaten and threatened to be killed.  This claim appears in the original application where the applicant details this event (CB 34).  The details are that some unknown people came in a white van and abducted him near his house.  He was blindfolded, driven around for an hour, taken into a house and beaten up.  During that time he was told that he must join the Peoples’ Alliance Party (PA) which was the ruling alliance of parties and that he should not reveal the activities of Mr Premathiratna, who was part of that ruling coalition.  He was threatened that he would be killed if he did.  He should not report the matter to the police, or those that had abducted him would come to know that he had reported it and that they had accused him of having contacts with Tamils from the north and of helping the Liberation Tigers of Tamil Eelam (LTTE).

4. The applicant also claimed that he had received anonymous phone calls where people were saying they were from the Janatha Vimukthi Peramuna (JVP), part of the ruling parties and had threatened him. 

5. Mr Jenkins submits that the applicant had been threatened.  Specifically, he had been told that he needed to change his alliance to that of the government and the ruling parties, had been telephoned by the brother of the President, was abducted, beaten and threatened with his life were the claims that were made.

6. Mr Jenkins submits that after the delegate had refused the applicant’s application, there was an application for a review to the Tribunal.  The applicant engaged Mr Rassan Selliah, Solicitor, Barrister and Immigration Consultant as his authorised representative.  Mr Selliah prepared submissions for the Tribunal (CB 64-66).  The submissions deal with Mr Premathiratna and some of the involvement that the applicant had with him but go further to more clearly annunciate the claim which is the subject of the first ground, for example. 

   There is, therefore, evidence which suggests that Sinhalese from South such as the applicant; and who involved with politics and Tamil connection is subject to persecution in Colombo.  The applicant’s fear of persecution has objective basis as evidence by the country reports (CB 66.2).

7. The Tribunal decision which was signed on 31 July 2008 begins by detailing the claims and evidence both in documentary form and what was said before the Tribunal (CB 108-111).  Under the heading “Claims and Evidence” at paragraph [50] the Tribunal deals with this claim in the following way:

   It was submitted that there is evidence to suggest that Sinhalese from the south who are involved with politics and have Tamil connection are subjected to persecution in Colombo.  According to “independent country reports” many Sinhalese are being abducted in Colombo and other parts of the country.  Also hundreds of others are victims of torture at the hands of the security forces.  The applicant’s representative did not submit any independent reports in support of these claims. 

8. Mr Jenkins submits that the above paragraph misses an important issue. This being, what is being claimed is more than just a Tamil connection.  Rather, what is being claimed is helping the LTTE, the political and military group. 

9. It is not just being claimed that the applicant has Tamil connections but, rather, something more than that.  The Tribunal then deals with this in its “Findings and Reasons” as follows:

   97.  The Tribunal has considered the applicant’s claims in relation to LTTE.  The applicant claimed to have hosted some Tamils whom he and his brother in law and met in Jaffna in 2002 while exploring business opportunities there.  He did not claim to have had any other association with Tamils, let alone LTTE.  According to his evidence, the applicant lived at the same address continuously until at least October 2007 and worked at the same place until December 2007.  However, he did not claim to have been pursued or harmed by the government for any political opinion that was imputed to him as a result of his association with the Tamil businessman.  (CB 125)

10. Mr Jenkins submits that the Tribunal has mistaken the test required in relation to imputed political opinion.  It is not necessary for the applicant to state the exact nature of the political opinion imputed to him, but rather, to put forward facts and arguments which he has done, in relation to his abduction and in relation to the threats that were levelled at him during his abduction.  It does not need to be confined to Tamil businessman but, rather, the claim that he made that the threats that were levelled against him were that he was helping the Tamil tigers and the LTTE.  The Tribunal has failed to address the claim that the applicant was being persecuted because of the imputed political opinion that he held.  This arises from him being Sinhalese, from the South, involved with politics, having Tamil connections and importantly, helping the Tamil Tigers.  Mr Jenkins submits that those elements of the claim were not all dealt with by the Tribunal and the Tribunal’s failure to do so constitutes a jurisdictional error. 

11. Mr Markus submits that the applicant’s central claims of a well founded fear of persecution related to his alleged past political involvements and in particular his claim that he was subjected to threats and harm after he refused to follow Mr Premathiratna’s directions to switch political parties.  The Tribunal’s decision deals with the detailed claims of alleged past events and particularly the claims regarding the deteriorating situation in Sri Lanka submitted by the applicant’s representative.  The Tribunal noted the generalised submission that a person with the applicant’s alleged profile; ie a Sinhalese from the South who is involved in politics and has Tamil connections would be subject to persecution in Colombo (paragraph [50] CB 114).

12. It is submitted by Mr Markus that the Tribunal dealt with the submission in the following way:

    a)As a matter of fact, that the applicant was not involved in politics (paragraph [96,] CB 125).  It is submitted that the applicant does not fit the profile which was claimed by his representative to be a likely subject of persecution in Colombo. 

    b)The Tribunal had noted the applicant’s representative did not submit any independent reports in support of his generalised claims (paragraph [50] CB 114).  Therefore, it considered independent country information that was available to it which indicated that Sinhalese are not at risk of arrest if they associate with Tamils through employment, renting property or by being seen in the company of Tamils.  Furthermore whilst the Tribunal accepted that the applicant had passed commercial association with Tamils, it concluded that the prospect of the applicant being harmed by reason of such association was remote (paragraph [97] CB 125).

    c)The applicant’s claim of having been accused of helping the LTTE by the unidentified person who kidnapped him was considered by the Tribunal and rejected on credibility grounds (paragraph [96] CB 125).

13. Mr Markus focused on the specific issue that was relied on by the applicant being the claims made in relation to the abduction.  In the Tribunal’s decision at paragraph [42] (CB 113) the Tribunal states:

    On 2 December 2007 the applicant was taken by three unknown people in a white van.  He was blindfolded and taken to a house after travelling for about one hour.  The three men took him into a house and beat him.  They said if he did not join the PA, or revealed any of Mr Premataratne’s activities to anyone, he would be killed.  They also threatened him that if he reported the matter to police that they will come to know and he will be killed.  They told him that he had contacts with the Tamils from the north and accused him of helping the LTTE.  The applicant became very scared and thought he will be killed.  Ultimately, they told him that he should join the PA within one week and continue to help support Mr Premathiratna.

14. Mr Markus submits that the principle reason for the abduction was to put pressure on the applicant to join the PA and continue his support for Mr Premathiratna.  It is submitted that there is no suggestion in this claim that the reason for the abduction was that he was helping the LTTE.  If the applicant was suspected of supporting the LTTE he would not have been pressured to join the PA..  Mr Markus submits that the assertions made by Mr Jenkins are incorrect.  In paragraph [96] of the Tribunal’s decision (CB 125) the Tribunal expressly states that it does not accept that the applicant was shot at, kidnapped or threatened by unidentified individuals for the reasons he has provided.

15. Mr Markus submits that in respect to the issue that the applicant was potentially subject to persecution for imputed political opinion was raised in the submissions by his migration agent Mr Sallier, dated

    
    1 July 2008

    (CB 64-66).  There is an assertion in that letter that the evidence clearly establishes that the applicant has a political profile.

    The statement of the applicant and the evidence clearly establish that the applicant has political profile. (CB 65)

16. Various assertions follow about the general political situation in Sri Lanka.  These are generalised claims including that many hundreds of killings are still ongoing, that the situation is very volatile, many hundreds of people have been killed by the army and the LTTE and that the country is expecting full scale war.  There are references to suicide bombings, detention, abduction, extortion, brutal killings and disappearances, which are said to be common phenomena in Sri Lanka.  A reference is made to the Sinhalese opposition politicians and supporters who are involved in anti propaganda activities and the refusal to participate with government activities.  It is asserted that they are at risk of persecution according to independent reports.  Mr Sallier’s letter continues:

    There is, therefore, evidence which suggests that Sinhalese from the South such as the applicant;, and who are involved in politics and Tamil connections, is subject to persecution in Colombo.  The applicant’s subjective fear of persecution has objective basis, evidence by country reports. (CB 66.2)

1. Mr Markus submits that the author is suggesting that the applicant forms part of a particular social group although it has not been clearly identified in those terms.  The author is suggesting that the members of the group would be subject to persecution.  The author of the letter draws the following conclusion:

   Consequently, there is no part of Sri Lanka to which the applicant can reasonably be expected to relocate in order to avoid a real chance of persecution, which he faces in, Sri Lanka on the grounds of political opinion and particular social group.  (CB 66.7)

2. Mr Markus submits that in respect to that claim the Tribunal has found that the applicant was not involved in politics and as a result the issue of a particular social group falls away.  However, the Tribunal approached it on the basis that there were other aspects of the claim that were being put forward namely imputed political opinion in relation to the LTTE.  The Tribunal dealt with that claim in paragraph [97] of the Tribunal’s decision (CB 125) in the following terms:

   If the government had any interest in harming the applicant for reason of his imputed political opinion, they had opportunity to do so.  Moreover, while from time to time, members of the Sinhalese are arrested on suspicion of being associated with LTTE, as it was put to the applicant at the hearing, according to DFAT Sinhalese are not at risk of arrest if they associate with Tamils through employment, renting property or by being seen in the company of Tamils (CX 172345; SRI LANKA: Update on Human Rights and Humanitarian situation in Sri Lanka, DFAT, CIR No.07/24/ 26 February 2007) the Tribunal finds that the applicant’s chance of being harmed by government for his past commercial association with Tamils to be remote.

3. The claim set out in ground one is that the Tribunal did not conduct a review within the meaning of s.414 as it omitted to deal with specific aspects of the applicant’s claims. Both Counsel have clearly identified each of these aspects contained within the particulars of ground one. The relevant components of each of these claimed omissions are clearly addressed in the submissions made by Mr Jenkins. Correspondingly, Mr Markus has analysed the Tribunal’s decision and clearly identified the passages in the decision where each of these alleged omissions have been addressed. With the benefit of both sets of submissions and the opportunity to re-read the Tribunal’s decision focusing on these particular aspects I have formed the view that the Tribunal has in effect addressed each of these issues appropriately and has complied with the obligation under s.414 to carry out the review. In the circumstances I am satisfied that the Tribunal has correctly and comprehensively addressed each of these issues and that the complaint raised by ground one cannot be sustained. This ground should be dismissed.

Ground two

1. Mr Jenkins submits that s.424A(1)(b) of the Act requires the Tribunal to ensure, as far as was reasonably practicable, that the applicant understood why the information provided at paragraph [8] of the Tribunal’s letter (CB 89) dated 7 July 2008 was relevant to the review, the consequences of it being relied on in affirming the decision that is under review, and inviting the applicant to respond to it. Paragraph [8] of the Tribunal’s letter details information provided by the Australian Department of Foreign Affairs & Trade relating to the risks of arrest of Sinhalese if they associated with Tamils in various circumstances.

2. Mr Jenkins submits that the Tribunal failed to provide any statement or reasons as to how the information in paragraph [8] of the Tribunal’s letter was relevant to the review or what the consequences of it would be of it being relied upon in affirming the decision that was under review. At paragraph [97] of the decision, the Tribunal did not rely upon the information to support its specific refutation of “the applicant’s claim in relation to LTTE’ (CB 125) resulting in the breach of s.424A which constitutes a jurisdictional error in Mr Jenkin’s submissions.

3. Mr Jenkins referred the Court to the delegate’s decision where it states:

   Based on the country information above, it is therefore highly unlikely that the applicant was abducted by the Sri Lankan authorities and it is unclear who the alleged kidnappers were.  (CB 50.4)

   This is further reflected in the Tribunal decision where it states:

   The Tribunal does not accept that he was shot at, kidnapped or threatened by unidentified individuals for the reasons he has provided. (CB 125 at paragraph [96])

4. Mr Jenkins submits that these findings do not rule out that the applicant was abducted, shot at or threatened.  The qualification is limited to “not for the reasons that he provided”.  It is submitted that the ground that is put forward in the application is that the Tribunal has misapprehended its function by failing to appreciate all of the elements of the claim, or the reasons provided or the potential for imputed political opinion.  It is submitted that it is not for the applicant to know all the reasons why something may have happened rather it is for the applicant to put forward facts and arguments to show that there could have been political opinion that was imputed to him.  It has not been rejected by the Tribunal that the abduction took place. 

5. Mr Jenkins submits that the information contained in paragraph 8 of the Tribunal’s letter by detailing five Sinhalese persons and thereafter focusing on one individual who had allegedly confessed to carrying out attacks is sufficient to constitute specific information. It is argued that the purpose of the section is that the applicant is given an opportunity to contrast his / her case against the case of another individual that is put forward by the Tribunal, and, therefore the Tribunal has a mandatory obligation pursuant to s.424A and the authority: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 to ensure that the applicant understands why this information about a specific individual, or individuals, is relevant to the review. Mr Jenkins submits that the Tribunal has not done that in the s.424A letter and by its failure to do so has committed a jurisdictional error.

6. Mr Markus submits that the information contained in paragraph [8] of the Tribunal’s letter was information that fell within the exemption in s.424A(3)(a), as it was general country information “not specifically about the applicant or another person”. Although the information referred to five Sinhalese persons being arrested and at least one who had allegedly confessed to carrying out attacks this cannot be characterised as information “specifically” about a person. Section 424A(3) does not require that the information be “just about a class of persons of which the applicant or other person is a member” as a separate criteria: Minister for Immigration & Citizenship & Anor v SZHXF [2008] FCAFC 36 per Tamberlin, Gyles and Stone JJ at [19].

   [19] In considering whether certain information is specifically about an applicant or another person for the purposes of s 424A(3)(a) of the Act, it is not necessary for the Tribunal, as a separate requirement, to make a finding that the relevant “information” is “just about a class of persons of which the applicant or other person is a member”. The Full Court observed in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at 563 that the reference to the “class of persons” in s 424A(3)(a) “is not another criterion to be met”. Rather, the reference “is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it”: see also VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80 at 95 (per Kenny J) and 99 (per Downes J); NANM and NANN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 99 at [17].

7. The contents of paragraph [8] of the Tribunal’s letter state:

   [We] are not aware of any information that suggests that there are risks of arrest for Sinhalese if they associate with Tamils through employment, renting property or by being seen in the company of Tamils.  On the basis of our observations of social interaction among Sri Lankans from different communities, we see no basis for seeking to make such generalised claims about the Sinhalese community on the basis of contact with Tamils who are not alleged to be involved with the LTTE.

   In February 2007 five Sinhalese persons were arrested on suspicion of being trained by the LTTE to carry out attacks in the south.  At least one of these Sinhalese people has allegedly confessed to carrying out attacks on behalf of the LTTE. A number of further arrests have been made in connection with this case, including the Sinhalese associates of those suspected of direct involvement with terrorism.  We consider that any associate of a person arrested on suspicion of links to the LTTE, regardless of community, may be detained by the GoSL security forces in such circumstances.  We note that absence of identification documents acceptable to GoSL security forces may be sufficient grounds for suspicion of links to the LTTE. (CB 89)

8. Mr Markus submits that the first paragraph raises a point that merely associating with Tamils not alleged to be involved with the LTTE does not expose a member of the Sinhalese majority to any real risk.  In the second paragraph it states that if there is an association with Tamils, the association may even be indirect.  If you are an associate of a person who was associated with people who are suspected of LTTE involvement that may be sufficient to expose you to risk.  The reference to the five Sinhalese persons who were arrested is an example demonstrating this point and is not just about an individual.  The point that is being made is that five of them were arrested, one of whom is said to have confessed and that leads to the general observation, which is that the association before with the one who has confessed may be sufficient to expose somebody to risk.

9. Mr Markus submits that this information is not about an individual as it is not possible to identify who it is. In other words it is not about a particular person but rather a general proposition. It is submitted that this is the sort of country information that is relied on commonly by the Tribunal. There is no need for the Tribunal to give notice of this information or this material under s.424A and as a consequence, the alleged failure to exclaim the reason why the information was relevant could not establish jurisdictional error.

10. Mr Markus submits that the alternative view is that it is quite clear in the views of the claims made by the applicant, his migration agent did in fact respond to the information given to him in the extracted paragraphs above at [38]. This indicates that the applicant’s migration agent clearly understood what the burden of the relevant paragraphs was. In the response on behalf of the applicant it is claimed that the abductors stated that he had contacted the Tamils from the north and accused him of helping the LTTE. Mr Markus submits that the whole abduction scenario was rejected by the Tribunal.

11. Mr Markus submits that there has been no submission made on behalf of the applicant specifically rejecting the proposition that the abductors said this to the applicant.  Significantly, what has been rejected is the proposition that the applicant was abducted at all. In those circumstances there was no need to specifically address this allegation of what is alleged to have been said: Abebe v Commonwealth [1999] HCA 14. In those proceedings one of the claims was that the Tribunal failed to determine, or make a specific finding regarding the claim of the applicant that she was raped while she was in detention. The High Court found that in circumstances where the Tribunal did not accept that the applicant was detained, it did not have to deal with the claim that she was raped while in detention.

12. The second ground concerns that the Tribunal failed to ensure that the applicant understood why the information provided in the Tribunal’s letter was relevant to the review.  The Tribunal’s letter was responded to by the applicant’s agent, Mr Rasan Selliah.  In the letter of 24 July 2008, Mr Selliah responded:

    In relation to particulars 8 we respectively submit that the quoted information provided by the Australian Department of Foreign Affairs and Trade is correct.

    The case of my client is somewhat different.  His abductors as part of their threat stated that my client had contact with Tamils from the North and therefore accused him of helping the LTTE.  My client submits that a normal consequence of this is that if they make disclosed to the public this issue, any action taken by the abductors would be excused and covered up. [CB 95]

13. Mr Selliah indicates that he understands the proposition being raised by the Tribunal in paragraph 8 of the Tribunal’s letter and qualifies his client’s position indicating that it is different from the circumstances quoted in the DFAT material. In these circumstances, it has to be presumed that Mr Selliah was fully conversant with the applicant’s claims or alternatively discussed the issue with him in order to produce the response. There is no indication within that correspondence to indicate that the applicant or his agent did not comprehend or understand the nature of the question being raised by the Tribunal. The response was that the applicant’s situation was different and could be distinguished from the example provided by DFAT. A claim that s.424A(1)(b) was not complied with cannot be sustained and this ground should be dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: 

Date: 10 August 2009