SZPAD v Minister for Immigration
[2012] FMCA 73
•1 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZPAD v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 73 |
| MIGRATION – Independent merits review of refugee claims of offshore entry person – Tamil man from Sri Lanka – reliance on updating country information concerning risks facing failed asylum seekers – denial of procedural fairness established – declaration of error made. |
| Migration Act 1958 (Cth), ss.36(2), 46A, 477(1), 477(2) |
| Alami v Minister for Immigration & Anor [2011] FMCA 623 Kioa v West (1985) 159 CLR 550 Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, [2002] HCA 30 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252 SZQEK v Minister for Immigration & Anor [2011] FMCA 628 SZQHC v Minister for Immigration & Anor [2011] FMCA 851 SZQNF v Minister for Immigration & Anor [2011] FMCA 965 |
| Applicant: | SZPAD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | SUE ZELINKA, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2272 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 1 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr M J Smith |
| Solicitors for the Applicant: | Salvos Legal Humanitarian |
| Counsel for the First Respondent: | Mr D Godwin |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Declare that, in recommending to the first respondent that the applicant be not recognised as a person to whom Australia has protection obligations, the second respondent made an error of law, in that the second respondent failed to observe the requirements of procedural fairness in relation to the disclosure of new country information.
Application otherwise dismissed.
The first respondent pay the applicant’s costs in the amount of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2272 of 2011
| SZPAD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| SUE ZELINKA, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia as an unauthorised boat arrival on 1 March 2010, when the boat which had carried him from Sri Lanka was taken to Christmas Island. On 2 May 2010 he requested an assessment by the Department of Immigration of his refugee status (the “RSA”), under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow the applicant to make an application for a protection visa.
A negative assessment was notified to the applicant on 28 May 2010, and he then applied for ‘independent merits review’ under those procedures (the “IMR”).
By letter dated 31 January 2011 the applicant was notified that a reviewer, Mr Gentile, had recommended to the Minister that the applicant should not be recognised as a person who met the criteria for a protection visa set out in s.36(2) of the Migration Act. However, the applicant sought judicial review of Mr Gentile’s report, and his application was successful. On 20 May 2011, Driver FM made orders by consent of the Minister declaring that Mr Gentile had not observed the requirements of procedural fairness. The Orders stated:
THE COURT NOTES THAT:
The first respondent accepts that second respondent failed to accord the applicant procedural fairness by not putting to the applicant for comment adverse “country information” regarding the improved situation for Tamils in Sri Lanka.
The making of that order led to the appointment of Ms Zelinka to conduct a second independent merits review. Unfortunately, from her report it appears she was not informed as to the reason for her being appointed, but seems to have been under a misapprehension and that her review arose from an ‘offer of a second review’ as a result of the High Court decision in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 (see the second paragraph on page 2 of her report, and the first paragraph on page 5).
This was unfortunate because, as I shall explain, it appears to me that Ms Zelinka has fallen into the same error as Mr Gentile, that is, in not bringing to the applicant’s attention some important new country information which appears to have been substantially material, if not decisive, in her reasons for not accepting one of the applicant’s refugee claims. This was his claim to be at added risk of persecution as a perceived LTTE associate if he was forced to return to Sri Lanka, as a result of his being identified upon his arrival in Sri Lanka as a Tamil person who had claimed refugee asylum in Australia.
Ms Zelinka clearly did conduct a de novo review of all the applicant’s refugee claims. In the course of this, she received submissions from the solicitors who had represented the applicant throughout the RSA and IMR proceedings, being Florin Burhala and Associates of Melbourne. She conducted an interview with the applicant in the presence of his agent on 13 June 2011, and she delivered to the Minister a report dated 30 July 2011, in which she arrived at the same recommendation as had been made by Mr Gentile.
Her report was notified to the applicant by letter, which was either dated 5 August 2011 or 1 September 2011. Curiously, there are two versions of this letter in evidence before the Court bearing different dates. The applicant filed his present application for judicial review of Ms Zelinka’s report on 7 October 2011. It sought an extension of time under s.477(2) of the Migration Act.
I have previously held that the Court’s jurisdiction to review IMR reports is subject to the time limit under s.477(1) of the Migration Act, which is to be calculated as 35 days from the date of the notification letter (see Alami v Minister for Immigration & Anor [2011] FMCA 623 at [48] to [67]). However, it is unnecessary for me to explore the true date of the letter of notification in the present case, and the grounds for extending time under s.477(2), since the Minister consented at the first court date to the Court extending time, and I have already so ordered.
The present application efficiently presents to the Court one ground of review, and is not overburdened by a multiplicity of rolled up grounds of review, in the manner of many applications that come on for hearing before me concerning IMR reports. Moreover, the applicant’s counsel has been able to address the ground as originally pleaded, which almost never happens. The ground is pleaded as follows:
Grounds of application
The second respondent did not accord the applicant natural justice and procedural fairness. The second respondent did not:
a.put to the applicant new information (being country information);
b.ensure the applicant was aware why this information was relevant to the consideration of the decision under review; and
c.invite the applicant to comment.
Particulars
d.In her Statement of Reasons, the second respondent said at page [8]:
“…I showed the claimant a copy of the UK Border Agency Country of Origin Information Report: Sri Lanka, released in November 2010 (November 2010 Report) …
…I began to sum up, noting the information 1 read out about Batticaloa (during the discussion about the letter) and the lack of risk to the claimant if he returned there. I noted the independent evidence [being the November 2010 Report] indicated that failed asylum seekers were not at risk of persecution when they were returned to Sri Lanka.”
e.In spite of this the second respondent said at page [18] of her Statement of Reasons:
“…during the course of writing this decision, the UK Border Agency has issued a new Country of Origin Information Report: Sri Lanka, published in July 2011.” (July 2011 Report)
And later at page [23] of her Statement of Reasons:
“...[In] paying particular heed to the most recent information [being the July 2011 Report]…I am not satisfied that the claimant is at risk of persecution by the authorities in Sri Lanka for reason of his status as a failed asylum seeker.”
f.Although the second respondent clearly relied on the July 2011 Report, there is no evidence that the July 2011 Report was, or since has been, put to the applicant.
g.Accordingly this Court can, and should, find that the July 2011 Report was not put to the applicant. The applicant was not told of the relevance of this information. The applicant was not asked to comment on this information.
The applicant’s refugee claims
In view of the single ground of review, it is not necessary for me to explain at great length all of the applicant’s claims for seeking recognition of his refugee status, nor how they were all addressed by Ms Zelinka. It is enough for me to refer to them generally, focusing on his claim to be at risk upon his return to Sri Lanka as a failed Tamil asylum seeker in Australia.
This approach is fortunate, since his interviewer on arrival at Christmas Island on 30 March 2010 appears to have taken a confused history, and to have recorded it in illegible handwriting. Nor did his solicitor better present his claims in a statutory declaration accompanying the RSA application. However, the applicant’s narrative was later elicited and accepted by subsequent decision‑makers in its essential detail. This is that he is a young man who was raised in the Batticaloa district by a Tamil family which at times lived within an area controlled by the LTTE, and at other times an area under the control of the Sri Lankan Security Forces and Army.
The principal reason why the applicant claimed to be at risk of being perceived as a person associated with the LTTE by Sri Lankan security agencies, including the army, police and other agencies, was due to his relationship with his mother’s brother who, as all decision‑makers accepted, had been a cadre in the LTTE, and had been pursued by Sri Lankan forces and by a pro‑Government Tamil militia known as the Karuna Group. The applicant’s family last saw this uncle in Batticaloa in 2006 when he moved elsewhere, and his uncle was last heard of as still being alive in 2008.
The applicant’s history essentially was that the applicant’s father took him to Colombo, when the security situation in the north east of Sri Lanka became very troubled in 2006. In a story that was elicited by Ms Zelinka, and was mostly accepted by her, he claimed that his family was concerned that the applicant himself might be perceived as an associate of the LTTE, because his uncle had at times referred to the applicant as his brother to avoid the applicant being forcibly recruited by the LTTE. The applicant’s family subsequently became concerned that this might have left the applicant’s status in a matter of confusion in the mind of the security agencies, when so informed by the Karuna Group.
The applicant claimed that in Colombo in 2006 he had been arrested and taken into detention by the police, and held with some mistreatment until being released by court order after 28 days.
He claimed that this was achieved by a bribe, but his history also indicated that it was done by court order. In Ms Zelinka’s opinion, this showed that at that time the authorities had no adverse interest in him. She then made a clear finding rejecting parts of his claims suggesting that he was a person of continuing subsequent interest as an LTTE sympathiser or associate. She found that his release in 2006 showed that “he was clearly not considered to have any links or sympathies with the LTTE” at that time.
Ms Zelinka also made findings discounting the applicant’s evidence, which suggested that the Karuna Group had a continuing interest in him, and that they had made approaches to his family in subsequent years. Ms Zelinka concluded, in respect of the applicant’s claims to fear persecution based on his history before he left Sri Lanka:
The lack of any follow‑up of the claimant after he left detention in a lawful manner in Colombo in late 2006 (after being in custody for 28 days) and the lack of any adverse attention at checkpoints or in general security operations during and after the civil war leads me to the conclusion that the claimant is not of adverse interest to the authorities in Sri Lanka. I note also that the claimant’s brother, who has exactly the same profile as the claimant (that is, a young Tamil male from the east who has an uncle in the LTTE) was able to get a passport and lawful exit papers from the Sri Lankan authorities to allow him to work in Dubai. He also is clearly of no adverse interest to the Sri Lankan authorities. I am not satisfied that the claimant is at risk of persecution by the authorities if he were to return to Sri Lanka for reason of an imputed political opinion (connection to the LLTE).
Equally, I am not satisfied that the Karuna Group has any interest in the claimant. I found his claims about their visits or phone calls to his parent’s home in search of him to be mere assertions. Furthermore, I note the information provided by the Diocese of Batticaloa (see page 13 above) which indicates that the paramilitary groups in Batticaloa are no longer carrying arms and that community leaders have clear lines of communication with the top level of police and voice any concerns they have about paramilitary groups (or other problems). I am satisfied that if the claimant were to return home, he would not face persecution by the Karuna Group for reason of his familial connection with his uncle (an LTTE cadre) or any other reason.
The issue whether the applicant was at added or separate risk of harm from the security agencies of Sri Lanka, based on the circumstances of his unlawful departure from Sri Lanka by boat and his return to Sri Lanka as a person who had sought and failed to obtain asylum in Australia, was not expressly raised in the applicant’s original RSA application. However, it was identified as a separate and pertinent issue by the officer who performed the RSA on 28 May 2010. He said in his statement of reasons:
Having sought asylum in Australia:
Though not expressed by the claimant, it may also be the case he fears harm for reason of him being a failed asylum seeker. The country information I have considered indicates that persons returning to Sri Lanka, are not ordinarily subject to harm unless they have a profile of any interest to the authorities:
There are no procedures in place to identify failed asylum seekers. The only way that the authorities are alerted to a failed asylum seeker returning is if the airlines or IOM alert them that a person is a deportee or is being escorted. Sometimes the Sri Lankan Embassy/High Commission would alert the authorities in cases where they have given the returnee/deportee a travel document but it should be noted that this was not always the case. If a failed asylum seeker returned unaccompanied then the authorities would not be aware of this fact.
The Department of Immigration and Emigration (DIE) computer has a ‘black‑list’ of persons of concern but unless the exact spelling of a name, the date of birth and passport number matches that of the returnee/deportee, the person is not stopped. Consequently it is possible for the authorities to miss suspects and persons with criminal records. (CX234989).
In the circumstances of this case and on the basis of the findings made herein, I am not satisfied the present claimant would be of any interest to the Sri Lankan authorities on return. It is possible he may be questioned, but without more, I am not satisfied he will be subject to harm amounting to persecution on return.
His reference to a piece of country information is to a report from the Department of Foreign Affairs and Trade dated 14 October 2009.
It may be noted that no other country information concerning the risks facing returned asylum seekers was cited by the RSA officer.
Subsequently, prominence was given to this claim on behalf of the applicant, in the written submissions of his solicitor to both Mr Gentile and to Ms Zelinka. The written submission to Mr Gentile dated 9 July 2010 at page 12 (see Court Book 119) drew attention to a very recent report in media in Australia, claiming that “nine people died after being sent back under the Howard Government and others returned in the last year have been assaulted and imprisoned”, with some details of these claims being made by a local community leader and refugee advocate at the Edmund Rice Centre.
Such a claim was again put to the Minister on 18 April 2011, in a submission from the applicant’s agent seeking the Minister’s discretionary intervention while the applicant’s first judicial review application was still pending in this Court (see the submissions set out in the Court Book from page 156, and in particular at pages 157 to 159). This also cited a number of reports of returned asylum seekers from various countries being mistreated.
In a subsequent submission to Ms Zelinka dated 7 June 2011, the applicant’s solicitors, in the course of addressing other aspects of the applicant’s claims and relevant country information, submitted:
Treatment in airport upon return
We submit that the Applicant’s fears of persecution are likely to be played if he is refouled to Sri Lanka. Based on evidence presented in RRT Country Advice, dated 28 May 2010, it is suggested the Applicant is likely to be detained and harmed on arrival at the airport in Sri Lanka.
On 19 May 2010, ABC News reported that according the Edmund Rice Centre all of the 11 asylum seekers returned to Sri Lanka in the past year have detained by police and some have been assaulted. The Edmund Rice Centre have also claimed that “at least nine asylum seekers returned to Sri Lanka by the Howard government were killed”. The report contains the following relevant information:
Immigration Minister Chris Evans says the Federal Government has a “major problem” returning asylum seekers who have been involved with the Tamil Tigers.
Phil Glendenning, the director of the Catholic Church’s Edmund Rice Centre, has recently returned from Sri Lanka and says the country is in danger of becoming a police state.
“We found that of the 11 people removed to Sri Lanka over the course of the last year or so, that all of them had been arrested at the airport,” he said.
“Some of them had been bashed, assaulted. One man has permanent hearing damage, another has had sight damaged.”
Mr Glendenning says those arrested are asylum seekers sent home from Australia.
“[The Australian Government sent them back] and gave them a guarantee of their safety. The thing is they arrive at the airport; they’re immediately handed over to the CID, which is the Sri Lankan police,” he said.
“The difficulty here is that there is a view in Sri Lanka that anybody who left the country through an unauthorised manner, of unauthorised means, is an LTTE sympathiser and if they are Sinhalese people who left, then they must therefore be traitors.
“That’s the assumption. People have been put into prison and held there and the key thing is here that detention can be indefinite. There are people who were removed from Australia at the beginning of this year who are still in prison.”
…“The people are put into prison; the court process is that they’re heard in the prison. The magistrate continues to postpone the cases to a later date, no legal arguments are taken and so you get the situation of it just rolling forward.
“On the ground, those who are in the community, there’s a danger of being regularly abducted and it’s quite an established fact that groups like Reporters Without Borders have attested that Sri Lanka is not safe.”
…“I think the position taken by the Minister yesterday in urging caution about returning people who would be seen as being involved with the LTTE is a very wise one,” he said.
On 13 April 2010 Bruce Haigh, a retired Australia diplomat who formerly served at Australia’s Colombo post reported that it is has been the practice of the Australian government to share information with the Sri Lankan government about the identities of Tamil Sri Lankan nationals applying for asylum in Australia. Haigh stated that:
For many years it has been a requirement of the Australian government to seek a security clearance from the Sinhalese police for Tamils seeking refugee status in Australia. When I was posted to the Australia High Commission in Colombo I could see no sense in the arrangement. It was best ignored for all it did was to put the family of the applicant in jeopardy.
ABC News has also reported on Bruce Haigh’s comments that the Australian government continues to share the identity details of Tamil asylum seekers with the Sri Lankan authorities:
…former Australian diplomat, Bruce Haigh, whose postings included the Australian High Commission in Colombo, has criticised ASIO and the likely basis for the intelligence assessment on the five Tamils.
He says the process is flawed.
“When I was in the High Commission in Sri Lanka one of the things we were asked to do by the Australian Department of Immigration was to check out refugee applicants to make sure that they didn’t have an adverse security background.”
“That entailed going to the Sri Lankan police, the Sinhalese police, and seeking a police clearance which was absolute nonsense because if these people were on the other side in a civil war, why would you go to just one party and ask them about the security rating of somebody applying for refugee status.”
“So it was always going to be and always has been a flawed process and that’s what’s happened in this instance I’d say.”
Mr Haigh says ASIO would have continued that practice of speaking only to Sri Lankan authorities.
He says he believes the group would have been found to have Tamil Tiger connections and therefore would have been deemed to be a terrorist threat.
Accessed at <
We therefore submit that the Applicant cannot be considered for refoulment, given he has a high chance of coming to harm immediately after arriving in Sri Lanka. It is certain that his identity is known to the Sri Lankan authorities, either through their own means, having targeted him personally while he was in Sri Lanka, or based on the Australian Government’s information sharing arrangement with the Singhalese Police.
They concluded their submission:
Conclusion
Collectively, all the preceding extracts illustrate that the situation in Sri Lanka for Tamils, especially those directly suspected of LTTE involvement, is dangerous.
Accordingly, on the facts before us and the Applicant’s submission of the events surrounding his case there is little doubt that he hold a well founded fear of persecution if he were to return to Sri Lanka.
As such, we submit that the Applicant will face a serious risk or harm or death should he be refouled.
Should you have any queries, or require any further information, please do not hesitate to contact our office.
The applicant’s interview with Ms Zelinka was then held on 13 June 2011. It is unclear where it occurred, but the transcript which is in evidence suggests that it might not have been held under the most desirable circumstances, and also that it might not have been recorded clearly.
The Minister in his submissions to me relied upon two passages in the transcript for a submission which, as I understood it, was that the applicant and his agent had ceased to maintain and rely upon the passages in the written submission which I have extracted above.
He also relied upon the transcript as indicating that pertinent country information which was subsequently relied upon by Ms Zelinka, when purporting to address that claim, had been fairly put to the applicant, at least in its substance or gist. The two passages were as follows (transcript pp.15, 16‑17):
IV – Interviewer (Sue Zelinka)
IN – Interpreter (No. ####)
A – Advisor (Name)
399. IV Okay. I have to say, I don’t think that there’s a big government push to, to look for people who might be related to LTTE cadres. 400. IN The government has always been killing people in LTTE and people in the associations with LTTE it happens until today but it just doesn’t come on the media. 401. IV Well, I beg to differ, I mean there’s a, there’s a very um, uh, active press in Sri Lanka which publishes all sorts of things and there’s, uh, uh a great number of foreign observers NGO’s and so on in the country. Lots of information comes out from Sri Lanka…Now the government has, has um has been running rehabilitation programs for people who actually fought with the LTTE, people who were actually Tamil Tigers, now if they’re prepared to rehabilitate Tigers, why would they be interested in a nephew of a Tiger? As someone who has never, never been in the LTTE himself. 402. IN To the outside world, to the outside media, news comes out that the government is releasing Tigers. They’re giving them, uh rehabilitation and all that. But what actually happens is that those people who got captured during the final war are still in jail and they get murdered and tortured and murdered everyday until now, That’s what, that’s the reality. 403. IV Well, no, that claim is not supported by um independent evidence. There are, there are some cases of, of h‑human rights abuse, yes, but the overall, no that’s not a claim that’s supported…Now, if you, erm, ah, were to return, um, I should mention that that um you know because, I know you haven’t raised this claim, but I feel incumbent upon me to mention it about what happens to failed asylum seekers when they go back…Um I know you haven’t brought this up as a claim, but some people say, oh well I can’t go back to Sri Lanka because I know that um, uh the government will know I’ve been away and therefore they will harm you. 404. IN For me, if I were to return home, I don’t think I’ll survive more than a day in the country. 405. IV And, why is that? 406. IN Because they looked for me, they were looking for me before and now if I go home, I’m sure that they will kill me and I don’t really care about my life but I care more about my parents and my loved ones who depend on me. 407. IV Um, well, when people return, of course, they get checked at the airport and there maybe a referral to CID, just for a police check. But I’m satisfied you don’t have a police record because you were released after 28 days detention and you were let go, so I’m satisfied the police do not have an adverse interest in you. 408. IN They released me on a [non‑transcribable — 2:30:46] like I didn’t get released properly because I was under the condition that I had to go back whenever they needed more enquiries to be done. …
437. IV Ok, alright. Well, look, I think I’ve asked all the questions I want to ask. We’ll ask your advisor if he feels there’s an area that hasn’t been covered properly or explored sufficiently. 438. A I’m satisfied that um the relevant matters have been covered sufficiently. Thank you. 439. IV And I think we have I’ve been conscious of our, our various shortages today, but I think we’ve covered all of the, the claims, including the return of a failed asylum seeker even though that hasn’t been raised as a claim. I feel that they should be, it should be mentioned. Now, your advisor has, has said that he thinks we’ve talked about all the things that you have mentioned in the past, all the particular claims you’ve made and that there isn’t any that we have not discussed…And so I’ve, um taken a lot of notes as we’ve been talking and I have put to you the, the areas where I feel that there have been some doubts and you’ve answered me…Um, is there anything else that you needed to say that um, that you don’t- about the case that you don’t think you’ve mentioned yet? 440. IN I have told you every single thing that happened in my life and now, it’s up to you to give me, you know, save my life and give me protection. 441. IV Well, I’ll be considering all of this very carefully and um, uh writing a decision within um, the lawful framework…and so, that sounds like we’ve reached the end and I will turn the tape off.
Ms Zelinka’s report
In her report dated 30 July 2011, Ms Zelinka recounted the evidence in relation to the applicant’s claims. Under the heading “Country Information”, she extracted over 10 pages of information that she appears to have regarded as authoritative and reliable, being chiefly extracts from the UK Border Agency, “Country of Origin Information Report: Sri Lanka” released in 2010. She also included extracts from UK Foreign Office reports and other recognised authoritative sources, including the UNHCR and the US State Department.
In five pages of this part of her report, she extracted a number of paragraphs from “Report of the FCO information gathering visit to Colombo, Sri Lanka, 23‑29 August 2009”, dated 22 October 2009, under the heading “Treatment of returned failed asylum seekers”. This itself referred to information and opinions from a variety of sources about the procedures being followed at airports upon the return of failed asylum seekers, including references to the experiences of the Australian High Commission and the British High Commission.
She also included extracts from a later source, being a letter “from the BHC Colombo, dated 30 August 2010” which was cited in the UK Border Agency, “Country of Origin Information Report: Sri Lanka”, November 2010, which said:
33.21 And added:
“In general, the situation regarding all returnees regardless of race or creed appears to be more relaxed than was reported following the Fact Finding Mission. There is though still inconsistency in the way individuals are dealt with. On 30th March 2010 a UK returnee was presented to the duty Chief Immigration Officer by an airline official. He held an Emergency Passport issued by the Sri Lankan High Commission in London. He remained with DIE for about 3 hours, during which time they asked his family to produce evidence of his National Identity Card (NIC). The family duly provided DIE with the number of his NIC, and once this was verified, he was allowed to proceed. He was not referred to SIS or CID. It is also evident that returnees who arrive unescorted and using their original Sri Lankan passport are unlikely to be identified by DIE as returnees, and unlikely to go through the above procedures.
“On 24th July 2010 a UK returnee was identified as being in possession of a Sri Lankan passport containing falsified details and a counterfeit Sri Lankan embarkation endorsement. He was arrested by CID, charged with two offences and appeared before Negombo Magistrates. He was initially detained, but has subsequently been remanded on bail pending his trial date. Apart from this case, no UK returnees have been held for more than 6‑7 hours on arrival, none have been arrested and detained, and none have complained about their treatment on arrival by the authorities.”
(UK Border Agency, Country of Origin Information Report: Sri Lanka, November 2010, paragraphs as marked).
Ms Zelinka earlier in her report, said that it was the UK Border Agency November 2010 report to which she had referred in the course of the applicant’s interview. She said: “I had the UK Border Agency report with me”. I shall not pause to consider whether this was sufficient to show that the applicant’s agent was sufficiently on notice of an intention to rely upon that 2010 report, and whether she provided the applicant with an adequate opportunity to deal with any parts of it upon which she might rely adversely to the applicant.
The applicant’s concern in the present ground of review is Ms Zelinka’s reliance on an even more recent report from the UK Border Agency, which came to her attention subsequent to her interview with the applicant and his agent. She explained the new pertinent information in her report, immediately before explaining her “Findings and Reasons”. I shall quote this passage, and add emphasis to a passage to which I shall give particular attention below.
Update on failed asylum seekers returning to Sri Lanka
NOTE: during the course of writing this decision, the UK Border Agency has issued a new Country of Origin Information Report: Sri Lanka, published in July 2011. The material above is still included, indicating it is still current, but further material has been included as follows:
25.37 Human Rights and Security Issues concerning Tamils in Sri Lanka, Report from Danish Immigration Service’s fact‑finding mission to Colombo, Sri Lanka 19 June to 3 July 2010, dated October 2010 reported:
“As regards, the authorities’ entering procedures for returnees, including returned failed asylum seekers in the Colombo Airport, Mr. W. A. Chulananda Perera, Acting Controller General, Department of Immigration and Emigration (DIE) explained that the returnee can enter the Sri Lankan border with either a national passport or an Emergency Travel Document issued by the Sri Lankan Embassy. If the returnee enters with a national passport, DIE can check the data in a database. Entry with an Emergency Travel Document does not give this possibility. However, an Emergency Travel Document is considered a proof of identity established in the country of departure. DIE registers the details of all returnee, including travel documents, flight numbers and country of return in a register that all law enforcement agencies are given access to.”
“A diplomatic mission said that the vast majority of Tamils returning at the moment are facing a minimal risk for undergoing a scrutiny at the airport. The source commented that the way people will be screened today seem to be the result of improved intelligence, also exchange of intelligence between countries in Asia. People with a clear LTTE‑profile or people suspected of money transfer would be detained for further investigations. According to the source there is in general no difference in the way Tamil and Sinhalese people are treated at the airport, and there are also examples of Sinhalese human rights defenders who have been detained for investigations.”
25.38 The Danish FFM report further noted: “UNHCR stated that Colombo has a mixed population and that the general human rights situation in Colombo as regards living conditions, access to employment and education should not pose systematic problems to Tamils.”
“According to the Norwegian Embassy, [in Colombo] a returnee from abroad would not be visible in the community, and it would not be a problem to find housing and a job.
25.39 A letter from the British High Commission (BHC), Colombo, dated 18 March 2011, noted that “Presently, the Department of Immigration & Emigration (DIE) refers the returnee to the Criminal Investigations Department (CID) only if there are any allegation alerts on the Immigration & Emigration (DIE) boarder control system. If not, the returnee will not be referred to the Criminal Investigations Department (CID).”
25.40 In a separate letter, also dated 18 March 2011 the BHC Colombo reported:
“The British High Commission in Colombo routinely monitors the arrival of returnees at Bandaranaike International Airport in Colombo. All Sri Lankan returnees, regardless of which country they are returning from, go through a process that has previously been reported by this mission whereby they are spoken to by representatives from the Department of Immigration & Emigration (DIE), the State Intelligence Service (SIS) and the Criminal Investigations Department (CID). Returnees are able to pass through the airport after routine checks are carried out on their identity and documentation.”
25.41 The BHC letter of 18 March 2011 continued:
“BHC provides its contact details to returnees and they are encouraged to contact the Migration team if they encounter difficulties including any instances of harassments or assaults. This is not just limited to the entry procedures at the Airport, but also for post‑ arrival assistance.
“There have been no allegations that airport staff having mistreated returnees. However, during the research project which is underway presently on the situation of UK enforced returnees, one returnee (Sinhalese) claimed that he was asked to pay a sum of money for himself and his wife by an Immigrations Officer at the Airport. As the returnee refrained from providing further details to this claim, further investigations were not possible. However, this allegation has been passed on to the Controller General of Immigrations & Emigrations.
“Further, 25% of the UK enforced returnees stated that the Border Control process for entry along with the Criminal Investigation Service (C1D) procedure is cumbersome and lengthy. But there were no allegations of harassment.
“During the period of 2008 ‑ 2010, the Criminal Investigations Service (CID) has arrested 03 returnees from the UK on arrival, all due to forgery offences. They have been charged and [are] going through the court process.”
(UK Border Agency, Country of Origin Information Report: Sri Lanka, July 2011, paragraphs as marked).
In her “Findings and Reasons”, Ms Zelinka addressed the applicant’s claims in relation to his history before he left Sri Lanka, taking into account the credibility with which it had been presented and relevant country information. She made the findings which I have indicated above, accepting the applicant’s underlying history, but not accepting his claims of being of continuing interest after 2006 and before he left Sri Lanka.
Concerning his situation as a returning failed asylum seeker, she said:
I have set out a good deal of reliable independent evidence about failed asylum seekers returning to Sri Lanka on pages 14 to 19 above, and considered it carefully, paying particular heed to the most recent information (set out above under the heading Update on page 18). I note that “A diplomatic mission said that the vast majority of Tamils returning at the moment are facing a minimal risk for undergoing a scrutiny at the airport”. The general tenor of the information seemed to be that the improved situation in Sri Lanka since the end of the civil war has meant an amelioration in the situation for Tamils, including at the airport even as returned failed asylum seekers. I am not satisfied that the claimant is at risk of persecution by the authorities in Sri Lanka for reason of his status as a failed asylum seeker, or as a “young Tamil male from the North or East”, or any other Convention reason.
This is the only paragraph in which Ms Zelinka dealt with the applicant’s situation as a failed asylum seeker in her “Findings and Reasons”.
She concluded generally:
In short, I have considered all the claims made by this claimant, those he has made in writing and those he has put in interview, including most recently at the hearing which I conducted. I have looked at reliable independent evidence about the situation in Sri Lanka at the time the claimant was there, and since his departure. On the evidence as a whole, I am satisfied that the chance that serious harm amounting to persecution will befall the claimant at the hands of the Sri Lankan authorities or allied paramilitary groups for reason of an imputed political opinion (support for or connection with the LTTE) or other Convention reason is remote. I am satisfied that the chance that serious harm amounting to persecution will befall the claimant on return to Sri Lanka for reason of his illegal departure from Sri Lanka, his status as a failed asylum seeker, or his having applied for asylum in Australia, is remote.
Consideration of the ground of review
I have, in several recent judgments on reports of independent merit’s reviewers, been required to consider the requirements of procedural fairness in relation to their reliance on country information when rejecting refugee claims. I explained these requirements in SZQEK v Minister for Immigration & Anor [2011] FMCA 628 at [27] through [31], setting out relevant parts of Plaintiff M61 and referring to Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252, and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. I shall not repeat the passages I extracted.
I concluded:
31.As these extracts show, it is necessary to examine the particular circumstances, before concluding that there is an obligation to invite comment on country information identified as relevant by a refugee decision‑maker. The factual issues arising in the review, the path of reasoning adopted by the decision‑maker, and the novelty, credibility and materiality of the information to the decision, all need to be considered before concluding that there has been a failure of procedural fairness. Underlying the assessment is a basic concern for a fair procedure.
SZQEK concerned the failure of a reviewer to warn and invite submissions on his intention to rely upon a highly important and recent UNHCR updating assessment of the situation of Hazara Shia asylum seekers from Afghanistan. I concluded that the reviewer had given particular importance to the currency of the new guidelines, and that he had drawn an adverse implication from the absence of their support for the applicant’s principal refugee claim. Taking into account how the reviewer had treated the new document, I concluded that it had provided ‘credible, relevant and significant’ information, which had not been put to the applicant, and which requirements of procedural fairness required that he should have done so.
An IMR reviewer’s reliance on the same updating UNHCR assessment guidelines was put to me in at least two subsequent cases, but I was not persuaded in the circumstances of those cases that a denial of procedural fairness had occurred.
In SZQHC v Minister for Immigration & Anor [2011] FMCA 851 at [29] through [39] I further discussed the High Court authorities which might guide this Court in deciding when it is necessary to put new and updating adverse information to applicants. I examined the judgments of the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, [2002] HCA 30. Helpful assistance is found in the judgment of McHugh J in that case, where his Honour said:
133The fact that Mr Muin addressed the question of the capacity of the government to protect him in those submissions and in his statement demonstrates that, unlike the circumstances of Miah, the question was an obvious one. It was also obvious from the delegate’s decision, which he had the benefit of reading. The delegate asserted that “when riots and anti‑Chinese violence occur, the Government can, and does exert its authority to control the situation and to protect the Chinese people”. It would have been obvious to Mr Muin from reading the delegate’s decision that the government’s protection of Chinese Indonesians was an important issue. Whether or not an issue is obvious is usually of fundamental importance in determining whether a person affected by the exercise of power should be given an opportunity to make submissions.
134In Miah I said:
In some cases, exercises of the power, although conditioned by the rules of natural justice, will not require that the applicant have an opportunity to comment on the material. Examples of material that would not require comment by the applicant would include non‑adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application. But there are cases where the exercise of this power does require that the applicant be given an opportunity to comment on the material. An example is where the delegate proposes to use new material of which the applicant may be unaware and which is or could be decisive against the applicant’s claim for refugee status. The need for disclosure by the delegate is even stronger where the material concerns circumstances that have changed since the date of application and is being used after considerable delay. It is stronger still when the material is equivocal or contains information that the applicant could not reasonably have expected to be used in the way the delegate uses it.
135The defendants argue that, even if there was a breach of the rules of natural justice, the tribunal found “the actions complained of by the applicant are not, in the tribunal’s view, sufficiently serious as to amount to persecution in a Convention sense”. However, the tribunal member did tie in the question of “persecution” with the question of government protection:
Anti‑Chinese violence, even if orchestrated as in the case of the May riots, may not amount to persecution if the State does not condone it and can effectively protect its ethnic Chinese citizens against it …
That being so, it cannot be said that the country information was not critical to the outcome of the decision, even if less acutely so than it was in Mr Miah’s case.
(emphasis in original)
More recently, in SZQNF v Minister for Immigration & Anor [2011] FMCA 965, I considered the circumstances in which the Court might need evidence from an applicant and his agent, before it could be satisfied that new country information relied on by the reviewer had a degree of surprise or novelty or some other element calling for an opportunity to comment or respond to an intention to rely on it (see [53] through to [61]). In the absence of evidence from the applicant or his agents in that case, I was not prepared to “conclude that practical injustice may have resulted from the absence of an invitation to comment on the revised UNHCR guidelines in their application to Hazara Shia refugee claimants from Afghanistan”. I was also not satisfied by looking at the new guidelines themselves, and comparing them to the previous guidelines, that there was anything in the reviewer’s reliance on the new guidelines without inviting further submissions which made apparent a failure of procedural fairness.
I drew strength for that conclusion from the absence in the reviewer’s report of any apparent reliance on any substantially new information or opinion which was not already found in the previous guidelines.
In the present case, the Minister relies on my reasoning in SZQNF, and the applicant relies on SZQEK. Neither counsel submitted that my previous judgments revealed a misapprehension of principle or inconsistency with authorities binding upon me. I propose to apply my previous understanding of the principles.
In my opinion, on the face of Ms Zelinka’s reasoning, she has taken new information from the “update” she found in the new July 2011 UK Border Agency report. Moreover, although she has considered it in the context of the earlier reports and as confirming and adding to the previous information, her conclusions show that she has regarded the new information as requiring “particular heed”.
She has taken from the new report an opinion from a Danish fact‑finding mission of a very broad and general nature, which was clearly adverse to the applicant’s claims. She has given that opinion what appears to me to have been very material, if not decisive, weight. This was the opinion “that the vast majority of Tamils returning at the moment are facing a minimal risk for undergoing scrutiny at the airport”. She has given that opinion particular currency, and therefore great weight, because it was repeated and confirmed in the most recent UK Border Agency assessment.
She concluded, giving “… particular heed to the more recent information” that it generally shows “an amelioration in the situation for Tamils, including at the airport …”. This conclusion was very much a matter of opinion on her part, being her impression from the more recent information as well as the older information. Her conclusion does not derive obviously from the contents of the new report as quoted by her, and appears to me to have been debatable and certainly not ‘obvious’ or ‘unsurprising’, although it was not submitted to me by the applicant that such an assessment would have been open.
In all the respects in which Ms Zelinka has relied on the UK Border Agency July 2011 update, in my opinion, it has been treated by her as conveying important and even decisive adverse information against the applicant’s claims to be at risk or added risk as a failed asylum seeker returning to Sri Lanka from Australia.
Moreover, the pertinence of the new information, particularly the information contained in the paragraph in which she has quoted from the Danish fact‑finding report, also contained information of particular pertinence to the applicant’s claims as presented in the written submission of the applicant’s solicitor, in so far as it suggested that Australian security agencies had been liaising with Sri Lankan security agencies and revealing to them the names of Australian asylum seekers. It is unclear what attention Ms Zelinka gave to the reports quoted by the applicant’s agent in their submission, or to the new information from the Danish source that “the way people will be screened today seem to be the result of improved intelligence, also exchange of intelligence between countries in Asia”. In my opinion, the presence of that information in the other new information, and the absence of any attempt by Ms Zelinka to draw attention to that information, and to the possibility that she might rely upon it to draw an adverse conclusion as to the applicant’s asylum seeker claim, underlines what in my opinion was a denial of procedural fairness in the present case.
I do not accept the Minister’s submission that there was a need for evidence from the applicant or his agents going beyond the evidence which is before me to establish a material or practical injustice. There is evidence which, although not in proper form, was not objected to by the Minister’s counsel, and which establishes to my satisfaction that neither the applicant nor his agent were aware of the existence of the new information in the UK Border Agency report of July 2011, and were not warned of her intention to rely decisively on all or some of it. I would in any event have drawn that inference from her own report, which indicates on its face that the updating information had not been available to her or to the applicant’s agents, in particular, at and prior to her interview with the applicant and his agent.
In the present case, the manifest pertinence of the new information to Ms Zelinka’s reasoning, its elements of novelty in the sense of new authoritative opinion, and its material currency which was given weight by Ms Zelinka, all point in my opinion to the information satisfying the test suggested by Brennan J in Kioa v West (1985) 159 CLR 550 of “adverse information that is credible, relevant and significant to the decision to be made”. I therefore do not consider in this case that I need additional evidence from the applicant or his agents before I could be so satisfied.
Nor do I accept the submission of the counsel for the Minister that the applicant and his agent implicitly disclaimed or retreated from the submission which had been made in writing by his agent, as to his fears of being detained as a suspected LTTE associate upon his return to Sri Lanka. In my opinion, so to read the transcript I have extracted above distorts the applicant’s responses to what was put to him by Ms Zelinka. It may be that Ms Zelinka sufficiently put to the applicant that she had country information suggesting that his record with the police, as it stood as a result of the events before he left Sri Lanka, would not give rise to the police having recording an adverse interest which would be identified by security personnel at the airport. However, in my opinion she did not put to him, and it was not necessary for him or his agent to raise again his concerns, that being a known applicant for asylum in Australia as a Tamil with implicitly a concern of being perceived to be an associate of the failed insurgency might, in itself, bring a ‘real chance of persecution’ by reason of the applicant being so identified upon his arrival in Sri Lanka. Particularly, where Ms Zelinka did not address the concerns arising from the reported statements by the Australian diplomatic officer.
In my opinion, the claims made in the applicant’s written submissions required careful consideration by Ms Zelinka. When purporting to address them in the paragraph from her “Findings and Reasons” which I have set out above, she denied procedural fairness by reliance on the updating information that she cited and very substantially relied upon.
Counsel for the Minister in his written submissions also suggested that the applicant’s agent should be regarded as sufficiently on notice of the opinion from the Danish fact‑finding report which was extracted and endorsed and given currency in the UK updating report, because another part of the Danish report on a different topic had been referred to in the first IMR report of Mr Gentile. There is some irony in this submission, since Mr Gentile’s use of this country information was itself a denial of procedural fairness, as was conceded by the Minister in the previous proceedings. Moreover, I do not accept that through this pathway the applicant and his agent were on sufficient notice that Ms Zelinka might rely upon a different part of the opinions and information furnished by the Danish immigration service’s fact‑finding mission, when it was adopted and endorsed in the very recent UK Border Agency report. As I have noted above, the important crux of the recent report in the mind of Ms Zelinka was that it updated and gave currency to its contents and her conclusions from it.
For all the above reasons, I am persuaded that the applicant’s ground of review is made out.
I am not persuaded that there is any reason why relief by way of a declaration of error of law of denial of procedural fairness should not be made. The applicant accepts, and I find, that there is no likelihood that the applicant will be removed from Australia while he has an outstanding application for independent merits review which has not been decided according to law.
I shall therefore make that order and hear the parties further in relation to costs.
[after further submissions and evidence]
The applicant seeks indemnity costs against the Minister on the basis that the merits of the applicant’s arguments were not only shown in the original application that was filed, but were drawn to the Minister’s attention in a lengthy letter to the Australian Government Solicitor dated 16 December 2011. The letter concluded:
7.Conclusion
Although the Second Respondent clearly relied on the July 2011 Report in consideration of the decision under review, it is clear that there is no evidence that the July 2011 Report was, or since has been, put to our client in either form or substance. This is despite the fact that this new country information was “credible, relevant and significant”.
Our client at the time of IMR Interview, and before the Reasons were published, was not aware that the Second Respondent believed that the system of checking returnees at the airport had become more efficient, less haphazard and without harassment since the November 2010 Report was issued. Accordingly it is plainly evident that the Second Respondent did not afford our client natural justice or procedural fairness.
In light of the above, we kindly request confirmation as to whether your client is willing to concede our client’s application by 4:00pm Monday, 16 January 2012 ‑ noting that our submissions are due on Monday, 23 January 2012.
8.Costs
In the event the Minister proceeds to hearing, we will be relying on this letter in seeking indemnity costs.
I accept that from the inception of the matter the applicant had raised a meritorious case, and I have just given my reasons for upholding his arguments. However, I am not persuaded that the Minister acted so unreasonably in defending the present proceedings as to require the imposition of indemnity costs.
As my judgment has indicated, there is room for debate as to the application of principles of procedural fairness concerning reliance on new or updating country information, even where it is acknowledged that that new information was not drawn to the attention of an applicant and his advisers. A careful analysis of the present circumstances was necessary before I could uphold the application. I am not satisfied that the success of the proceedings should have been so obvious to the Minister in December last year, as to have rendered his defence of the proceedings before me unreasonable and deserving an award of costs greater than the usual award.
I propose therefore to award the applicant the scale amount of party/party costs.
I certify that the preceding fifty‑three (53) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 17 February 2012
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