SZQEF v Minister for Immigration
[2012] FMCA 33
•8 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQEF V MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 33 |
| MIGRATION – Judicial review – recommendation made by Independent Merits Reviewer – whether applicant to be recognised as a person to whom Australia owes protection obligations – young Tamil male from northern Sri Lanka. |
| Migration Act 1958 (Cth), ss.5(1), 36(2), 430, 474, 476 |
| Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 C Enright, Federal Administrative Law (Sydney: Federation Press, 2001) |
| Applicant: | SZQEF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PENELOPE HUNTER, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 806 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 20 July 2011 |
| Date of Last Submission: | 20 July 2011 |
| Delivered at: | Perth (by telephone to Sydney) |
| Delivered on: | 8 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Jackson |
| Solicitors for the Applicant: | Legal Aid Commission of New South Wales |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
DECLARATIONS AND ORDERS
THE COURT DECLARES THAT:
The applicant was not afforded procedural fairness by the second respondent, in her capacity as Independent Merits Reviewer, in making her recommendation of 21 March 2011, in that:
(a)the second respondent failed to afford the applicant an opportunity to provide medical evidence of scarring to the second respondent; and
(b)the applicant’s case was determined on the basis of a matter not put to the second respondent by, or on behalf of, the applicant, nor put by the second respondent to the applicant, namely, whether he was disfigured to such an extent to arouse suspicion that he had been actively engaged in combat on behalf of the LTTE; and
The second respondent, in her capacity as Independent Merits Reviewer, did not make her recommendation in accordance with the law, and denied the applicant procedural fairness, by reason of her failure to deal with an integer of the applicant’s claim, namely alleged persecution by reason of membership of an alleged particular social group of young Tamil males from the north of Sri Lanka.
AND THE COURT ORDERS
That the first respondent, whether by himself or by his servants, officers, delegates or agents, be restrained from relying upon the second respondent’s recommendation of 21 March 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
SYG 806 of 2011
| SZQEF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| PENELOPE HUNTER, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an amended application for review in respect of a recommendation by the second respondent, the Independent Merits Reviewer,[1] that the applicant not be recognised as a person to whom Australia owes protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.[2]
[1] “IMR”.
[2] “Convention”.
Background facts
The following background facts are not in dispute. The applicant:
a)was born on 13 December 1986 in Chavakachcheri, Jaffna District, Sri Lanka;
b)is Tamil;
c)travelled to Malaysia in December 2008;
d)was issued with a UNHCR card on 12 January 2010; and
e)is a citizen of Sri Lanka and not of any other country.
Grounds of amended application and final orders sought by applicant
Grounds of amended application
The following are the grounds of the amended application:
Ground one.
1. That the Applicant was denied procedural fairness.
1.1 The IMR stated that she had written to the Applicant’s adviser and requested medical evidence in support of his submission made at the hearing that the physical scarring borne by the claimant as a consequence of his mistreatment by authorities would lead to him being suspected as a former LTTE cadre.
1.2 The IMR stated that “in final submissions on behalf of the claimant this ground was not pressed. No medical evidence was forthcoming”, before proceeding to dismiss any scarring as a risk factor for the Applicant.
1.3 It is a reasonable inference from the documents discovered that no such letter was in fact sent.
1.4 The IMR’s failure to send the letter, and mistake of fact about having sent the letter, gave rise to a breach of procedural fairness because an opportunity to provide evidence which the IMR considered necessary for the making of the decision has been denied, and an adverse conclusion has been drawn from the claimant’s apparent “abandonment” of the ground, and failure to provide the requested evidence.
Ground two.
2. The IMR failed to take into account material that is credible, relevant, and up to date, in failing to take into account those documents which recognise an elevated risk profile suffered by young Tamil males, including the UNHCR Guidelines dated July 2010, which were before the IMR.
Ground three.
3. The IMR failed to consider an integer of the Applicant’s claim, and make requisite findings of fact, being his membership of a particular social group, young Tamil males originating from the North.
Final orders sought
The applicant seeks the following final orders:
1. A declaration that the recommendation of the Independent Merits Reviewer was not made in accordance with law, by reason of the grounds of this application.
2. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Merits Reviewer.
3. That the first respondent pay the applicant’s costs.
4. Such further orders the Court deems fit.
Response
The first respondent opposed the application and orders sought, and argued that the application does not raise an arguable case for the relief claimed. The IMR submitted to such order as the Court makes, save as to costs.
IMR Reasons
The IMR’s Recommendation and Statement of Reasons[3] were delivered on 21 March 2011.
[3] Book of Relevant Documents (“RD”) 383-403 (“IMR Reasons”).
The IMR determined that the applicant did not meet the criteria for a protection visa set out in s.36(2) of the Migration Act1958 (Cth),[4] and therefore recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.[5]
[4] “Migration Act”.
[5] RD 402-403.
Issues
The issues are those raised by the amended application, namely:
a)ground 1 – whether the IMR denied the applicant procedural fairness by not affording the applicant the opportunity to provide evidence of his scarring;
b)ground 2 – whether the IMR failed to take into account information concerning persons similar to the applicant; and
c)ground 3 – whether the IMR failed to consider a claim made by the applicant,
and, if so, whether that supports the grant of relief.
Applicable legal framework
The applicant invokes the jurisdiction of the Court pursuant to s.476 of the Migration Act.
For the purposes of s.5(1) of the Migration Act, the applicant is an “offshore entry person”[6] because he:
a)entered Australia at an excised offshore place (Christmas Island) after the excision time for that offshore place; and
b)became an unlawful non-citizen because of that entry.
[6] “OEP”.
The effect of being categorised as an OEP means the applicant is an unlawful non-citizen, and is precluded from making a valid application for any visa as a result of s.46A of the Migration Act (subject to a limited ‘public interest’ exception). Section 46A of the Migration Act provides that:
(1) An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non-citizen.
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3) The power under subsection (2) may only be exercised by the Minister personally.
(4) If the Minister makes a determination under subsection (2), the Minister must cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular to the Minister's reasons for thinking that the Minister's actions are in the public interest.
(5) A statement under subsection (4) must not include:
(a) the name of the offshore entry person; or
(b) any information that may identify the offshore entry person; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned--the name of that other person or any information that may identify that other person.
(6) A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year--1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year--1 January in the following year.
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
In order to assess whether OEPs may have a claim by which they might otherwise be owed protection obligations under the Convention (for the purpose of making a recommendation to the Minister) the first respondent established a claims processing system for claimants known as the Refugee Status Assessment.[7] The Commonwealth also established a process by which OEPs could seek an independent merits review of recommendations made under the initial RSA process.
[7] “RSA”.
The lawfulness of the system as set out above was reviewed by the High Court in Plaintiff M61/2010E & Anor v Commonwealth of Australia.[8] An analysis of the impact of the principles laid down by the High Court in Plaintiff M61 is concisely set out in MZYLF v Minister for Immigration & Anor[9] as follows:
[8] (2010) 243 CLR 319; [2010] HCA 41 (“Plaintiff M61”).
[9] [2011] FMCA 621 (“MZYLF”).
8. In Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14; (2010) 85 ALJR 133 the High Court identified the purpose of the refugee status assessment processes, saying:
[41] The purpose of the RSA process was described in the RSA Manual as being "so that the Minister ... can be advised whether Australia's protection obligations under the Refugees Convention are engaged". It was said that "[c]onsideration of the exercise of the Minister's power under s 46A to allow a visa application to be made will occur following assessment of protection obligations as outlined in this manual".
9. Importantly, if the refugee status assessment process was favourable to an applicant, the Department would make a submission to the Minister “advising the Minister that Australia’s protection obligations are engaged and seeking his/her agreement to lift the bar under s.46A of the Act” (see paragraph [44]). The Independent Merits Reviewer process was a review system in place with respect to the refugee status assessment.
10. The fact that the Independent Merits Reviewer is not an officer of the Commonwealth resulted in the conclusion (at paragraph [51]):
…that a claim for mandamus, prohibition or injunction against those persons would not, standing alone, found the original jurisdiction of this Court under s 75(v) of the Constitution.
11. The High Court continued (at paragraph [51]) stating that:
The jurisdiction of the court is found in section 75(iii) (as matters in which the Commonwealth, or a person being sued on behalf of the Commonwealth, is a party), section 75(v) (as matters in which mandamus and injunction are sought against the Minister and either a departmental officer or the Secretary of the Department – all officers of the Commonwealth) and even, perhaps, section 75(i) (as matters arising under any treaty – the Refugees Convention and the Refugees Protocol).
12. The Federal Magistrates Court has, with respect to migration decisions, the same original jurisdiction as the High Court has under s.75(v) of the Constitution: see s.476(1) of the Migration Act. This is a case where the applicant seeks not only a declaration, but also an injunction restraining the Minister, by himself or his department, officers, delegates or agents from relying upon the Independent Merits Reviewer’s recommendation, however for the same reasons as set out in M61/2010E it appears that a declaration is sufficient relief. All the parties agreed that this Court had jurisdiction in the matter.
13. Once it is accepted that this Court has jurisdiction as a result of s.476(1) of the Migration Act in like breadth to the original jurisdiction of the High Court under s.75(v), the effect of the provisions of the Federal Magistrates Act 1999 giving accrued and associated jurisdiction would result, in this particular matter, in the court having accrued and associated jurisdiction of like breadth under ss.75(i) and 75(iii) of the Constitution. As a result I conclude that the Federal Magistrates Court has, in this particular matter, the same breadth of jurisdiction that the High Court was able to exercise in M61/2010E.
14. In Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14; (2010) 85 ALJR 133 (at paragraph [77]) the High Court made clear that:
…it follows from the consequence upon the claimant's liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions.
15. The High Court went on to state:
The claimant is detained for the purposes of permitting the Minister to be informed of matters that the Minister has required to be examined as bearing upon whether the power [either under section 46A or section 195A] will be exercised.
16. The consequence is that the independent merits review process was a step taken to inform the Minister’s considerations in determining whether or not to exercise the statutory power (see paragraph [78]).
17. The practical result is that:
78. … Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.[10]
[10] MZYLF at paras.8-17 per Riethmuller FM.
As a result of Plaintiff M61, as applied in this Court in MZYLF, it is clear that the privative clause criteria contained in s.474 of the Migration Act do not apply to matters where OEPs have claims determined by the RSA and the independent merits review systems.[11]
[11] Plaintiff M61 CLR at 353-354 and 356-357 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.78 and 91 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
As a result of the principles set out in Plaintiff M61, this application involves the application of common law principles of procedural fairness and “not those that have been refined and attenuated under the various and many amendments to the Migration Act”.[12] Thus, the IMR in considering whether to make a recommendation as to whether or not an applicant is a person to whom Australia has protection obligations under the Convention, is required to conduct a review which is procedurally fair and which correctly addresses the relevant legal question or questions.[13]
[12] SZOZU v Minister for Immigration & Citizenship & Anor [2011] FCA 1005 at para.3 per Rares J.
[13] See, for example, Darabi v Minister for Immigration & Anor (2011) 250 FLR 301 at 307 per Nicholls FM; [2011] FMCA 371 at paras.20-23 per Nicholls FM (“Darabi”); SZPZY v Minister for Immigration& Anor [2011] FMCA 463 at para.4 per Cameron FM.
Ground 1 – procedural fairness
Consideration of the alleged breach of procedural fairness requires the consideration of further factual material which was before the IMR.
After the applicant’s arrival in Australia he requested a RSA, and made a statement of claims in relation to that request.[14] In his statement of claims dated 6 June 2010 the applicant says as follows:
On 28 November 2007 I was taken into custody by the Colombo Police and I was detained at the Boosa Camp in Golle. This was on the allegation that I was a LTTE supporter or I had a link with them because of my NIC from Jaffna District. I was tortured and beaten during this one month detention. I have scars and marks as evidence on my body.[15]
[14] RD 38-61.
[15] RD 60.
In the applicant’s Notification of Refugee Status Assessment outcome[16] the RSA Officer noted that:
The claimant’s detailed evidence and submissions can be found on DIAC file CLF2010/42049. A summary of his evidence is set out immediately below.[17]
[16] RD 77-92 (“RSA Outcomes”).
[17] RD 80.
Part of the summary of the applicant’s evidence by the RSA Officer was that:
In late 2007, the claimant was taken into custody by the Colombo Police. He was detained in Boosa Camp in Golle. He was alleged to be an LTTE supporter or that he had a link with them due to his National ID card being from Jaffna District. He said he was tortured and beaten during this one month detention. He said he has scars on his body to prove his mistreatment.[18]
[18] RD 81.
The RSA Officer was satisfied that the applicant was “a generally credible witness.”[19] The RSA Officer accepted the applicant’s claim that “he had scars on his body to prove his mistreatment” in the RSA Outcomes.[20]
[19] RD 87.
[20] RD 88-89.
The applicant’s interview with the IMR took place on 16 February 2011 with the IMR in Sydney linked to the applicant on Christmas Island by video conference.[21] During the course of the IMR–ROI the applicant adverted to torture, beatings and being burned,[22] but the issue of scarring was not raised by the IMR, or by the applicant, until the very latter stages of the IMR–ROI when it was raised by the applicant’s migration agent. The applicant’s migration agent then indicated that there were “a few things” that he “would like to talk about.”[23] The applicant’s migration agent essentially dealt with the issues that had been dealt with in the RSA Outcomes. In the context of the dispute about whether or not the applicant understood that he had the opportunity to provide medical evidence, it is relevant to note that:
a)a copy of a Sri Lankan court document was provided to the IMR by the applicant’s migration agent during the IMR–ROI;[24]
b)the applicant’s migration agent agreed to send to the IMR references to various Refugee Review Tribunal[25] decisions that he was referring to;[26] and
c)he agreed to send the URL address for an International Crisis Group report to the IMR.[27]
[21] IMR Record of Interview, pages 1-2 (“IMR–ROI”).
[22] See, for example, IMR–ROI at page 18.
[23] IMR–ROI at page 59.
[24] IMR–ROI at page 63.
[25] “Tribunal”.
[26] IMR–ROI at page 64.
[27] IMR–ROI at page 65.
In the course of referring to the various materials the following exchange occurred:
[MIGRATION AGENT]: … And finally, there is another decision which I would like to, sort of, talk about, which is decision RRT557, 15 July 2010. And this decision lists down … certain characteristics of persons who are returning who would suffer serious harm, and the claimant fulfils more than one of these. Firstly, a previous recorded suspected – as a suspected or actual LTTE members – or he was a suspected member – and having visible scarring.
This is something he highlighted in a written – to the medical team to get a copy of his medical records and a copy of my email to them. And he says that he has visible scarring as a result of his torture, and persons who have visible scarring would definitely face serious harm.
…
[MIGRATION AGENT]: But a – positive things about our client which we would like to submit that he has been regarded as a credible witness in the past. He has been beaten and tortured at – on an at least three occasions: once in Jaffna, twice in Colombo and he has got evidence with regard to the press article, which highlights his name clearly, and also, police records which are in line with documents produced by the police in Sri Lanka, and persecution he had suffered....which is against systematic and discriminatory conduct, which means.....section 91R(2), and a person who has scars on his body, which are visible. His life has been scarred now, and he fears returning back and – yes.
[IMR]: Before I take – your agent has made some submissions to me and I will just give – I would like my responses to them to be translated. One of the issues is that because of the scarring on your body, you will be identified when you return to Sri Lanka. It’s not possible, really, for me to see over this video link if there’s scarring. It’s not possible. There has been a request for medical records and I will wait for the response. So if you can just---.
THE INTERPRETER: Yes, yes, I – okay, that is good. Yes, you can take – we go straight to the immigration people, so, I can – yes.
[IMR]: Okay, and the other---
THE INTERPRETER: Thank you very much.[28]
[28] IMR–ROI at pages 66-68.
It is relevant to note that whilst the provision of certain documents were discussed, there was no discussion during the IMR–ROI of any further specific submission to be made by the applicant (or his migration agent on his behalf). There was certainly no discussion of a finite date by which any submission had to be submitted. Likewise, there was no discussion about any finite date by which any medical records had to be obtained or provided (either by the applicant or his migration agent, or by the IMR).
On 28 February 2011 the applicant’s migration agent made a further written submission to the IMR. The first paragraph of that submission reads as follows:
Further to our oral submission made on the 16th February 2010 we wish to provide details extracted from recent RRT decisions and our interpretation of the UNHCR Eligibility Guidelines dated 5th July 2010.[29]
[29] RD 369 (“February 2011 Submission”), which is erroneously dated “2010”.
The February 2011 Submission goes on to discuss the UNHCR Eligibility Guidelines of July 2010. Under a sub-heading “Likely Fate of Returnees”[30] reference is made to a decision of the Tribunal which listed a number of factors relevant to how a person returning to Sri Lanka might be treated at the airport by immigration officers. Relevantly, the following appears:
· having visible scarring;[31]
[30] RD 375.
[31] RD 376 (emphasis in original).
There is nothing in the February 2011 Submission which indicates that it was submitted in accordance with any request by the IMR, whether time limited or not.
IMR Reasons
In the IMR Reasons the IMR stated:
I wrote to the agent for the claimant and requested that medical evidence in support of this submission be forwarded to me by 28 February 2011 before I finalise this review. In final submissions on behalf of the claimant this ground was not pressed. No medical evidence had been forthcoming. I was unable to observe any considerable scarring at the IMR interview and it is not noted in the Department file. While it is possible that the claimant may have some scars on his body there is no evidence on which I can conclude that he is disfigured to such an extent as may arouse suspicion that he has been actively engaged in combat on behalf of the LTTE.[32]
[32] RD 401-402 at para.80.
Applicant’s submissions
The applicant submits that:
a)he was detained and interrogated by the Sri Lankan Police on three occasions between 2006 and October 2008, first in Jaffna, and on the second and third occasions in Colombo, and that on one of those occasions he was released only after paying a bribe;[33]
[33] RD 369-370.
b)his claims of detention are supported by reference to International Committee of the Red Cross records,[34] a police investigation report dated 28 December 2007,[35] and newspaper reports;[36]
[34] RD 364-365.
[35] RD 361-363.
[36] RD 366-367.
c)on the first occasion that he was detained, he was beaten and burnt with a cigarette, as a consequence of which he continues to take painkillers daily;[37]
[37] RD 389 at para.38.
d)he left Sri Lanka for Malaysia in December 2008,[38] registered with the UNHCR in Malaysia in November 2009,[39] and reached Christmas Island in April 2010;[40]
[38] RD 57 and 81.
[39] RD 385 at para.9.
[40] RD 1.
e)if he were to return to Sri Lanka his scarring would lead to him being suspected by the Sri Lankan army and police of being an LTTE cadre;[41]
f)the IMR hearing had been conducted by video-link and there was no evidence as to whether the IMR asked to see his scars when the claim was made;
g)his claims of scarring had also been made before the RSA officer,[42] but whilst there is no evidence as to whether the RSA officer asked to see the scarring, the RSA had found him to be a “generally credible witness”;[43]
h)the IMR dealt with the issue of any scarring as a separate part of the claim, and concluded that she did not have the evidence needed to be satisfied on this point;[44]
i)the IMR thought it appropriate to make some form of inquiry as to the applicant’s scarring, and believed that she had requested the applicant’s migration agent to provide the applicant’s medical records by 28 February 2011, when, in fact, she had not;
j)the process for the production of the medical records is not clear from the IMR-ROI, but what is clear is that there was no request for the applicant’s medical records to be forwarded to the IMR by 28 February 2011;
k)it was not suggested by the applicant that his scarring would look like a war wound, and the IMR at no stage suggests to the applicant that he would have to demonstrate that his scarring was such as to “arouse suspicion that he has been actively engaged in combat on behalf of the LTTE”;[45]
l)the IMR failed to make an inquiry that the IMR herself considered necessary, and has erroneously taken the applicant to not have pressed his claim with respect to scarring, but also effectively denied the applicant an opportunity to provide that evidence himself;[46]
m)there was a clear statement from the IMR that she would “wait for a response” from the applicant, with respect to his medical records, before determining his case, and before any response was received, and acting under the misapprehension that she had requested a response by 28 February 2011, the IMR proceeded to determine the case without the medical records;[47] and
n)it is wrong to suggest that the ground with respect to scarring “was not pressed” because the February 2011 Submission expressly refers to, and highlights, by reference to a recent Tribunal decision, that issue.[48]
[41] RD 401 at para.80. LTTE is an acronym for “Liberation Tigers of Tamil Eelam”.
[42] RD 81.
[43] RD 87.
[44] RD 401-402 at para.80.
[45] RD 402 at para.80.
[46] Transcript at page 7.
[47] RD 401 at para.80.
[48] See the extract from the February 2011 Submission at para.25 above, and Transcript at pages 15-16.
First respondent’s submissions
The first respondent submits that:
a)the IMR mistakenly believed that she had sent a letter to the applicant’s migration agent requesting medical evidence in support of his submission about his scarring,[49] and the applicant argues that this establishes that he was denied the opportunity to present the evidence that the IMR thought she had requested in writing. That conclusion does not follow and is, in any event, wrong;
b)the IMR-ROI reveals that the applicant’s migration agent had requested medical evidence of the scarring.[50] The IMR expressed interest in these records in order to verify the scarring. Because the interview was conducted by video-link she could not see the scarring herself. Thus, the applicant had every opportunity to obtain medical evidence to verify the scarring;
c)this case is not the same as that considered in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs.[51] There was no promise made by the IMR in this case that she would write to the applicant to request further evidence or submissions and, in light of that, there is nothing to suggest that the IMR considered that the applicant’s opportunity to present his case was somehow incomplete;
d)there was no “practical injustice”[52] brought about by the mistake of fact with respect to the failure to have the medical records produced, as it related to the scarring, which was accepted by the IMR to have been inflicted in the applicant’s time in detention;[53]
e)when read as a whole the IMR–ROI shows that there were various documents that the applicant’s migration agent either provided, or was to provide, to the IMR, and the medical records, which the applicant’s migration agent indicates had already been requested by email, were simply another set of documents that the applicant, or his migration agent, had agreed to provide to the IMR, and the proper inference is that the understanding at the time of the IMR–ROI was that the applicant either alone, or through his migration agent, would provide whatever medical evidence he could get relating to his scarring;[54]
f)the applicant was aware of the opportunity to provide the medical records, and that is all that is required in order to afford procedural fairness;[55] and
g)what was important for the IMR “was not the type of scarring but the extent of it; as this was relevant to the prospect of harm being faced upon return to Sri Lanka.”[56]
[49] RD 401 at para.80.
[50] IMR-ROI at page 66.
[51] (2004) 221 CLR 1; [2004] HCA 62 (“NAFF”).
[52] A reference to what was said in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at 14 per Gleeson CJ; [2003] HCA 6 at para.37 per Gleeson CJ.
[53] Transcript at page 7.
[54] Transcript at pages 11-12.
[55] Transcript at page 12.
[56] Transcript at page 13.
Consideration
The IMR Reasons are based on what is now conceded to be a mistaken premise, that is, that the IMR wrote to the applicant’s migration agent and requested medical evidence be forwarded to the IMR by 28 February 2011.
The IMR Reasons assert that, in final submissions on behalf of the applicant, the ground with respect to scarring “was not pressed”. That is not correct. In the February 2011 Submission the applicant’s migration agent expressly referred to a recent Tribunal decision in which visible scarring was identified as a factor which might lead a person re-entering the country, after having made an asylum application abroad, to come to the attention of the Sri Lankan airport authorities, and to be singled out, and to be at risk of persecution on the ground of race or imputed political opinion.[57] Read as a whole it is clear from the IMR-ROI, together with the February 2011 Submission, that the ground with respect to the applicant’s scarring was pressed, and was maintained, by the applicant.
[57] RD 376.
The IMR Reasons indicate that no medical evidence had been forthcoming. Literally, that is correct. The issue here is whether or not the applicant had an opportunity to provide that evidence. There can be no doubt that on the evidence the applicant, or the applicant’s migration agent, understood that the IMR would wait for medical evidence of the applicant’s scarring. There is no clear evidence as to what medical records existed, who held the medical records, or, whether or not, the applicant had actually requested the medical records, and, if so, from whom. What is however clear is that the IMR said she would wait for a response with respect to the medical records. The IMR did not however wait for a response. Rather, based on an erroneous belief that she had requested the relevant medical records, when she had not, the IMR proceeded to determine the claim without those medical records, and without knowing whether they existed or not. Furthermore, the IMR assumed that the claim was not being pressed, when it was in fact being maintained. Thus, whilst an opportunity was intended to be provided to the applicant to provide medical records to the IMR, that opportunity was, without warning, foreclosed by the IMR. On the face of it, that constitutes a denial of procedural fairness.
The fact the applicant had the opportunity prior to the hearing to obtain the medical records is not clear from the IMR-ROI. In any event, given that the IMR indicated, at hearing, that she would wait for a response with respect to the provision of medical records, what transpired pre-hearing is irrelevant.
The first respondent submitted that there was no practical injustice because an opportunity had been provided to the applicant to provide the records. However, for the reasons set out above, that opportunity was not truly provided because it was foreclosed without notice in circumstances where the IMR erroneously assumed that a deadline had been set. That gives rise to practical injustice on two counts:
a)firstly, that the applicant was being held to a deadline which not only had not been set, but because it had not been set, the applicant was unaware of; and,
b)secondly, that it deprived the applicant of the opportunity to deal with an issue, namely scarring, which was relevant to the risk of persecution if the applicant was returned to Sri Lanka, and had been identified by the IMR as an issue that ought to be addressed.
The first respondent referred to NAFF and said that it was distinguishable because no promise was made in this case to write to the applicant to request further evidence or submissions, and therefore the applicant’s opportunity to present his case was not incomplete. That submission ignores the fact that the IMR said she would “wait for a response” from the applicant, and that the IMR proceeded to make a recommendation without any further advice to the applicant that the position had changed. The following observations were made by the High Court in NAFF:
43. The Tribunal member at one important stage had the impression that there might be a benefit for the appellant in the review as a whole in having a further opportunity to answer her questions in writing on the subject of detention; she never explained why that impression was wrong or whether it had changed; it is thus a likely inference that the impression was sound. Hence the appellant's deprivation by the Tribunal member of that opportunity is a breach of procedural fairness going to jurisdiction.[58]
and:
I see no reason to delay over this complaint. The substantial conclusion reached by Downes J was well justified. I take his Honour to have said nothing more than that, if Tribunal members indicate an intention to follow up a matter of potential importance for their decision, they should either do so or they should inform the person concerned that they do not intend to take that course. To say nothing and then to proceed directly to an adverse conclusion results, as here, in a vitiating instance of procedural unfairness. The sixth argument also fails.[59]
NAFF reinforces the preliminary view expressed above, that there was a denial of procedural fairness in this case.
[58] NAFF CLR at 15 per McHugh, Gummow, Callinan and Heydon JJ; HCA at para.43 per McHugh, Gummow, Callinan and Heydon JJ.
[59] NAFF CLR at 28 per Kirby J; HCA at para.90 per Kirby J (footnote omitted).
A further denial of procedural fairness arises from the fact that the IMR determined the matter on the basis that there was no evidence that the applicant was “disfigured to such an extent as may arouse suspicion that he has been actively engaged in combat on behalf of the LTTE.”[60] In that regard, the applicant did not ever argue that his disfiguration from scarring was such that it would arouse suspicion that he had been actively engaged in combat on behalf of the LTTE. Nor was such a proposition put to the applicant during the course of the IMR-ROI. Rather, the scarring was said to be relevant because it might lead the Sri Lankan authorities, on the applicant’s return, to suspect that he had a prior association with the LTTE. To determine a matter by reference to a case neither argued by the applicant, nor put to the applicant, is a denial of procedural fairness.[61]
[60] RD 402 at para 80.
[61] Plaintiff M61 CLR at 356-357 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.91 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; C Enright, Federal Administrative Law (Sydney: Federation Press, 2001), page 502 (para.34.10).
There may also have been a denial of procedural fairness by reason of the IMR failing to make an obvious inquiry about an easily ascertained matter, that is, the extent of the scarring.[62] The IMR indicated that it was not possible on the video-link to ascertain the extent of the scarring. The extent of the scarring was identified by Counsel for the first respondent as an important issue for the IMR. If it was an important issue, then it was arguably easily able to be resolved by requesting the applicant to have a photo or photos taken of the scarring, and having those photos transmitted electronically to the IMR. This might have been a simple solution obviating any need for medical records. However, in the circumstances, it is unnecessary, to make a finding with respect to that issue, because there is otherwise a denial of procedural fairness for reasons outlined above.
[62] Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2009] HCA 39 at para.25 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
In the circumstances, ground 1 of the application is made out, and there was a denial of procedural fairness by reason of:
a)the IMR failing to afford the applicant the opportunity to provide medical records of his scarring in the manner indicated by the IMR at the IMR-ROI; and
b)the IMR determining this issue on the basis of there being no evidence that the applicant was disfigured to such an extent as may arouse suspicion of active engagement in combat on behalf of the LTTE, when that case was neither argued by the applicant, nor put to the applicant by the IMR.[63]
[63] Plaintiff M61 CLR at 356-357 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.91 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
The Court notes that there appear to be two mistakes of fact in the IMR Reasons with respect to the issue of scarring. First, the IMR says that she was “unable to observe any considerable scarring at the IMR interview.” This is not entirely accurate, because the IMR did not request to observe any scarring at all, and did not make that request because she took the view that the quality of the video-link between Sydney and Christmas Island was such as to render futile any such observation. The IMR therefore did not observe any scarring, whether considerable or otherwise, because she did not look. Second, the IMR observed that scarring was “not noted in the Department file.”[64] However, as the RSA Outcomes note there was a claim by the applicant noted on the Departmental file that he had scars on his body to prove his mistreatment at the hands of the Sri Lankan Police.[65] These two mistakes of fact are insufficient of themselves, to constitute a denial of procedural fairness, and, in any event, do not constitute an error of legal principle.
Ground 2 – Relevant information
[64] RD 401-402 at para.80.
[65] See paras.18-20 above.
Applicant’s submissions
The applicant also submitted that he was at risk of persecution because he:
a)was a young Tamil male;
b)was from the north of Sri Lanka;
c)had previously been suspected of being an LTTE member, and had been detained for that reason;
d)has visible scarring; and
e)has made an asylum claim abroad.
The applicant further submitted that:
a)the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, dated July 2010[66] (which were before the IMR and which was relied on by the IMR in support of its findings that conditions in Sri Lanka had improved significantly),[67] mentioned the particular risk posed to young Tamil males from the north of Sri Lanka, stating that they:
[66] “July 2010 UNHCR Guidelines”.
[67] RD 393-394 at paras.56-58.
… may be disproportionately affected by the implementation of security and anti-terrorism measures on account of their suspected affiliation with the LTTE,
and that:
In light of the foregoing, persons suspected of having links with the LTTE may be at risk on the ground of membership of a particular social group”.[68]
b)a cable sent by the Department of Foreign Affairs and Trade[69] dated 14 October 2009, which was before the IMR, and which was partly recorded by the IMR,[70] lists risk factors upon return to Sri Lanka. Significantly, however, the IMR Reasons did not include all of the risk factors identified in the DFAT cable, and omitted the following relevant risk factors
i)the existence of visible scarring; and
ii)the making of an asylum claim abroad.[71]
[68] RD 394 at para.58.
[69] “DFAT”.
[70] RD 396-397 at para.65.
[71] DFAT cable, 14 October 2009.
First respondent’s submissions
The first respondent submits that:
a)the applicant asserts, without explanation, that the IMR failed to take into account information concerning the elevated risk profile faced by young Tamil males;
b)the IMR not only refers to the July 2010 UNHCR Guidelines in which the applicant says the particular information is contained, but sets out the information[72] and specifically says that she has considered it;[73]
c)even if the IMR had an obligation to prepare a statement of reasons similar to that required by s.430 of the Migration Act, that obligation would not extend to referring to material upon which it did not base its findings of fact;[74] and
d)for those reasons, there is nothing from which a failure to consider information ought to be inferred.
[72] RD 393-394 at para.58.
[73] RD 393 at para.56.
[74] Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1 (“Durairajasingham”). See also Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 606 per French CJ and Kiefel J; [2011] HCA 1 at para.32 per French CJ and Kiefel J (“SZGUR”).
Consideration
In addition to the July 2010 UNHCR Guidelines, the IMR detailed the sources that she considered as follows:
· United Kingdom: Home Office, Country of Origin Information Report – Sri Lanka, 11 November 2010
· United Kingdom: Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka 23-29 August 2009, August 2009
· Danish Immigration Service, Human Rights and Security Issues concerning Tamils in Sri Lanka, October 2010
· US Department of State 2010, 2009 Human Rights Report: Sri Lanka, 11 March
· International Crisis Group Human Rights in Sri Lanka in the Post-Conflict Period Alan Keenan 6 Dec 2010
· International Crisis Group 2010, Sri Lanka: A Bitter Peace, Asia Briefing no.99, 11 January
· Human Rights Watch, World Report 2011 – Sri Lanka, 24 January 2011
· Minority Rights Group International, No war, no peace: the denial of minority rights and justice in Sri Lanka, 19 January 2011
· RRT Country Advice: Sri Lanka
· Tamilnet
· RRT Responses[75]
The above sources were in addition to the IMR having “regard” to the voluminous material considered in the RSA Outcomes.[76]
[75] RD 393 at para.56.
[76] RD 393 at para.56. The RSA Outcomes is at RD 77-92 and contains a list of 41 written items that were considered: RD 82-83.
In the review of the country information set out by the IMR she specifically sets out information from the July 2010 UNHCR Guidelines, noting that they:
a)“were issued in the context of the improved human rights and security situation following the end of the armed conflict between the Sri Lankan Army and the LTTE in May 2009”; and
b)stated “that there is no longer a need for international protection for Sri Lankans originating from the North of the country solely on the basis of indiscriminate harm.”[77]
[77] RD 393 at para.58.
The IMR also set out a lengthy passage from the July 2010 UNHCR Guidelines which included reference to:
a)the Sri Lankan Government relaxing emergency regulations in May 2010;
b)the fact that some reports indicated that young Tamil men, particularly those originating from the north and east of Sri Lanka, might be disproportionately affected by the implementation of security and anti-terrorism measures on account of suspected affiliation with the LTTE; and
c)persons suspected of having links with the LTTE potentially being at risk on the ground of membership of a particular social group.[78]
[78] RD 394 at para.58.
The IMR also referred to an Amnesty International “Annual Report for 2010” (covering events in Sri Lanka from January to December 2009), in which it observed that enforced disappearances were reported in many parts of the country, particularly in northern and eastern Sri Lanka, and in Colombo.[79]
[79] RD 394 at para.60. This report is not listed in the materials set out at RD393 at para.56, or those materials cited above: see para.43 above.
The IMR also cited the International Crisis Group 2010 Report as indicating that:
a)the Sri Lankan government’s approach to the development and reconstruction of the north and east of Sri Lanka was contributing to minority fears and alienation;
b)there was the strong possibility of demographic changes diluting the Tamil character of the north of Sri Lanka; and
c)no real space had been given to Tamil and Muslim political or community leaders in the north, and very little in the east, of Sri Lanka.[80]
[80] RD 394 at para.61.
The IMR then went on to consider the Danish Immigration Service Report which indicated that according to the UNHCR it was unclear how the situation would develop in the future at a local level for persons suspected of affiliation with the LTTE. That same report went on to quote the Executive Director of the National Peace Council as indicating that from May 2009 to May 2010 the situation had improved in Jaffna (the area where the applicant is from), but that there had been a deterioration since April 2010 because killings and kidnappings had started again. However, those activities were more criminal in nature than politically motivated, and had not been consistent.[81]
[81] RD 395 at para.62.
The IMR also referred to a United Kingdom Home Office Report of November 2010, which referred to a letter of 12 January 2010 from the British High Commission in Sri Lanka indicating that:
a)both government and non-government organisations said that there had not been any reported abduction or disappearances recently, and no reported extra-judicial killings;
b)since the lifting of a night time curfew on the Jaffna peninsula in late December 2009, there had been a significant increase in crime, mainly house robberies and theft, but also rape and murder linked to robberies; and
c)the police had responded well to the increased crime, had apprehended many suspects, and were now showing an increased presence on the streets of Jaffna town, rather than relying on the Sri Lankan Army as they had done previously.[82]
[82] RD 396 at para.64.
The IMR then dealt extensively with the treatment of persons returning to Sri Lanka who were suspected of involvement with the LTTE. The material set out generally indicates that Sri Lankans returning who had departed illegally and made an asylum claim abroad were not treated any differently to other deportees,[83] and nor were Tamils treated differently to Sinhalese people upon their return in those circumstances.[84] The IMR noted that a DFAT Report indicated there was some anecdotal evidence that previous involvement or suspected involvement with the LTTE could influence how a person was treated at the airport upon return to Sri Lanka, but that there was no “hard evidence to prove this.”[85]
[83] RD 397 at para.65.
[84] RD 398 at para.68.
[85] RD 396 at para.65.
In the IMR Reasons the IMR observed as follows:
I have considered the cumulative effect of the periods of detention upon the claimant and I am satisfied that he would hold a subjective fear of further persecution. However despite these incidents the claimant has not been found on any occasion to have any connection to the LTTE by the authorities. It would appear from the documents provided upon his release in 2007 there was an extensive investigation undertaken while he was held in Boosa detention camp. The political climate has changed significantly in Sri Lanka since the claimant departed in December 2008, and based on the country information I have reviewed, with it the risk of indiscriminate harm. With the exception of the incident in January 2009, which I do not accept as occurring as a consequence of the claimant, his family have continued to reside in Kaithady without incident. I accept that as a Tamil from the North the claimant may be subject to greater scrutiny, this in itself does not necessarily amount to persecution. Although it is submitted that the area from which the claimant hails was an area where the LTTE were formerly active, the claimant has clearly not resided in the area since 2007 and there are no reported incidents involving his family since the end of the war. I accept the claimant’s evidence that neither he nor any member of his family have had any association with the LTTE. The claimant does not have a criminal record. Even allowing for the possibility of additional scrutiny I do not consider that in the post war climate, in the context of an improved human rights and security situation, for the reasons discussed above that there is a real chance that he would be suspected of an association with the LTTE and as a consequence the claimant does not have a real chance of persecution on the grounds [of] race or imputed political opinion.[86]
[86] RD 401 at para.78.
The substance of the country information relied upon by the IMR was put to the applicant,[87] and he had the opportunity to comment upon it. In those circumstances, the choice of country information relied upon, and the weight to be given to that country information, is a matter for the IMR.[88] In this case, the IMR has, on the evidence available to this Court, considered a number of sources of country information. The IMR has also set out in the IMR Reasons some country information which tends to support the position put by the applicant, and some country information which tends to support a contrary view. In the IMR Reasons that country information was expressly factored into the conclusion that the applicant does not have a real chance of persecution on the grounds of race or imputed political opinion in Sri Lanka. Before reaching this conclusion, the IMR expresses the view that “based on the country information … reviewed”, the political climate has changed significantly in Sri Lanka since the claimant departed in 2008, and with that, so has the risk of indiscriminate harm.[89]
[87] RD 391-392 at paras.52-53.
[88] SZOHK v Minister for Immigration and Citizenship [2010] FCA 1291 at para.33 per Siopis J, applied in WZAOD v Minister for Immigration & Anor [2011] FMCA 327 at para.45 per Lucev FM.
[89] RD 401 at para.78.
The country information considered by the IMR appears:
a)credible;
b)relevant; and
c)largely up-to-date, most of it being information produced during 2009, 2010 and 2011.
In essence, the applicant’s complaint is that the IMR has not given more weight to that country information which recognises an elevated risk profile suffered by young Tamil males, so as to arrive at a conclusion that the applicant has a well founded fear of persecution on the grounds of race or imputed political opinion. As indicated above, the weight to be given to country information is a matter for the IMR, and in this case, the IMR has weighed competing contentions in the country information, and arrived at a considered conclusion which it is not appropriate to interfere with upon judicial review by this Court.
In the circumstances, ground 2 must fail.
Ground 3: failure to consider a claim
Applicant’s submissions
The applicant submits that the IMR failed to consider and make findings of fact concerning an essential element of the applicant’s claim, that being his membership of a particular social group, namely young Tamil males originating from the north of Sri Lanka. In particular, it was asserted that whilst the IMR considered the heightened risk profile arising from being a Tamil from the north, both the applicant’s age and gender did not receive consideration in the context of his being a member of a particular social group.[90]
[90] Transcript at page 9.
First respondent’s submissions
The first respondent submits that:
a)the information said to give rise to this claim states that the reason that young Tamil males from the north of Sri Lanka would be disproportionately affected by security measures is “on account of their suspected affiliation with the LTTE”;[91]
b)the IMR accepted that, as a Tamil from the north of Sri Lanka, the applicant would face greater scrutiny upon return to Sri Lanka,[92] but also found that there was no real chance that he would be suspected of an association with the LTTE and, for that reason, concluded that he did not have a real chance of persecution on the grounds of race or imputed political opinion;[93] and
c)those findings dealt with the claim to fear harm as a young Tamil male from the north of Sri Lanka.
[91] RD 393-394 at paras.58.
[92] RD 401 at para.78.
[93] RD 399 at para.72, 400 at para.75, 401 at para.78.
Consideration
The IMR set out submissions made by the applicant’s representative in relation to this issue, as follows:
The representative made final submissions on behalf of the claimant;
· As a Tamil from the north fits the profile contained in the UNHCR Report of July 2010, he has been detained and tortured on several occasions due to his imputed … connection to the LTTE.[94]
and
[94] RD 392 at para.54.
On 2 March 2011 I was provided with a further written submission from the claimant’s agent which in addition to the matters raised at the hearing submitted the following;
…
· Tamils in the north are still suspected to be either members or active supporters of the LTTE. They are vulnerable to arbitrary arrest and extra judicial punishment.
· The higher numbers of troop[s] … [present] in the North of Sri Lanka and various initiatives changing the ethnic make-up of the north and the well documented suppression of basic rights of the Tamils need to be given due consideration in the assessment of asylum seeker claims.
· The country information does not permit a conclusion to be drawn that there has been a significant change in circumstances in the northern and eastern provinces of Sri Lanka so that the return of Tamils to this region will be necessarily safe and the fate of returnees still remains a matter of serious concern.[95]
[95] RD 392 at para.55.
As set out above,[96] the IMR also set out some country information concerning young Tamil males from the north of Sri Lanka.
[96] See para.51 above.
The IMR also set out the applicant’s claim in the following terms:
The claimant claims that he fears persecution on the basis that he is a young Tamil male from Jaffna District who has been suspected in the past by the army and the CID of an affiliation with the LTTE. He also claims that he will be persecuted upon return as he is a member of the particular social group of failed asylum seeker.[97]
[97] RD 399 at para.71.
The IMR identifies in the above passage the essence of a particular social group, namely, “young Tamil male” of which the applicant claimed to be a member, and which was said to give rise to a fear of persecution given that he is a person who has previously been suspected of an affiliation with the LTTE.
The IMR made a specific finding of fact that the applicant was a Tamil from the north of Sri Lanka, as set out in the passage from the IMR Reasons quoted above.[98] In that same passage the area in which the claimant came from, that is, the north of Sri Lanka, was referred to as an area where the LTTE were formerly active, but the IMR noted that the applicant had not lived in that area since 2007, and that there had been no reported incidents involving his family since the end of the war in Sri Lanka. In coming to a finding that the applicant did not have a real chance of persecution on the grounds of race or imputed political opinion, the IMR specifically allowed for the possibility of greater scrutiny by reason of the fact that the applicant was a Tamil from the north of Sri Lanka. The IMR Reasons further considered the fact that the applicant was a Tamil from the north of Sri Lanka in the following passage:
On the claimant’s behalf his agent submitted that although the situation in the country had changed there was an attempted Sinhalisation of the north which left northern Tamils extremely vulnerable and at risk of further persecution. Particularly as there was a large army presence in the area. I understand from the country information before me that Sri Lanka has entered into a new era and there is significant development, tourist and military activity in the north and east of the country. Further the pace of this development has caused some unease among some members of the local population. I accept that the Sri Lankan government is often heavy handed, can still act as though the LTTE is an active threat and is struggling with the transition to a peacetime agenda. There are reports of threats to journalists and political activities. However every claim must be assessed on its own merits and the claimant fits neither of these profiles. It is the evidence of the claimant that his father and brothers are in gainful employment, his family farms their own land. Aside from the interrogation of his brother in January 2009 there are no incidents put forward by the claimant that have caused any concern for their security since the claimant departed Sri Lanka or even prior to his departure. I am therefore not satisfied that for this reason the claimant would fall within the Convention definition of a refugee.[99]
[98] See para.51 above.
[99] RD 402 at para.81.
It is relevant to observe that the findings in the IMR Reasons are restricted to a consideration of Tamils from the north of Sri Lanka, and there is no specific consideration of the claim insofar as it relates to the applicant being not just a Tamil from the north of Sri Lanka, but young and male. Although the IMR came to the view that the applicant was not a person who would be viewed as having an affiliation with the LTTE, it arrived at that view without specifically considering whether the applicant’s age and gender might be factors relevant to a fear of persecution upon return to Sri Lanka, when taken together with the fact that he was a Tamil, or a Tamil from the north. It is not possible to say that further consideration of these matters based on those factors which the IMR did not consider, might not have made a difference to the ultimate outcome.
The IMR specifically found that the claimant was born in 1986, and there is no dispute that the IMR considered him to be male. There is therefore a factual finding that he is a young male, and a further factual finding that he is a Tamil from the north of Sri Lanka. It is apparent from the material set out that the IMR did consider, and make findings of fact, specifically related to the fact that the applicant was a young Tamil male originating from the north of Sri Lanka.
The question arises whether the facts identified by the IMR are sufficient to amount to a consideration of the claim with respect to a particular social group.
In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs:
31. In a case like the present, defining the particular social group and the type of harm feared is fundamental in determining whether a member of that group has a well-founded fear of persecution. Only by defining the group and its characteristics or attributes, actual or imputed, can a tribunal of fact determine whether the harm feared is well-founded and is causally related to the particular social group. So in determining whether there is a real chance that a discreet or non-discreet homosexual man in Bangladesh will suffer persecution, consideration must be given to:
.the characteristics and attributes of the particular social group;
.the nature, severity and likely repetitiveness of the harm feared;
.the extent to which, if at all, the individual will encounter the harm feared;
.the existence of a causal relationship between the harm feared and one or more of the characteristics or attributes, real or imputed, of the social group; and
.the extent to which the individual can be expected to tolerate the harm without leaving or refusing to return to the country of nationality.[100]
[100] (2003) 216 CLR 473 at 486 per McHugh and Kirby JJ; [2003] HCA 71 at para.31 per McHugh and Kirby JJ.
In Applicant S v Minister for Immigration and Multicultural Affairs[101] the High Court observed that:
13. The key to this passage is in the final paragraph, which discloses the Tribunal’s conclusion that the appellant was not targeted by reasons of any political opinion or religious beliefs (ie, he was not ‘‘listed or registered for recruitment’’). On review by the Federal Court, Carr J (with respect, correctly) understood the reasons to indicate that the Tribunal had not considered whether the appellant was a member of a ‘‘particular social group’’, and whether he was persecuted by reason of his membership of that group. His Honour said that the facts presented the potential for such a case, and thus the Tribunal should have considered whether able-bodied young men (or possibly able-bodied young men without the financial means to buy-off the conscriptors) comprised a particular social group within the meaning of the Convention. Accordingly, Carr J ordered that the Tribunal’s decision be set aside and the matter be remitted to it for redetermination according to law.[102]
and
50. The majority of the Full Court erred in law by requiring that there had to be evidence before the Tribunal that would support the claim that Afghan society perceived young able-bodied men as comprising a separate group. Further, however, the Tribunal failed to consider the correct issue. This was whether because of legal, social, cultural and religious norms prevalent in Afghan society, young able-bodied men comprised a social group that could be distinguished from the rest of Afghan society. Given the correct issue was not considered, the evidence put before the Tribunal in respect of the position of young able-bodied men in Afghanistan was scant and related only to the Tribunal’s finding that the Taliban appeared to be recruiting young men.[103]
[101] (2004) 217 CLR 387; [2004] HCA 25 (“Applicant S”).
[102] Applicant S CLR at 392-393 per Gleeson CJ, Gummow and Kirby JJ; HCA at para.13 per Gleeson CJ, Gummow and Kirby JJ.
[103] Applicant S CLR at 404 per Gleeson CJ, Gummow and Kirby JJ; HCA at para.50 per Gleeson CJ, Gummow and Kirby JJ.
The IMR, having made a series of relevant factual findings, did not proceed to consider whether those facts meant that there was a particular social group as alleged of young Tamil males from the north of Sri Lanka, or, alternatively, failed to define the particular social group under consideration, and its relevant characteristics. Those failures meant that the IMR could not, or was not in a position to, determine whether the alleged fear of persecution was well-founded and causally related to the alleged social group of young Tamil males from the north of Sri Lanka. That failure amounted to a failure to consider an integer of the claim made by the applicant. Where, as here, there was a clearly articulated argument, identified by the IMR,[104] and established facts found by the IMR, the failure to consider an integer of the claimed bases for the applicant’s fear of persecution, namely his membership of a particular social group, is a failure to act in accordance with the law, and a failure to afford, or a denial of, procedural fairness to which the applicant is entitled.[105]
[104] RD 399 at para.71.
[105] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 17 per Black CJ, French and Selway JJ; [2004] FCAFC 263 at para.55 per Black CJ, French and Selway JJ; 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.
In the circumstances, ground 3 of the application is made out, in that the IMR failed to deal with an integer of the claim, as to whether or not there was a well founded fear of persecution based on the applicant’s membership of an alleged particular social group, namely young Tamil males from the north of Sri Lanka.
The outcomes with respect to grounds 2 and 3 are not inconsistent. Ground 2 deals with whether or not certain material was considered by the IMR, which it was. Ground 3 deals with whether the IMR considered a claim arising from the materials, which it did not.
Conclusion
The Court has concluded that:
a)the applicant has made out ground 1, and was denied procedural fairness by reason of:
i)his not being afforded an opportunity to provide medical evidence of his scarring to the IMR; and
ii)this issue being determined on the basis of a matter not argued by the applicant, nor put by the IMR to the applicant, namely whether he was disfigured to such an extent as to arouse suspicion that he had been actively engaged in combat on behalf of the LTTE;
and that he is entitled to a declaration accordingly;
b)ground 2 fails because the IMR did take into account information concerning persons similar to the applicant, based on the country information; and
c)the applicant has made out ground 3, in that the IMR failed to consider an integer of the claim, namely the applicant’s claim of a well founded fear of persecution on the basis of membership of an alleged particular social group, namely young Tamil males from the north of Sri Lanka, and he is entitled to a declaration accordingly.
It follows from the declarations to be made with respect to grounds 1 and 3 that the applicant is also entitled to an injunction restraining the first respondent, whether by himself or by his servants, officers, delegates or agents, from relying upon the recommendation of the IMR.[106]
[106] Plaintiff M61 CLR at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Darabi FLR at 308 per Nicholls FM; FMCA at paras.30-31 per Nicholls FM; SZQFU v Minister for Immigration & Anor [2011] FMCA 599 at para.22 per Driver FM.
The Court will hear the parties as to costs.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 8 February 2012
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