SZQFD v Minister for Immigration
[2013] FMCA 128
•28 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQFD v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 128 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations. ADMINISTRATIVE LAW – Allegation that the Reviewer erred by making a finding for which there was no evidence and by not considering all material elements of the applicant’s claims. PRACTICE & PROCEDURE – A finding that a fact is not proved is not a finding that it has been disproved – a finding that a fact is not proved is not susceptible to an allegation that it was unsupported by evidence. |
| Migration Act 1958, ss.36, 46A, 195A, 477 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207 |
| Applicant: | SZQFD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PETER TYLER IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2475 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 18 February 2013 |
| Date of Last Submission: | 18 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms T. Baw |
| Solicitors for the Applicant: | Rasan Selliah & Associates |
| 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 consider all material elements of the applicant’s claim.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2475 of 2012
| SZQFD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| PETER TYLER IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Sri Lanka who arrived at Christmas Island by boat on 9 May 2010. He lodged an application for a Refugee Status Assessment (“RSA”) dated 6 August 2010 alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
On 29 November 2010 an officer in the department administered by the first respondent (“Minister”) found that the applicant did not meet the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 24 August 2012, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The recommendation the subject of these proceedings is the second such recommendation relating to the applicant. A previous recommendation dated 24 March 2011 was quashed by order of this Court on 8 February 2012.
It can be presumed that the applicant was in detention at the time of the RSA and subsequent reviews, although it appears that at the time of the second review he was in community detention.
The evidence makes it clear that the applicant had no visa when he entered Australia at Christmas Island. In the circumstances and as provided by s.46A(1) of the Migration Act 1958 (“Act”), he cannot make a valid application for a protection visa. However, ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa.
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].
The applicant has made an application to this Court for judicial review of the Reviewer’s recommendation. He seeks a declaration that the Reviewer’s recommendation was not made in accordance with law and a writ of prohibition or an injunction restraining the Minister from relying on that recommendation. In order to succeed he must demonstrate that the Reviewer’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].
For the reasons which follow, there will be a declaration to the effect that, in recommending to the Minister that the applicant not be recognised as a person to whom Australia has protection obligations, the Reviewer made an error of law by failing to consider a material element of the applicant’s claim to fear persecution in Sri Lanka.
Background facts
The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection were set out on pages 4-12 of those reasons and are relevantly summarised below.
Entry interview
During his entry interview on 14 May 2010 the applicant claimed that he was an ethnic Tamil who was born in Kilinochchi, Sri Lanka. He claimed that his family moved to India in 2007 because the Liberation Tigers of Tamil Eelam (“LTTE”), from whom he had received some training in self-defence, were forcibly recruiting students and training them for battle. He claimed that he feared returning to Sri Lanka because the Sri Lankan Army (“SLA”) might suspect him of being a member of the LTTE and that, based on this suspicion, they might shoot or kill him.
RSA application
In support of his application for an RSA the applicant provided a statement dated 6 August 2010 in which he made the following claims:
a)his family used to live in Kilinochchi which was an LTTE controlled area;
b)in March 2007 he was forcibly taken by the LTTE and spent a week undergoing “tuition”. He was released after his parents pleaded with the LTTE to let him go;
c)a little later in the same year, the LTTE again insisted that he join them. His family decided to leave Sri Lanka because they did not want him to become a “tiger”;
d)his family fled to India where they lived at Mandapam Camp;
e)in 2009 members of the Karuna group, who were known to be working with the Sri Lankan government and were causing trouble for Tamils, started targeting families in the camp who had LTTE connections. Some of the boys who, like the applicant, had come from an LTTE controlled area and had been called up for LTTE service, were taken away and were not heard from again. For the next eighteen months, whenever members of the Karuna group were around, the applicant would leave the camp and go to a tailor’s shop where he was learning tailoring;
f)if he returned to Sri Lanka he would be subjected to serious harm because he was a young Tamil boy who had refused to fight for the LTTE. He would also be targeted by the SLA because he had come from an LTTE controlled area and his father’s shop was well-known in the Kilinochchi area. Further, the Karuna group were still harming Tamil boys;
g)he would also be persecuted because of his Tamil race and his imputed political opinion arising out of his long association with the LTTE controlled area; and
h)the Sri Lankan government would not protect him because the head of the Karuna group was a minister in the government.
Proceedings before the Reviewer
The applicant’s advisers submitted on 5 April 2012 that the applicant had a well-founded fear of Convention-related persecution because of:
a)his race/ethnicity as a Tamil;
b)his actual/imputed political opinion of being an LTTE supporter;
c)his membership of a particular social group, being a young Tamil, born and bred in an LTTE controlled area; and
d)his membership of a particular social group, being a failed Tamil asylum seeker.
The applicant made the following additional claims at his interview with the Reviewer on 10 April 2012:
a)because he lived in a Tamil area he was required to support the LTTE. In 2004 he and some of the students at his school were forced to put up LTTE posters;
b)the LTTE took photographs of him and others and presented them with certificates in recognition of their support. As the SLA had gained possession of all the documents formerly held by the LTTE, he assumed that they had his photograph too;
c)he was taken by the LTTE on two occasions. The first incident occurred in December 2006 when he was kept for a week. During this period his captors tried to make him undergo training but he refused and cried continually. The second incident occurred approximately two months later. He was kept for two to three days but was not subjected to any training because his mother was in the process of negotiating his release;
d)his father was beaten by the SLA during the peace treaty when the applicant was thirteen or fourteen years old (i.e. c.2006-2007);
e)in December 2009, while living in a refugee camp in India, two people approached his mother and made enquiries as to his whereabouts. They did not know who these people were but assumed that they were from the Karuna group. After this visit, his parents arranged for him to leave for Australia;
f)he left Sri Lanka unlawfully and had no proof of his citizenship;
g)because his Sri Lankan birth certificate had been issued by the LTTE, he would be suspected of being an LTTE member;
h)he would have problems at the airport if he returned to Sri Lanka because he was Tamil and did not have any identification papers;
i)the Sri Lankan government was trying to eradicate the younger generation [of Tamils]; and
j)he would be punished in Sri Lanka because he was a child supporter of the LTTE, a failed asylum seeker and a Tamil.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before him, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations. That recommendation was based on the following findings and reasons:
a)the Reviewer accepted that the applicant was taken by the LTTE for training purposes in March 2007 and that he was approached again a short time later, causing his family to flee to India. However, given their late introduction, the Reviewer did not accept the applicant’ claims that he was captured a second time or that he was forced to display posters for the LTTE. The Reviewer had regard to the applicant’s explanations but noted that:
i)the applicant’s version of events at the time of the first interview would have been true; and
ii)a person in the applicant’s position in terms of his age, education and cultural background would, the Reviewer accepted, take the advice of others in detention. The Reviewer considered it likely in the circumstances that the applicant had been advised by his elders to bolster his case and that this was the reason for him subsequently giving new and additional versions of events;
b)the Reviewer noted that the applicant did not claim to have suffered personally at the hands of the SLA in Sri Lanka. Consequently, he was not satisfied that the applicant’s history in Sri Lanka until the time of his departure at age fourteen was such that he would have a profile of interest to the authorities should he return;
c)the Reviewer did not accept that the Karuna group made enquiries of the applicant while he was living in the refugee camp in India or that they had any interest in him, noting that:
i)when questioned about these events during his interview with the Reviewer, the applicant said that he and his mother had assumed that the people were from the Karuna group and that they did not in fact know who the people were, where they were from or why they wanted him;
ii)the applicant lived at the camp for eighteen months and did not encounter these people; and
iii)the delegate noted in his RSA decision record that his search of the country information provided no evidence to suggest that the Sri Lankan authorities, those acting on their behalf or any other Sri Lanka-based paramilitaries had ever been able to enter the Mandapam refugee camp in Indian territory;
d)the Reviewer did not accept that it was plausible that the applicant would be seen as a supporter of the LTTE and therefore be of any interest to the government or its supporters on the basis that he was, on one occasion in 2007, taken away by the LTTE for training purposes against his wishes. Nor did the Reviewer accept that after a period of seven years the applicant would be subjected to serious harm simply because he was a young Tamil boy who had rejected fighting for the LTTE and came from an area previously controlled by the LTTE where his father had a well-known shop. For these reasons, the Reviewer did not accept that the applicant had a profile that would make him of interest to the authorities or to the remnants of the LTTE forces, including the Karuna group;
e)the applicant claimed that the only time his family suffered direct harm from the SLA was when his father was beaten by soldiers. The Reviewer noted that this event occurred six or seven years earlier during a period when the area in which the applicant’s family lived was controlled by the LTTE. Given that the whole country was now controlled by the Sri Lankan government, the Reviewer did not consider the circumstances to be such that the applicant faced the same risk of harm by the military as his father had in 2006/2007;
f)as for the photographs which the applicant claimed were taken at the time he was forced to undergo training for the LTTE, the Reviewer noted that this would have occurred at a time when he was thirteen or fourteen years old. The Reviewer did not accept that the photographs would now have enough resemblance to the applicant “for the purposes of identification as an LTTE supporter”;
g)as for the applicant’s claim that the government was trying to eradicate the younger generation of Tamils, the Reviewer noted that the applicant did not provide any evidence to substantiate this claim. The Reviewer also noted that the UNHCR Eligibility Guidelines of 2010 reported that all former LTTE-associated child soldiers had been released from rehabilitation centres. This indicated to the Reviewer that the government had no interest in people with such a profile;
h)the Reviewer accepted that the applicant’s birth certificate would be sufficient to identify him as having been born in Sri Lanka but did not accept that this would, of itself, identify him as a supporter of the LTTE. The Reviewer noted in this connection that at the time of the applicant’s birth the LTTE had control of the northern part of Sri Lanka and that the Sri Lankan government had been effectively prevented from taking administrative control of the area. The Reviewer did not accept that the applicant could be said to be a member of the LTTE simply because of the circumstances of his birth and its registration;
i)while the Reviewer accepted that upon his return to Sri Lanka the applicant would in all likelihood be identified by the Sri Lankan authorities as a person who had sought asylum in Australia, he did not accept that the authorities would, for this reason, impute the applicant with an anti-government political opinion. Nor did the Reviewer accept that the applicant’s actions in Australia would lead the Sri Lankan authorities to consider him to be an associate of the LTTE;
j)the Reviewer accepted that the applicant would face questioning on his return to Sri Lanka but found that such questioning would be for the essential and significant reason of his illegal departure. The Reviewer also found that such questioning would not amount to serious harm;
k)although as a young Tamil male from the North the applicant might, upon his return, face extra scrutiny and be questioned more closely than others, the Tribunal found that in the absence of any further profile or characteristics, the possibility that such questioning would lead to actions such as detention or assault was remote;
l)the Reviewer found that it would be reasonable for the applicant to return to Sri Lanka and, more specifically, to his original home area of Kilinochchi. The Reviewer was satisfied that the applicant would be able to support himself there, noting that:
i)he was now an adult who had demonstrated that he had been able to endure a difficult and dangerous trip to Australia;
ii)to this point he had undertaken work in farming, shop/café keeping and had had some training in tailoring; and
iii)he had received an education to year nine.
Proceedings in this Court
The applicant sought an extension of time to bring these proceedings. However, by reason of the decision of the Full Court of the Federal Court in SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207, even if these proceedings were commenced out of what s.477 of the Act might consider to be the statutory time limit, there is no need for the Court to consider that provision as it does not apply in the present circumstances.
In his further amended application the applicant alleged:
1.The Second Respondent committed jurisdictional error by making a finding upon which there was no evidentiary basis.
Particulars
(a)The Second Respondent found at [86] of its decision: “Even if photographs of the claimant were taken at the time he was take[n] away by members of the LTTE for training I note that this would have been [at] a time when he was 13 or 14 years of age. I do not accept that the photos would now have enough resemblance to him for the purposes of identification as an LTTE supporter.”
(b)There is no evidence of what the applicant looked like in the photographs taken by the LTTE and therefore no evidence upon which the Tribunal could make the finding in (a) above.
2.The Second Respondent committed jurisdictional error by failing to consider three of the applicant’s claims set out as follows:
(a)The Second Respondent member found that he would expect the applicant to return to the Tamil dominated area of Kilinochchi, the applicant’s place of origin. However the Tribunal failed to address and consider a claim of the applicant that he would not be allowed to return to his home in Killinochi [sic] and should he return, he would be identified as a person with possible LTTE links and there is a real chance he would be subject to detention and torture.
(b)The Second Respondent failed to address and consider a claim that the applicant feared persecution for the reason that by coming originally from an LTTE area without a national ID card would result in him being at risk of being subject to serious harm at the hands of the authorities if he returned to Sri Lanka.
(c)The Second Respondent failed to address and consider a claim that the applicant feared persecution for the reason of his membership of a particular social group, namely being a young Tamil born and bred in an LTTE controlled area.
No evidence
The applicant submitted that he had impliedly put to the Reviewer that at the time of their interview he looked the same as he had when the LTTE took photographs of him. He argued that the Reviewer had, in effect, made a finding that he was not at risk of being identified as an LTTE supporter because his appearance in the photographs would not depict how he appeared at the time of the Reviewer’s interview because five or six years had passed since they were taken. The applicant submitted that as the Reviewer had no evidence of what he looked like in the LTTE photographs, the Reviewer had no evidence for his conclusion that the photographs would not be used to identify him as an LTTE supporter. It was submitted that the absence of such evidence could be inferred from the fact that the Reviewer’s reasons made no reference to evidence:
a)that the Reviewer saw the photographs taken by the LTTE;
b)of what the applicant’s appearance was in those photographs; and
c)of how the applicant’s appearance had changed since the LTTE photographs were taken.
The applicant submitted that the Reviewer’s finding on this issue was purely speculative, without any evidentiary or other justification and was erroneous for that reason.
In determining this allegation, close attention must be paid to the way the Reviewer expressed himself. Specifically, he said:
I do not accept that the photos would now have enough resemblance to him for the purposes of identification as an LTTE supporter.
It is to be observed that the Reviewer did not, as the applicant asserts, make a finding that the applicant would no longer resemble the images of him captured in the photographs; the Reviewer merely said that he was not persuaded that the applicant would. This statement reflects the fact that it was the applicant who had introduced the issue of the photographs and that he sought to persuade the Reviewer of their significance. He failed to do this as the above statement of the Reviewer evidences.
A finding that a fact is not proved is not a finding that its existence has been disproved. That is to say, the Reviewer’s statement that he was not persuaded that the applicant would not be identified from his photographs was not a finding that it would not happen. Because it expressed no finding of fact, the Reviewer’s conclusion that he was unpersuaded that the applicant would be identified from his photographs is not susceptible to an allegation that it was unsupported by evidence.
For this reason, the first ground of the application is not made out.
Failure to consider claims
a) Return to Kilinochchi
The Reviewer’s finding relevant to this allegation was that the applicant:
…originally came from the Tamil dominated area of Kilinochchi and this is the place to which I would expect him to return.
The applicant alleged that in reaching this conclusion the Reviewer had failed to consider two material elements of his claims as expressed in his adviser’s written submissions to the Reviewer dated 1 May 2012. The first element said not to have been considered was the submission that the applicant would be prevented from returning to Kilinochchi. The second was the submission that even if the applicant did reach Kilinochchi, he would be identified as a person with possible LTTE links and would face a real chance of being subjected to detention and torture on that account.
The Court should not too readily draw an inference that an issue has been overlooked if the reasons for the decision under review are otherwise comprehensive and the issue has at least been referred to at some point. Nevertheless, such an inference becomes easier to draw the more significant the undiscussed issue is to the ultimate decision.
The significance of the applicant being able to return to his home town lay in its centrality to the Reviewer’s lack of satisfaction that the applicant had a well-founded fear of persecution in Sri Lanka. In this connection, the summary of the Reviewer’s interview with the applicant found in the reasons for recommendation does not suggest that the issue of relocation was addressed, which leads to the conclusion that the Reviewer considered the applicant’s potential return to Sri Lanka only by reference to a return to Kilinochchi. However, if the Reviewer was to consider the applicant’s future situation only by reference to Kilinochchi it was necessary, in light of the advisers’ submission, that he also consider whether the applicant could actually get there.
The Reviewer’s reference to the submission in question relevantly mentioned only “the lack of safety in Kilinochchi” and said nothing about whether the applicant would be able to reach that town. Further, that section of the reasons for recommendation under the heading “Findings and Reasons” did not discuss the submission that the applicant would not be able to reach Kilinochchi or how the Reviewer came to the view that the applicant could be expected to return there. Indeed a consideration of the Reviewer’s reasons for his recommendation reveals no reference to the applicant’s submission that he would be prevented from reaching Kilinochchi.
In this case, the postulated inability of the applicant to return to Kilinochchi raised questions about whether he could return to Sri Lanka at all because, if the applicant could not return to Kilinochchi, the Reviewer had to consider whether any other part of Sri Lanka would be a reasonably practicable destination for him. Given the considerable significance that the issue of whether the applicant could actually reach Kilinochchi had to the review, I conclude that the Reviewer’s failure to address it expressly indicates that he did not consider it. He therefore erred.
In contrast, I accept the Minister’s submissions that it can be inferred that the applicant’s safety in Kilinochchi was canvassed at his interview with the Reviewer and that the latter’s statement that he would expect the applicant to return there reflects an implied rejection and thus consideration of the submission that it was not a safe place of return.
b) Person from LTTE area without identification card
In their submissions to the Reviewer dated 5 April 2012, the applicant’s advisers submitted that the applicant had a well-founded fear of persecution as a Tamil, as an actual or perceived supporter of the LTTE, as a young Tamil born and bred in an LTTE controlled area and as a member of the particular social group of failed asylum seekers returning to Sri Lanka. Later in the same document the advisers submitted that the applicant would not be able to relocate within Sri Lanka because, without an identity card, he would be at risk of greater than standard scrutiny at checkpoints or in raids and “hence would be subject to persecution”.
In his written submissions in these proceedings the applicant said:
At no point in its [sic] decision did the Second Respondent refer to any consideration of the applicant’s fear of persecution as a result of being without a national ID card and coming from an LTTE area. It [sic] made no express finding rejecting the applicant’s fear of being without a national ID card. … It [sic] did not express any contrary view of the country information of the difficulties faced by returned Tamils travelling without a national ID card especially to the north and east.
Those submissions do not correctly reflect the claims which the applicant made to the Reviewer. Specifically, the only claim to fear persecution which was related to the lack of an identity card concerned the personal characteristics, referred to above at [29], which the applicant attributed to himself. In the agents’ submissions it was said in that connection that:
Coming originally from an LTTE area without a national ID card would result in him being at risk of detention at the airport and being subject to serious harm at the hands of the authorities, should he be forced to return to Sri Lanka.
It was not suggested that it was the lack of an identity card that created a risk of persecution; all the applicant’s claims were related to his ethnicity, place of origin and imputed support of the LTTE. Consequently, the reference to the applicant’s lack of an identity card upon return to Sri Lanka should be understood to be a submission that the lack of the card would draw attention to the applicant when negotiating the airport and thus increase the risk that he would be identified at that point as having one or more of the identified characteristics and subjected to persecutory treatment on that account.
The Reviewer adequately addressed that risk at paras.91-94 of his reasoning where he concluded that any questioning which the applicant might confront at the airport would be because he had left Sri Lanka illegally and would not amount to serious harm and that, although as a young Tamil from the North he might face closer questioning than others, “in the absence of any further profile or characteristics …, the possibility that this questioning would lead to any other action against the claimant such as detention or physical assault is remote”. That is to say, the Reviewer concluded that the applicant’s claimed fear of what might happen to him upon return to Sri Lanka was not well-founded.
The other aspect of this part of the second ground of the application concerned problems which the applicant submitted he might face if he were unable to return to Kilinochchi and had to consider relocation within Sri Lanka. However, because he concluded that the applicant could be expected to return to Kilinochchi, the Reviewer did not consider the question of relocation and, until the question of the possibility of return to Kilinochchi is determined, it cannot be said that relocation needs to be considered in this case. For that reason, the applicant’s submissions on this point do not demonstrate error on the Reviewer’s part.
c) Particular social group
The allegation that the Reviewer failed to consider the applicant’s claim that he feared persecution in a LTTE controlled area cannot be made out in light of the Reviewer’s express finding at para.97 of his report that he did not accept:
… that the claimant faces the risk of serious harm if he returns to Sri Lanka now or in the reasonably foreseeable future for reason of … his membership of a particular social group namely a young Tamil, born and bred in an LTTE controlled area…
Conclusion
The Reviewer erred in law by reason of his failure to consider a material element of the applicant’s claim to fear persecution in Sri Lanka
It can be accepted that the Minister will act on a declaration to this effect and will arrange for a further review of the applicant’s claim to be performed. On that basis, it is unnecessary to grant the prohibitionary or injunctive relief which the applicant seeks.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 28 February 2013
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