SZQFQ v Minister for Immigration - [2012] FMCA 170

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQFQ v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 170

MIGRATION – Review of decision of Independent Merits Reviewer – application for adjournment – where applicant provided CD containing relevant documents including IMR interview – where applicant claimed unable to access CD – where applicant claimed concerns with interpretation at IMR interview – where concerns not previously raised – whether to adjourn to allow applicant to listen to recording – where applicant claimed factual misunderstanding by reviewer – merits review – whether relevant information not considered – bias – where country information apparently not provided to applicant – whether reviewer required to inform applicant of substance of country information already known applicant.

Abebe v Commonwealth of Australia (1999) 197 CLR 510
SZBEL v The Minister (2006) 228 CLR 152
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited [1994] 49 FCR 576
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319
SZQPG v The Minister [2011] FMCA 978
SZQEK v Minister for Immigration & Anor [2011] FMCA 628
Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100

Applicant:

SZQFQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MICHAEL GRIFFIN, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 961 of 2011

Judgment of:

Raphael FM

Hearing date:

21 February 2012

Date of Last Submission:

21 February 2012

Delivered at:

Weipa

Delivered on:

21 February 2012

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to shall pay the First Respondent’s costs assessed in the sum of $6,240.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 961 of 2011

SZQFQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Sri Lanka. He is a 28-year-old single Tamil male born in West Jaffna. He claimed to have fled Sri Lanka from the northern port of Mannar in a fishing boat and after three hours joined a larger boat and then travelled for 18 days to reach Australia. Upon reaching Australia he was placed into detention in Christmas Island where he gave a statement concerning his claims to be a person to whom Australia owed protection obligations. He was interviewed by a departmental officer who he saw with the assistance of an adviser and an interpreter. Written claims were prepared for the assessing officer.
On 18 June 2010 the departmental officer provided a report concluding that he did not believe that the applicant met the definition of a refugee. The applicant was informed of his right to seek an independent merits review of that decision and on 21 July 2010 he applied for such a review. He was represented before the reviewer by the same migration agents. On 5 April 2011 the Independent Merits Reviewer[1] recommended to the minister that the applicant not be considered a person to whom Australia owed protection obligations and he published his reasons for so doing.
[1] “IMR”.
The applicant’s claims for refugee status, which were consistent throughout, involved him being a young Tamil male from northern Sri Lanka who had been detained in a detention centre by the Sri Lankan Army under suspicion of being an LTTE supporter. He said that during his detention he was beaten frequently on the soles of his feet and was made to stand on an ice box. He said that a lot of people in the camp had been shot and killed. He told that whilst in the camp and in fear for his life he had bribed a senior army officer with two gold chains and some money that relatives in the camp had provided to him. The officer drove him out of the camp but kept his identification papers. After a short period on the run within Sri Lanka he was assisted to find passage on a vessel that went first towards India and then transferred into a larger vessel that made the journey to Australia.
The applicant also told that his mother had escaped from Sri Lanka into India. He believed that if he was made to return to Sri Lanka he would be in danger from the Sinhalese authorities because of the fact that he was an escapee from detention and he was equally concerned that if this should not happen he would be in danger from LTTE sympathisers because he had not joined the LTTE during the insurgency but had taken up some Pentecostal training which, he indicated, had meant that the LTTE would not be interested in him as a recruit.
The applicant was interviewed by the reviewer on 22 November 2010, during the course of the interview he produced some photographs to show that a scar on his nose had been present since his childhood. He did this because in the Refugee Status Assessment[2] report there was some doubt about the scar. The adviser submitted that the scar would act as a trigger to arouse suspicion in the Sri Lankan authorities about the applicant being an LTTE combatant.
[2] “RSA”.
The reviewer questioned the applicant about his claims and about the fear that he held should he have to return:
I asked Mr Applicant what happened when he was interned. He said, “When I was arrested they called for singles to form one group and the LTTE to form one group”. I asked which group he was. He said, “I was locked in a room and questioned every day and beaten”. I asked again which group he was in. He said, “In the single group”. I asked when he left the camp. He said, “December 2009”. I asked if he was questioned and beaten every day from May to December. He said, “yes at the beginning it was severe but as the election approached it slackened and then after the election it worsened”. [18] [CB 133]
The reviewer discussed with the applicant certain country information, in particular the large number of people that had been released from the army camps. The reviewer also took up with the applicant his story about bribing the army officer. It appears from the reviewer’s questioning of the applicant, as detailed in the Reasons for Decision [CB133-134] that the reviewer expressed some concern at the credibility of this story. At [CB134-140] the reviewer sets out some independent country information upon which he relied, including a section at [CB138] on the current situation for Tamils returning to Colombo.
In the reviewer’s findings and reasons commencing at [CB140] the reviewer acknowledges that some young Tamil males in the north-east of the country were targeted and suffered serious harm or death in the aftermath of the conflict in army detention camps but stated:
However it is also apparent that many thousands have now left the camps and returned to their home areas and that some form of normality is returning in the post-conflict environment. [32][CB141]
The reviewer’s conclusion upon the applicant’s story was that he found it implausible. The reviewer noted that although the applicant had indicated that he had a scar on his nose which could arouse a suspicion with the army in the camp, it did not appear to do so because he had been placed, not in the LTTE section, but in the single-group section.
I find it implausible that a Tamil suspect would be questioned and beaten every day but not placed in the LTTE group simply because they would talk with each other. On this evidence, his age and scar on his nose were not sufficient reason to place him in the LTTE group at any time in seven months of detention. [33] [CB 141]
The reviewer also did not believe the story about bribing the officer. He could not accept that a senior officer would personally drive a detainee to hospital or that having done so, and accepted money and gold as a bribe, he would keep the detainee’s papers. The reviewer also held doubts about the applicant’s claims to fear the LTTE.
The claimant said that the LTTE knew he was at the mission studying theology during those years but never approached him because they once had a Pentecostal detainee who preached and took 20 converts. I find it implausible that during years of conflict the LTTE would not approach a young male in the claimant’s circumstances, at all, out of fear he might convert some of their members. [35] [CB 141]
Although the reviewer held serious doubts as to whether the claimant had even been in Sri Lanka at the relevant times, he was prepared to accept he had been for the purposes of this claim. At [36] [CB 141-142] he made a finding about the applicant’s credibility concerning the manner in which he had escaped from Sri Lanka and concluded that he did not accept that the applicant had escaped from custody or that he was suspected of being an LTTE fighter warranting further sanction:
I am satisfied that the claimant and his mother were among the hundreds of thousands of Tamils released from the camps and that he took with him the same type of identification documents that his mother has provided, including his national ID card.
At [37] [CB 142] the reviewer considers the applicant’s claim to be at risk of harm as a returnee:
[…] it may be that the claimant would come to the adverse attention of the authorities for departing Sri Lanka illegally but that would be pursuant to the application of the general law and not necessarily for a Convention reason. The country information suggests that in the absence of an LTTE connection or a criminal record or no identification papers, a returnee is not likely to encounter significant problems. In this case, the fact that the claimant is a Tamil male with a scar on his nose who had been in a military camp but had been released and whose mother had been able to depart legally using her own passport, would weigh in his favour.
On 12 May 2011 the applicant filed an application for review of that decision from this court. The only ground of application was said to be that:
The decision of the second respondent, the Independent Merits Reviewer, was affected by legal error.
On 9 June 2011 the applicant appeared by video-link from Sherga Detention Centre at the first directions hearing of his case. Orders were made referring him to a member of the pro bono legal panel. An order was also made that he be provided with a CD containing the IMR Guidelines and any sound recording of the interviews by 30 June 2011. He was ordered to serve any amended application with full particulars by 21 July 2011. The matter was originally listed for hearing on 21 August 2011 in Sydney but on 10 August 2011, at a further directions hearing, it was ordered that the matter be adjourned and would be heard in Weipa. This was because, although the applicant had been referred to a number of practitioners on the pro bono panel, none of them were prepared to assist him and as the applicant was to appear in person, it was felt appropriate that the hearing should be held at a place where he could be present.
In the seven or so months since that order was made nothing has been heard from the applicant by way of amended application or any complaint concerning the review hearing revealed on the CD. Yet, this morning, the applicant told me that he had not been able to listen to the CD, although he had asked three times for there to be a player provided to him. I am not aware whether CD players are generally available in Sherga, and I have not seen copies of any alleged correspondence between the applicant and the authorities who he claims have been represented by his “case officer”. What I do note, however, is that he has had several months to raise these matters and has had, at all times, the ability to bring the matter back before the court.
I have also noted that the interview with the IMR was conducted in the presence of his adviser and that subsequent to that interview a post-interview submission was made: [CB120]. There was no suggestion in that post-hearing submission that there were any concerns with the interpretation. The submission provided further information relating to the applicant’s mother and the general situation in Sri Lanka. In his submission to me the applicant did not point to any issue of significance which he would use to show that the interpretation had been wrong. He told me that, “I just got the feeling that not everything I had said had been interpreted.” Later, he told me that he got the feeling that not everything that he had said had been written down by the reviewer, and that if it had been he felt he would have been believed.
I came to the view that the applicant did not satisfy me, even on a prima facie basis, that there was enough to complain about in relation to the interpretation before the reviewer that I should adjourn the matter so that the recording could be listened to. As noted, the applicant’s claims have been consistent throughout and there was nothing that he had pointed to that was significantly different in relation to the reporting of those claims that might indicate an interpretation problem. I also noted that both the RSA and the reviewer concluded that the applicant’s story was implausible for much the same reasons.
Having determined that the applicant should proceed I asked him to tell me, in his own words, why he believed the reviewer had made an error of law in the way in which he had reached his decision. He said first that the reviewer did not put everything down that he had said at the interview; he did not report the statement in full. He claimed that the reviewer had found that the reason for his detention was because of the scar that was found on his nose and that this was incorrect, but, in fact, the reviewer made no such finding. The reviewer used the scar to indicate the inconsistency and implausibility of the applicant’s statement that he had not been placed in the LTTE group.
The applicant told me that in the RSA interview the same thing was said and that he had explained to both the RSA and the reviewer that he was not detained because of the scar on his nose. He said that he had explained that fully. He said that that might have been one of the reasons he was detained but was not sole the reason and that he had explained this. But the reason for the applicant’s detention was not a major issue. Reluctantly, the reviewer accepted that the applicant had been detained and, by implication, this was because of his age and ethnicity. I am quite satisfied that the applicant’s complaints about the reviewer’s dealing with the scar issue have no basis and could not establish that the reviewer had fallen into jurisdictional error. The applicant told me that he had told the reviewer that he was detained on the grounds that he was suspected of being an LTTE member and the reviewer’s comments do not belie that.
The applicant told me that the reviewer had said in his grounds and reasons that he had not believed the gold chain story. The applicant told me that this was because the reviewer did not fully understand the conditions in the camp. He did not understand what sort of people were rounded up. The applicant said that people who were rounded up did have jewellery and money. He said there was even a bank in the camp. He said that it was wrong for the tribunal to come to the conclusion that he did not have the gold chains. These are all matters which go to the merits of the applicant’s claims. It must have been clear to the applicant, from the result of the RSA interview, that the story about the gold chains was one that might be considered implausible and yet the applicant accepted that he had not really raised the matter with the reviewer. He said that the reviewer had not asked him questions specifically about the conditions in the camp and therefore he had not told him. It is well settled now that the responsibility for satisfying a reviewer as to the merits of a claim lie squarely with an applicant: Abebe v Commonwealth of Australia (1999) 197 CLR 510. It is not for this court to interfere with the conclusions of credibility to which the reviewer came in these circumstances.
The applicant also took issue with the finding about his mother having fled to India. He told me that he had said that his mother had fled to India because the army had told her not to give evidence regarding him to the Presidential Commission, and that he had given all the documents to the reviewer at the interview. He said that the interviewer had asked if his mother was registered as a refugee and he had told the reviewer that she was not because she still had a valid visa. The applicant said that the reviewer did not take this fact into account and that if he had done so he would have seen that his mother had fled because of his situation and therefore he must have been in serious danger. Once again, this is an issue of fact and of the merits of the applicant’s claim. The reviewer came to his conclusions about the mother and her leaving Sri Lanka on the basis of available evidence and inferences. This court cannot interfere.
The respondent pointed out that the situation within the camp was dealt with firstly by the RSA at [CB 98] and that there was no reference to it in the adviser’s submissions [CB 107 and following]. She suggested that I should draw an inference that the applicant did not seek to take issue with the finding about implausibility made by the RSA. It may not be necessary for me to draw such an inference, in the light of my finding that the applicant did not discuss it and, therefore, did not satisfy the reviewer.
In reply, the applicant repeated that he thought that the reviewer was not aware of the situation in the camps and that if he had it been his credibility findings may have been different. Finally, he said that he had been very upset when the reviewer asked him why the army had not shot him and, after that, he got the feeling that the reviewer had absolutely made up his mind and that all the questions were formulated in that manner in order to reject his application. This is an allegation of bias on the part of the reviewer which had never been made before and which must be clearly made and proved. An intemperate remark of the type referred to does not indicate that the reviewer had come to this matter with a closed mind, incapable of change, and I am not prepared to accept this ground as one evidencing jurisdictional error.
Perhaps the only matter that could be said to cause concern in the reviewer’s findings are those at [37 CB 142] extracted at [12] of these Reasons: that the country information suggested that in the absence of an LTTE connection, criminal record or no identification papers, a returnee is not likely to encounter significant problems. There is no indication in the grounds and reasons that this point was directly put to the applicant. In SZBEL v The Minister (2006) 228 CLR 152 the majority of the High Court approved of the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited [1994] 49 FCR 576 and opined at [32]:
“ … the Full Court rightly said:
“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.”
In Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319 the High Court stated in relation to the requirements of procedural fairness in IMR matters, at [91]:
“Third, procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims…”
And continued at [98]:
“... as for want of procedural fairness it may well be that some of the facts said to be revealed by country information were sufficiently put to the plaintiff or his adviser for comment ... Not putting the substance of the country information to the plaintiff for his consideration and comment denied him procedural fairness.”

The information to which the reviewer refers may not have been put directly to him at the interview but it was certainly a matter which the applicant should have been aware of because similar information is referred to in the RSA findings at [CB100]. The assessment officer stated that:
The country information I have considered indicates that persons returning to Sri Lanka, are not ordinarily subject to harm unless they have a profile of any interest to the authorities:
and then proceeds to set out some information confirming this view. While some of the material used in the RSA record is different to that used in the IMR, some of it is identical, although sourced separately, and the substance of the material is the same: returnees are not ordinarily of interest to the authorities or likely to face harm for that reason alone.
In SZQPG v The Minister [2011] FMCA 978, Smith FM considered the law relating to disclosure of adverse country information and indicated that a reviewer would not fall into jurisdictional error where the country information cited by the reviewer did not contain anything novel, surprising or particularly adverse to the applicant. In that case the reviewer’s assessment of the issues of state protection were said to have been based upon country information which was taken from general sources recited in the RSA assessment: see also SZQEK v Minister for Immigration & Anor [2011] FMCA 628 at [50-52], Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100[3]. In Lek Wilcox J dealt with country information to the effect that returnees to Cambodia were not being subjected to persecution. In that case one of the issues was whether a report containing updated information about returnees should have been put to the applicant by a delegate of the Minister. Wilcox J considered that the report contained no novel information in regards to returnees and opined:
“Its only general significance is that it tends to confirm that the people who were returning voluntarily to Cambodia were being well-received and not subjected to persecution or punishment. This perception was not novel. It had been advanced in numerous documents, including the DFAT report of 22 June. RACS was well aware of the perception. No doubt that is why it repeatedly argued that the position of deportees was different; because their return would be involuntary.
If the Fordham report had added some new element to the debate, it would have been appropriate for DILGEA to convey its substance - not the full report, which dealt with the personal affairs of individuals - to RACS before the delegates made their final decisions. But this was not the case. Denial of access to this document did not disadvantage the applicants.” [at p.130]
In the instant case the same is true. The applicant had been made aware in the RSA of country information to the effect that returnees were not targeted for that purpose alone. That is the substance of the information relied upon by the reviewer in his decision. I do not believe that the reviewer fell into jurisdictional error by not putting this matter directly to the applicant.
[3] “Lek”
In these circumstances I have been unable to find that the reviewer made an error of law in the manner in which he reached his conclusions, or that he had fallen into jurisdictional error in so doing. The application is dismissed. The applicant shall pay the First Respondent’s costs which I assess in the sum of $6,420.00.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 8 March 2012