SZQFX v Minister for Immigration - [2011] FMCA 642

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQFX v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 642

MIGRATION – Independent merits review of refugee claims of offshore entry person – Sri Lankan Tamil refugee living in India since 1986 – no legal or procedural error affecting IMR report – application dismissed.

Migration Act 1958 (Cth), ss.46A, 476, 477

Alami v Minister for Immigration [2011] FMCA 623
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41

Applicant:

SZQFX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 979 of 2011

Judgment of:

Smith FM

Hearing date:

18 August 2011

Delivered at:

Sydney

Delivered on:

26 August 2011

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The first respondent must cause a copy of this judgment to be delivered to the applicant personally, and translated to him orally or in writing by a qualified interpreter in the Tamil language, within 5 working days after the date of its delivery.
The applicant must pay the first respondent’s costs in the amount of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 979 of 2011

SZQFX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant arrived in Australia on a boat which was intercepted and taken to Christmas Island in March 2010. On 1 May 2010 he requested an assessment by the Department of Immigration of his refugee status, under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow the applicant to make an application for a protection visa. A negative assessment was notified to the applicant on 18 June 2010, and the applicant then applied for ‘independent merits review’ under those procedures.
On 11 April 2011, Mr Keher recommended that the applicant should not be recognised as a person to whom Australia has protection obligations under the Refugees Convention. There is no evidence before me as to where or how the applicant was notified of Mr Keher’s report. Throughout the administrative proceedings, the applicant was assisted by migration agents at Florin Burhala & Associates, Lawyers, in Melbourne.
The applicant filed his present application to the Court in Sydney on

16 May 2011, seeking a declaration that Mr Keher’s report was not made in accordance with law, and injunctive relief to prevent the Minister and his Department from relying upon it. He was represented by counsel at the first court date, and it appears that a firm of solicitors, Koutzoumis Lawyers, later indicated to the respondents that they were instructing counsel, although they never filed an appearance. I directed a time table for a hearing in Sydney on 8 August 2011.
On 25 July 2011, the respondents’ solicitor (but not the Court) was advised by Koutzoumis Lawyers that “the applicant is now unrepresented. Please amend your records accordingly”. In the circumstances, I allowed the hearing to commence using video facilities between the Court in Sydney and the Curtin Immigration Detention Centre, where the applicant has been in custody throughout the court proceedings. No legal representative appeared for the applicant.
At the commencement of the hearing, I satisfied myself that proceeding in this mode, although less than desirable, sufficiently allowed the applicant an opportunity to address the Court and to observe the proceedings. I was concerned, however, that the Tamil interpreter provided at Curtin did not appear to have any formal qualifications to perform that task, although I could not detect any specific difficulties in his exchanges with the applicant. I was also concerned that the applicant said, and I accepted, that the contents of the IMR report and counsel’s written submissions to the Court had not been interpreted to him. I considered that this should occur with the assistance of a fully qualified interpreter, before I invited any submissions from the applicant. I therefore adjourned the hearing for 10 days, and directed the Minister to arrange for this.
At the resumed hearing, the applicant confirmed that an interpreter had translated the two documents to him. He made brief submissions, which I shall describe below. I then indicated that I would deliver a written judgment the following week, and that I would be directing that he be given a copy and that it be translated to him. I also received submissions on the Minister’s foreshadowed application for costs.
Throughout the administrative and judicial proceedings, the applicant has been held in immigration detention as an ‘offshore entry person’. The Minister concedes that Mr Keher’s report attracts judicial review, and that the present application is within this Court’s jurisdiction under s.476 of the Migration Act, based on the High Court’s reliance on s.75(v) of the Constitution in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 (“Plaintiff M61”) at [51].
No issues as to time limits or the availability of relief are raised by the Minister in his Response. Although the applicant’s application has been formulated to seek an extension of time, in the absence of evidence as to when the applicant was notified of Mr Keher’s report, and in the absence of any submissions by the parties on the topic, I am not satisfied that an extension of time under s.477(2) is necessary. It is therefore unnecessary for me to examine whether s.477 applies (see Alami v Minister for Immigration [2011] FMCA 623).
Mr Keher’s report recounts the manner in which the applicant’s refugee claims were presented to the Department of Immigration and to

Mr Keher, with the assistance of his IAAAS lawyers.
In brief, at all stages prior to his interview with Mr Keher on

22 November 2010, the applicant claimed to have lived all his life in a village in Sri Lanka, in an area controlled by the LTTE prior to their defeat in 2009. He claimed that his family avoided contact with the army, and that “we were displaced 9 or 10 times”. An uncle was found shot dead in 2008 after being taken by the army. The applicant said that he left Sri Lanka “because I am a Tamil and feared for my life … the government and the Army systematically attack Tamils. On that basis, I am in fear that they will arrest and kill me like happened to my uncle”. He presented no identity or travel documents, and no corroboration of his claims.
Shortly before the interview with Mr Keher, the applicant informed officials at Christmas Island that “he had lied during his RSA and entry interviews because he had been told by people smugglers to do so. He had really been in a refugee camp with his family in India since 1986”. These instructions were then discussed with his IAAAS lawyers, who presented them in a written submission to Mr Keher at the interview, together with various documents showing his birth in Sri Lanka, and his education, residence, and marriage in India.
In their new submissions, the applicant’s agents claimed that he had lived in India from 1986 until 2006. The reason his family left Sri Lanka “was due to the fact that his uncle and aunt worked as nurses and treated people who were wounded. … and they attracted the attention of the Army.” They submitted that “because of his family’s profile with the Sri Lankan Army before they fled Sri Lanka, he believes that his family name is known to them and he will be persecuted if he was to be returned to Sri Lanka.” The claim was put on the basis of a fear of persecution by reason of “his family’s imputed political opinion” and “for his suspected involvement with the LTTE …given his and his family’s imputed associations with non-government organisations, such as LTTE”. He also claimed that he would be imprisoned for life if he returned to India.
In a later written submission, the applicant’s agent also submitted that “the applicant’s chances of suffering persecution may be heightened due to the fact that he has been living abroad. The following report outlines individuals who would be heavily scrutinized by the Criminal Investigations Department on arrival back to Sri Lanka.”
In his report, Mr Keher recounted the change in the applicant’s claimed history, and the additional evidence taken at his interview. He referred to general country information in relation to the treatment of Tamils during and subsequent to the defeat of the LTTE, and to information concerning the treatment of returning failed asylum seekers.
He then briefly explained his ‘findings and reasons’. Mr Keher said:
22.The claimant is relatively well educated, and has clearly been deceptive in his history of claims. Most of what he has said is not true on his own account. The credibility issues are not minor and go to the core of his history and claims. I have carefully considered the matter and while I accept some aspects of his history as being true I do not accept that his family has ever had any association with or involvement with the LTTE. I accept only that the family left Sri Lanka in 1986 due to a general fear of harm at the time. I accept they have lived in India as documented refugees since that time. I find the claimant was not a credible witness.
…
26.The claimant fears that he will be harmed and possibly killed in Sri Lanka by the Sri Lankan authorities as he is a Tamil male from the North. I accept that he is a Tamil, he has not lived there since 1986 and has been a refugee in India since then. I do not accept, for the reasons given above, that he or his family were of any interest to the authorities in the past, even if I did that was 25 years ago and concerned incidents when he was a child. I do not accept that the incidents from such a long time ago would cause the claimant any concern now, nor do I accept they would cause the authorities to investigate or harm him on return.
27.I do not accept that the claimant’s overall history gives him a profile such that he would be of adverse interest to the authorities or to anyone else. It is now nearly 2 years since the end of hostilities. I do not accept that if he returns to Sri Lanka, following from his claim for refugee status in Australia, that this would either be known to, or of any interest to authorities. This is especially so given his lack of any past concern to them. In such circumstances I do not accept that he would be of any concern to anyone. I find that the claimant’s fear of harm is not well-founded in that there is a remote chance of his being harmed in Sri Lanka in the reasonably foreseeable future.
28.Overall, I am not satisfied that the claimant has a well-founded fear of persecution for reasons of a Convention ground.
The applicant’s application has only the following as the grounds of the asserted legal defectiveness of Mr Keher’s report:
That the decision of the second respondent, the Independent Merits Review was affected by legal error.
This ground has not been given any meaningful particulars in any amended application or written or oral submissions filed by the applicant or anyone on his behalf. I am satisfied that the applicant, and the people who have been assisting the applicant, were given appropriate time and opportunity to give substance to the ground.
In his oral submissions to me, the applicant conceded that his refugee claims had changed. However, he maintained that he could not return to Sri Lanka without fears in relation to his life, and that his family’s circumstances in India as refugees were problematic. He had come to Australia to live a free and independent life, not as a refugee.
However, it is not the function of the Court to decide for itself whether the applicant is a refugee, and whether he should be given permission to reside in Australia. As I explained to the applicant, I have jurisdiction only to consider whether Mr Keher’s procedures and reasoning were in accordance with Australian law, including requirements of procedural fairness.
I was unable to identify anything in the applicant’s submissions which raised a possible error of law or procedure affecting Mr Keher’s proceedings or report.
I accept the Minister’s submission that the applicant has not raised any arguable ground of error affecting Mr Keher’s reasoning and recommendation. I can see no such ground myself. It appears to me that the recommendation was based upon an adverse conclusion as to the credibility of the applicant’s claims which was clearly open on the evidence.
I consider that no legal error is revealed in Mr Keher’s assessment of the risk of Convention-related persecution facing the applicant if he returns to Sri Lanka, based upon such of the applicant’s circumstances as Mr Keher was able to be satisfied of.
I must therefore dismiss the application.
The Minister seeks an order that the applicant pay the scale amount towards the legal costs of the proceedings. The applicant submitted that he was being held in detention, and had no income and no means to pay any costs. However, I consider that I should apply the normal principle that costs follow the event, even where the losing party is impecunious. It will be a matter for the Minister whether any attempt is made to recover them.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 26 August 2011