SZQGC v Minister for Immigration
[2011] FMCA 703
•12 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQGC v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 703 |
| 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 – allegation that the Reviewer failed to consider a claim made by the applicant and failed to make a finding on a particular matter. |
| Migration Act 1958, ss.5, 36, 46A, 195A, 477 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 |
| Applicant: | SZQGC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRISTOPHER KEHER, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1009 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 6 September 2011 |
| Date of Last Submission: | 6 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 12 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr L.D Robison |
| Solicitors for the Applicant: | Barwick Legal |
| Counsel for the First Respondent: | Mr J.A.C Potts |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The time for the commencement of these proceedings be extended to 18 May 2011.
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1009 of 2011
| SZQGC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRISTOPHER KEHER, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Sri Lanka who arrived at Christmas Island on 6 February 2010. On 4 April 2010 he lodged an application for a Refugee Status Assessment (“RSA”) 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 20 April 2010 an officer of the department administered by the first respondent minister (“Minister”) assessed the applicant as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 11 April 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The evidence makes it clear that the applicant had no visa when he entered Australia. Because of this and the fact that he entered Australia at Christmas Island which under s.5(1) of the Migration Act 1958 (“Act”) is an “excised offshore place”, the applicant is an “offshore entry person” as defined by s.5(1) who, in the circumstances and as provided by s.46A(1) of the Act, cannot make a valid application for a protection visa. Nevertheless, 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. Relevantly, those sections provide:
46A Visa applications by offshore entry persons
(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.
...
(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.
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1)This section applies to a person who is in detention under section 189.
Minister may grant visa
(2)If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3)In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4)The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5)The power under subsection (2) may only be exercised by the Minister personally. …
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 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 at 143 [49].
In Plaintiff M61 it was held that an offshore entry person such as the applicant who seeks to engage Australia’s protection obligations under the Convention, and is detained by the Commonwealth pending the outcome of that process, must be afforded natural justice by the independent merits reviewer reviewing his case. That right requires the reviewer to conduct a review which is procedurally fair and which correctly addresses the relevant legal question or questions.
The applicant has made an application to this Court for judicial review of the Reviewer’s decision. He has sought a declaration that the Reviewer’s decision is affected by legal error as well as an injunction restraining the Minister from relying on the Reviewer’s recommendation.
For the reasons which follow, the application will be dismissed.
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 are set out on pages 2-5 of those reasons and are relevantly summarised below.
Entry interview
The applicant made the following claims during his entry interview on 9 March 2010:
a)he was born in Trincomalee, Sri Lanka, and is a Hindu Tamil;
b)one of his brothers was a member of the Liberation Tigers of Tamil Eelam (“LTTE”);
c)the Sri Lankan Army (“SLA”) required another one of his brothers to report to them every month. He disappeared in 1992. When the applicant’s family held a ceremony for his missing brother the SLA came to their home and smashed it up. As a result, his father sent the applicant’s family to Jaffna;
d)in 2008 he returned to Trincomalee to visit his father and was detained by the SLA. He was then taken to Warakat Camp where, for the next two days, he was questioned by the SLA, the Karuna group and the “CID”. The SLA also offered him a job showing them the jungle roads but he said that he did not know them;
e)he was released three or four months later after he paid a bribe of 500,000 rupees. However, he was required to report to them every month, was told not to travel outside the Trincomalee and Batticaloa districts and could not telephone his family;
f)he continued with his business in the Trincomalee area until his departure from Sri Lanka; and
g)he left Sri Lanka because he was concerned for his safety as a Tamil and because he was required to report to the authorities.
RSA application
The applicant provided a statutory declaration dated 4 April 2010 in support of his application for an RSA. He made the following additional claims:
a)his brother joined the LTTE in 1989 and used to assist the families of “heroes who had died”. He was later killed in a bomb blast;
b)his missing brother was arrested and questioned by the SLA in 1992. They suspected him of being involved in various bombings;
c)he operated a “transport delivery business” in Jaffna;
d)he was held at Vakarai, a Karuna group detention camp, for about three months during 2008/2009. He paid 50,000 rupees for his release and, afterwards, was required to report to them monthly. He was not allowed to return to Jaffna because, in addition to the ongoing conflict, his wife was from the Jaffna area and his brother had been in the LTTE;
e)his wife and children, as well as his wife’s family, were detained by the authorities in a camp from late 2009 until early 2010; and
f)he fears harm from the Karuna group because he ran away from the area, did not assist them as requested and is suspected of being associated with the LTTE.
The applicant repeated these claims at his RSA interview on 4 April 2010.
Proceedings before the Reviewer
The applicant was interviewed by the Reviewer on 21 November 2010 at which point he made the following additional claims:
a)he was detained in August 2008 and released in November 2008. He continued to operate his business in the Trincomalee area until January 2010;
b)in December 2009 the Karuna group asked him for a contribution of one million rupees but he told them that he did not have the money. He did not mention this previously because he had “only studied to 8th standard”;
c)nothing happened to him in Sri Lanka in 2009 or 2010 although he remained fearful of “these groups”;
d)the army and the Karuna are interested in him because his family “is a family of heroes” and he had “lived in the Vanni”; and
e)he received a letter from his wife who advised him that she was being harassed by “auxiliary groups”. She said that they would kill him if he returned to Sri Lanka.
It was submitted by the applicant’s migration agent that the applicant might be suspected of having LTTE links given that he was a Tamil from northeast Sri Lanka, had a brother who had been involved in the LTTE, came from “a family of heroes” and had lived in Vanni for a period of time. It was submitted, by reference to a report from the United Nations High Commission for Refugees, that Tamil males with suspected LTTE links were at risk and that the applicant’s situation was exacerbated by a scar on his arm which he had received as a result of surgery in Australia following a fall in the detention centre.
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 under the Convention. That recommendation was based on the following findings and reasons:
a)the applicant’s claim that he had been asked by the Karuna group for a donation of one million rupees was not made until the day of the interview and then only after the Reviewer had expressed concerns that, based on his claims, it did not appear that the applicant was of adverse interest to the authorities. In the Reviewer’s opinion, the applicant would not have neglected to mention this detail if it was indeed a factor motivating him to leave Sri Lanka. Consequently, the Reviewer did not accept that this incident occurred and found that the late-made claim reflected poorly on the applicant’s credibility;
b)the Reviewer accepted that many Tamil civilians had been detained by the authorities in camps and were, if identified as LTTE, generally dealt with harshly. He accepted in this connection that one of the applicant’s brothers had been a member of the LTTE, that another brother had probably been detained and killed by the SLA in about 1992, that his wife and family had been detained for a period and that the applicant himself had been detailed in 2008 for about three months, following which he was required to report to the Karuna office every month. However, the Reviewer did not accept that the applicant was of continued interest to the authorities or others, noting that:
i)his wife and family were released after a brief period and have since returned to their home in Jaffna;
ii)the applicant did not report that his family in Trincomalee had been detained or had come to the adverse interest of anyone;
iii)the Reviewer did not accept that the applicant’s business activities in LTTE areas would “cause him any concern from the Sri Lanka authorities”;
iv)there was nothing of any significance in the recent history provided by the applicant to suggest that the authorities would consider any of his family to be LTTE;
v)while the applicant was detained in 2008, his history after this event indicated that he was of no adverse interest to anyone; and
vi)the Reviewer did not accept that the applicant’s overall history gave him a profile such that he would be of adverse interest to the authorities or to anyone else;
c)in relation to the applicant’s claim that he feared harm from auxiliary groups, the Reviewer noted that this was a general fear of harm from unspecified groups for unspecified reasons and there was nothing in his history or profile to suggest that he would be targeted were he to return to Sri Lanka; and
d)the Reviewer also considered the possible impact of the applicant’s noticeable scar were he to be questioned by the authorities but found, given his lack of profile, that it was highly unlikely that the scar would even be noticed. However, even if it were, the Reviewer noted that the applicant could produce medical certification clearly indicating that he had received the scar as a result of an operation in Australia.
Proceedings in this Court
These proceedings were commenced on 18 May 2011, two days after the time provided for their commencement by s.477 of the Act.
The applicant sought an extension of time, an application which the Minister did not oppose. The Reviewer had filed a submitting appearance. As the procedural criteria for the grant of an extension of time, found in s.477(2)(a), were satisfied in this case and the Minister did not oppose an extension I will extend the time for the commencement of these proceedings to 18 May 2011.
The applicant pleaded the following ground in his application commencing these proceedings:
That the decision of the second respondent, the Independent Merits Reviewer, was affected by legal error.
The allegation made in the application commencing the proceedings was not particularised but in his written outline of submissions the applicant identified the bases upon which the allegation was made, namely:
a)the Reviewer failed to consider his claims arising out of the letter he received from his wife, and to which reference was made during the Reviewer’s interview, and the Reviewer thereby determined the review by reference to historical events rather than the contemporaneous matters raised in the letter;
b)by failing to have regard to the letter the Reviewer failed to take into account a relevant consideration, namely, the chance of immediate and reasonably foreseeable persecution; and
c)the Reviewer failed to make a determination “as to the letter”.
As to the last of these points, it is not apparent that the genuineness of the letter was ever a matter in issue, a matter to which the Reviewer was required specifically to direct his mind or a matter on which a finding was necessary. Rather, the question was whether the issue raised by the contents of the letter, namely the contemporary risk of persecution, was considered by the Reviewer given that it was clearly a matter raised by the applicant at the interview.
In his summary of the evidence the Reviewer said:
The claimant said he had received a letter from his wife saying that she is being harassed by “auxiliary groups and threatening phone calls” and she has said that if he comes home they will kill him.
At no other point in the summary of the evidence does the Reviewer refer to other claims made by the applicant involving “auxiliary groups”. Nor on a review of the material contained in the bundle of relevant documents which is Exhibit A does it appear that the applicant referred to “auxiliary groups” at any other time.
Although in that part of his reasons headed “Findings and Reasons” the Reviewer did not, in terms, refer to the letter from the applicant’s wife he did refer to the claim arising out of that letter, noting that:
He also claims that he may be at risk from auxiliary groups.
That is to say, the claim raised by the applicant that he was at risk from “auxiliary groups” was, in fact, considered by the Reviewer who also went on to reject it in the following terms:
That is a general fear of harm from unspecified groups for unspecified reasons. There is nothing in his history or profile to suggest he would be targeted for harm by such groups if he were to return now.
I therefore find that the matter which the applicant alleges was not considered by the Reviewer was indeed considered by him.
Further, although the applicant submitted that the Reviewer had failed to consider the letter in the context of the risk of persecution in the immediate and reasonably foreseeable future, that is what the Reviewer did do when, at the end of his discussion and analysis of the evidence, he stated:
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.
It was not necessary for the Reviewer to express the temporal aspect of the Convention test in other terms as it is plain from the way he expressed himself that he meant to refer in his finding to risks which the applicant might face upon his return to Sri Lanka and thereafter into the reasonably foreseeable future.
For the above reasons, it is also apparent that the Reviewer considered the applicant’s claim to fear persecution in Sri Lanka not only by reference to historical events but also by reference to the contemporaneous matters asserted in the letter from the applicant’s wife.
Conclusion
The applicant has not demonstrated that the Reviewer’s decision was affected by error.
Consequently, the application will be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 12 September 2011