SZQGD v Minister for Immigration - [2012] FMCA 584

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQGD v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 584

MIGRATION – Review of conduct leading to recommendation of Independent Merits Reviewer – whether recommendation made according to law – whether the Reviewer understood and considered all the applicant’s claims – application dismissed.

Constitution, s.75
Migration Act 1958 (Cth), ss.5, 36, 46A, 189, 195A, 91R, 91S, 91T, 91U, 476, Pt.7

SZQXX v Minister for Immigration & Anor [2012] FMCA 415
V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 219 ALR 27
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59

Applicant:

SZQGD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

KERRY BOLAND IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 299 of 2012

Judgment of:

Emmett FM

Hearing date:

5 June 2012

Date of Last Submission:

5 June 2012

Delivered at:

Sydney

Delivered on:

4 July 2012

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Solicitors for the Applicant:

Rasan T. Selliah & Associates

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Minter Ellison

ORDERS

The proceeding before this Court, commenced by way of application filed on 10 February 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $8,000.

NOTE: The first respondent read the affidavit of Laura Frances Weston, affirmed 4 June 2012, in support of the costs application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 299 of 2012

SZQGD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

KERRY BOLAND IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The application is brought before this Court in its original jurisdiction pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) which gives the Court the same original jurisdiction in relation to migration decisions as the High Court of Australia has under paragraph 75(v) of the Constitution. It is agreed by the first respondent that the Court has jurisdiction in respect of this matter.
This is an application for judicial review of conduct leading to the recommendation by the second respondent, dated 30 December 2011, that the applicant not be recognised as a person to whom Australia has protection obligations.
The applicant seeks an injunction restraining the first respondent from relying on the recommendation of the second respondent. The applicant also seeks a declaration that, in recommending to the first respondent that the applicant is not a person to whom Australia has protection obligations, the second respondent made an error of law.
The applicant claims to be a citizen of Sri Lanka and of Hindu faith and Tamil ethnicity.
Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims for refugee status and a summary of the second respondent’s conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations.

Background

On 1 March 2010, the applicant arrived in Australia at Christmas Island as an offshore entrant.
On 2 May 2010, the applicant made a request for a Refugee Status Assessment (“RSA”).
On 14 July 2010, an officer of the Department of Immigration and Citizenship found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom Australia has protection obligations.
On 17 August 2010, the applicant applied for Independent Merits Review of the RSA.
On 7 April 2011, an Independent Merits Reviewer recommended that the applicant not be recognised as a person to whom Australia has protections obligations.
On 3 August 2011, a Federal Magistrate found the Independent Merits Review to be affected by legal error. Consequently, a second Independent Merits Review was undertaken by the Reviewer and it is that Review that is the subject of judicial review by this Court.
On 3 December 2011, an Independent Merits Reviewer (“the Reviewer”) recommended that the applicant not be recognised as a person to whom Australia has protections obligations.
On 10 February 2012, the applicant filed an application in this Court seeking judicial review of the Reviewer’s recommendation.

Legislative framework

The legislative framework relating to judicial review of the conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations is accurately and comprehensively explained in the submissions of the solicitor for the first respondent, Mr Markus, in SZQXX v Minister for Immigration & Anor [2012] FMCA 415, as follows:
“2. The provisions of the Migration Act 1958 (the Act) directly relevant to the Refugee Status Assessment (RSA) and Independent Merits Review (IMR) processes are ss 5, 46A and 195A.
3. Section 5 relevantly provides the following definitions:
"offshore entry person" means a person who:
(a) entered Australia at an excised offshore place after the excision time for that offshore place; and
(b) became an unlawful non-citizen because of that entry.
…
"excised offshore place" means any of the following:
(a) the Territory of Christmas Island; …
…
"excision time", for an excised offshore place, means:
(a) for the Territory of Christmas Island--2 pm on 8 September 2001 by legal time in the Australian Capital Territory …
4. The applicant, being a non-citizen, who entered Australia at Christmas Island without valid travel documents at a time after the relevant ‘excision time’, and thereby became an unlawful non-citizen[1] is an 'offshore entry person'.
[1] See s 14(1) of the Act.
5. Section 46A relevantly provides:
(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.
6. By operation of s 46A(1), unlawful non-citizens are unable to apply for a valid protection visa.[2] However, s 46A(2) provides that the Minister for Immigration and Citizenship (the Minister) has a discretionary power to determine that an offshore entry person may make a valid application for a visa of a class specified if the Minister thinks that it is in the public interest to do so. This is commonly referred to as a decision to 'lift the bar' on the prohibition contained in s 46A(1). Subsection 46A(3) provides that this power can only be exercised by the Minister personally. Subsection 46A(7) of the Act makes it clear that the power vested in the Minister under s 46A(2) is a non-compellable power.
[2] s 46A(1) of the Act
7. Similarly, section 195A relevantly provides:
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.
…
8. By operation of s 195A(2), the Minister has a personal discretionary power to grant an offshore entry person who is in detention a visa of a particular class if the Minister thinks that it is in the public interest to do so. Subsection 195A(5) provides that this power can only be exercised by the Minister personally.
9. Since late 2001,[3] successive governments adopted various policies to deal with offshore entry persons. In developing these policies, and the processes which were adopted by the Department of Immigration and Citizenship (the Department) to implement these policies, care was taken to ensure that Australia does not breach its international obligations; i.e. that persons who are assessed as refugees under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (the Convention), as modified by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the Protocol), are not returned to a country where that person has a well-founded fear of persecution.
[3]     Following the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) (the Excision Act), which inserted a majority of the provisions referred to above into the Act.
10. As part of this process, the Department developed an offshore refugee status assessment process.
11. Until the election of the Labor Government on 24 November 2007, most such processing occurred, as part of the so called “Pacific solution”, on Nauru, but some processing also occurred on Manus Island and on Christmas Island.
12. In February 2008, the Government announced that asylum claims of future unauthorised boat arrivals would be processed on Christmas Island. It also announced that it had initiated discussions with Nauru over the closure of the centre on Nauru, and that it was commencing discussions with Papua New Guinea concerning the future of the processing centre on Manus Island.
13. On 29 July 2008, the Minister announced that the Government had decided to strengthen and enhance the RSA process and that the enhancements would include:
13.1 provision of publicly funded independent advice and assistance (a commitment that has since been met under the Immigration Advice and Application Assistance Scheme, which is available for the initial RSA and any subsequent independent merits review);
13.2 independent merits review for people receiving unfavourable refugee status assessments;
13.3 improved procedural guidance for departmental officers conducting refugee status assessments; and
13.4 external scrutiny of the RSA process by the Immigration Ombudsman.
14. In Plaintiff M61/2010E v Commonwealth and Ors (2010) 243 CLR 319 (M61), the High Court determined that s 46A(2) and 195A(2) constituted two distinct steps that the Minister could personally exercise: firstly, to consider whether to exercise the discretion to lift the bar, and secondly, to exercise that discretion.
15. The High Court has interpreted the former Minister’s announcement of 29 July 2008 that all unlawful non-citizens who entered Australia at Christmas Island making claims for protection would be assessed according to the new RSA procedure as the Minister having decided to take the first of those steps, and as the Minister having required the Department 'to undertake the enquiries necessary to make an assessment and, if needs be, review the conclusions reached'.[4] That is to say, the announcement has been interpreted as encompassing 'a decision by the Minister to consider whether to exercise either of [the powers conferred by s 46A or s 195A] in respect of any offshore entry person who makes a claim that Australia owes the claimant protection obligations' as well as 'a direction [pursuant to which direction the Department has established and implemented the RSA and IMR procedures] to provide the Minister with advice about whether power under s 46A or s 195A can or should be exercised'.[5]
16. The High Court held that an RSA, and any subsequent IMR, constitute conduct 'under and for the purposes' of the Act on the basis that the conduct occurs after the Minister 'has begun the task of considering whether to exercise power under either s 46A or s 195A'[6] and 'for the purposes of informing the Minister of matters ... relevant to the decision whether to exercise one of those powers in favour of a claimant'.[7] The High Court also held that the conduct directly affects the rights and interests of a claimant by prolonging detention.[8]
17. The High Court held that the fundamental question to which the RSA and IMR processes were directed is whether the criterion stated in s 36(2) of the Act, as a criterion for grant of a protection visa, was met.[9] Whether that criterion is met depends on the terms of s 36(2) itself , as well as on the various other provisions of the Act that explain or define concepts within it, or mould its application in particular circumstances. These include ss 36(4)-(7), 91R-91U, and the definitions of relevant words and phrases in s 5.
18. The High Court concluded 'that the assessment and review must be procedurally fair and must address the relevant legal question or questions'.[10] This conclusion was said to follow from the findings referred to above and to reflect 'well established' principles governing the limits of the exercise of a statutory power affecting rights or interests.[11]
19. As the RSA and IMR processes do not arise from the valid application of a visa and therefore are not reviews conducted by the Refugee Review Tribunal, the procedural fairness obligations prescribed in Part 7 Division 4 of the Act do not apply. Instead, the principles of common law procedural fairness apply.[12]
Jurisdiction and relief
20. The Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution, that is, to grant a writ of mandamus or certiorari, or injunction.[13]
21. In M61, the High Court held that mandamus will not issue to compel the Minister to reconsider exercising the power given by ss 46A or 195A, and that the unavailability of mandamus meant that there was no utility in granting certiorari to quash the IMR recommendation.[14] The High Court left open the issue of whether an injunction was available.
22. The first respondent submits that while an injunction is necessary to enliven the jurisdiction of this Court,[15] should the Court be minded to grant relief, an injunction is not necessary or appropriate in circumstances where there is no immediate threat of the applicant being removed from Australia in reliance of the IMR recommendation. Instead, the Court can be satisfied, as the High Court was in M61,[16] that a declaration that the recommendation is affected by legal error will be sufficient for the Department and Minister to not rely on a recommendation.”
[4]     M61 (2010) 243 CLR 319 at [70].
[5]     M61 (2010) 243 CLR 319 at [66].
[6]     M61 (2010) 243 CLR 319 at [67].
[7]     M61 (2010) 243 CLR 319 at [73].
[8]     M61 (2010) 243 CLR 319 at [76].
[9]     M61 (2010) 243 CLR 319 at [89].
[10]    M61 (2010) 243 CLR 319 at [78].
[11]    M61 (2010) 243 CLR 319 at [73].
[12]    M61 (2010) 243 CLR 319 at [91].
[13] s 476 of the Act.
[14]    M61 (2010) 243 CLR 319 at [99]-[100]
[15]    Darabi v Minister for Immigration and Citizenship [2011] FMCA 371 at [27]-[31]
[16]    M61 (2010) 243 CLR 319 at 360-361 [101]-[104].

The Applicant’s claims

The applicant provided a statutory declaration in support of his claims in which he stated as follows:
a)He left Sri Lanka because his life was in danger.
b)Since January 2009, he has lived in an area where the government has been very active against Tamils.
c)He travelled through different villages in an attempt to avoid the army.
d)In 2009, the army entered one of the villages and his brother was injured in the bombings and received shrapnel wounds.
e)The army rounded up all the Tamils in the village and said they were being taken to a refugee camp.
f)The army asked anyone who had contact with the Liberation Tigers of Tamil Eelam (“LTTE”) to go and register and since then nothing has been heard from many of those people.
g)In May 2009, the applicant was taken to a government hospital because he was severely ill.
h)Many people were forcibly taken to the hospital as an interim step before being taken to the refugee camp.
i)He managed to escape from the hospital with the aid of a hospital staff member.
j)He lost contact with his father and brother at this time and has not heard from them since. He fears that they may have suffered great harm or been killed.
k)After leaving the hospital, he went to the house of a friend of the hospital staff member who had helped him escape. He felt safer, but did not go outside for three months because he was scared.
l)When the elderly people who had been looking after him could no longer afford to do so, he travelled to the house of one of his father’s friends. He stayed there for five months and again confined himself to the house due to fear.
m)While living in this house, he made contact with an agent who helped him travel to Australia.
n)If he is returned to Sri Lanka, he fears he would be killed by the army because all the people in his area have been branded LTTE supporters. Further, the LTTE would force him to work as a border protection agent which is very dangerous.
o)If the army finds out that he has travelled to another country, he would be specifically targeted for harm.

The proceeding before this Court

The applicant was represented before this Court by Mr Ben Zipser, of counsel.
At the commencement of the hearing, by consent, leave was given to the applicant to file in Court and rely upon an amended application which identified the following ground of review:
“1. The applicant claimed he had a well-founded fear of persecution on the ground of imputed political opinion because the government would consider he was an LTTE supporter or associated with the LTTE. The reviewer made findings that the applicant would not be suspected of being an LTTE member, but the reviewer did not deal with parts of the applicant’s claim that the government would consider he was an LTTE supporter or associated with the LTTE. On this basis, the reviewer did not deal with parts of the applicant’s claim before the reviewer, which is a jurisdictional error.”
In support of the amended application, Mr Zipser submitted that the Reviewer had failed to consider the applicant’s claim to fear persecution for an imputed political opinion of support for the LTTE. Mr Zipser submitted that the Reviewer’s findings were made only in the context of considering whether or not the applicant would be perceived to be an LTTE member.
Having identified the complaint in that way, Mr Zipser made several further oral complaints that he submitted were effectively subsets of the primary complaint and alluded to in his written submissions. I have identified those further complaints below, as I understood them to be, but ultimately have found that none of them identified a legal error on the part of the Reviewer.
It is common ground that the applicant’s claims included a claim to fear persecution by reason of being imputed with a political opinion of support or association with the LTTE. The applicant contends that the Reviewer rejected that claim without proper consideration. The respondent contends that the Reviewer considered such a claim but was not ultimately persuaded by it.

Mr Zipser submitted that consideration of each of the situational events and rejection of those as grounding a well-founded fear of persecution was not sufficient to allow the Reviewer to reject the applicant’s claims. Mr Zipser submitted that the Reviewer was also required to consider the cumulative effect of the situational events in considering whether the applicant would be imputed with the political opinion of being an LTTE supporter.
Mr Zipser identified those situational events and findings of the Reviewer as follows:
a)The applicant lived in the Vanni in Sir Lanka. The Reviewer accepted that claim.
b)The applicant was a young Tamil male. The Reviewer accepted that claim.
c)The applicant’s father was a volunteer for the Economic Development Office and was accused of being an LTTE member which would implicate the applicant because he helped his father with that work. The Reviewer did not accept that the father had an LTTE profile or that the applicant would be imputed with any LTTE profile because he helped his father or because his father was accused of being an LTTE supporter.
d)The applicant had engaged in some sort of defence training with the LTTE in 2008. The Reviewer accepted that the applicant had been required to do basic self preservation training with the LTTE in 2008.
e)The applicant’s brother was an LTTE member for six months. The Reviewer accepted that the brother had been forcibly recruited by the LTTE for six months, but did not accept that any political opinion would be imputed to the applicant because of that fact.
Mr Zipser submitted that the Reviewer should have considered those claims cumulatively in considering whether or not the applicant had a well-founded fear of persecution as a perceived supporter of the LTTE. Mr Zipser referred to the summary in the Reviewer’s decision record of the various claims made by the applicant.
In his Statutory Declaration in support of his claims, the applicant stated that he feared that he would be killed by the government army because all people who were living in the area in which the applicant lived, the Vanni area, were all branded as Tiger supporters. He stated that if returned to Sri Lanka that he would be harmed because the government army would think that he was a Tamil worker and supporter from the Vanni region and that he would be specifically targeted if they knew that he had travelled to Australia seeking asylum.
In commencing the “Findings and Reasons” section in the decision record, the Reviewer stated that the applicant claimed to fear “persecution by reason of his imputed political opinion as a LTTE supporter and as a failed asylum seeker who escaped custody and departed Sri Lanka illegally and that the state would not protect him and that he could not relocate.” That summary by the Reviewer of the applicant’s claims is entirely consistent with the claims made by the applicant and demonstrates that the Reviewer understood that the applicant was claiming to fear persecution because of his imputed political opinion as an LTTE supporter.
Thereafter in its decision record, the Reviewer considered the particulars of the applicant’s claims.
The Reviewer accepted that the applicant’s brother was forcibly recruited by the LTTE for six months, that he was essentially a farmer for most of his working life and that some disgruntled farmers accused his father of being an LTTE supporter. The Reviewer also accepted that the applicant was required to do basic self-preservation training with the LTTE as part of the general Tamil population during 2008 in Vanni. The Reviewer found that the applicant, his father and younger brother were arrested by the army as part of a general round-up of all Tamils in May 2009. The Reviewer accepted that the applicant’s brother and father have disappeared having been detained in camps run by the military.
The Reviewer accepted that the applicant was taken to hospital in May 2009, but found that the applicant’s evidence about how he managed to escape from the hospital as “not plausible”. Nevertheless, the Reviewer gave the applicant the benefit of the doubt and accepted that he was able to make arrangements to escape in the manner claimed. The Reviewer accepted that the applicant was able to avoid detention after his escape from the hospital by hiding in houses known to his friend at the hospital and his father.
In rejecting the applicant’s claim that he would be treated with suspicion by Sri Lankan authorities because he had escaped from a hospital and was not registered with authorities for over 18 months prior to his departure, the Reviewer based that finding on the applicant’s “profile as a non LTTE member or supporter” and did not accept that the applicant would be imputed with political opinion because of his brother’s involvement as an LTTE member.
In rejecting the applicant’s claim that he would be arrested on return, the Reviewer again stated that the applicant does not have an LTTE profile and that there is no evidence to suggest that his family members in the east had any association with the LTTE.
The Reviewer also considered in significant detail the applicant’s claim that he would be at risk upon his return to Sri Lanka for reason of being a failed asylum seeker.
The Reviewer noted that it put country information to the applicant that suggested that such persons are not at risk unless suspected of a crime or LTTE membership with a particular profile.
The Reviewer referred to country information that there would be checks at the airport for nationality, criminal record and links to the LTTE. The Reviewer accepted that Tamils from the north east of the country may face greater scrutiny than others upon re-entry. The Reviewer found that once the interviews and checks in respect of the applicant were completed that the applicant’s profile was such that he would be free to enter the country. The Reviewer found that apart from his escape from the hospital and his illegal departure, the applicant had not committed any crime and was not an LTTE member, nor did the applicant claim otherwise.
The Reviewer was satisfied that the procedure for processing failed asylum seekers and returnees was not discriminatory and was appropriate to achieve security checks of nationals seeking re-entry to Sri Lanka.
Further, the Reviewer found that country information indicated that persons who departed legally from Sri Lanka and made an asylum claim abroad were not treated any differently to deportees. The Reviewer did not accept that the applicant would be accused of being an LTTE supporter, traitor or spy.
The Reviewer stated that it considered the applicant’s evidence that he would be persecuted as a failed asylum seeker and returnee, but found that the applicant did not have a LTTE profile prior to his departure from Sri Lanka. The Reviewer accepted that the applicant was caught up in the general violence and suspicion that all Tamils in Vanni were treated with at that time.
The Reviewer also rejected the applicant’s claim of being imputed with an LTTE profile because his father was taken by the Sri Lankan army.
It is well established that a decision maker, such as the Reviewer, is required to consider all claims that squarely arise on the evidence and material before the decision maker (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 219 ALR 27). A fair reading of the Reviewer’s decision record makes clear that the Reviewer considered all claims made by the applicant.
The applicant’s written claims and the summary of the claims made by the applicant to the Reviewer do not suggest that there was any express separate claim that, cumulatively, the applicant was at greater risk because of the totality of his claims as opposed to each of his claims.
In any event, the Reviewer accepted that the applicant has a genuine subjective fear of persecution as a result of his experience during the 26 year long civil war and the treatment of his close family members. That finding includes cumulative consideration by the Reviewer of the applicant’s claims.
Ultimately, the Reviewer was not persuaded that the applicant’s fear was well-founded because the country information before it did not support the objective basis of the applicant’s fear.
The Reviewer was satisfied that the situation in Sri Lanka has changed markedly since the war ended in May 2009 and that Tamils are not at any particular risk on return to Sri Lanka, unless suspected of a crime or membership with a particular profile, which the Reviewer found that applicant does not have. The Reviewer stated as follows:
“Having regard to the country information and the claimant’s claims, I have concluded that he does not have a well-founded fear of persecution, as contemplated by section 91R of the Act, as a consequence of his political opinion, his ethnicity or for any other Convention reason, if he were to return to Sri Lanka now or in the reasonably foreseeable future.”
In the circumstances, whether considered individually or cumulatively, the applicant’s claims were ultimately subsumed into that finding of greater generality (see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (“WAEE”)).
The Reviewer’s findings were open on the evidence and material and for the reasons given.
Mr Zipser further submitted that certain country information referred to by the Reviewer in the decision record distinguished between members and supporters of the LTTE. It is common ground that there is a distinction between a LTTE member and a LTTE supporter. However, ultimately, the Reviewer found that membership of the LTTE alone was not sufficient to establish a well-founded fear of persecution in Sri Lanka in the light of country information before the Reviewer.
As stated above, the Reviewer found that the situation has markedly changed since the war ended in May 2009. The Reviewer did not accept that the applicant would now be suspected of being an LTTE member. Mr Zipser submitted that that finding by the Reviewer demonstrated that the Reviewer did not understand the applicant’s claim to fear persecution by reason of an imputed political opinion of support for the LTTE, rather than as a member.
Mr Zipser also referred to the following finding by the Reviewer, where the Reviewer stated as follows:
“I found that there is no real chance that the claimant will be persecuted in the future if he returns to the east or other parts of the country by Kauna, the army or the CID on suspicion of being a LTTE member for any other Convention reason.”
Mr Zipser submitted that finding by the Reviewer did not have regard to the applicant’s claim to be a LTTE supporter and that the reference to “any other Convention reason” must be confined to consideration of whether the applicant was a LTTE member.
However, this distinction, even if correct, is not sufficient to demonstrate any error by the Reviewer in the manner in which it considered the applicant’s claims. Plainly, the rejections of the applicant’s claims on the findings above are made in light of the applicant’s claim to be a LTTE supporter or to be imputed with such political support.
Clearly, if a LTTE member was not at risk for the reasons specified by the Reviewer then a supporter must be at no greater risk.
Moreover, the applicant’s claim to be imputed with political opinion of being a LTTE supporter is clearly subsumed in the finding of greater generality that a LTTE member was not at risk. In WAEE at 641, the Court stated as follows:
“It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons… Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.”
Mr Zipser further submitted that in considering if the applicant was perceived to be an LTTE supporter with reference to country information, the Reviewer must consider the entirety of the applicant’s personal background matters. In support of that submission, Mr Zipser referred the Court to Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [130] where Kirby J stated:
“Yet independent country information can never be determinative of the outcome of an individual case. Were it otherwise this would relieve the Tribunal of the need to consider individual circumstances.”
However, a fair reading of the Reviewer’s comprehensive written record makes clear that the Reviewer had proper regard to the individual circumstances of the applicant in the light of the country information upon which it relied.
A fair reading of the Reviewer’s decision record makes clear that the Reviewer understood the applicant’s claims to be someone who may be perceived to have links to the LTTE by reason of the situational events referred to above at [22].
Fairly read, the applicant’s claim was to fear persecution by the authorities in Sri Lanka because he may be imputed with political opinion of support for the LTTE. Even if the Reviewer was required to consider those events cumulatively, the Reviewer did so, and the Reviewer’s conclusion makes clear that it had regard to country information and the applicant’s claims in concluding that the applicant does not have a well-founded fear of persecution by reason of any imputed political opinion, ethnicity, or for any other Convention reason if he were to return to Sri Lanka now or in the reasonably foreseeable future.
As stated above, at the heart of the reason for the Reviewer’s rejection of the applicant’s claim to have a well-founded fear was the country information before it. A fair reading of the Reviewer’s written record makes clear that the Reviewer considered the effect of the country information in relation to the specific claims made by the applicant and was not satisfied that any of those particular claims by the applicant put him at any greater risk than those identified in the country information.
I am satisfied that the Reviewer’s findings and conclusions were open to it on the evidence and material before it and for the reasons given.
In the circumstances, the Reviewer’s decision is not affected by any denial of procedural fairness of the nature and type suggested in the grounds of the amended application or other oral submissions made by counsel for the applicant.

Conclusion

A fair reading of the Reviewer’s decision record makes clear that the Reviewer understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Reviewer put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Reviewer also put to the applicant independent country information before it and invited the applicant to comment upon it. The Reviewer also identified independent country information to which it had regard. The Reviewer then made findings based on the evidence and material before it. Those findings of fact were open to the Reviewer on the evidence and material before it and for the reasons it gave. A fair reading of the Reviewer’s decision record makes clear that the Reviewer reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Reviewer’s conduct in recommending that the applicant not be accepted as a refugee was made according to law.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 4 July 2012