SZQGD v Minister for Immigration and Citizenship

[2012] FCA 1235

FEDERAL COURT OF AUSTRALIA

SZQGD v Minister for Immigration and Citizenship [2012] FCA 1235

Citation:		SZQGD v Minister for Immigration and Citizenship [2012] FCA 1235
Appeal from:		SZQGD v Minister for Immigration & Anor [2012] FMCA 584
Parties:		SZQGD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and KERRY BOLAND IN HER CAPACITY AS THE INDEPENDENT MERITS REVIEWER
File number:		NSD 1032 of 2012
Judge:		LANDER J
Date of judgment:		9 November 2012
Date of hearing:	5 November 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	44
Counsel for the Appellant:	Mr S Prince
Solicitor for the Appellant:	Rasan T Selliah & Associates
Counsel for the First Respondent:	Mr H Bevan
Solicitor for the First Respondent:	Minter Ellison
Counsel for the Second Respondent:	There was no appearance for the Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1032 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQGD
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

KERRY BOLAND IN HER CAPACITY AS THE INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	9 NOVEMBER 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1032 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQGD
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

KERRY BOLAND IN HER CAPACITY AS THE INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	LANDER J
DATE:	9 NOVEMBER 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from an order of a Federal Magistrate made on 4 July 2012, dismissing the appellant’s application for judicial review of a decision made by an Independent Merits Reviewer on 30 December 2011 recommending that the appellant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.  The appellant also appeals against the Federal Magistrate’s order that the appellant pay the Minister’s costs in the fixed amount of $8,000.

2. The appellant is a Sri Lankan citizen who arrived in Australia at Christmas Island on 28 March 2010.  On 2 May 2010, the appellant applied for a Refugee Status Assessment.  The application was accompanied by a typed statement of the appellant in which he set out his grounds for claiming that he was a person to whom Australia owed protection obligations.  On 14 July 2010, a delegate of the Minister made a decision that the appellant did not meet the criteria for being a refugee and was not a person to whom Australia owes protection obligations.

3. On 17 August 2010, the appellant applied for an Independent Merits Review (IMR).

4. On 24 November 2010, the appellant attended an IMR interview.  On 7 April 2011, an IMR recommended that the appellant not be recognised as a person to whom Australia has protection obligations.

5. The appellant sought judicial review in the Federal Magistrates Court.  On 3 August 2011, that Court made a declaration that the IMR assessment was affected by legal error and remitted the decision for a further IMR.

6. On 3 November 2011, the appellant attended a second IMR interview.

7. On 30 December 2011, the second respondent (the Reviewer) recommended that the appellant not be recognised as a person to whom Australia has protection obligations.

8. On 10 February 2012, the appellant applied to the Federal Magistrates Court for judicial review of the Reviewer’s recommendation.  On 4 July 2012, a Federal Magistrate dismissed that application.

9. The appellant now appeals to this Court.

   Proceeding before the Reviewer

10. The appellant claimed to be a Hindu Tamil from the Trincomalee district in Sri Lanka. He claimed to have lived, since 1990, with his family as refugees and that after 1995 his family were separated.  He claimed that his younger brother had been forcibly recruited by the Liberation Tigers of Tamil Eelam (LTTE) but had eventually escaped.  He claimed that his father had been accused by disgruntled farmers of being a LTTE, due to his role assisting the Economic Development Office as leader of the farmer’s society in Muthayankattu Kulam monitoring water distribution.  He claimed that his father and younger brother both disappeared in May 2009 after being taken to an Army controlled area and that he believed that they were dead as he had not heard from them or been able to locate them since.

11. He said that in 2009, the Army rounded up the Tamil people for the purpose of taking them to a refugee camp.  The Army announced that anyone who had had contact with the LTTE should register.  He said that a number of those people who complied had disappeared.

12. The appellant claimed that he was taken to a government hospital instead of the Army controlled area as he was suffering from diarrhoea at the time and was at a stage where he could not walk, and that he was in the hospital for two days but then managed to escape with the assistance of a hospital worker.  He claimed to have hidden in an elderly couple’s house for three months from which he only came out into the compound at night to wash and use the toilet, and then moved to the house of a friend of his father’s who hid him for five months.

13. The appellant claimed that his travel to Australia was paid for by one of his sisters who lives in London and that he left Sri Lanka illegally without a passport.  He claimed that if he were to return to Sri Lanka, he would be killed by the Army on the basis of his Tamil ethnicity and imputed political belief or his profile as a young single Tamil male from a former LTTE controlled area and a failed asylum seeker. He claimed he cannot seek protection from the state as it is the authorities from whom he fears persecution.

14. The Reviewer accepted several claims of the appellant, but did not accept that he would be a person of interest to the Sri Lankan authorities should he return.  In particular, the Reviewer accepted that the appellant’s younger brother was forcibly recruited by the LTTE for six months.  However, the Reviewer did not accept that the appellant would be imputed with political opinion because of his younger brother’s involvement with the LTTE.

15. The Reviewer did not accept that the appellant’s father had an LTTE profile, or that the appellant had acquired an imputed profile because of the assistance he had given his father in working with the Economic Development Office.

16. The Reviewer found that there was no real chance that the appellant would be persecuted in the future if he returned to Sri Lanka on suspicion of being an LTTE member or for any other Convention reason.

17. Further, the Reviewer was not satisfied that checks and interviews, which would likely be conducted on the appellant by Sri Lankan authorities on his arrival should he return, would be discriminatory in its terms or intent, or that they would amount to persecution for a Convention reason.  Although the Reviewer accepted that the appellant has a genuine subjective fear of persecution, the Reviewer found that the country information no longer supported the objective basis of the appellant’s fear and as such found that he did not have a well-founded fear of persecution for a Convention reason.

    Proceeding in the Federal Magistrates Court

18. In his amended application, the appellant relied upon the following ground:

    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.
    (Original emphasis.)

19. The Federal Magistrate found the Reviewer considered all claims made by the appellant. The Federal Magistrate found the Reviewer’s acceptance of the appellant’s subjective fear included cumulative consideration by the Reviewer of the appellant’s claims. The Federal Magistrate found the Reviewer’s findings were open on the evidence, and that appellant’s claims were ultimately subsumed into the finding of greater generality. The Federal Magistrate held that the Reviewer’s decision was not affected by a denial of procedural fairness and the Reviewer’s recommendation was made according to law.

    The appeal proceeding

20. The appellant filed his notice of appeal on 23 July 2012. He advanced a single ground of appeal:

    1. The Court Below erred in finding that the decision of the second Respondent (the IMR) was not affected by jurisdictional error.

    Particulars
    (a) The IMR’s (sic) failed to deal with part of the applicant’s claim that the government would consider the applicant that he was an LTTE supporter or associated with the LTTE and his claim that he had a well founded fear of persecution on the ground of imputed political opinion.

21. On appeal, the appellant contended that the Reviewer had only assessed the appellant’s claims as against his being a member of LTTE and did not assess his claims on the basis that he was an LTTE supporter or associated with the LTTE.

22. The same argument was put to the Federal Magistrate who said at [49]-[51]:

    49.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.

    50.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.

    51.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.  …

    (Original emphasis.)

23. The appellant contended that her Honour erred in her assumption that the Reviewer had proceeded upon the basis that the appellant was a member of the LTTE and that error infected her Honour’s understanding of the generalised finding into which the particular finding was said to be subsumed.

24. The Minister did not seek to uphold the Federal Magistrate’s orders for the reasons given by the Federal Magistrate.

25. Indeed, the Minister conceded that the Reviewer had not made a finding that a LTTE member was not at risk and, therefore, it could not be said that the claims had been subsumed in the finding of greater generality.

26. However, the Minister contended that the Federal Magistrate’s orders should stand because it had not been demonstrated that the Federal Magistrate had not addressed each of the appellant’s claims.

27. The appellant complained on the appeal, as the notice of appeal shows, that both the Reviewer and the Federal Magistrate were distracted from the claim made by the appellant, which was that he was a supporter of, or associated with, the LTTE and, therefore, at risk.

28. In my opinion, the appeal must fail.  The Reviewer did not restrict the Reviewer’s assessment to merely membership of the LTTE.

29. In paragraph 52 of the Reviewer’s reasons, the Reviewer said, in assessing the appellant’s claims:

    The appellant’s claims for protection are essentially three fold.  The claimant fears persecution by reason of his imputed political opinion as a LTTE supporter and as a failed asylum seeker who has escaped custody and departed Sri Lanka illegally.  The state will not protect him and he cannot relocate.

30. The appellant does not dispute that the Reviewer there accurately identified the appellant’s claims for protection.  The Reviewer was assessing the appellant’s claim as a LTTE supporter.

31. In assessing those claims, the Reviewer said at paragraph 54:

    Having regard to his profile as a non LTTE member or supporter, the passage of time since the war ended and the country information about the emphasis on return to place of origin – I am satisfied that there is no evidence to support this claim.  Similarly, I do not accept that the claimant will be imputed with a political opinion because of his younger brother’s involvement as a LTTE.

32. Later, the Reviewer spoke of the appellant not having a LTTE profile and the lack of evidence to suggest that his family members had any association with the LTTE.

33. In paragraph 58, the Reviewer said:

    As I put to the claimant – the situation has markedly changed since the war ended on May 2009 and the UNHCR Guidelines (ibid. page 7) identify potential risk profiles including Persons Suspected of Having Links with the Liberation Tigers of Tamil Eelam (LTTE) and he does not have that profile.  I do not accept his claim that he would be interrogated as a person of interest as described in the Guidelines.  I do not accept that he would now be suspected of being a LTTE member.

34. Later, in the same paragraph, the Reviewer said:

    On his own admission he did not have the physical capability to be a LTTE and took no active role in supporting the movement.  He does not have the profile of a LTTE cadre or someone who had links to the LTTE.

35. In paragraph 64, the Reviewer said:

    I do not accept that the Sri Lankan authorities will accuse the claimant of being a LTTE supporter, traitor or spy.  Having regard to the claimant’s profile and the country information, I am satisfied that if he comes to the adverse attention of the authorities for departing Sri Lanka illegally that would be the result of an application of the general law and not for a Convention reason.

36. It is not right to say, as the appellant has contended, that the Reviewer considered the appellant’s claims only as a member of the LTTE.  Indeed, on a fair reading of the passages to which I have referred, the Reviewer assessed the appellant’s claim as something less than membership of the LTTE, perhaps a supporter, which is in fact what the appellant says ought to have occurred.

37. The appellant also contended that the Reviewer unnecessarily restricted the appellant’s claim to having links with the LTTE to the potential risk profile in country information, being the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka published on 5 July 2010.

38. The appellant contended that by assessing the appellant’s claims against the potential risk profile identified in that publication, the Reviewer did not have regard to the generality of the appellant’s claims.

39. In my opinion, that contention should also be rejected.

40. Although the Reviewer had regard to the potential risk profile identified in the UNHCR publication, there is no reason to think, from anything said by the Reviewer, or indeed not said, that the Reviewer did not appropriately assess the appellant’s subjective fear for the purpose of objectively determining whether that fear was well-founded.

41. The fact is that the Reviewer was of the opinion on the evidence which was available to the Reviewer that if the appellant were to return to Sri Lanka, the appellant would not be at risk from the authorities for any Convention reason.

42. That finding is, in my opinion, fatal to the appellant’s contention.

43. In my opinion, no complaint can be made of the way in which the Reviewer assessed the appellant’s claims.  Her Honour was right to dismiss the application for judicial review for the reasons I have identified.

44. The appeal should be dismissed.  The appellant must pay the Minister’s costs.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:        9 November 2012