SZQGJ v Minister for Immigration - [2011] FMCA 900

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQGJ v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 900

MIGRATION – Review of decision of Independent Merits Reviewer – persecution – where applicant a Tamil from north of Sri Lanka – whether IMR failed to consider claims made by the applicant – inferences – whether proper to infer that matter not referred to in reasons of IMR not taken into consideration – whether jurisdictional error.

Migration Act 1958 (Cth), ss.5, 476

Plaintiff M61/2010E v Commonwealth of Australia (2010) 85 ALJR 133
Minister of Immigration v Yusef (2001) 206 CLR 323
Htun v Minister for Immigration (2001) 194 ALR 244
Alexandra and Others v Australian Community Pharmacy Authority and Others (2010) 265 ALR 424
SZDXZ v Minister for Immigration (2008) FCA FC 109
WAEE v Minister for Immigration& Anor (2003) 75 ALD 630

Applicant:

SZQGJ

FirstRespondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 1053 of 2011

Judgment of:

Raphael FM

Hearing date:

3 November 2011

Date of Last Submission:

3 November 2011

Delivered at:

Sydney

Delivered on:

3 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Parish Patience

Counsel for the Respondent:

Mr D Godwin

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1053 of 2011

SZQGJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant who is a Sri Lankan Tamil male, is an “offshore entry person” within the definition of that term in s.5 of the Migration Act 1958 (Cth) (the “Act”) who entered Australia by boat sometime before 26 March 2010. He claimed to be a person to whom Australia owed protection obligations, notwithstanding the fact that he is outside the migration zone. His claims were assessed by an officer of the department who determined that he was not such a person on 28 July 2010. The applicant was granted an independent merits review of that decision by the second respondent who determined on 20 April 2011 that he was unable to recommend that the claimant should be recognised as a person to whom Australia owed protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.
Following the decision of the High Court in Plaintiff M61/2010E v Commonwealth of Australia (2010) 85 ALJR 133 the applicant has the right to apply to this court under s.476 of the Act for judicial review of that decision and did so by way of an application filed 20 May 2011.
The grounds upon which the applicant considered that he was a person to whom Australia owed protection obligations were that Tamil males from the north of Sri Lanka were held in suspicion by the Sri Lankan Government for association with the LTTE and that the Sri Lankan Government had instituted a regime of extra judicial detention which frequently involved beatings and torture of persons who were so detained. Young male Tamils formed a significant proportion of those who were thus treated. The applicant also claimed that he would be particularly sought out because he had already been the subject of detention and beating when the authorities questioned him concerning his father’s LTTE connections. He had been released from that detention after the payment of a bribe by his mother but felt that should he return to Sri Lanka he would once again be subject to the deprivation of liberty and possible further persecution.
The applicant was questioned by the IMR about his claims and in the IMR reasons for decision the claims made by him in his application and at the assessment officer hearing, as well as those made before the IMR himself, were noted [CB 144]. The detention he referred to took place in September 2009. The applicant said that he was taken to a place, he wasn’t sure whether this was done by the CID or the Army, and they thought that he was an LTTE supporter as his father was suspected of being an LTTE supporter. Upon further questioning by the IMR he accepted that he was only questioned about his father. The IMR accepted much of the applicant’s evidence. It accepted that his father was an electronics teacher at a technical school in an LTTE controlled area until about 2002 and received an award from the leader of the Tamil movement at sometime probably in the 1990s. The IMR accepted that the applicant was questioned about this by the CID in about August or September 2009 and was released after about five days of questioning. The IMR accepted the applicant thought that he had been followed by a white van for a few days thereafter.
At [24] [CB 156] the IMR articulates his findings.
“[24]I accept the claimant as a Tamil male. 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 who was originally from Jaffna. He has lived in Colombo for most of the past ten years and been educated there. I accept as detailed above most of his history has been true. I accept that his father was awarded a medal by the Tamil movement many years ago, and also that he now resides in Switzerland. I accept that the claimant was detained probably by the CID, and questioned only about his father. He conceded this at interview with me. I consider that as the claimant was released, even with the intervention of his mother, that this indicates that the claimant was not of adverse interest to the authorities. I consider that at the time when mass round-ups, arrests and detentions were taking place that the fact of his being released clearly indicates no adverse interest. … Whilst I accept as noted above that his father received an award many years ago, the claimant has not claimed any other family association with, or membership with the LTTE, and I do not accept that this minor association would in future bring him to the adverse interests of the authorities. The claimant has been able to travel in and out of Sri Lanka during periods of conflict indicates he was of no adverse interest at that time to the authorities.
…
[26] Mr Hammond has raised that the claimant fits with a certain profile and maybe at additional risk of arrest and investigation. I note that the claimant is registered to reside in Colombo as are his mother, sister and an aunt. He has previously been detained and investigated and released, indicating that he is of no adverse interest to the authorities. Whilst he may fit in with a general profile his particular circumstances indicate he is not at risk of harm in the reasonably foreseeable future.”
The applicant comes to this court relying upon an amended application filed on 7 September 2011 and there is only one ground. It is “The decision of the second respondent, the Independent Merits Review (the IMR), was affected by legal error in that the IMR failed to consider claims made by the applicant.”
“Particulars:
(a)The claim that he was tortured during his detention at the hands of the CID in Colombo;
(b)The claim that a bribe was paid for his release.”
Mr Karp, who appears for the applicant, argues that the failure to make a finding on a material question of fact is indicative of other errors (Minister of Immigration v Yusef (2001) 206 CLR 323, 330-331 [4] – [5], 346 [69], 352 [84]). He argues that the failure to consider both the fact of the beatings and the fact of the bribe constitutes integral parts or component integers of the applicant’s claims and that this failure constitutes jurisdictional error; Htun v Minister for Immigration (2001) 194 ALR 244 at [42].
The respondent argues that the inference that the IMR did not consider the applicant’s treatment whilst in detention or the bribe paid to release him therefrom should not be drawn, but that if it is so drawn, what is overlooked is not an integer of the applicant’s claim, but a piece of evidence supporting that claim.
The history of the applicant’s detention, his beatings at that time and the bribe paid by his mother was rehearsed in all three occasions referred to by the IMR at [CB 144]. When the IMR came to deal with his detention he did not mention the beatings, but to my mind he most certainly did take into account the bribe. He noted the applicant’s claim that he had been released as his mother had paid money and then a white van had chased him. [CB 144]. In the IMR’s assessment of the claims at [24] extracted at [5] of these reasons, there is specific reference to the intervention of his mother. That intervention, to my mind, could only be a reference to the bribe being paid, because it was not suggested that his mother did anything else to secure his release. As I am not satisfied that the IMR did not take into account the bribe it is not necessary for me to consider whether or not it formed an integer of the applicant’s claim.
The position with regard to the beating is not so clear. Certainly, it was mentioned by the applicant. It is possible that it was one of those aspects of the applicant’s claims that the IMR did not think credible or the IMR could have assumed that in making reference to the detention that included the beatings which had already been referred to as part of the applicant’s claims.
There are a number of authorities dealing with the effect of a decision maker not referring to some particular aspect of a case. One of the most recent is Alexandra and Others v Australian Community Pharmacy Authority and Others (2010) 265 ALR 424 where Bromberg J helpfully considers the authorities on this subject. He reminds his readers at [84] that:
“There ought to be no assumption made that the failure to have included a matter in a statement of reasons when obliged to do so leads to the conclusion that there was a failure to take that matter into consideration in the making of the decision itself.”
At [85] his Honour notes:
“Delivering the decision of a Full Court in Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 Fox J said that “it is a mistake to conclude simply from the fact that a judge or Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped his attention”.
And finally at [89] his Honour opines:
“It may be that the failure to refer to the single management considerations in the statement of reasons is a failure in the process of the provision of reasons and not a failure in the decision-making process itself. On what basis am I to refer that the failure stems from the decision-making process itself? I agree with the statement of French J in Taveli at FCR 179; ALR 194; ALD 330 that a properly authenticated statement of reasons provided under s 13 may, absent any contra-indication, sustain the inference that it is an accurate account of the reasons actually relied upon by the decision-maker. However, for the reasons which follow there are contra-indications apparent in this case.”
That the responsibility was upon the applicant to demonstrate that having regard to all of the evidence and other material before the court it would be appropriate to draw an inference that a matter was not considered by a tribunal, was pointed out by the Full Bench, Heerey, Branson and Emmett JJ in SZDXZ v Minister for Immigration (2008) FCA FC 109 at [25] and was also the subject of Full Bench consideration in WAEE v Minister for Immigration& Anor (2003) 75 ALD 630 at [47, 48- 49].
Given the whole of the applicant’s evidence and its notation by the IMR I do find it difficult to draw the required inference. But I think that there is a more important factor in play and that is that like all these decisions this one was a reference to what might happen to the applicant should he return to Sri Lanka. It is accepted that what occurred in the past may be a good indicator of what might occur in the future and it is a particularly good indicator of the subjective element of a well-founded fear. This IMR does not make a finding that this applicant did not have such a fear. Indeed, he points out at [24] [CB 156] that the applicant does fear that he will be harmed and possibly killed in Sri Lanka. But then the IMR goes on to look at what he believes may occur and provides reasons for that conclusion. He notes that it is now two years since the end of hostilities. He notes that after the applicant was released he managed to live in Colombo without being disturbed for some time. He notes that the inquiries made of the applicant were only in connection with his father and he notes that members of his family are still resident in Colombo. It is upon that basis that he concludes that the applicant is not at risk of harm within the reasonably foreseeable future notwithstanding his five days of detention and the requirement to pay a bribe to have him released.

If one looks at the decision in this way one can see that a possible failure to note the alleged beating of the applicant during his detention is not a matter that goes to the central decision to be made, the jurisdictional fact of whether he has a well-founded fear of persecution.
Notwithstanding Mr Karp’s helpful and able advocacy on the part of his client I regret that I am unable to find a jurisdictional error in the manner in which this IMR reached his decision and, therefore, the application must be dismissed and the applicant shall pay the first respondent’s costs which I assess in the sum of $6,240.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 18 November 2011