SZQGJ v Minister for Immigration and Citizenship
[2012] FCA 434
•2 May 2012
FEDERAL COURT OF AUSTRALIA
SZQGJ v Minister for Immigration and Citizenship [2012] FCA 434
Citation: SZQGJ v Minister for Immigration and Citizenship [2012] FCA 434 Appeal from: SZQGJ v Minister for Immigration & Anor [2011] FMCA 900 Parties: SZQGJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER File number: NSD 2087 of 2011 Judge: MCKERRACHER J Date of judgment: 2 May 2012 Catchwords: MIGRATION – appeal from decision of the Federal Magistrates Court – claim for a protection visa - appellant a Tamil from the north of Sri Lanka - whether the Independent Merits Reviewer erred by failing to consider or make findings as to specific allegations of beatings while in detention
Held: the Independent Merits Reviewer’s reasons as a whole demonstrated that the Reviewer had turned his mind to and adequately addressed every claim – no jurisdictional error – appeal dismissed with costs
Legislation: Migration Act 1958 (Cth) s 36(2) Cases cited: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109Date of hearing: 22 February 2012 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 26 Pro Bono Counsel for the Appellant: RL Hooker Counsel for the First Respondent: PR Macliver Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
NSD 2087 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQGJ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentCHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
2 MAY 2012
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant do pay the costs of the first respondent, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
NSD 2087 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQGJ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentCHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
MCKERRACHER J
DATE:
2 MAY 2012
PLACE:
PERTH
REASONS FOR JUDGMENT
INTRODUCTION
The appellant is a citizen of Sri Lanka. He is of Tamil ethnicity. He arrived in the migration zone on Christmas Island on 1 March 2010. It follows that he is an off-shore entry person within the definition of that term in s 5 of the Migration Act 1958 (Cth) (the Migration Act).
The appellant completed a request for Refugee Status Assessment (RSA) on 1 May 2010. He was interviewed by an officer of the Department of Immigration and Citizenship (the Department) four days later. The appellant claimed to fear persecution principally for reasons of his Tamil ethnicity.
An officer of the Department reviewed the appellant’s RSA request on 28 July 2010 and determined that the appellant was not a refugee as defined in the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (together, the Convention).
On 10 August 2010, the appellant, by his agent, lodged a request for an independent merits review of the Department’s decision.
The second respondent (the Reviewer) interviewed the appellant on 28 November 2010 and on 20 April 2011 found that the appellant did not meet the criteria for a protection visa set out in s 36(2) of the Migration Act. The Reviewer recommended that the appellant not be recognised as a person to whom Australia had protection obligations under the Convention. The appellant was advised of the Reviewer’s decision by letter dated 6 May 2011.
On 20 May 2011, the appellant filed an application for review to the Federal Magistrates Court of the Reviewer’s decision. An amended application was filed on 7 September 2011 by his solicitors. The application was heard before a Federal Magistrate on 3 November 2011. The appellant was represented by counsel. His Honour dismissed the application on that date. Written reasons were published on 18 November 2011: SZQGJ v Minister for Immigration & Anor [2011] FMCA 900.
On 23 November 2011, the appellant filed a notice of appeal from the Federal Magistrates Court decision in the New South Wales District Registry of this Court. The proceedings were transferred to this Registry.
On the hearing of the appeal, leave was given to the appellant to substitute the following grounds of appeal:
1.The Federal Magistrate erred in law in failing to find that the [Reviewer] had committed jurisdictional error in that the [Reviewer] had failed to take into account a consideration it was bound to take into account to exercise the jurisdiction conferred on him, namely that central to the appellant’s claim for a protection visa was that when he was detained by the CID on behalf of the Sri Lankan government in 2009 for several days, he was beaten by the government authorities daily.
2.The Federal Magistrate erred in law in failing to find that the [Reviewer] had committed jurisdictional in that the [Reviewer] had failed to deal with and make factual findings regarding, an important aspect of the appellant’s claim for a protection visa, namely that central to that claim was that, when the appellant was detained by the CID on behalf of the Sri Lankan government in 2009 for several days, he was beaten by the government authorities daily.
THE NATURE OF THE APPELLANT’S CLAIM
The appellant sought a protection visa on the basis that he had a well-founded fear of persecution by reason of his Tamil ethnicity and his suspected involvement in the Liberation Tigers of Tamil Eelam (LTTE) due to his father having been a teacher at an institution in an LTTE area, having received a gold pendant from an LTTE leader and having been interviewed on an LTTE television channel.
In the course of his Entry Interview the appellant explained the circumstances of his having been arrested by the CID (essentially police or military authorities of the Sri Lankan Government) in August/September 2009. The CID had been looking for the appellant’s father in Jaffna, Sri Lanka but had been unable to find him. The appellant was the only male in the house and was arrested, taken to a place in Colombo referred to by the CID as the ‘fourth floor’, beaten and asked about his father being part of the LTTE. He was beaten each day for five days and then the appellant’s ‘mum got help from others and paid money and got him freed’. After the claim was first made in his Entry Interview on 26 March 2010, it then appeared in his application and statutory declaration dated 1 May 2010. The claim was again made at his RSA interview on 5 May 2010, finally, the claims were repeated at the independent merits review interview on 28 November 2010 with certain matters being clarified and added.
THE ANALYSIS BY THE REVIEWER
The critical findings of the Reviewer upon which the focus of this appeal is based are set out in two paragraphs of the Reviewer’s statement of reasons (at [20] and [24]) as follows:
20. The claimant is well educated and was able to clearly detail his claims and history. I accept his father was an electronics teacher at a technical school in an (sic) LTTE controlled area until about 2002 and received an award from the leader of the Tamil movement at sometime probably in the 1990s, and that the claimant was questioned about this by the CID in about August or September 2009. I accept he was released after 5 days of questioning, and that he thinks a white van may have followed him briefly a few days later. I do not accept however, that following this release and that event, he was of any interest to anyone. In so far as his claims of being in hiding and of continued interest are concerned, I consider the claimant was prepared to exaggerate the relevance and significance of these matters and the reason why he departed from Sri Lanka. Whilst I accept that in general the history provided by him is true, I do not accept some of the associations or effects of that history. I find the claimant was for most part a credible witness, however I find that he was not a credible witness in relation to some aspects of his claims and as detailed below.
…24. I accept the claimant is 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 is 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 his history as being 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 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 indicates that the claimant was then not of adverse interest to the authorities. I consider that at that time when mass round ups, arrests and detentions were taking place that the fact of his being released clearly indicates no adverse interest. I also do not accept that the claimant was then in hiding from the authorities, nor that they looked for him. In particular, I do not accept this as it is not reasonable to believe given his subsequent conduct of starting work 2 weeks later at a KFC store. I do not accept his explanation that as KFC is an international brand, or company, that this in some way would mean that working there meant he was safe from being found by the authorities. I consider he worked there as he was not of any interest, and his willingness to do so indicated that he knew this. I also note that he was previously issued passports including an Emergency Passport by the Sri Lankan authorities, and has travelled without incident in and out of Sri Lanka. This also confirms he is not of adverse interest to them. 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 interest 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. (emphasis added)
The appellant notes the findings:
1.That the appellant’s father was an electronics teacher at a technical school in an LTTE controlled area until about 2002 and that he, the father, received an award from the leader of the Tamil movement at some time probably in the 1990s;
2.Secondly, the appellant was questioned about these matters concerning his father’s involvement in the Tamil movement by the CID in about August/September 2009; and
3.Thirdly, the appellant was released after five days of questioning and that he thought a white van may have followed him briefly a few days later.
Despite having earlier summarised the accounts given by the appellant in support of the application for a protection visa, the Reviewer made no reference to the assertion that the appellant was beaten on each day he was detained by the CID on the ‘fourth floor’. The appellant contends that such an intrinsic component of his claim was vital to a proper assessment of whether the appellant’s fear of persecution was well-founded:
In any given case, the objective validity of a fear of serious harm can be much more strongly sustained (ie satisfied as being ‘well-founded’) where it is found that the Government forces have not merely detained a person for questioning, but subjected him or her to physical violence for the purpose.
BEFORE THE FEDERAL MAGISTRATE
The Federal Magistrate acknowledged that the claim of being beaten by the CID whilst in its detention was mentioned by the appellant and noted by the Reviewer. However, having then referred to certain relevant authorities, his Honour held (at [15]) that he found it ‘difficult to draw the required inference’ that the component of the appellant’s claim had in fact not been considered by the Reviewer. That conclusion is challenged on this appeal.
ARGUMENT ON APPEAL
The appellant contends that it is obvious from the context that the Reviewer paid no regard to the importance of the asserted fact of the beatings and its significance for a proper evaluation of whether the appellant’s fear of persecution is well-founded. Rather, the Reviewer went on to find that following his release by the CID in August or September 2009, he was not of interest to anyone and that his ‘overall history’ did not give him a profile such that he would be of adverse interest to the authorities (at [25]). The appellant says this manifested a serious error in the Reviewer’s approach because the appellant’s overall history included the assertion that he was precisely of such ‘adverse interest’ to the authorities that they repeatedly assaulted him whilst in government sanctioned detention whilst asking him about his father’s political involvement. The appellant argues that to fail to properly address this essential factor meant that the Reviewer did not properly ask and answer the question about whether the appellant’s claims gave rise to a well-founded fear of persecution.
The appellant now argues that in the analysis of the reasons of the Reviewer, the Federal Magistrate failed to properly apply the relevant authority on what amounts to jurisdictional error when a central component of an applicant’s claim for a protection visa is not referred to, properly or at all. The appellant argued from the observations of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (at [10], [37], [44], [69] and [75]) that a statement of reasons provided under the Migration Act which does not refer to an important factual matter may justify a court inferring that the matter was not taken into account.
The appellant argues that ignoring component integers of a claim should be distinguished from merely errant fact finding. It amounts to a constructive failure to exercise jurisdiction: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, cited approvingly in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (at [57]). It is contended that the fact that he was beaten daily for a period of five days of detention and that seemingly a bribe was required to have him released were central features of his claim which, according to the appellant, were not considered.
CONSIDERATION
This is not a situation in which the claims made by the appellant concerning being beaten were not considered at all in the reasoning of the Reviewer. Specifically, the Reviewer set out (at [10] of his reasons) the appellant’s initial claim in his Entry Interview on 26 March 2010 that he had been arrested and taken to the fourth floor and was beaten for each of the five days before he was freed. The Reviewer also stated (at [12]) that in the statutory declaration of 1 May 2010 the appellant had ‘repeated his claim of being detained by the CID in September 2009’, but did not repeat the appellant’s statement that he was ‘beaten every day until my mother was able to convince a person that had people they knew at the fourth floor to assist in my release’.
The Reviewer noted a repetition of the claims when it came to the RSA interview of 5 May 2010. The Reviewer did note that at the interview on 28 November 2010, the appellant ‘repeated his claims and clarified or added:
… in relation to the detention in September 2009 that he didn’t know if the CID or the Army who [had] arrested him, and he was released after five days as his mother had “contacted people” (at [15]).
Although the beatings were not mentioned in the ‘Findings and Reasons’ section of the Reviewer’s statement of reasons, when read as a whole and not ‘minutely and finely with an eye keenly attuned to the perception of error’ (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 272) per Brennan CJ, Toohey, McHugh and Gummow JJ); Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (at 287) per Neaves, French and Cooper JJ), it is clear that the Reviewer did take into account the appellant’s claims that when he was in detention for five days at the fourth floor, he was beaten every day. In the absence of the beating claim being expressly rejected, the Reviewer accepted the claim as initially made by the appellant that he had been beaten for five days until he was released and found no reason to continue to repeat the claim. This is supported by the fact that the Reviewer (at [20]) of his statement of reasons stated that he accepted the various claims (plural) made by the appellant including that he was questioned about his father by the CID and was released after five days. What he did not accept was that following his release and the incident in which he was followed by a white van that he was of interest to anyone. The Reviewer further stated (at [20]) that while he accepted ‘that in general the history provided by [the appellant] is true’ he did not ‘accept some of the associations or effects of that history’. The Reviewer concluded that while the appellant ‘was for the most part a credible witness’, he found ‘that he was not a credible witness in relation to some aspects of his claims and as detailed below’.
In the circumstances of this appeal the Reviewer generally accepted the account given by the appellant but set out very specifically aspects which were not accepted. Where such items did not include a specific claim (in this case, the daily beatings), it is clear that the claim not listed as rejected, has been accepted. There was no requirement for the Reviewer to record a finding as to each and every element of the claim, especially in a circumstance where generally favourable conclusions were reached as to credibility with specifically itemised exceptions.
The items listed which were the subject of exception are a mixture of facts and conclusions including the fact that the appellant’s overall history did not give him a profile such that he would be of adverse interest to the authorities or to anyone else as it was now nearly two years since the end of hostilities.
In those circumstances, the lack of express reference to the beatings in the Findings and Reasons section of the statement of reasons is not capable of supporting an inference that the claims were ignored. Rather, it is necessary for the appellant to demonstrate that having regard to all of the evidence and other material before the Court it would be appropriate to draw the inference that the claim was ignored by the Reviewer. The appellant must demonstrate on the balance of probabilities that the Reviewer did not consider the relevant claims (cf SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 (at [25]). In SZDXZ the Full Court concluded that the cumulative effect of the factors under consideration were such that it was more likely than not that the Refugee Review Tribunal (the Tribunal) had considered a letter from Fijian police to the Tribunal which had not been mentioned at all in the reasons. In contrast to SZDXZ, the appellant’s claim that he was beaten for five days while detained on the fourth floor by the CID in August or September 2009 was expressly recorded by the Reviewer.
In my view it is substantially more likely than not that the Reviewer did consider the appellant’s claim of being beaten each day for five days while being detained at the fourth floor by the CID in August or September 2009 for the foregoing reasons. The Federal Magistrate in those circumstances did not err and was justified in drawing an inference that this topic was considered by the Reviewer.
The Federal Magistrate was correct to say that in truth the complaint really is that insufficient weight was given to those factors. That, however, is not a permissible ground of appeal.
CONCLUSION
For those reasons, the appeal will be dismissed with costs. Notwithstanding the view that I have arrived at in this matter, I acknowledge the generous and capable assistance of Mr Hooker who appeared as pro bono counsel for the appellant.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 2 May 2012