SZQGP v Minister for Immigration

[2011] FMCA 701

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQGP v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 701

MIGRATION – Independent merits review of refugee claims of offshore entry person – Sri Lankan applicant of Tamil ethnicity fearing persecution from Sri Lankan government agencies – obligation to afford procedural fairness – failure to address integer of claim – application for judicial review upheld – declaration of legal error.

Migration Act 1958 (Cth), ss.36, 46A, 430, 476, 477

Abebe v Commonwealth (1999) 197 CLR 510
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16, 240 CLR 611
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41
SZPZI v Minister for Immigration & Anor [2011] FMCA 530
WAEE v Minister for Immigration (2004) 75 ALD 630

Applicant: SZQGP

First Respondent: MINISTER FOR IMMIGRATION

Second Respondent: CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: SYG 1073 of 2011

Judgment of: Smith FM

Hearing date: 23 August 2011

Delivered at: Sydney

Delivered on: 23 September 2011

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Allens Arthur Robinson

Counsel for the Respondents: Mr J Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Declare that, in recommending to the first respondent that the applicant be not recognised as a person to whom Australia has protection obligations, the second respondent failed to observe the requirements of procedural fairness.

2. Application otherwise dismissed.

3. The first respondent pay the applicant’s costs in the amount of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1073 of 2011

SZQGP

Applicant

And

MINISTER FOR IMMIGRATION

First Respondent

CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. The applicant arrived in Australia without any visa, by boat reaching Christmas Island in March 2010. On 5 June 2010 he requested an assessment by the Department of Immigration of his refugee status, under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow the applicant to make an application for a protection visa. A negative assessment was notified to the applicant on 17 August 2010, and the applicant then applied for ‘independent merits review’ under those procedures.

2. Mr Keher performed such a review, and on 18 April 2011 reported to the Minister after interviewing the applicant and receiving submissions from his migration agents, Australian Migration Options Pty Ltd of Adelaide. Mr Keher found that the applicant did not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958 (Cth), and recommended that he not be recognised as a person to whom Australia had protection obligations under the Refugees Convention. The applicant was notified of the report by letter from the Department of Immigration dated 19 April 2011.

3. The applicant filed his present application to the Court on 24 May 2011, seeking a declaration that Mr Keher’s report is affected by legal error, and injunctive relief to prevent the Minister and his Department from relying upon it. The Minister concedes that Mr Keher’s report attracts judicial review, and that the present application is within this Court’s jurisdiction under s.476 of the Migration Act, based on the High Court’s reliance on s.75(v) of the Constitution in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 (“Plaintiff M61”). No issues arise in relation to the time limit imposed by s.477(1) of the Migration Act.

4. Under the judicial review jurisdiction upheld in Plaintiff M61, it is the function of the Court to consider whether Mr Keher’s report reveals any error of law, including denial of procedural fairness, in its reasoning or in the procedures followed before its making.  The relief sought in the present application can only be contemplated if I am satisfied that Mr Keher made such an error.  It is not the function of the Court to engage in merits review of Mr Keher’s findings as to the applicant’s refugee status, nor to form its own opinions on whether the applicant should be permitted to reside in Australia. 

5. For reasons which follow, I have concluded that a material legal error is revealed in Mr Keher’s reasoning in his report, arising from his failure to address and make necessary findings concerning an important element or integer in the applicant’s refugee claims.  This was his claim that an incident, which was the immediate cause for his leaving Sri Lanka and seeking refuge in Australia, involved his detention and beating in August 2008 by the Special Task Force (“STF”), a military agency of the Sri Lankan government which was involved in the suppression of people suspected of ties with the LTTE.  I have concluded that this defect justifies the giving of relief, and that it is unnecessary for me to consider other matters which were raised by the applicant’s application and submissions.

The applicant’s refugee claims

1. It is important to trace how this claim was presented by the applicant and addressed throughout the consideration of his refugee status. 

2. According to the notes of his entry interview at Christmas Island on

   
   

   24 April 2010, he gave a history of being an ethnic Tamil national of Sri Lanka, with connections to an area which was at one time under the control of the LTTE.  He had briefly worked as a police constable in 1990, had sought refuge outside Sri Lanka, and had returned to the Batticaloa area in 2004.  He had worked with several NGO aid organisations, most recently in 2007 as an assistant program manager with a French humanitarian agency.  He had left Sri Lanka in October 2008, and was a refugee in Malaysia before coming to Australia.

3. In answer to the question why he had left Sri Lanka he said: “It was life threatening, by some militia groups (PLOTE and VMP) and STF Oct 2008 they came to my house to kill me.”  He then detailed events during August 2008 when members of PLOTE (a pro-government militia) had demanded that he hand over deeds to land, which the applicant denied was his but had been acquired by his sister.  The local police attempted to mediate this dispute.  However a person “S…Y… threatened me and said that if I don’t settle this land dispute he would shoot me – he works as an Intelligence Officer for PLOTE and also helping the Sri Lankan army”.  The applicant reported this to a police constable and complained to “the Human Rights and UNHCR Office”.  The notes of his interview continued:

   On 21/8/2008 I got a summons from the (named) police station.  On 23/8/2008 I went to the police station and came back on the 25/8/2008.  I provided all the documents and they said to the other party that they would have to go to court to sort this out.  A police officer called (named) told me that he received a phone call and told me to go to STF camp.  I went there by motorbike, they blocked my way and took me to the camp.  They chained me up and beat me – 2 to 3 hours and told me that they knew that I went to the police and told me to give the land to these people otherwise we will kill you.  12/10/2008 some people came to my house and I saw them and I decided to run away.  My wife told them that I went to Colombo for work.  They threatened my wife.  I was hiding in my friends.  On 22/10/08 they threatened my wife.  I decided to leave and 25/10/08 I left to Singapore and then Malaysia.

4. In answer to other questions, the applicant referred to his having been detained for 3 hours by the STF in August 2008, who “chained me up and beat me.  Released me”.  In response to a question as to his reasons for not wishing to return, he is recorded as responding:

   If go back I will be killed.  There is no guarantee for my life there so I can not go back to Sri Lanka.  The Sri Lankan Army and other Govt forces are very powerful and they can do whatever they want, so they can kill and kidnap anyone.  I resigned my position with the Sri Lanka police so they suspect that I might be a LTTE (Liberation Tigers of Tamil Eelam).  I am threatened by other groups.

5. In the applicant’s statement of claims submitted by his agent in support of his RSA application on 5 June 2010, he referred again to the August 2008 STF incident as the immediate reason for his leaving his country.  He recounted the demands of a PLOT official for the deed of his sister’s property, his complaints to the local police, and being told to report to the STF Camp.  He said:

   I was travelling on the motor bike.  They blocked my way and restrained me.  Physically they man-handled me and they dragged me.  They took me to STF camp in a room and chained my hands at the back.  They beat me.  After three hours of this torture and beating they alleged that I was a LTTE supporter and that I was using my NGO positions to support the LTTE. 

   On 12 October 2008 some unidentified armed personnel were coming towards my house at night, and my wife warned me and I escaped from the back entrance and fled.

   From then on I remained hidden and on 25/10/2008 I took a flight to Singapore and I fled Sri Lanka for the final time.

6. A more detailed description of the STF incident appears to have been taken at a further interview in relation to the RSA assessment.  According to the assessment decision, the applicant said:

   At any rate, the claimant also reported the incidents to the UNHCR to safe guard himself.  On 23 August 2008 he received a summons from the local police to come to them for another enquiry on 25 August 2008.  He was questioned when he attended the police premises.  When he was leaving he was approached and told to report to the Special Task Force (STF) Camp.  He travelled on his motor cycle.  His motor cycle was blocked.  He was restrained and man-handled.  He was taken to the STF Camp, he was placed in a room, his hands were chained, he was beaten.  At the end of three hours he was accused of being an LTTE supporter and that he was using his NGO position with (named organisation) to support the LTTE.  He was then released.  He said NGO workers and UNHCR workers were arrested and or disappeared.  He also said as an NGO worker in an LTTE area he was thought to be indirectly assisting the LTTE.

   On 12 October 2008, some unidentified armed personnel came to his house at night.  His wife warned him and he managed to escape.  From then on he remained hidden and on 25 October 2008 he fled to Singapore; departing Sri Lanka for the final time.

The RSA Assessment

1. In his reasons for a negative assessment of the applicant’s refugee status, the RSA officer summarised the applicant’s claims and concluded:

   In summary, the claimant feared persecution in Sri Lanka  due to his previously having lived in an LTTE area, previous employment in an NGO, that he departed the police service, that he left Sri Lanka in October 2008 (which he said was the height of the war), that peace is not guaranteed in Sri Lanka, that the LTTE is only dormant, and that a month after he left a Tamil neighbour was abducted and disappeared or was killed (though he conceded he did not know why they were taken or who took the neighbour).

   In his written RSA claim he said he had attempted to find security in Sri Lanka but with no success.  Be that as it may, at the RSA interview the claimant conceded that he had managed to live peacefully in Sri Lanka between December 2003 and August 2008 (at which time the land dispute arose).  Accordingly, and though I accept it plausible the claimant may have come to the adverse attention of various groups prior to December 2003, for the next almost five years he was able to live in peace as at that time the peace agreement was in place.

   The country information before me includes that the war in Sri Lanka ended in May 2009.  His wife had not apparently been displaced by the war.  It was submitted at the RSA interview that there is no guarantee of peace in Sri Lanka, the LTTE is only dormant and not defeated and he is still a Tamil and may be persecuted.  It was also suggested he was suspected of being LTTE.  I am also aware that in some areas of Sri Lanka news reporters are not allowed.  Be that as it may, I also understand that NGOs continue to work in most if not all of these areas and if the harm feared by the claimant was ongoing I would have assumed it would have been the subject of independent reporting.  As it is not reported, or at least to the extent feared by the claimant, is one of the reasons that have satisfied me that the situation in Sri Lanka has improved considerably.

   At any rate, and given the country information considered, I am not satisfied the claimant has a real chance of persecution in Sri Lanka for any reason, arising from the events that occurred prior to or since the land dispute (discussed below) in 2008.

2. The officer separately examined the applicant’s account of events in August 2008, raising doubts about some aspects, but not appearing to disbelieve the gist of the story.  However, the officer concluded:

   Be that as it may, if the claimant was being pursued due to a land dispute, and as stated at the RSA interview, I may consider whether the people who wished to recover the land would use his (for instance) Tamil ethnicity and or his residence in LTTE controlled territory or some other Convention ground to motivate any harm against him.  The claimant did sat that his NGO work in LTTE controlled areas had caused him to be suspected of being LTTE (at least after the land dispute arose).  As discussed below, NGO workers may be questioned on return to Sri Lanka.  Clearly however, this is a matter that would still need to be considered on a case by case basis.  That said, the present claimant did not appear to have any profile in or out of Sri Lanka that could now give rise to a real chance of persecution for any Convention reason should he return.

   Further, since the war ceased over 12 months ago, and given the country information considered, I am not satisfied that an essential and significant reason the claimant may be targeted, should he return, would be for any Convention reason.  I am satisfied the sole reason he may be targeted, if he is targeted at all, would be for reason of the land dispute.  I am therefore not satisfied the claimant would have a real chance of being targeted for any Convention reason should he return to Sri Lanka.

3. In my opinion, this discussion failed to examine the ‘reasons’ for the applicant’s fear of harm from agencies of the Sri Lanka government, based on the August 2008 incident of persecution by members of its STF agency.  In particular, the RSA officer failed to consider whether the applicant’s fears of persecution by Sri Lankan government agencies should be characterised differently from the ‘motives’ of the PLOTE members who, on the applicant’s account, had sought to pressure him for private motives by instigating STF persecution on the actual or ostensible reasons of perceived political associations with the LTTE. 

   
   

   If this claim had been adequately addressed, and accepted as true, then the RSA officer might have arrived at a different assessment of the likelihood that the applicant might still be regarded with suspicion by a security agency of the Sri Lankan government if he returned, and of his incurring persecution for a Convention reason.  There was country information showing that, even after the end of the LTTE insurgency, the Sri Lankan military and security agencies were detaining and mistreating thousands of persons suspected of past association with the LTTE. 

4. As I shall explain, it appears to me that Mr Keher fell into a similar error in failing to appreciate the significance of the applicant’s account of the actions of STF personnel in August 2008, and in failing to separate its implications from the applicant’s history of the preceding ‘land dispute’ with PLOTE members.

The applicant’s claims to Mr Keher

1. The IMR submission of the applicant’s agent is dated 29 September 2010.  It relied upon his earlier RSA statement, summarised his background (with some inaccuracies) and painted his refugee claims in broad terms.  The submission somewhat inadequately summarised the applicant’s refugee claims as:

   In summary the applicant claims persecution from the PLOTE for having left the Sri Lankan Reserve Police. The applicant also fears members of the PLOTE organisation are targeting him because of his connection to his sister who owns land that previously belonged to members of the PLOTE. The applicant also fears persecution from the LTTE (sic: STF) due to his pervious employment with an NGO.

   After citing some relevant country information, the submission concluded:

   It is submitted that (the applicant) meets all three components of the definition of a refugee under the Refugee Convention.  (The applicant) belongs to three of the five prescribed categories.  He is a racial minority (Tamil).  He is a member of a particular social group (ex NGO employee).  As well, he has political opinion, again whether actual or prescribed by the Sri Lankan authorities.  All of the three prescribed categories overlap together.  As such, it is an error to examine any one of the aforementioned three prescribed category in isolation of this.

   All parties agree that (the applicant) has been arrested, detained and assaulted which falls within the definition of persecution under the Refugee Convention.  It is also submitted that (the applicant) satisfied the necessary causal nexus between his membership in any of the three aforementioned prescribed categories and his well founded fear of persecution from agents of the Sri Lankan authorities.

   As well, it is submitted that (the applicant) has a well founded fear of such persecution by the Sri Lankan authorities.  He satisfied both the subjective and the objective elements of this test.  He has consistently maintained that he fears going back to Sri Lanka and that he has been repeatedly arrested, detained and assaulted this satisfied the objective element of his apprehension of such persecution.  Furthermore, the violence in Sri Lanka against Tamils and ex NGOs continues to the present date.

2. The applicant and his agent attended an interview with Mr Keher on

   
   

   26 November 2010, held on Christmas Island.  It was of relatively brief duration.  A transcript is in evidence, and I prefer the transcript over the summary given by Mr Keher in his report.  It seems to me likely that Mr Keher wrote his account of the interview from his notes, and it has some inaccuracies and does not provide the best picture of his exchanges with the applicant.  It is apparent that Mr Keher commenced the interview with strong, though presumably provisional, opinions about the applicant’s refugee claims.  He put to the applicant at the start of the interview:

   CK:The reason you left had nothing to do with accusations of working with LTTE, it was because according to what you originally said a family associated with PLOTE wanted land that you were living in or a house that you were living in, they alleged that you owned it.

   SZQGP:I think the land has got nothing to do with me because the land actually belongs to my sister who is in Norway but they weren’t really after me, the one reason that they found out that I escaped from the police and staying in an LTTE control area and working with LTTE firstly and the second thing because I was working for NGO but they came to know that lately and that is why they are targeting me that’s the only reason I left.

   CK:I have difficulty believing that Sir, I don’t think that anything from 20 years ago from having left the police force or having lived some time in an LTTE controlled area would have any consequence for you now.

   SZQGP:Unfortunately that is that is the way it has been happening in Sri Lanka, but I mean I was in India and I was in Saudi Arabia during the peace talk time nothing happened but after peace talk broke up and then the war started and they were targeting people on the basis of that even though it seems to be a long time that is what they were doing.  Because the land problem its not that its just they came to know all the problems I had in the past and that is why they were starting targeting me that is the only reason I left.  Because I was working in NGO and LTTE control area and that is the basis of doubt with me with the STF they took me and kept me in their camps and beat me up and all sorts of things.

1. After some questions about the applicant’s background, Mr Keher put to him:

   CK:What you are saying now it is not consistent with what you said when you first arrived in Australia.  You made no association with the incidents that were happening in 2008 you made no association with those matters from years ago of you having worked with NGOs or you having been with the police force.

2. Mr Keher then read from the notes of the entry interview, and put to the applicant:

   CK:No mention of NGOs no mention of prior employment with the police, its all about this land dispute.  Its quite clear that when the STF had you at their camp they were threatening you in relation to the land dispute as well.

   SZQGP:No I had mentioned in the interview that I was working as an NGO and also that they were beating me up because I was working for NGO and they are saying therefore the STF knows all about my details.  Because then they were beating me up and they told me that if they had known before this I should have been killed.

   CK:Who told you that?

   SZQGP:The STF Singhalese Officer.

   CK:Well, seeing they had you in detention at the time and if that was what their intention was why didn’t they do it?

   SZQGP:During the time if they capture someone they normally don’t kill them straight away, they beat them up and they leave them and after a couple of weeks or one month’s time they will kidnap them and kill them, that is the way it was happening a lot during the time.  That is the way they were doing it.  This has really happened to me, you know because I was in the police.

   CK:I just don’t think that anyone would care about what happened 20 years ago with the police.  If the Sri Lankan authorities had any concern about it or they were going to prosecute you or do anything about it they have had 20 years to do it and they have done nothing, they have given you passports in that time and you have travelled in and out of the country, it indicates that it is of no concern whatsoever.

   SZQGP:But unfortunately during that time they were not targeting me but they are targeting me now, lately.  There were so many incidents that people from NGOs were killing them and I have seen it with my own eyes that there were so many people from NGOs even I have been to their funerals and all.

3. There was no further questioning about the applicant’s claim to have been mistreated by the STF in August 2008.

The error of law in Mr Keher’s reasons

1. After recounting the background to the matter, and extracting relevant country information, Mr Keher provided brief ‘findings and reasons’ for his recommendation that the applicant did not satisfy the criterion in s.36(2) of the Migration Act. Under the heading ‘credibility’ he said:

   20.    The claimant is well educated and was able to clearly detail his claims and history, he is well travelled, he has worked for NGOs and has operated his own businesses.  It is apparent that at each telling he has added claims, and changed the focus of why he departed from Sri Lanka.  Each telling of his story changes, or adds additional groups of who is targeting him and why.  He has also clearly sought to add every part of his history – no matter how distant in time and relevance – so as to attempt to enhance his claims.  In particular, clearly in the first telling it is the land dispute and nothing else of significance.  While he mentioned a work history including a brief time with the police in 1990 and having worked for NGOs he made no import of these matters.  Indeed as discussed with him I do not accept that they did play any part in his leaving from Sri Lanka, and nor would anyone be concerned as to those matters now.  His preparedness to add in new claims and parts of his history raises serious concern as to whether or not any aspect of his claims are true and, to what degree they are also exaggerated.

   21.    I have carefully considered the history as presented, I am prepared to accept that there was a dispute in 2008 with the 1993 vendor of land that was sold to his sister.  I accept that the police became involved, he was threatened by this person, and the police intervened to protect the claimant.  I accept that he was threatened at that time by PLOTE members who were assisting the land vendor.  I accept that while that may have been troublesome at the time, he could have avoided harm then by – as his wife told the people who came – going to Colombo, or indeed anywhere else in Sri Lanka.  The remainder of his claims of fearing harm from leaving the police 21 years ago, of having worked for an NGO and this in some way linking him to the LTTE, I do not accept as true and consider he is exaggerating these claims.  I do not accept they would cause any concern from anyone.  The claimant has travelled in and out of Sri Lanka on passports issued to him by the authorities.  I consider this a clear indication that he is of no adverse interest to them.  The claimant’s wife has been able to return to (his town) to live in the house he owns there.  I do not accept that she has been targeted there for any Convention related reason.  She may be concerned for her general safety as she is a woman living alone (though she is with her children and mother).  The claimant could reside there without harm.  I consider the claimant was prepared to exaggerate the relevance and significance of past matters and claimed harm, and the reason why departed from Sri Lanka.  I find the claimant was not a credible witness.

2. Mr Keher’s findings in relation to the applicant’s claims are also found in two other paragraphs:

   25.    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, though from Eastern Province, has lived for periods in the North and East.  He fears harm on return from PLOTE (a Tamil paramilitary group) as they are assisting a person who has a land dispute with the claimant’s sister relating to land purchased nearly 20 years ago.  The claimant does not actually know what the dispute is about.  While I accept that there is this land dispute, it is apparent that the authorities have assisted him with it and told PLOTE not to harm him, and have also told them the matter must be resolved through the court.  Further, though PLOTE may be a quasi political organisation their motivation to harm, and the motivation of the original vender, has nothing to do with the Convention grounds.  The motivation of PLOTE is that they are assisting a relative of one of their members.  The motivation of the original vendor is, it seems, that he wants his land back for some unknown reason or pretence.  It is also apparent that the claimant did avoid harm by leaving the area.  His wife avoided harm also by leaving the area.  He could join her in (named town).  He has never belonged to the LTTE, nor had anything to do with them other that a brief detention by them 20 years ago.  He has one relative who was an LTTE member.  I do not accept that these minor association would bring him to the adverse interest of the authorities, in particular noting his obtaining of passports from the authorities, and leaving and entering the country.  He has departed from Sri Lanka legally using his own passport.  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.    I do not accept the claimant’s overall history gives him a profile such that he would be of adverse interest to the authorities, or to anyone else.  It is now nearly 2 years since the end of hostilities.  I do not accept that if he returns to Sri Lanka, following his claim for refugee status in Australia, that this would either be known to, or of any interest to the authorities.  This is especially so given his lack of any past concern to them.  In such circumstances I do not accept that he would be of any concern to anyone.  I find that that 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.

3. The difficulty with these findings, is that it is impossible to discover whether or not Mr Keher has accepted as true, all or some of the applicant’s account of being seriously mistreated and threatened by the STF in August 2008.  There is a hiatus in the reasoning in paragraph 21 in this respect. 

4. Mr Keher accepted in paragraph 21 that the applicant “was threatened at that time by PLOTE members who were assisting the land vendor” in a “land dispute”.  He later also concluded that these threats “had nothing to do with the Convention grounds. The motivation of PLOTE is that they are assisting a relative of one of their members”.  However, Mr Keher made no finding in relation to the significant further element in the applicant’s claim about the events immediately leading to his departure from Sri Lanka: that in pursuit of their private motives the PLOTE members instigated action by the government STF who then mistreated the applicant on grounds of perceived security concerns. 

   
   

   If Mr Keher implicitly accepted that the PLOTE actions for non-Convention motives did lead to this incident involving the STF, then he needed to consider whether the applicant’s fears arising from the STF persecution in August 2008 were related to the Convention, even if his fears about PLOTE threats were not.  Moreover, he also needed to consider further whether the applicant could avoid all the consequences of the August 2008 events by relocating elsewhere in Sri Lanka, at least in so far as they had included persecution by a Sri Lankan security agency.   However, Mr Keher’s reasons are silent in relation to a discussion of these issues.

5. I am unable to find in paragraph 21, or elsewhere in Mr Keher’s findings and reasons, an alternative interpretation which was submitted to me by the Minister’s counsel.  This was that Mr Keher entirely disbelieved that the incident involving the STF had occurred.  Counsel submitted that a finding to this effect could be found in the sentence in paragraph 21:

   “The remainder of his claims of fearing harm from leaving the police 21 years ago, of having worked for an NGO and this in some way linking him to the LTTE, I do not accept as true and consider he is exaggerating these claims”. 

6. However, I am unable read this finding in that manner.  It appears to me that the finding was directed at the formulation of the applicant’s claims by his agent, which had presented elements from the applicant’s earlier history independent of the August 2008 incident, as themselves giving rise to a well founded fear of persecution.  Mr Keher’s finding is that, in fact, the applicant did not have a subjective fear of harm based on these elements in his history preceding the August 2008 incident. 

   
   

   I do not understand his finding as addressing the significant element in the applicant’s claims concerning the incident which pointed to a Convention-related harm suffered in recent times, and which was clearly presented in his entry interview.

7. I am confirmed in my opinion that Mr Keher failed correctly to appreciate the significance of this element, by his mischaracterisation at paragraph 20 of the applicant’s refugee claims made in his entry interview, as concerning a purely non-Convention fear of harm from PLOTE threats.  In my opinion, this is shown in his observation: “clearly in the first telling it is the land dispute and nothing else of significance”.  This suggests that Mr Keher misunderstood the significant point emerging from the entry interview – the fear of having been labelled by the STF in the August 2008 incident as an LTTE associate. 

8. I am inclined to think that the manner in which Mr Keher approached the applicant’s claims in the course of his interview also tends to suggest that he assessed the applicant’s claims under that misunderstanding.  It is, however, in Mr Keher’s findings and reasons that the error should be found, rather than in the manner in which he put his concerns to the applicant at the interview.

9. In relation to the interview, I do not accept the submission of counsel for the Minister, as I understood it, that the applicant conceded in the course of the interview in the passages which I have extracted above, that his fears arising from the actions of the STF in August 2008 were insignificant, transient, or indivisible from the ‘land dispute’ with the PLOTE, so as to absolve the need for Mr Keher to make separate findings on the implications of the applicant’s mistreatment by the STF for the risk of his encountering persecution by Sri Lankan security agencies in the future as a result of that incident.

10. I consider that there is absent from Mr Keher’s ‘finding and reasons’ a clear finding on the extent to which he found to be true the applicant’s claims to have come to the adverse attention of STF in August 2008.  There was then absent the further necessary discussion and findings, if he found the past persecution to have occurred, how that event affected the assessment of the risks facing the applicant of being further adversely treated by the Sri Lankan security forces if he returned to Sri Lanka. 

11. The necessity for clear findings on this element of history in the present case was explained in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574‑575. Their Honours suggested that, at least in some cases, a Tribunal was bound to make such findings. At 574 they said:

    In determining whether there was a real chance that Mr Guo would be persecuted for a Convention reason, the Tribunal had no choice but to form an opinion as to what was likely to occur if Mr Guo was returned to the PRC.  In the course of determining whether there was a real chance of persecution for such a reason, the Tribunal made findings about past events and the motivation of the Chinese authorities in penalising Mr Guo, as it was entitled and, indeed, bound to do (s 166E(1) of the Act).  It then used those findings as the basis for its conclusion that there was no chance of future persecution.  But that does not mean that it decided the well‑founded fear of persecution issue on the balance of probabilities. 

    …

    Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing.  In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.  It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.  In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not “differentially at risk for a Convention reason.” Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC. 

    (emphasis added)

12. This passage was cited by Gleeson CJ and McHugh J in Abebe v Commonwealth (1999) 197 CLR 510 at 544–545 [83], in the context of particular claims put forward by Ms Abebe which involved a claim of persecution by government agents. Their Honours said:

    The prosecutor carried no onus of proof in relation to these matters, and the fact that she might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that her claim for refugee status must fail.  As Guo (1997) 191 CLR 559 at 575‑576 makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non‑occurrence is a relevant matter in determining whether an applicant has a well‑founded fear of persecution. The Tribunal “must take into account the chance that the applicant was so [persecuted] when determining whether there is a well‑founded fear of future persecution”(Guo (1997) 191 CLR 559 at 576). However, given the nature of the prosecutor’s claim, the tribunal was entitled – indeed bound – to start its inquiry by considering her claim that she had been arrested by government officials for political reasons.  (emphasis in original) 

13. The reference in Guo to s.166E(1) of the Migration Act is to the predecessor of current s.430(1), which includes the obligations on the Refugee Review Tribunal to set out in its written statement of reasons “the findings on any material questions of fact” and to refer to “the evidence or any other material on which the findings of fact were based”.  The same obligation was placed on Mr Keher by the IMR Guidelines governing the preparation of his report.  As I explained in SZPZI v Minister for Immigration & Anor [2011] FMCA 530 at [12]-[13], I consider that the Minister’s instructions as to the contents of an IMR report make it appropriate to examine the report on the same principles as would be a statement of reasons given by a migration tribunal. This includes the drawing of an inference from the omission of necessary findings on an important issue which should have been addressed, that it was not considered (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [34]-[35], [68]-[69], [75]; WAEE v Minister for Immigration (2004) 75 ALD 630 at [47]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 at [33]-[36]; and Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 at [43]-[49], [55], [72], [91]-[92], [98]).

14. In my opinion, a fair reading of Mr Keher’s ‘findings and reasons’ requires the inference that he failed to address an integer in the applicant’s claims to have suffered Convention-related persecution which caused him to flee his country of nationality, which was highly significant because it had the potential to allow the characterisation of his past persecution, and the risk of a repercussion in the future, as having a Convention relationship.  It appears to me, that this occurred because Mr Keher made “an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and based [his] conclusion in whole or in part upon the claim so misunderstood or misconstrued” (cf. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63]).

15. As was held in the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]:

    To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.

16. In Plaintiff M61 at [90], the High Court found a failure to “address one of the claimed bases for the plaintiff’s fear of persecution” to be “a denial of procedural fairness”, which they recognised by Declaration. 

17. For the above reasons, in my opinion, the present applicant has established a right to a similar declaration.  Since the failure of procedural fairness concerned a very material part of the applicant’s refugee claims, the declaration should be enough to cause the Minister to direct a further IMR review by a different person, without my needing to address other issues raised by the submissions of the applicant’s counsel.  I do not consider that any other relief is needed.

18. Costs should follow the event.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: 

Date:  23 September 2009