SZQGY v Minister for Immigration
[2011] FMCA 881
•16 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQGY v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 881 |
| MIGRATION – Review of decision of Independent Merits Reviewer – whether Reviewer failed to take into account relevant information – whether Reviewer failed to engage in an intellectual process directed at the materials before him. |
| Migration Act 1958 (Cth), s.474(3)(h) |
| Plaintiff M61/2010E v Commonwealth of Australia [2010] 85 ALJR 133 Tickner v Chapman (1995) 57 FCR 451 Lafu v Minister for Immigration (2009) 112 ALD WAEE v Minister for Immigration & Anor [2003] 75 ALD 630 Minister for Immigration & Anor v Khadgi [2010] FCAFC 145 Htun v Minister for Immigration & Anor (2001) 194 ALR 244 NABEv Minister for Immigration & Anor(No 2) [2004] FCAFC 263 NAJT v Minister for Immigration & Anor [2005] 147 FCR 51 Zhong v Minister for Immigration & Anor [2008] 171 FCR 444 |
| Applicant: | SZQGY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1094 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 19 October 2011 |
| Date of Last Submission: | 19 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 16 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Koutzoumis Lawyers |
| Counsel for the Respondents: | Mr H Bevan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $5,700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1094 of 2011
| SZQGY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sri Lanka. He arrived in Australia by sea and was taken to Christmas Island where he claimed that he was a person to whom Australia owed protection obligations. On 21 June 2010 a refugee status assessment concluded that he was not such a person and he sought review of that decision from an Independent Merits Reviewer (“IMR”) on 1 May 2010. The applicant was represented by a migration agent and appeared before the IMR who, on 18 April 2011, also determined that he should not 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. On 31 May 2011 the applicant filed an application with this court seeking judicial review of the IMR decision which was a decision in terms of s.474(3)(h) of the Migration Act 1958 (the “Act”). Such decisions are capable of judicial review; Plaintiff M61/2010E v Commonwealth of Australia [2010] 85 ALJR 133. It is accepted that the applicant was made within such time limits as may exist and is a valid application capable of being heard by this court.
The applicant is a Tamil from the north of Sri Lanka who, from 2002 until 2009, worked in the family fishing business. He also worked part time as a painter of the private buses that operate within the country. He has two sisters and did have a brother who he claimed was killed in 1997 as a result of his association with the LTTE.
The applicant claimed that he had a well-founded fear of persecution by reason of his race (Tamil) and religion (Hindu) arising out of certain incidents in which he claimed he was suspected of association with the LTTE. He also claimed that as a Tamil male from the north of Sri Lanka he had a well-founded fear because of the treatment of such persons by the Sri Lankan army and the Sri Lankan government both during and in the aftermath of the Tamil insurgency. The applicant’s specific claims were dismissed by the IMR as not being credible. There is no need to rehearse them in these reasons because that part of the IMR’s decision is not impugned. The sole ground of the application contained in the amended application filed on
26 September 2011 is:
“1.The second respondent (the IMR) erred in failing to follow the requirements of procedural fairness.
Particulars
(a) Failure to consider (that is to direct an active intellectual proceed [sic] towards) information that the IMR obtained of his own volition, that being information to the effect that Tamils from the north of Sri Lanka were at the time that the applicant left that country in continuing danger of being subjected to serious human rights abuses for reason of their race and geographic origins.”
The IMR decision commences at [CB 108]. At [CB 112] there commences a section entitled “INDEPENDENT EVIDENCE/COUNTRY INFORMATION”. At [18] the IMR lists the information which he has considered. There is a substantial body of it. The manner in which IMRs deal with rehearsal of country information in their reports differs. Some extract almost all country information which they have considered. Some extract only that country information which they consider highly relevant. In the instant case the IMR provided (over eleven pages) a summary of the information with some specific quotes. There does not appear to be any dispute that the summary was written by the IMR. In the findings and reasons for his decision under the heading “Assessment of Claims”, the IMR did not assess the specific claims which it had at [21] rejected. The IMR said at:
“[25]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 from the North, and has departed illegally. I accept that he is Tamil, and his brother was killed about 14 years ago, and had been an LTTE member. I do not accept that this has caused any issue or concern for him. I note that he obtained a passport in 2007 and travelled in and out of Sri Lanka indicating he was of no adverse interest at that time to the authorities. From his accepted history it is apparent that following from the defeat of the LTTE in April 2009 the claimant lived in Sri Lanka without being of adverse interest to the authorities, and without being detailed by them, and placed in a detention centre. He continued to live and work at home. This clearly indicates that he was of no adverse interest to the authorities or anyone else. I do not accept that his brother’s involvement in the LTTE from such a long time ago would cause the claimant any concern now, nor do I accept it would cause the authorities to investigate or harm him on return.
[26]I do not accept that 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 Sir Lanka, following from 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 the 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.
[27]Overall, I am not satisfied that the claimant has a well-founded fear of persecution for reasons of a Convention ground.”
The applicant argues that this conclusion was reached without regard to evidence contained in the independent country information summarised and quoted by the IMR. He maintains that this constitutes a failure to provide the applicant with procedural fairness which he submits is a flexible obligation:
“To adopt fair procedures which are appropriate and adapted to the circumstances of the particular case; Kioa v West (1985) 159 CLR 550 at [585] per Mason J and [612] per Brennan J.”
The applicant argues that the failure to provide procedural fairness consisted in the IMR’s failure to engage in an active intellectual process directed at the materials before him; Tickner v Chapman (1995) 57 FCR 451 at [462] per Black J and [495] per Kiefel J. However, the general requirements found in Tickner and also in Lafu v Minister for Immigration (2009) 112 ALD 1 had to take into account the observations of the Full Court in WAEE v Minister for Immigration & Anor [2003] 75 ALD 630 at [47]. These matters were explained by the Full Court Stone, Foster and Nicholas JJ in Minister for Immigration & Anor v Khadgi [2010] FCAFC 145 at [62] et seq.
The applicant acknowledges that there is a difference between failing to actively engage with a claim and the evidence surrounding it and a general failure to consider a claim at all such as was found in Htun v Minister for Immigration & Anor (2001) 194 ALR 244 and NABEv Minister for Immigration & Anor(No 2) [2004] FCAFC 263. In his helpful written submissions Mr Karp points to extracts from the IMR’s summary particularly at [CB 113.8, 114.6, 115.1, 6 and 8], [CB 116.2, 5, 8 and 9] and [CB 118.2, 3, 8 and 9]. The information contained in these summaries undoubtedly indicates some danger to certain persons but my reading of those extracts reveals that they are in almost all cases dealing with findings in relation to persons who have or who are considered to have LTTE connections. This was not a finding that was made by the IMR in the instant case. Perhaps the nearest that the applicant gets to a generic expression of concern is found at [CB 113] where the IMR summarises a UNHCR report of April 2009 and says:
“The human rights situation in Sri Lanka deteriorated over the past years with Human Rights Watch describing government policies as “repressive”. The Emergency Regulations were increasingly expanded and UNHCR in its Eligibility Guidelines report commented that “serious human rights violations continue to be committed by multiple actors in Sri Lanka”. UNHCR commented that it was credibly reported “torture is widely practiced in Sri Lanka and prone to become routine in the context of counter-terrorism operations”. There were numerous allegations of ill treatment of detainees. The Guidelines also report that the majority of reported cases of human rights violations were against Tamils of the North and East, and that those who are from that area are “frequently suspected of being associated with the LTTE”. While that risk is present for those from the North and East in all parts of the country it is heightened in the North and East itself. It is considered “Tamils from the North of Sri Lanka continue to face significant risk of suffering human rights violations in the region (and elsewhere in the country) because of their race (ethnicity) or (imputed) political opinion. Tamils in the North are heavily targeted in the security and anti-terrorism measures…”
Of course Mr Karp steers away from an argument that the IMR misunderstood the information or that the better view of the information was that the applicant, as a Tamil male from the north, would have a well-founded fear, because to make that argument would be to ask the court for impermissible merits review. He is obliged to say that the conclusions of the IMR upon the information indicate that the IMR did not engage with it.
The relevant principles to be applied in a case of this nature were explained by the Full Court in Khadgi at [58 – 59]:
“[58] In the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for him or her to determine the appropriate weight to be given to them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41 (per Mason J). The failure to give any weight to a factor to which a decision-maker is bound to have regard in circumstances where that factor is of great importance in the particular case may support an inference that the decision-maker did not have regard to that factor at all.
[59]Similarly, a decision-maker does not take into account a consideration that he or she must take into account if he or she simply dismisses it as irrelevant. On the other hand, it does not follow that a decision-maker who genuinely considers a factor only to dismiss it as having no application or significance in the circumstances of the particular case will have committed an error. A decision-maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case. A court would not necessarily infer from the failure of a decision-maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision: Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 at [62] (p 512) (per Hely J). Whether that inference should be drawn will depend on the circumstances of the particular case. “
Mr Karp submits that it is not sufficient for an IMR merely to reproduce information to have it said that the information was actively engaged with. I accept that but I do not believe that this is such a case. As indicated, the IMR has not just reproduced the information. He has clearly looked at it in order that he may summarise it. The summary itself is divided into various headings and in any one section a number of sources is referred to. This is one of those cases where, to my mind, the dicta in Applicant WAEE (at [46 – 47]) apply. A counsel of perfection would have the IMR expanding paragraph 25 by, possibly, making it clear that the views expressed in that paragraph were influenced by the country information cited and summarised. But the claim is clearly posited, that the applicant would be harmed because he is a Tamil male from the north and the grounds of rejection clearly reflect the IMR’s finding that the applicant would not be perceived as a person with LTTE connections. That is the burden of the independent country information relied upon by the applicant. I think to have to make the findings requested of me by Mr Karp would be to expand the law as found in Tickner and Lafu and also in NAJT v Minister for Immigration & Anor [2005] 147 FCR 51 and Zhong v Minister for Immigration & Anor [2008] 171 FCR 444 in a manner that was held to be erroneous in Khadgi at [79]. In those circumstances I am obliged to dismiss the application and to order that the applicant pay the respondent’s costs which I assess in the sum of $5,700.00.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 16 November 2011
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