SZQJB v Minister for Immigration
[2011] FMCA 787
•6 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQJB v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 787 |
| MIGRATION – Independent merits review of refugee claims of offshore entry person – Sri Lankan Tamil from north and living in Colombo – rejection of claims of heightened profile – rejection of generic claim – whether findings open on the country information – whether unreasonable or illogical reasoning – whether error in application of real chance test – no error of law or procedural unfairness found – application dismissed. |
| Constitution, s.75(v) Migration Act 1958 (Cth), ss.36(2), 46A, 476 |
| Alami v Minister for Immigration & Anor [2011] FMCA 623 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, [2010] FCAFC 108 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123, (2010) 117 ALD 44 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1, [2004] FCAFC 263 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 SZMWQ v Minister for Immigration & Citizenship (2010) 187 FCR 109, [2010] FCAFC 97 SZPZI v Minister for Immigration & Anor [2011] FMCA 530 |
| Applicant: | SZQJB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PETER GACS, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1263 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 6 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 6 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Peadon |
| Solicitors for the Applicant: | Salvos Legal Humanitarian |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $6240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1263 of 2011
| SZQJB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| PETER GACS, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia on a boat which was intercepted and taken to Christmas Island in December 2009. At an arrival interview he indicated that he was a national of Sri Lanka, who had left Sri Lanka lawfully on a Sri Lankan passport in July 2007, and had lived in Malaysia and Thailand before coming to Australia without any travel documents.
On 6 February 2010 he requested an assessment by the Department of Immigration of his refugee status (“RSA”) 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 made on 23 March 2010, and the applicant then applied for ‘independent merits review’ (“IMR”) under those procedures.
On 11 June 2010 Mr Godfrey, who I shall refer to as “the first reviewer”, recommended that the applicant should not be recognised as a person to whom Australia has protection obligations. However, the Minister directed a second review, following the judgment of the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41. Mr Gacs became the second independent merits reviewer, and he delivered a report making the same recommendation on 10 May 2011.
Throughout the administrative proceedings, the applicant was assisted by a Melbourne solicitor and migration agent. He is currently held in immigration detention in Villawood. He has the assistance of local legal representatives, and appeared in the present case by counsel.
The applicant filed his present application to the Court on 17 June 2011, seeking a declaration that Mr Gacs’ report is affected by legal error, and injunctive relief to prevent the Minister and his Department from relying upon it. Throughout the administrative and judicial proceedings, the applicant has been held in immigration detention as an “offshore entry person”. The Minister concedes that Mr Gacs’ report attracts judicial review, and that the present application is within the 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 at [51].
I have held in another case that an IMR report and recommendation is itself a migration decision, which is subject to a 35 day time limit in relation to relief of the type sought in the present application (see Alami v Minister for Immigration & Anor [2011] FMCA 623 at [48] to [67]). However, the present application was filed within time, and no issue arises as to its competency.
Under the judicial review jurisdiction upheld in Plaintiff M61 it is the function of the Court to consider whether Mr Gacs’ report reveals any error of law, including denial of procedural fairness in its reasoning or the procedures followed before its making. The relief sought in the present application can only be contemplated if I am satisfied that Mr Gacs made such an error. It is not the function of the Court to engage in a merits review of Mr Gacs’ findings on the creditability of the applicant’s evidence and the risks he faces if he returns to Sri Lanka, nor to form its own opinions on whether he should be permitted to reside in Australia.
When examining Mr Gacs’ reasons for legal error, I consider that the Minister’s instructions as to the content 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 under the Migration Act (see SZPZI v Minister for Immigration & Anor [2011] FMCA 530 at [12] to [13]). These principles involve the obligation not to read Mr Gacs’ statement of reasons “minutely and finely with an eye keenly attuned to the perception of error”, but to adopt a benign approach when attempting to understand ambiguous or poorly explained reasoning (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291).
The applicant’s refugee claims
The applicant’s refugees claims were based on a history which was shortly set out in a statement attached to his RSA application:
I am a thirty‑one year old single man from Sri Lanka. I was born in [town] and I spent some of my early years moving to and from [the town] depending on the security situation there. I was a bus driver and I worked in my family’s business. I drove buses all over Sri Lanka but mainly in the north and to and from Colombo. I am a Hindu Tamil and my claims relate to persecution in Sri Lanka on the basis of my ethnic group, religion and imputed political opinion.
My family lived in [the town] which was a LTTE controlled area. In accordance with their requirements, my family submitted to their demand that at least one of us serve them. My brother was forced to drive for them and this led to him being shot by the army [in 1997]. He was doing a trip and ended up being stopped at [a location] and he was shot by the army. The LTTE came back to us around a year later and demanded that another family member assist them and they asked that I do work for them. My parents were terrified that the same would happen to me and so my father agreed to serve them instead. He would attend meetings held by them. None of us were particularly interested in LTTE and lived in fear that they would kill us if we did not comply. This compliance led us being branded LTTE members and we were later pursued by the army, Karuna group and Police. I am very afraid of the army and authorities in Sri Lanka. They continue to pursue people they perceive as being LTTE members. I was never a member, but because I am Tamil and I lived in an LTTE controlled area, and my brother was forced to openly do LTTE work, we have been unfairly tainted and this may lead to our being killed by the army and their supporters. I lost contact with my parents and sisters in October 2008. This upsets me greatly as I fear that they may have fallen victim to the army.
I started working for the family business driving buses in 1997. The main incident which was the cause of my leaving Sri Lanka in 2007 occurred in March of that year. I was doing a trip between Batticoloa and Colombo. During the trip I was stopped by the army at Vallikanda checkpoint. The officers took me into a room at the checkpoint, stripped me and started interrogating me. They held a gun to my head and started about the LTTE. I was convinced they were going to kill me. At that point my passengers started to scream and the officers let me go. I was very fortunate. My parents begged me to leave Sri Lanka. They were certain that I would be killed at some point if I remained there. I escaped to Malaysia on a tourist visa. I ended up staying there for almost 1½ years. I went to Thailand briefly and returned to Malaysia. I embarked on my journey to Australia in November 2009.
I am terrified to return to Sri Lanka. I am a person of interest and even since the war ended, people suspected of LTTE association are still disappearing and being murdered. The authorities in Sri Lanka will persecute me. They continue to seek to stamp out all traces of LTTE. I believe that they will kill me if I return.
I seek protection in Australia as my life is at risk.
The history he presented in this statement had been given in an earlier arrival interview on 20 December 2009, and was further developed in later interviews by the RSA assessor on 8 February 2010, by the first IMR reviewer on 11 May 2010, and by Mr Gacs on 7 February 2011 and 28 February 2011. The applicant’s adviser was present at all interviews, and also made a number of written submissions and presented further documents. The applicant’s evidence maintained the gist of his claimed personal history, while adding further incidents which the applicant claimed showed that he had been suspected of being an LTTE supporter and would be so suspected if he returned.
His new or additional claims included being stopped at a road block at the end of 2006 in the course of his driving work, where he was initially suspected of being “LTTE” and was taken to a police station and held until the evening, when he was released after the intervention of his employer. The applicant also claimed that in 2006 the army had attended at his aunt’s residence, where he was staying in Colombo, and asked questions about him, but were satisfied as to his not being of interest to them.
He also gave different versions of the incident at the Army checkpoint in March 2007, and added further events during 2007 to his claims.
In particular, he made claims of greater involvement by his employer in activities which he claimed gave rise to his adverse profile. He claimed that in June 2007 police had attended and interviewed the employer about an accusation that the applicant had assisted the LTTE in 2003, when driving a new vehicle from Colombo to the north, where it was alleged to have been used by the LTTE. He claimed that the employer was mistreated, and that this event led to the employer advising the applicant to depart Sri Lanka and assisting him to do so, including by making bribes at the airport.The applicant’s agent also developed a claim that the applicant was at added risk of being perceived to have a bad political profile, by reason of circumstances in which the employer in 2008 had been arrested and involved in criminal proceedings. He submitted media reports of a prosecution in which the employer had been accused of “the commission of acts of violence or racial or community disharmony and brings the Government into disrepute, through the printing or distribution of the publication”.
Inevitably, the manner in which the applicant made his claims, and later embellished and added to them, gave rise to concerns about the creditability of all his claims about events after his move to Colombo, which he claimed showed that he had been suspected of being a supporter of the LTTE, and that he would continue to be so suspected if he returned to Sri Lanka. These concerns were raised clearly with him in the course of various interviews, and no contention is now made that there was any denial of procedural fairness in relation to the proceedings of Mr Gacs, in particular. The concerns which were put to the applicant eventually led to adverse findings by Mr Gacs, which rejected generally the credibility of the particular incidents which supported the applicant’s claim that he had a heightened profile of being suspected of being an LTTE supporter. No grounds of judicial review are now raised in relation to most of Mr Gacs’ reasons for rejecting these claims.
As well as showing an awareness of these credibility issues, the submissions of the applicant’s solicitor to the IMR reviewers recognised the difficulties of assessing sources of general country or background information, concerning the risks facing various groups of Tamil nationals of Sri Lanka after the 2009 defeat of the LTTE. The effect of the background sources was then addressed by Mr Gacs in passages of his “Findings and Reasons” in his report which are challenged in the proceedings before me. It assists to understand these grounds of review to see how the applicant’s written submissions in relation to country information were presented.
In a “general submission on conditions in Sri Lanka pertinent to independent merits reviews to be conducted in Sydney in February 2011” dated 31 January 2011, the applicant’s solicitor submitted at the commencement:
4.We submit that current country information leaves no [sic] that individuals with profiles such as those of our clients continue to face a real chance of persecution on account of their Tamil ethnicity in the predominantly Tamil Northern and Eastern Provinces of Sri Lanka despite the ending of the LTTE insurgency in May 2009.
The lengthy submission then cited and quoted recent sources of country information concerning conditions in the north and eastern provinces of Sri Lanka, human rights in Sri Lanka since the defeat of the LTTE, the extent to which current information showed there was now “lasting peace” in Sri Lanka, the conditions in relation to security elsewhere in the country, and the “likely fate of returnees”. The submission then concluded:
Conclusions
27.For these reasons, we submit that in every case where a Tamil claimant to refugee status is able to demonstrate past experience of the type referred to by Prof Hathaway, the Independent Merits Reviewer ought to be satisfied that there has not been sufficient significant change in circumstances in the Northern and Eastern Provinces of Sri Lanka to justify a decision refusing recognition of refugee status. We submit that the government is resorting to the measures documented above since it fears a LTTE revival and adopting extra judicial means to eliminate any individual who may be perceived to be a potential threat. We also submit given that the government’s failure to redress Tamil concerns and political instability the prospect of further political and ethnic discord cannot be ruled out as a remote possibility nor can the likelihood of persecution of Tamil asylum seekers returning to the country especially those going to the Northern and Eastern Provinces.
The reference to “past experience of the type referred to by Prof Hathaway” appears to be to a well known authority in relation to refugee law and practice, which was quoted earlier in the submission:
10.… As Prof James Hathaway has stated, having cited a number of Canadian and US cases:
It is thus unnecessary to establish past persecution in order to succeed on a claim to refugee status. Where evidence of past maltreatment exists, however, it is unquestionably an excellent indicator of the fate that may await an applicant upon return to her home. Unless there has been a major change of circumstances within that country that makes prospective persecution unlikely, past experience under a particular regime should be considered probative of future risk.
As was foreshadowed at the applicant’s second interview, Mr Gacs wrote to the applicant’s solicitor on 10 March 2011, drawing attention to specific country information which, the applicant was warned, “may bear negatively upon your claims. They are about improvements in the security situation in Sri Lanka and the situation for returnees”. Extracts of reports were attached, including from the UNHCR eligibility guidelines for asylum‑seekers from Sri Lanka published in July 2010, and other authoritative sources.
The applicant’s solicitor responded in a submission dated 24 March 2011, addressing those sources, and also referring to other sources and maintaining the earlier submission and the sources it cited. The solicitor concluded:
Conclusion
36.It is true, and we do not contest this, that there have been improvements in the situation in Sri Lanka since the end of the war with the LTTE. However, that does not establish that there is no longer a real chance our client would be persecuted if he returns to Sri Lanka.
The reasoning of Mr Gacs
Mr Gacs’ adverse report was made on 10 May 2011. At the commencement of the report, Mr Gacs correctly identified the question he was required to address under the Minister’s guidelines:
6.The question that this assessment must address is whether the claimant, although not an applicant for a protection visa, meets the criterion for a protection visa set out in s 36(2) of the Migration Act 1958. That question is to be understood by reference to other relevant provisions of the Act, including ss 36(3)‑(7), 91R‑91U, and the decided court cases that bear upon those provisions.
He also said:
2.This second independent review will consider afresh all claims for protection as they relate to the Refugees Convention, taking into account all available information, including information available to the refugee status assessment officer in reaching the unfavourable refugee status assessment, information available to the original independent merits reviewer in reaching his unfavourable recommendation, information provided by or on behalf of the claimant any additional information the second independent reviewer may consider relevant.
His report then summarised all the evidence given by the applicant raising his claims. He traced how the original claims had been augmented and addressed in subsequent interviews, submissions and decisions in the RSA and IMR procedures, prior to the matter reaching Mr Gacs. He then set out extracts from independent country information including, in particular, the extracts attached to his invitation for comments.
Mr Gacs’ “Findings and Reasons” commenced with an adverse finding as to the applicant’s credibility. He said:
108.… I did not find the claimant to be a credible witness. His evidence contains numerous inconsistencies which he was not able to explain to my satisfaction and which, considered cumulatively, cause me to reject the credibility of his claims.
Before setting out his reasons for that negative assessment of the applicant’s credibility in relation to his personal history, Mr Gacs addressed the effect of general country information relevant to the situation of the applicant merely as a male Tamil national of Sri Lanka who had originated from an area controlled by the LTTE in the course of its insurgency and then lived in Colombo. He said:
110.I do not accept that since the end of the conflict, the mere fact of being a young Tamil male from the north or the east of Sri Lanka would for that reason alone cause a person to be suspected of having been an LTTE member or supporter.
111.While the country information is divided on this question, I am guided by the fact that no such assertion is made in the following sources, despite the fact that all of them contain criticisms of the human rights situation in Sri Lanka: Amnesty International Report 2010, The State of the World’s Human Rights: Sri Lanka; International Crisis Group Report: Sri Lanka, A Bitter Peace, 11 January 2010; International Commission of Jurists: Beyond Lawful Constraints: Sri Lanka’s Mass Detention of LTTE Suspects, September 2010; US Department of State: 2009 Human Rights Report, Sri Lanka, 11 March 2010.
112.I note, further, that the UK Asylum and Immigration Tribunal country guidance in TK (Tamils – LP Updated) Sri Lanka CG [2009] UKAIT 00049, 11 December 2009), states that: “Having considered the further evidence before us, we are not persuaded that Tamils from the north and east constitute either a stand alone risk category or a separate risk factor.”
113.Hence I reject the adviser’s contention that the government presumes that all Tamils from Vanni or formerly LTTE‑controlled parts of Eastern Province may have LTTE links. My finding applies equally to Tamils from Northern Province.
Mr Gacs’ reasoning in the above paragraphs was the focus of most of the arguments in support of the present application which I shall address below.
Mr Gacs then addressed the applicant’s particular circumstances over several pages, commencing with the following paragraphs:
114.The applicant’s central claim is that he fears that if he returns to Sri Lanka the SLA will arrest him on suspicion of having been an LTTE member.
115.He initially based this on the claims that first his brother, then his father forcibly worked for the LTTE. He claimed that his father’s compliance led the family to be branded as LTTE members. He claimed that as a consequence, he was later pursued by the army, the Karuna group and the police. He claimed that the Sri Lankan authorities continue to pursue people perceived to have been LTTE members, and that, although he was never a member, on the grounds that he is Tamil, lived in an LTTE‑controlled area and his brother was forced to openly work for the LTTE, his family have been unfairly tainted and could be killed by the army and their supporters.
116.I have already rejected the assertion that the Sri Lankan authorities presume that all Tamils from Vanni or formerly LTTE‑controlled parts of Eastern Province may have LTTE links.
117.Hence I do not accept that the claimant would be suspected of being an LTTE member or supporter for his ethnicity and place of origin. I am prepared to accept that his brother and father were obliged by the LTTE to work for them. However, I do not accept that the claimant’s membership of his family group would bring him under suspicion of LTTE membership or support. Hence this would not establish a well‑founded fear of persecution for a Convention‑related reason on his return.
118.The advisor has also argued that in his view the country information upon which I rely must indicate that the improvements in the overall situation are so radical that there is no longer a real chance that the applicant will be persecuted. However, this contention does not impact on my findings as it is premised upon his central claim that the claimant is suspected of having LTTE connections, which I have already rejected.
119.I base these findings also on the following.
In the subsequent paragraphs, Mr Gacs addressed the applicant’s account of his experiences since moving to Colombo in 2002. Mr Gacs addressed the evidence concerning the applicant’s employment history, his work as a driver, and his specific claims of having come to the attention of the police in 2006 when stopped at an army/police checkpoint. In relation to this event, Mr Gacs found:
121.He claimed that in 2006, however, he was stopped at an army/police checkpoint, his ID card was checked, and as it stated that he was from [town], he was detained until evening, when his boss came and bailed him out. He claimed that during his detention he was slapped. I find that, although the slapping was unfortunate, this single event does not amount to harm serious enough to be regarded as persecution; the main point, however, is that his release indicates, and I so find, that he was not on any police/army list of suspected LTTE supporters or members. I do not accept that he was released because the incident occurred during the peace negotiations. By that logic, he would not have been detained in the first place.
Mr Gacs also considered the applicant’s claim of having been stopped at an army checkpoint in March 2007, where he was strip searched and suspected of having been in the LTTE. Mr Gacs explained concerns about “embellishments in the various renditions of this claim, which contribute to adversely effecting [sic] the claimant’s credibility”.
He explained these concerns and concluded:
129.I am prepared to accept that the claimant was stopped at a checkpoint in March 2007 on his way back from Batticaloa, as the country information indicates this practice by the police and army was routine; I consider that this would have been just that, a routine check, one of many he underwent without difficulties. I do not accept that he was strip‑searched, accused of being an LTTE member, had a gun put to his head, saved by protests from his Tamil co‑workers or threatened by a solider that he would be shot if he passed there again. I consider that these claims are embellishments intended to bolster his case.
Mr Gacs also drew a positive conclusion that, on the account of the incident which Mr Gacs was prepared to accept, it in fact showed that the applicant had not been suspected at that time of being in the LTTE. He said:
123.I consider that had the soldiers really suspected him of having been in the LTTE, they would not have released him at all, and certainly not simply because people from the bus – who were, moreover, Tamils themselves – had protested.
Mr Gacs then noted the applicant’s claims in relation to the questioning by SLA officers of his aunt in 2006, and noted that the applicant agreed that this was “a routine ID check to see whether he was registered to live in Colombo”, from which no adverse consequence flowed.
Mr Gacs then examined the applicant’s “several versions” of the claim about having been advised to leave Sri Lanka, including his claims involving a risk deriving from events involving his employer. Mr Gacs did not accept that the applicant’s employer had been questioned about the applicant’s having driven a van for the LTTE and was beaten up, and did not accept that the police had conducted any investigation into this in 2007. He found:
143.On the basis of these and my previous adverse credibility findings, I do not accept that the claimant delivered a van to the LTTE at any time.
Mr Gacs considered some hearsay corroborative statements presented by the applicant, and explained why he gave no weight to them. Mr Gacs noted that the applicant’s family had been recently found living in a military compound, after having been displaced upon the downfall of the LTTE. He did not accept claims that they had reported that the police were looking for the applicant.
Mr Gacs did not accept that there had been a need for a special bribe at the airport to enable the applicant to leave Sri Lanka.
Mr Gacs’ concluding paragraphs were:
155.In sum, I do not accept that the claimant has ever been suspected of being an LTTE member or supporter.
156.Hence I reject the adviser’s contention to this effect in his response to the country information I had sent him. It follows that I reject his further contention that because the Sri Lankan authorities suspect him of involvement with the LTTE, he would be at risk of being detained upon arrival at Colombo airport.
157.I do not accept that he has a well‑founded fear of Convention‑based persecution on the basis of his religion or imputed political opinion.
158.As for his claimed fear of persecution as a failed asylum seeker, I reject this claim on the basis of the independent country information I have cited above. The report Country Advice LKA36363 states that the fact that a returnee has made an asylum application abroad could influence the way that person was treated at the airport, although there is no hard evidence to prove this; the report goes on to state that unless there was an alert on the person in the immigration system at the airport and that matched exactly the biodata information being presented to the immigration officer, the person would not be stopped from entering. As I have found that the claimant has never been suspected of being an LTTE member or supporter, it follows that he would not be on any alert list at the airport. I take account also of the information provided by the UNHCR Protection Officer that some returned failed asylum seekers were interviewed by the CID. If there was any suspicion there would be a quick, and usually non‑problematic, interview with CID who would ask things like why they left and how long they were away for. The report states that only high profile cases, such as those suspected of having involvement with the LTTE, – which, as I have found, excludes the claimant – would be taken away for further questioning.
159.On the evidence before me, I find the claimant does not have a well‑founded fear of being persecuted in Sri Lanka for any Convention reason now or in the reasonably foreseeable future, and that he does not satisfy the definition of a refuge as set out in that Convention.
160.I find that the claimant, [the applicant], does not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958.
161.I recommend that the claimant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees.
The grounds of review
At the hearing before me, counsel appearing for the applicant, who was not the same counsel who prepared the written submissions which had been filed, presented oral arguments which addressed a ‘further amended application’ which was filed at the hearing. It raised two grounds, each with two particulars. In my opinion, these should be treated as raising four separate grounds. As pleaded, they were:
1.The reasons provided by the second respondent to the first respondent in support of the second respondent’s recommendation that the applicant was not a person to whom Australia had protection obligations were neither logical nor rational.
Particulars
i)There was no evidence for the finding that the country information referred to at paragraph [111] of the second respondent’s reasons (CB 329) made no assertion that the mere fact of being a young Tamil male from the north or east of Sri Lanka would, for that reason alone, cause a person to be suspected of having been a LTTE supporter.
The International Crisis Group report, “Sri Lanka, A Bitter Peace” states at page 5:
“This marks them as Tamils from the Vanni and thus as potentially having LTTE connections”,
and
“the population of the north will be subject to endless screening.”
The International Crisis Group report further states at page 7:
“Given their close association with the LTTE and the sympathy of many for the LTTE, Tamils from the Vanni and Jaffna are neither liked nor trusted by the government. It will likely seek to control them for some time.”
The US Department of State report, “2009 Human Rights Report, Sri Lanka, 11 March 2010” states at page 8:
“Colombo police refused to register Tamils from the north and the east as required…Security forces at checkpoints in Colombo frequently harassed Tamils. After the government assumed effective control of the east, both the government and the TMVP operated checkpoints that impeded the free movement of residents, especially Tamils”.
The International Commission of Jurists report, “Beyond Lawful Constraints: Sri Lanka’s Mass Detention of LTTE suspects, September 2010” states at page 9:
“…with its policy of conscription and forced labour, the LTTE was all‑pervasive in the lives of civilians in its area of control. As such, most IDP’s would have had some link with the LTTE”.
The International Commission of Jurists report further states at page 9 that the government had called for the surrender of anyone who had spent “even one minute with the LTTE in any way”.
ii)There was no rational basis for rejecting the claim that the fact the applicant’s father and brother had worked for the LTTE may lead to him being suspected of supporting the LTTE.
2.The second respondent made an error in law.
Particulars
i)The second respondent failed to consider whether the applicant held a “well‑founded” fear of persecution.
ii)The second respondent failed to consider whether there was a real chance that the applicant would be suspected of involvement with the LTTE and arrested at the airport on return to Sri Lanka on account of the following:
a) The burns on the applicant’s body; and
b) The tattoo on the applicant’s arm of the applicant’s dead brother’s name.
Ground 1 particular (i)
Counsel’s submissions did not explore the jurisprudence on how reasoning in an administrative decision which is “neither logical nor rational” may thereby reveal error of law or denial of procedural fairness. However, I understood the submissions of both counsel to be premised on an assumption that the recent discussion of the High Court in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 concerning irrationality and unreasonableness of reasoning as a jurisdictional error, provided the source of relevant principles when considering Ground 1 in both its wings.
There are some differences in the reasoning of the judgments in SZMDS. However, as explained in recent decisions in the Full Court, unreasonableness of fact‑finding may vitiate the legal validity of a decision, if it is shown that a particular finding which was material to the outcome was not based on probative material or logical grounds (see SZMWQ v Minister for Immigration & Citizenship (2010) 187 FCR 109, [2010] FCAFC 97 at [32] and [124], MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123, (2010) 117 ALD 44 at [43]‑[45], and Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, [2010] FCAFC 108 at [40]).
As I understood the oral submissions of counsel for the applicant in the present case, he challenged the statement by Mr Gacs, made at paragraph 111 in support of the finding made at paragraph 110, with two arguments seeking to demonstrate that it made a factual assessment which was not open to Mr Gacs on the evidence before him and was supported by illogical reasoning.
As I understood him, he made two contentions. First, that Mr Gacs’ statement as to the effect of the pieces of country information which had “guided” him to reach his conclusion at paragraph 110, was not open to him on a proper examination of at least some of the five cited sources. Secondly, that his conclusion at paragraph 110 was not supported by any evidence available to Mr Gacs, including the five sources cited in paragraph 111 and the source cited in paragraph 112.
In relation to the first contention, counsel submitted that two of the sources cited in paragraph 111, in fact, contained information and relevant opinion which was inconsistent, and did not allow, Mr Gacs to form the opinion that these sources did not contain “such assertion”, ie the assertion that “since the end of the conflict, the mere fact of being a young Tamil male from the north or the east of Sri Lanka would for that reason alone cause a person to be suspected of having been an LTTE member or supporter”. When pressed to make out that contention, counsel took me to the following passages in relation to two of the sources cited by Mr Gacs in paragraph 111.
In relation to the International Crisis Group Report (“the ICG Report”) of January 2010, counsel took me to the sentence in the following paragraph which I shall emphasise:
The brutal nature of the conflict, especially in its closing months, has undermined Sri Lanka’s democratic institutions and governance. All ethnic communities are suffering from the collapse of the rule of law. Disappearances and political killings associated with the government’s counter‑insurgency campaign have been greatly reduced since the end of the war. Impunity for abuses by state officials continues, however, and fear and self‑censorship among civil society activities and political dissidents remain widespread: Rajapaksa’s government continues to maintain and use the Prevention of Terrorism Act and Emergency Regulations to weaken its political opposition.
He also took me to one dot point at the following section of the ICG Report, giving emphasis to the sentence relied upon by counsel:
B. PROBLEMS WITH RECENT RETURNS
That the majority of those once housed in closed camps have now been sent to their home districts or to host families is significant and welcome. It is clear that many are happy to be out of the camps. Nonetheless, most continue to be displaced and face serious challenges. The process by which people have been released from the camps has, in the words of one senior aid worker, been “chaotic and ill‑prepared” and raises serious concerns about the well‑being of the displaced and the ability of agencies charged with protecting their rights to carry out their work effectively. In the words of one aid agency official, “Large numbers are likely to remain in limbo and protracted displacement”.
[footnotes omitted]
…
qThe resettled are and will be tightly monitored by the military, limiting their freedom of movement. All those being returned have been photographed by the military and given special ID cards only required of those who have been in the camps. This marks them as Tamils from the Vanni and thus as potentially having LTTE connections. Reports suggest this will mean that many of those who have been returned “home” will be scared to leave the area, even if they are formally allowed to do so, for fear of being harassed or detained elsewhere (as has happened with those living in ex‑LTTE areas in the Eastern Province).
[footnotes omitted]
Counsel also took me to the highlighted parts of the following passage:
E.UNDERSTANDING AND RESPONDING TO THE SHIFT IN GOVERNMENT POLICY
The government’s decisions to release or “resettle” the majority of those in the camps can be attributed to growing international concern in September and October 2009 and to domestic political factors. Repeated visits from senior UN, U.S., British and EU officials, as well as regular public statements calling attention to problems in the camps and to the lack of freedom of movement played a crucial role in ultimately forcing the government’s U‑turn. “The government reacts to pressure. The returns prove this. These have not been an act of generosity but a response to pressure of different forms, including the government’s fear of growing unrest in camps”. Domestic political considerations were also important. With presidential elections due on 26 January 2010, the government is more interested than before in convincing its own citizens – and especially Tamil voters – that its treatment of those displaced by the war is reasonable and humane. With the joint opposition candidate, Sarath Fonseka, attempting to make an issue out of the ill‑treatment of displaced Tamils, the government wanted to neutralise the issue.
The government’s recent shift, while welcome, should be seen as the adoption of a new tactic for controlling the population, and the land, in the Northern Province. Given their close association with and the sympathy of many for the LTTE, Tamils from the Vanni and Jaffna are neither liked nor trusted by the government. It will likely seek to control them for some time. With the bulk of the displaced now scattered in transit centres and isolated villages across the north, and with UN and INGO and media access highly restricted, the ability to monitor the situation of those being resettled is in some ways reduced from when most were in a few camps. The displaced are likely to receive less international political and media attention as a result.
By deciding to resettle so many people so quickly, the Sri Lankan government succeeded in deflecting international criticism. According to one humanitarian aid official, “the focus of donors’ advocacy was on the percentage returned, not on freedom of movement or protection of individual rights. Yes, we fell collectively into the government’s trap here. But international pressure did work to some extent”. “The government is so clever”, said one Western diplomat. “They take an extremely hard line at first and then they loosen up a little bit and everyone is then willing to support them in moves that are highly problematic, as we’ve seen with the recent returns process”. The muted criticism by UN and officials with donor governments of the chaotic and insufficiently monitored returns process suggests the government has largely succeeded in disarming its international critics.
Due to restrictions on the ability of the ICRC and other protection agencies to serve those being resettled, there is little effective public advocacy for the rights of the displaced. In their understandable effort to encourage further improvements in government policy and not have their already limited access reduced, UN and donor statements have glossed over the problems in the process of emptying the camps. The discrepancy between what UN and humanitarian agencies are saying in public and what those working with the displaced – both Sri Lankan and international – will say in private is striking. There needs to be much stronger public advocacy by donor governments and the UN on the current risks to the resettled population and the need for better protection.
F.DETENTION, REHABILITATION AND REINTEGRATION OF SUSPECTED LTTE COMBATANTS
The military has been maintaining extra‑legal detention centres for an estimated 11,000‑13,000 people suspected of LTTE ties. These detained have had no access to lawyers, their families, ICRC or any other protection agency, and it is unclear what is happening inside the centres. In addition, “the grounds on which the ex‑combatants have been identified and the legal basis on which they are detained are totally unclear and arbitrary”. Given the well‑established practice of torture, enforced disappearance and extra‑judicial killing of LTTE suspects under the current and previous Sri Lankan governments, there are grounds for grave concerns about the fate of the detained. The government has announced that of those alleged ex‑combatants currently detained, only 200 will be put on the trial; most will [sic] detained for a further period of “rehabilitation” and then released. …
[footnotes omitted]
The other source cited by Mr Gacs in paragraph 111, which counsel took me to was the International Commission of Jurists Briefing Note (“the ICJ Briefing Note”) of September 2010, emphasising parts of the following passage:
IIBACKGROUND
This section reviews the circumstances and conditions surrounding the internment of individuals now subject to overlapping regimes of security screening following ‘surrender’, ‘rehabilitation’, or criminal prosecution. Some of the information for this section was collected through interviews with affected individuals as well as humanitarian aid workers. The identities of researchers and interviewees are not attributed to preserve confidentiality and security.
ACircumstances surrounding arrest
As the military conflict culminated at grave cost to civilian life and security in May 2009, many current detainees were separated from their families by the Sri Lanka Army (SLA) at reception points as they fled into government‑controlled areas. Others were arrested after arrival to the militarized internment camps for the internally displaced, including Manik Farm, as a result of screenings conducted by the SLA, as well as the police Terrorist Investigation Division (TID) and Criminal investigation Division (CID). The screening and resultant arrests continued over the months that followed the end of the conflict, sometimes with the assistance of Tamil informants amongst the internees. Such arrests continued in the Manik Farm camps at least up to December 2009. Some of these arrested individuals were taken to ‘surrendee’ camps.
Any alleged association with the LTTE appears to have been grounds for arrest. Those arrested include individuals who were recruited by the LTTE in the days and weeks before their defeat, as well as individuals who carried out official functions in LTTE administered areas and received a salary from the LTTE, but had not taken any active part in hostilities. Bona fide civilians who did not wish to be separated from relatives who had been identified as LTTE suspects were also detained at reception points such as Omanthai. The basis for arrests has included allegations by fellow IDPs and paramilitary groups in the interment camps, raising issues of credibility.
Other detainees responded to public calls from the SLA for the surrender of anyone who had spent “even one minute with the LTTE in any way”. This blanket call led many detainees with minimal involvement with the LTTE to report themselves, including children brought forward by their parents. UN Special Envoy Patrick Cammaert reported that, “[a]s a result, many children’s families, fearing later harassment, encouraged their children to report themselves, even if they only spent hours in the custody of the LTTE in the final days of the fighting.” The SLA promised that, once registered, those who ‘surrendered’ would be released, but surrender instead triggered continuing indefinite detention without charge or trial.
It should be noted that, with its policy of conscription and forced labour, the LTTE was all‑pervasive in the lives of civilians in its area of control. As such, most IDPs would have had some link with the LTTE. Any screening of the displaced will have required informed, clear and calibrated criteria to identify genuine security threats, evidence of serious crimes, and persons in need of protection or assistance.
The Ministry of Human Rights and Disaster Management, supported by the international community, prepared a policy framework and action plan addressing the rehabilitation and reintegration of ex‑combatants, but this has not been approved. The Government also promised other policy and regulatory measures for the identification, rehabilitation or prosecution of detainees, but such measures have either not emerged or been insufficient to address the human rights issues addressed below. While piecemeal information has emerged, there is to date no overall coherent framework that addresses the rights of detainees in accordance with international law and standards.
BHow many detainees are there?
It is estimated that about 12,000 individuals were arrested and detained during the final months and immediate aftermath of the end to military conflict in May 2009, including many who had at most a tenuous link to the LTTE and others who had been subjected to forced conscription during the latter stages of the conflict. Some of these detainees, including children, were taken selectively from the mass internment camps that once held up to three‑hundred thousand internally displaced, now reduced in number through the long‑awaited process of return that began in October 2009. At least 565 children appear to have benefitted from emergency regulations (1580 / 5 of 15 December 2008) that led to their separation from the adult population approximately one year ago. These children were released in recent months following close international monitoring by UNICEF and other organizations. This is a welcome development, and the government’s interest in locating and releasing the detained children won praise from a number of international aid workers interviewed for this report. However, since the Sri Lanka Government has not provided independent observers complete and consistent access to the adult detention centres, it is unclear as to whether any of the current detainees were children at the time of their alleged association with the LTTE.
[footnotes omitted]
Although the particulars to Ground 1(i) referred to a third source which is cited by Mr Gacs in paragraph 111 of his report, being the US Department of State report for 2009 dated 11 March 2010, counsel did not take me to the quoted passage in the particulars for me to assess its significance in context, nor to any other part of that report. He made no submissions relying upon any part of that report. Looked at as quoted in the particulars, it is clear, in my opinion, that it does not support the proposition that it was not open to Mr Gacs to make the finding that he made in paragraph 111, as to the absence of an assertion to the effect of paragraph 110 in the US Department of State report.
Nor, examining the passages which I have extracted above from the ICG Report and the ICJ Report, and taking into account all the submissions of counsel to me on the subject, am I able to discern in them support for that proposition. In my opinion, they do not show that Mr Gacs’ statement at paragraph 111, nor his finding at paragraph 110, were not open to him as a matter of law, or reflected illogicality of reasoning. They do not contain the assertion which Mr Gacs rejected at paragraph 110.
These passages were essentially directed at describing the situation in Sri Lanka generally after the defeat of the LTTE, concerning the continuing security activities of Sri Lankan army and security forces, in particular, in relation to displaced Tamils, and such of them as were singled out for particular attention as suspected LTTE supporters. Reading the sentences relied upon in the context in which they are made, in my opinion, they tend to support Mr Gacs’ finding in paragraph 110, that it is not possible to generalise generally that being a young Tamil male from the north or east, for that reason alone, gives rise to a well‑founded fear of persecution on the ground of being suspected of having been an LTTE member or supporter. They also, in my opinion, tend to support, rather that otherwise, the significance given by Mr Gacs to the absence in these documents of an opinion that all young Tamil males from the north or east are suspected of having been an LTTE member or supporter.
Nor, in my opinion, did Mr Gacs’ finding in paragraph 110 lack evidentiary support in other passages which counsel took me to in other sources, which, although not cited by Mr Gacs in paragraph 111, had clearly been consulted by him and had been the subject of exchanges between him and the applicant’s solicitor.
In this respect, I was taken to the following paragraphs from the “UNHCR Eligibility Guidelines For Assessing The International Protection Needs Of Asylum‑Seekers From Sri Lanka”, 5 July 2010:
Amongst issues relevant to the determination of eligibility for refugee protection are allegations by a number of sources regarding: torture of persons suspected of LTTE links in detention; … According to some reports young Tamil men, particularly those originating from the north and east of the country, may be disproportionately affected by the implementation of security and anti‑terrorism measures on account of their suspected affiliation with the LTTE.
In light of the foregoing, persons suspected of having links with the LTTE may be at risk on the ground of membership of a particular social group. Claims by persons suspected of having links with the LTTE may, however, give rise to the need to examine possible exclusion from refugee status.
I was also taken to extracts from the decision of the UK Asylum and Immigration Tribunal, which included the sentence which was quoted by Mr Gacs in paragraph 112, extracted above. That decision, which appears to have been an important guideline decision given by the UK Tribunal constituted at the most senior level and intended to guide UK refugee decision‑makers, included the following paragraphs to which I was taken by counsel:
Tamil ethnicity (i)
129.In the light of the most recent evidence it is clear that it remains the case that young male Tamils are at relatively higher level of risk than other Tamils; it is they who are more likely to be subject to incidents of arrest and detention. … Whilst therefore we conclude that on balance young female Tamils will not face the same level of risk as young male Tamils, we concur with Dr Smith and Professor Good’s assessment that relative youth remains a more important indicator of risk than gender.
…
132.Having considered the further evidence before us, we are not persuaded that Tamils from the north and east constitute either a stand alone risk category or a separate risk factor. The situation in Sri Lanka has changed dramatically since LP but not such as to place this category of Tamils in a significantly different position. We are prepared to accept that the fact that a person found to be from the north, especially from an area where the LTTE previously held it as an LTTE stronghold, would be regarded with an increased level of suspicion in the mind of Sri Lankan authorities carrying out checks. We also accept that (at least up until very recently) in the north an extraordinary number of Tamil civilians were being held in camps that effectively deprived them of their liberty and that they were subject there to individual screening to see if they were involved with the LTTE. That being the case, we consider that assessment of risk to Tamil returnees from abroad whose home areas are either former conflict zones or places where there are still SLA‑run camps will require a nuanced treatment having particular regard to their past history and circumstances. . But what we are concerned with in asylum‑related Sri Lankan cases is the different question of risk to Sri Lanka to Tamils from the north (or east) if they are returned to Colombo. As already explained, we do not think that what is happening presently to many Tamils in the north is an accurate index of what will happen to Tamils originally from the north who face return from abroad to Colombo.
…
In my opinion, it was open to Mr Gacs, as a matter of law, to have concluded that the opinions and material cited by him throughout his report, including the UK Tribunal decision, as supporting the proposition which he made in paragraph 110 of his report.
Taking into account all the passages from country information to which I was taken by counsel for the applicant in support of Ground 1(i), I consider that this ground fails by reference to the very passages in country information relied upon by him to give it substance.
I do not consider it necessary for me to examine whether there might have been other passages in the country information which also render the ground untenable.
Ground 1 particular (ii)
This ground challenges the rationality of the reasoning of Mr Gacs supporting his finding which is found in the middle of paragraph 117: “However, I do not accept that the claimant’s membership of his family group would bring him under suspicion of LTTE membership or support. Hence this would not establish a well‑founded fear of persecution for a Convention related reason on his return”.
It was common ground between counsel, and I accept, that Mr Gacs’ reference at paragraph 119: “I base these findings also on the following”, should be understood as encompassing the finding in paragraph 117, as well as his other adverse findings and recorded in the preceding paragraphs, including the applicant’s “central claim” noted at paragraph 118: “that the claimant is suspected of having LTTE connections”. I therefore accept that Mr Gacs’ reasons for making his adverse finding at paragraph 117 may be found in the “following” paragraphs to paragraph 119.
I would understand “the following paragraphs” to be his findings and reasons over the following six pages from paragraph 120 to paragraph 155, leading to his general findings addressing the well‑foundedness of all the applicant’s claims of Convention‑based persecution, which I have quoted above. These paragraphs encompassed Mr Gacs’ examination of the applicant’s evidence about claimed events subsequent to his move to Colombo in 2002, and the applicant’s departure from Sri Lanka in 2007.
Counsel for the applicant argued that it was illogical, and not reasonably open, for Mr Gacs to base his adverse conclusion in relation to the applicant’s family membership refugee claim upon his reasoning in these paragraphs. Counsel characterised that reasoning as being concerned only with addressing the applicant’s other refugee claims, suggesting an adverse political profile based on particular personal experiences of the claimant, without any reference to the circumstances of other members of his family or possible perceptions about his family generally based on their connections with locations previously controlled by the LTTE. He submitted that it could not, therefore, provide logical reasons for rejecting a fear of persecution based on family membership.
I shall not pause to consider whether the argument presented to me amounted only to an argument about the merits of Mr Gacs’ reasoning on facts, since I do not accept the premise of counsel’s argument.
I accept the Minister’s submission that, in fact, Mr Gacs did more in the paragraphs following paragraph 119 than explaining why he did not accept the applicant’s claims that, in the course of events subsequent to 2002, he was and would be identified as a suspect LTTE supporter. In my opinion these paragraphs did more than that. They also made positive findings based on such parts of the applicant’s personal experiences since 2002 which Mr Gacs accepted, which in Mr Gacs’ opinion showed that he was positively not an LTTE suspect in the eyes of Sri Lankan police and security agencies in the years leading to his departure from Sri Lanka. I have quoted these findings above.
In my opinion, it was not illogical, and it was open as a matter of law, for Mr Gacs to draw inferences from the fact that the applicant had never incurred more than a fleeting interest from security agencies since his move to Colombo in 2002, and to conclude that the applicant did not have a well‑founded fear based on the previous experiences of his family at earlier times during the LTTE insurgency or on his family membership alone. In my opinion, there was a logical basis for Mr Gacs to test the family membership claim by considering whether the applicant ever encountered anything more than a passing suspicion in the course of several years leading to the applicant’s departure from Sri Lanka, in which he would repeatedly have passed through police and army checkpoints and been examined for his credentials as an obvious ethnic Tamil. Having concluded that events during this period showed positively that the applicant was not of interest to security agencies by the time he left Sri Lanka, in my opinion, it was open to Mr Gacs to conclude that there was not a real chance that he would be so identified if he returned, whether by reason of a family association or otherwise.
I am therefore not satisfied as to any of the arguments presented in relation to Ground 1 in its second particular.
Ground 2 particular (i)
There was an inherent difficulty facing the applicant’s counsel in supporting a contention that Mr Gacs “failed to consider whether the applicant held a ‘well‑founded’ fear of persecution”.
Manifestly, as I have quoted above, Mr Gacs at the start of his report, and in his ultimate findings and conclusions, posed for himself the correct question in those very terms. I would not lightly arrive at the conclusion that Mr Gacs lost sight of the question by examination of the intervening reasoning and findings. Especially, since those reasons are provided to explain his ultimate conclusion that the applicant “does not have a well‑founded fear of being persecuted in Sri Lanka for any Convention reason now or in the reasonably foreseeable future”.
The mere absence of references to ‘the real chance test’ in the course of the reasoning does not, in itself, allow me to conclude that Mr Gacs was unaware of the jurisprudence in relation to the meaning of the Convention definition, where it refers to a “well‑founded” fear. As the High Court said in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, in a passage cited to me by counsel:
In this and other cases, the Tribunal and the Federal Court have used the term “real chance” not as epexegetic of “well‑founded”, but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well‑founded even though the evidence does not show that persecution is more likely than not to eventuate.
That passage occurs immediately after the High Court endorsed the opinions in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 that “a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate”, thereby explaining what has come to be known as the ‘real chance test’.
Reading the whole of Mr Gacs’ present report in the manner required by Wu (supra), I have not been persuaded that anything he said or did not say indicates that he was unaware of that jurisprudence. Indeed, in my opinion there is an indication that he understood it, for example, at paragraph 118 where he referred to the “central claim” presented by the applicant’s solicitor which invoked the real chance test. In relation to this paragraph, in my opinion, it was open to Mr Gacs to regard the submission as assuming a finding that the applicant had a heightened profile, before there would exist “a real chance that the applicant will be persecuted”.
Read in the light of the submissions which had been made to Mr Gacs by the applicant’s solicitor which I have quoted above, Mr Gacs’ report is understandable in how he addressed the factual issues which he had to decide, before assessing whether the applicant had a well‑founded fear to come within the Convention definition.
When developing the first particular in relation to Ground 2, counsel for the applicant criticised Mr Gacs’ findings in relation to the effect of country information. In particular, his finding that country information did not show that “the mere fact of being a young Tamil male from the north or the east of Sri Lanka would for that reason alone cause a person to be suspected of having been an LTTE member or supporter”. He submitted that this finding failed to reflect consideration whether there was a real chance that these attributes might expose the applicant to persecution.
I accept that this finding was not made with any expression of doubt, and was expressed in positive terms. However, the jurisprudence in relation to the ‘real chance test’ and the role of findings of fact before a decision‑maker assesses the future risk of persecution, allows a decision‑maker to express in positive terms findings upon which an ultimate conclusion is based. That jurisprudence was recently summarised in a manner which was accepted by the Full Court in MZXSA (supra):
94The requirement that a fear of persecution be “well‑founded” adds an objective element to the requirement that an applicant actually have a fear of persecution. In order to demonstrate a well‑founded fear of persecution it is sufficient that there is a “real chance” that the applicant might be persecuted for a Convention reason: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. This requires a decision‑maker to engage in a degree of speculation about future events. The fact of past persecution is relevant to the determination of possible future persecution.
95In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Sackville J (with whom North J agreed) analysed the question of decision‑making in migration cases. His Honour considered Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Re Minister for Immigration and Multicultural Affairs, Ex Parte Abebe (1999) 197 CLR 510, for the purpose of addressing the requirement of whether an applicant for a protection visa has a well‑founded fear of persecution. His Honour (at [60]‑[67]) distilled a number of principles from those decisions, including the following:
(a)There are circumstances in which the Tribunal must take into account the possibility that alleged past events occurred even though it finds those events probably did not occur. This is because the Tribunal must not foreclose reasonable speculation about the chances of a hypothetical future event occurring.
(b)In this connection it is not always possible for the decision‑maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. Therefore, if the Tribunal is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering whether the applicant has a well‑founded fear of persecution.
(c)Reasonable speculation may require the decision‑maker to take into account the chance that past events might have occurred, even though the decision‑maker thinks that they probably did not.
(d)There is no reason in principle and nothing in the reasoning of the High Court in those cases that the Tribunal must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of convictional confidence that the findings are correct.
(e)Similarly there is nothing in the reasoning of the High Court which permits a Court exercising powers of judicial review to “impute” to the Tribunal a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the Tribunal should not or could not have relied on those findings to hold that the applicant’s fear of persecution was not well‑founded. To do so would be to engage in merits review.
(f)In general, the question whether the Tribunal should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the Tribunal’s own reasons. If a fair reading of the reasons as a whole shows that the Tribunal itself had no real doubt that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.
Applying these principles, I am not persuaded that any error of law is exhibited in the reasoning of Mr Gacs in the present case, due to the absence of any reference to doubts, or uncertainties, or possibilities less than probable, in the factual findings of Mr Gacs, both in relation to the applicant’s circumstances and in relation to his assessment of general country information.
Ground 2 particular (ii)
As I understood counsel for the applicant this particular raised a separate ground of error. It appeared to me that, essentially, counsel’s submissions had at their foundation a criticism of Mr Gacs for failing to make any specific findings which considered whether the applicant would be at risk upon arrival at the airport upon his return to Sri Lanka of incurring persecution as a suspected LTTE supporter because he would be identified as having “burns on his body” and a “tattoo on his arm”. Counsel noted that the applicant had referred to such markings, when claiming that they had incurred particular suspicion when they had been detected in a strip search in the course of the 2007 checkpoint incident, that account of a strip search not having been accepted by Mr Gacs.
No claim that such an incident would occur at the airport upon his return was ever made by the applicant or by his solicitor in any manner which, in my opinion, could be described as “advanced by the applicant” or “clearly” raised by his evidence, as a separate integer in refugee claims requiring specific attention. I therefore do not regard the evidence before Mr Gacs as requiring him to make any specific findings addressing this possibility (cf. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1, [2004] FCAFC 263 at [63] and [68]).
The only passage in the evidence which the applicant’s counsel could take me to which, he submitted, might have given rise to such a claim was a paragraph in the applicant’s solicitor’s generic submission in relation to a group of clients, including the applicant, which was in the following terms:
26.In decision No. 1002652 ([2010] RRTA 557 (15 July 2010)) Member Cranston referred at paragraph 52 to anecdotal evidence which suggested that the following variety of factors could influence how a person was treated at the airport although inadequacies within the immigration IT system and lack of information might lead Sri Lankan immigration officers to overlook a particular person who would otherwise be of interest. The factors listed by the Tribunal were:
·a previous record as a suspected or actual LTTE member;
·having been identified as having relatives in the LTTE;
·having a previous criminal record and or outstanding arrest warrant;
·having jumped bail or escaped from custody;
·having signed a confession or a similar document;
·having been asked by the security forces to become an informer;
·having visible scarring;
·having returned from London or another centre of LTTE fundraising;
·having illegally departed from Sri Lanka;
·having made an asylum claim abroad; and
·lacking an ID card or other documentation.
(footnote omitted)
However, I accept the submission of counsel for the Minister that this paragraph, on the most generous reading of its presentation by the applicant’s solicitor, could not be understood as requiring Mr Gacs to address the suggested fear upon the applicant’s presentation at the airport. I accept his submission that the cited opinion of the RRT member was not that one of the dot point circumstances did require a finding of real chance of persecution, but only that it could “influence how a person was treated at the airport”.
Moreover, there was nothing in the evidence before Mr Gacs that in fact showed that the applicant might fall within any of the dot points, except the second last dot point: “having made an asylum claim abroad”. The evidence did not suggest that the applicant exhibited burn marks or a tattoo which would be apparent at the airport except in a strip search, and there was no evidence suggesting that ordinary failed asylum seekers were facing a possibility more than speculative of encountering such a search.
In my opinion, Mr Gacs sufficiently addressed the refugee claims which were presented by the applicant and his solicitor concerning his situation at the airport on return as a failed asylum seeker. Mr Gacs answered them, essentially, by rejecting the claim that upon his return he would be identified as a suspected LTTE supporter by reason of his previous history. That rejection followed from Mr Gacs’ non‑acceptance of that history, and from his positive findings that the applicant had not been of interest to security agencies before leaving Sri Lanka. Mr Gacs was therefore left with a need only to consider the applicant’s risk “as a failed asylum seeker” without any other profile. In my opinion, his reasoning in relation to that risk reveals no error of law.
Taking into account all the submissions that were made to me today by counsel for the applicant, I am unpersuaded that any of the particulars in Ground 2, nor any other of the grounds argued before me, have been made out.
I am therefore not satisfied that any of the relief sought in the application can be granted by the Court, and I consider it appropriate to dismiss the application. It is agreed that costs should follow the event.
I certify that the preceding seventy‑eight (78) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 24 October 2011
0
17
0