SZQJB v Minister for Immigration and Citizenship
[2013] FCA 10
•15 January 2013
FEDERAL COURT OF AUSTRALIA
SZQJB v Minister for Immigration & Citizenship
[2013] FCA 10
Citation: SZQJB v Minister for Immigration & Citizenship [2013] FCA 10 Appeal from: SZQJB v Minister for Immigration & Anor [2011] FMCA 787 Parties: SZQJB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and PETER GACS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER File number: NSD 2043 of 2011 Judge: RARES J Date of judgment: 15 January 2013 Corrigendum: 1 February 2013 Catchwords: MIGRATION – protection visa – jurisdictional error – whether independent merits reviewer misapplied the test of whether the appellant had a well-founded fear of persecution, in the sense of a “real chance” of persecution if he was returned to his country of residence – whether the reviewer had a “real doubt” as to whether a particular factual finding was correct – whether pursuant to Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, the reviewer had an obligation to consider, in determining the existence of a well founded fear, the possibility that the reviewer’s factual finding was wrong
Held: the reviewer did not have a real doubt as to the correctness of his finding, and so was not required to consider the possibility that the finding was incorrect
Legislation: Migration Act 1958 (Cth) ss 36(2), 36(3)-(7),46A,
91R-91U
Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967, Art 1A(2)Cases cited: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
MZXSA v Minister for Immigration (2010) 117 ALD 441 applied
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 applied
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 referred toSZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 referred to
TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049 referred toDate of hearing: 29 February 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 28 Counsel for the Appellant: Mr C Peadon Solicitor for the Appellant: Salvos Legal Counsel for the Respondents: Ms N Sharpe Solicitor for the Respondents: Sparke Helmore FEDERAL COURT OF AUSTRALIA
SZQJB v Minister for Immigration & Citizenship
[2013] FCA 10CORRIGENDUM
In paragraph 19 of the Reasons for Judgment, in the fifth line the word “not” should be inserted after the word “has”.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 1 February 2013
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 2043 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQJB
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentPETER GACS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
15 JANUARY 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.Subject to order 3, the first respondent pay the appellant’s costs thrown away by the adjournment of the hearing on 28 February 2012 to 29 February 2012.
3.The appellant pay the first respondent’s costs, subject to order 2 and after setting off the costs to which the appellant is entitled.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 2043 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQJB
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentPETER GACS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
RARES J
DATE:
15 JANUARY 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is a citizen of Sri Lanka and arrived at Christmas Island by boat on 10 December 2009. He was then 30 years of age. He was born in the Jaffna region in the North of Sri Lanka and was of Tamil ethnicity. He claimed to fear persecution for reasons of his ethnicity and his membership of a particular social group of young Tamil males from the North and East of Sri Lanka. He claimed that by reason only of his membership of that particular social group he would be suspected of having been a member or supporter of the Liberation Tigers of Tamil Eelam, known as the LTTE or Tamil Tigers.
By force of s 46A of the Migration Act 1958 (Cth) in its form at the time of the appellant’s arrival, he was an “offshore entry person” and had no right to lodge an application for a protection visa unless the Minister exercised his personal discretion to permit such an application to be made. The appellant’s claims were assessed under the administrative scheme described in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319. Ultimately, an independent merits reviewer recommended in his report on 10 May 2011 that the appellant not be recognised as a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (the Convention).
The appellant sought declaratory relief in the Federal Magistrates Court claiming that the report was affected by legal errors and an injunction preventing the Minister and the Department from relying on the report and recommendation. The trial judge rejected the appellant’s three principal arguments. He held that the report was not illogical or irrational, the reviewer had not misapplied the “real chance” test and the reviewer had not failed to consider a claim because the appellant had not raised it as a separate integer of his claim.
Issues
The appellant has appealed against each of those findings. The first two issues in the appeal turn on the following paragraphs in the reviewer’s report:
“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.”
These paragraphs dealt with two claims concerning those who would be suspected of association with the LTTE namely, young Tamil males from the North or East ([110]-[111]) and all Tamils from the North or East ([112]-[113]). First, the appellant contended that those paragraphs revealed that the reviewer had failed to apply the “real chance” test in assessing the appellant’s claims to be a member of the particular social group of young Tamil males from the North or East. Secondly, the appellant argued that the paragraphs also showed that the reviewer had acted illogically or irrationally in relying on the absence of supportive evidence of the existence of that particular social group in country information in the publications he referred to in [111] of the report and ignored the later and more up to date information from one of those sources, Amnesty International, that, he contended, supported its existence. The appellant relied on the fact that on 4 February 2011 his migration agent solicitor had written to the reviewer attaching a copy of country information dated 1 February 2011 that Amnesty International had prepared for the appellant in respect of the human rights situation in Sri Lanka. That country information stated:
“Amnesty International remains concerned that young Tamil males from the north and east of the country still risk being detained due to their suspected association with the LTTE. The report will highlight the fact that under Sri Lanka’s anti-terrorism legislation people with even minor connections to the LTTE face a realistic threat of detention. Evidence suggests that non-cardes and Tamils who were not involved in hostilities remain at risk from the Sri Lankan authorities. If suspected of having an association with the LTTE a suspect can be detained for up to 2 years without access to legal counsel and the right to challenge their detention.” (emphasis added)
Thirdly, the appellant contended that he had raised a claim that the reviewer had failed to address, namely that there was a real chance that on arrival at the airport, in Sri Lanka, he would be suspected of involvement with the LTTE because his father and, now deceased, brother had earlier been involved in doing tasks for the LTTE and he (the appellant) had had burns on his body and a tattoo on his arm of his dead brother’s name.
Background
The reviewer accepted that the appellant was a 30 year old male of Tamil ethnicity from the Jaffna region. However, he rejected the appellant’s substantive claims because he found the appellant lacked credibility. Critically, the reviewer did not accept that the appellant had ever been suspected of being an LTTE member or supporter. The reviewer accepted that the appellant’s father and brother had been obliged to work for the LTTE but did not accept that the appellant’s membership of his family group would cause him to be suspected of being an LTTE supporter or member.
The reviewer found that the appellant had moved to Colombo in 2002 and worked as a driver for a non government organisation from then to 2007 when he left Sri Lanka. The reviewer found that, during his work as a driver in 2006, he had been stopped at an army or police checkpoint and detained until evening because his identity card stated his place of birth was a village in the North, near Jaffna. The reviewer accepted that the appellant had been slapped during his short detention but, since he was quickly released later on the same day, found that he was not on any list of LTTE members or supporters. He also found that in March 2007 the appellant had been stopped at another army checkpoint. He rejected the appellant’s claims that on this occasion he had been taken to a camp where he was strip-searched and that his burn marks and tattoo had been observed. The reviewer found that the soldiers did not suspect the appellant of having been involved with the LTTE and were merely carrying out a routine check that the appellant underwent without any difficulty.
The reviewer also rejected other claims made by the appellant that are no longer relevant. He did, however, accept that the appellant’s family might currently be living in a military compound. But, the reviewer noted that country information indicated that many thousands of people were in that situation and that it was intended to be temporary.
The reviewer rejected the appellant’s claim that he would be persecuted as a failed asylum seeker when he arrived at the airport because he had never been suspected of any involvement with the LTTE, and so would not be on any list of such persons at the airport. He accepted that some failed asylum seekers were interviewed by the police on returning to the country about why they left and how long they had been away. The reviewer found that unless, relevantly, the person had been suspected of involvement with the LTTE, he or she would not be kept for further questioning.
The reviewer concluded that the appellant did not have a well-founded fear that he would be persecuted in Sri Lanka for any Convention reason now or in the reasonably foreseeable future.
The trial judge’s decision
The trial judge said that the reviewer had posed the question whether the claimant met the criterion for a protection visa set out in s 36(2) of the Migration Act 1958 (Cth), including by reference to ss 36(3)-(7) and 91R-91U, other relevant provisions and decided cases. He said that the mere absence in the report of reference to the real chance test did not lead to the conclusion that the reviewer was unaware of the jurisprudence relating to the meaning of a “well-founded fear” in the Convention definition. His Honour referred to Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572-573. His Honour said that the reviewer’s finding in [110] was in positive terms and evinced no expression of doubt. He held that a decision-maker could express findings in this way, referring to MZXSA v Minister for Immigration (2010) 117 ALD 441 at 460-461 [94]-[95]. Accordingly, his Honour found that the reviewer had not made any reviewable error in determining whether the appellant met the test for a protection visa.
His Honour considered the material in the two sources referred to in [111] of the report to which counsel for the appellant had taken him, namely of the International Crisis Group (ICG) of January 2010 and the International Commission of Jurists (ICJ) Briefing Note of September 2010. He found that these documents described the situation in Sri Lanka generally after the defeat of the LTTE in May 2009 concerning activities of the army and security forces particularly in relation to displaced Tamils “and such of them as were singled out for particular attention as suspected LTTE supporters”. The trial judge found that the passages relied on by the appellant’s counsel tended to support the reviewer’s rejection of the appellant’s claim that being a young Tamil male from the North or East, for that reason alone, gave rise to a well founded fear that he would be persecuted on the ground of being suspected of being an LTTE member or supporter. His Honour also found that those passages supported the significance given by the reviewer to the absence in those documents of an opinion in terms of the appellant’s claim. The trial judge also found that other material before the reviewer supported his finding in [110] of the report, including the decision of the United Kingdom Asylum and Immigration Tribunal in TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049 referred to at [112]. (That Tribunal was presided over by Carnwath LJ.) His Honour held that it had been open to the reviewer to arrive at his conclusion in [110] of the report on the basis of the material cited by him. His Honour also rejected the challenge to the reviewer’s finding, based on illogicality or irrationality, that membership of his family group would not bring the appellant under suspicion of being an LTTE member or supporter, despite the work his father and brother had done for the LTTE.
Last, the trial judge found that the appellant had not made a claim, or clearly raised evidence as a separate integer of his claims, that he would be at risk at the airport on his return based on his having burn marks and the tattoo on his skin and the putative association with the LTTE that these features might suggest. His Honour found that the evidence did not require the reviewer to separately address a claim that was neither made nor clearly raised by the evidence, relying on NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 20-21 [63], 22[68]. He said that a generic submission made on behalf of a number of applicants, who included the appellant, to the reviewer by the appellant’s immigration advisor solicitor of factors that might influence how a person could be treated at a Sri Lankan airport on return did not require the reviewer to separately consider each of those factors, almost none of which had any relevance to the appellant. He said that the reviewer’s earlier findings that the appellant would not be at risk because he had never been suspected of having been a member or supporter of the LTTE meant that the reviewer did not need to consider how the appellant would be treated on return at the airport had he had such a profile. He concluded that the reviewer had sufficiently addressed any claim before him about the risk to the appellant at the airport under the rubric of how he would be dealt with as a failed asylum seeker.
The parties’ submissions
The appellant argued that a fair reading of [110]-[113] of the report demonstrated that, first, the reviewer had not understood or had misapplied the “real chance” test and, secondly, he had arrived at the findings contained in those paragraphs irrationally and illogically. The appellant contended that the reviewer had acknowledged in the clause “country information is divided on this question”, that some of that information did support the existence of the particular social group for which the appellant made his claim. And, he submitted that the absence of an assertion in terms of that claim in the material cited in [111], juxtaposed with positive statements of their existence in other information, revealed that, first, he had a well founded fear of persecution for the reason he claimed, secondly, the reviewer had not asked himself about the possibilities for the appellant on return to Sri Lanka if his findings were wrongly “guided” by the absence of the assertion in the sources he identified and, thirdly, he had relied on the earlier, superseded, report of Amnesty International and ignored, without giving any reason, its later view that, he asserted, expressly identified the current risk of the particular social group to which he claimed to belong. The appellant also argued that he had sufficiently raised a claim of the risk to him at the airport on return because of his burn marks and tattoo and the fact that his brother had worked for the LTTE.
The Minister contended that all the appellant’s challenges amounted to an invitation to embark on merits review of the findings in the report. He argued that because the reviewer made a positive finding in [110], despite the phraseology he used in [111], a fair reading of his report as a whole did not suggest that the reviewer retained any doubt about the non-existence of a well-founded fear of persecution due to the appellant’s claimed particular social group. The Minister submitted that the finding that the reviewer did not accept that such a group existed was a clear rejection of the claim that was open on the material before him. He contended that the appellant was merely inviting an examination of the degree of conviction in the reviewer’s finding which was impermissible, as being merits review. He also contended that it was not irrational or illogical for the reviewer to have reasoned as he did in [110]-[113] and that the trial judge’s analysis was correct. Last, the Minister argued that his Honour correctly rejected the third ground put by the appellant concerning his risk at the airport on return. He contended that the reviewer had rejected the substantive factual history given by the appellant and had found that he had never been suspected of being a member or supporter of the LTTE. Accordingly, the Minister submitted, whatever involvement the appellant’s father and brother had had with the LTTE did not reveal any reviewable error in the report’s conclusion that the appellant would not be suspected of association with the LTTE at the airport on his return.
Consideration – the real chance test ground
The definition of “refugee” in Art 1A(2) of the Convention contains four key elements, namely first, the applicant must be outside his or her country of nationality, secondly, he or she must fear “persecution”, thirdly, that fear must be of persecution “for reasons of race, religion, nationality, membership of a particular social group or political opinion”, and fourthly, he or she “must have a ‘well-founded’ fear of persecution for one of the Convention reasons”: Guo 191 CLR at 570 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. As their Honours pointed out the “real chance” test is not a substitute for the Convention expression “well-founded fear” although often it will lead to the same result. They held that a fear is “well-founded” when there is a “real substantial basis for it” and that such a basis may exist even though there is far less than a 50% chance that the object of the fear will eventuate. The evidence before the decision-maker must indicate a real ground for believing that the applicant for refugee status is at risk of persecution for a Convention reason. And a fear of persecution is not “well-founded” if it is merely assumed or mere speculation: Guo 191 CLR at 572.
In order to determine whether a fear of persecution is well-founded, the decision-maker must form an opinion of what is likely to occur if the applicant for refugee status is returned to his or her country of nationality. That can involve making findings about past events and the motivations of the persons from whose conduct the fear is claimed to arise: Guo 191 CLR at 574. Their Honours continued (191 CLR at 575):
“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.”
And they concluded that in determining whether an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred in the past is relevant to determining the chance that the event or reason will occur in the future. Accordingly, they gave an example of where a decision-maker finds that it is only slightly more probable than not that an applicant has been punished for a Convention reason, the decision-maker must take into account the chance that the applicant was so punished in determining whether he or she has a well-founded fear of future persecution. On the other hand, where the decision-maker has no real doubt of the correctness of its findings as to the past and future it need not take that chance into account: Guo 191 CLR at 576. In MZSXA 117 ALD at 461-462 [95]-[96] Keane CJ, Perram and Yates JJ summarised the principles as follows:
“95.In 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.
96. As to the last of these principles, his Honour said (at [67]):
… Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the [Tribunal’s] own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the [Tribunal’s] reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang, at 271-272 …, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287 … Only if a fair reading of the reasons allows the conclusion that the [Tribunal] had a real doubt that its findings on material questions of fact were correct, might error be revealed by the [Tribunal’s] failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the [Tribunal] had not undertaken the required speculation about the chances of future persecution.”
It is important to respect the principles for considering the reasons of administrative decision-makers in applications for judicial review of their decisions identified by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. Those reasons are meant to inform and should not be scrutinised in an over-zealous way on judicial review to discern whether some inadequacy may be gleaned from the way in which they were expressed.
The issue presented here was whether the appellant had a well-founded fear of persecution because the authorities would suspect him of having been an LTTE member or supporter by reason simply of his being a member of the particular social group of young Tamil males from the North or East. The reviewer found that the country information on that question was “divided”. He was “guided” to answer it against the appellant because some of that information did not contain an assertion that such persons were at such a risk. The 2011 country information provided by Amnesty International, itself, did not go as far as the appellant’s claim to the reviewer that, by reason only of his being a young Tamil male from the North (or East), he would be suspected of association with the LTTE. Rather that information stated only that people “with even minor connections to the LTTE face a realistic threat of detention”.
The reviewer reached his conclusions on this topic mindful of his other findings that the appellant had not suffered past persecution during the time of the Sri Lankan civil war despite his being a young Tamil male from the North. While the phraseology of [110]-[113] in the report is susceptible of the construction for which the appellant contended, I do not think that, on a fair reading of his report, the reviewer entertained a real doubt that the appellant would be at risk of persecution if he returned to Sri Lanka. That is because the reviewer had reached a firm conclusion rejecting all of the appellant’s claims of past mistreatment based on his assertion that he had been suspected of being a member or supporter of the LTTE. Despite the infelicity of language used by the reviewer in [110]-[113], read in the context of his report as a whole, the conclusions he expressed were open on the material before him: Guo 191 CLR at 575-576; MZXSA 117 ALD at 461-462 [95]-[96].
For these reasons I am not satisfied that the reviewer misapplied the Convention test as to whether the appellant had a well-founded fear of persecution for the reason he claimed.
Consideration – the illogicality and irrationality ground
The appellant’s arguments on that issue and the issue of illogicality and irrationality largely overlapped. Both parties referred to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 in relation to the test for illogicality and irrationality. It is a difficult decision from which to discern any clear ratio decidendi: see my reasons in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 at 3-5 [2]-[6].
The appellant’s claim was expressed very broadly. He asserted that he had a well-founded fear of persecution were he to return to Sri Lanka because he was a young Tamil male from the North and, for that reason alone, he would be suspected of being a member or supporter of the LTTE. As the passages I emphasised in the extract set out at [5] above showed, Amnesty International’s 2011 country information referred to the additional factor of a suspected association or minor connection with the LTTE as the circumstance that created its concerns about young Tamil males from the North or the East. The reviewer was entitled to consider the country information for what it said and did not say about the fear of persecution that the appellant claimed. A valid starting point could be to proceed, as the reviewer did, by enquiring whether country information concerning those who were at risk of persecution conformed to the claims made by the appellant. The division of country information on this issue presented the reviewer with the need to make a finding on the claim. The reviewer’s choice of one available answer in lieu of the other is not illogical or irrational merely because the reviewer chose the answer that did not support the result for which the appellant contended.
In addition, the reviewer’s selection of his finding on this point could be influenced by the actual experiences of the appellant, as the reviewer found them to have been. In evaluating whether the appellant’s fear of persecution was well-founded, as I have explained above, he found facts about the appellant’s own past experiences, during the civil war, that negated the existence of the risk that the appellant would be suspected of association with the LTTE by reason only that he was a member of that particular social group and because of that factor alone. The reviewer came to that decision in reasons that were not objectively illogical, irrational or unreasonable. While different decision-makers could have come to a different decision, that does not mean that the reviewer’s reasoning process was illogical, irrational or unreasonable. The second ground fails.
Consideration – the unconsidered claim ground
In my opinion the trial judge was correct, for the reasons he gave, to have dismissed the appellant’s third ground. The appellant did not raise a claim or lead evidence that required the reviewer to consider his being at risk at the airport on the basis of his burn marks or tattoos or that his brother had worked for the LTTE. The reviewer had rejected the appellant’s claim of having been strip searched in March 2007 so as to expose those physical features. He found, in rejecting the appellant’s claims of such treatment that, despite being a young Tamil male from the North, the appellant had not been persecuted in the past because of any suspected association with the LTTE. The claim raised in this third argument was not a substantial and clearly articulated argument relying on established facts and the claim did not emerge clearly from the material before the reviewer: NABE 144 FCR at 22 [68] per Black CJ, French and Selway JJ. Like the trial judge, I am not satisfied that the reviewer had to address the claim that the appellant raised in his third ground of appeal.
Conclusion
For these reasons, the appeal must be dismissed with costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 15 January 2013
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