SZQJH v Minister for Immigration
[2011] FMCA 845
•2 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQJH v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 845 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations – allegation that the Reviewer misunderstood the applicant’s claims – failed to put certain relevant material to the applicant so that he might address it – failed to consider the availability of state protection, failed to consider the applicant’s claims by reference to a particular social group of which he claimed membership, made findings for which there was no evidence, failed to accept the applicant’s evidence – failed to give reasons for certain findings and failed to deal with the question of potential internal relocation properly. |
| The Constitution, s.75 Migration Act 1958, ss.5, 36, 46A, 195A, 474, 476 |
| Alami v Minister for Immigration & Citizenship [2011] FMCA 623 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 Pancharatnam v Minister for Immigration, Local Government & Ethnic Affairs (1991) 26 ALD 217 Kioa v West (1985) 159 CLR 550 Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZQJH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1281 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 4 October 2011 |
| Date of Last Submission: | 4 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Kumar |
| Solicitors for the Applicant: | Rasan T. Selliah & Associates |
| Counsel for the First Respondent: | Ms A. Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1281 of 2011
| SZQJH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Sri Lanka who arrived at Christmas Island by boat on 20 March 2010. On 12 June 2010 he lodged an application for a Refugee Status Assessment (“RSA”) alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). On 17 August 2010 an officer of the department administered by the first respondent minister (“Minister”) assessed the applicant as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 13 May 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The applicant has made an application to this Court for judicial review of the Reviewer’s recommendation. He has sought a declaration that it is affected by legal error as well as an injunction restraining the Minister from relying on the recommendation. The Court’s jurisdiction to consider the application was not challenged by the Minister or the Reviewer and it is apparent, by reason of the prayer for an injunction against the Minister, that the Court does have jurisdiction in this matter: ss.476(1), 5(1) and 474(3) Migration Act 1958 (“Act”); s.75(v) Constitution; Alami v Minister for Immigration & Citizenship [2011] FMCA 623.
The evidence makes it clear that the applicant had no visa when he entered Australia. Because of this and the fact that he entered Australia at Christmas Island which under s.5(1) of the Act is an “excised offshore place”, the applicant is an “offshore entry person” as defined by s.5(1) who, in the circumstances and as provided by s.46A(1) of the Act, cannot make a valid application for a protection visa. However ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa. Relevantly, those sections provide:
46A Visa applications by offshore entry persons
(1)An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non‑citizen.
(2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3)The power under subsection (2) may only be exercised by the Minister personally.
...
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1)This section applies to a person who is in detention under section 189.
Minister may grant visa
(2)If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3)In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4)The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5)The power under subsection (2) may only be exercised by the Minister personally. …
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 at 143 [49]. In Plaintiff M61 it was held that an offshore entry person such as the applicant who seeks to engage Australia’s protection obligations under the Convention, and is detained by the Commonwealth pending the outcome of that process, must be afforded natural justice by the independent merits reviewer reviewing his case. That right requires the reviewer to conduct a review which is procedurally fair and which correctly addresses the relevant legal question or questions.
For the reasons which follow, the application will be dismissed.
Background facts
The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection are set out on pages 3-18 of those reasons. Relevant factual allegations are summarised below.
Entry interview
The applicant made the following claims during his entry interview on 25 April 2010:
a)he is a Hindu Tamil and was self-employed as a jeweller in Sri Lanka;
b)in 2006 he was detained for one month in Colombo on suspicion of being a member of the LTTE (Tamil Tigers);
c)in July 2008 two men came to his house and took him away to a camp. His wife went to the police for help and was told that she had to offer “sexual favours” in exchange for their assistance. His wife was told where he was and, when she visited him, he told her not to meet the police demands. He was detained for three months and then escaped with four others. He then obtained a passport in Colombo and flew to Singapore; and
d)if he returned to Sri Lanka he would be shot as a suspected Tamil Tiger because he had escaped from custody. The group which had abducted him was a pro-government Tamil group, either Karuna or Pillaiyan. They would kill him because they had unsuccessfully asked him to join them. They had not told him who they represented and thus they had not told him which group they had been asking him to join.
RSA application
In a statement dated 12 June 2010, made in association with his application for an RSA, the applicant made the following additional claims:
a)with the help of a Sinhalese politician, he had applied for a visa to travel to Australia in 2006 as political unrest and crime increased in Sri Lanka;
b)some officers from the Central Intelligence Department (“CID”) had taken him to the “fourth floor” of their office, their torture and interrogation unit. He was interrogated, beaten and tortured there because the CID had wanted him to admit that he was a member of the LTTE. His parents had brought his Colombo business registration to show that he was “otherwise engaged” and not linked to the LTTE;
c)he was released after one month on condition that he report monthly for six months. He had reported to the authorities for more than a year and, when he did, the officers demanded “money, drink and favours”. He decided that the harassment was too much so he left his “workplace intact” and went back to Kalmunai to work with his brother-in-law; and
d)the group which kidnapped him in 2008 was in fact an anti-government LTTE group and he was sure of this because of the things he had had to do in the camp. If he were to return to Sri Lanka the LTTE would target him.
At his RSA interview the applicant also claimed:
a)he was held in a Karuna group (not LTTE) camp in 2008 and as he had escaped they had probably been looking for him since then. As a result of his escape he would also be persecuted by the army. The army, the Karuna group or other para-military groups would also persecute him due to his status as a young Tamil male from Kalmunai in the eastern part of Sri Lanka;
b)he flew to Singapore in October 2008 where he was detained and deported to Sri Lanka. A week later he flew to Malaysia and then travelled to Indonesia and East Timor before travelling by boat to Australia; and
c)he could not live in Colombo as he was registered to live in Kalmunai and he would have difficulty raising money for rent in Colombo.
Proceedings before the Reviewer
The applicant’s migration agent made submissions to the Reviewer on 13 October 2010 and gave the following information about the applicant:
a)after his escape from the Karuna camp, he did not return home but had his identity documents brought to him and he headed for Colombo;
b)he was questioned by a police officer of Sri Lankan nationality in East Timor. In support of his refugee status he had complained to the police officer about his treatment at the hands of Sri Lankan authorities and this police officer was likely to have reported his complaints to the Sri Lankan authorities;
c)he was a member of the particular social group of young Tamils from the east whom the authorities generally suspected as having links with LTTE members; and
d)he had an imputed political opinion of being opposed to the Sri Lankan government or of having connections with the LTTE.
The applicant was interviewed by the Reviewer on 13 December 2010 at which point he made the following additional claims:
a)the CID had only harassed him for six months and then stopped. He had moved to Kalmunai because he had been lonely in Colombo and had wanted to live near his family;
b)the CID had arrested him because he had applied for an Australian visa. He had never received a reply or confirmation of his application’s lodgment and a staff member at the Australian High Commission might have been a CID informant who sabotaged his application;
c)when he was abducted in 2008 he knew his abductors were Karuna members because there had been two or three leading individuals, one whom he had heard about in the newspapers. He was asked to join the group every ten days for three months and when he refused he was beaten;
d)two days after he was abducted, his wife came to visit him with “prominent persons from the village”. These prominent persons had guessed he was in a camp like the one he was in and had brought his wife to the right one. He had not met the prominent persons but his wife had told him about them;
e)with others he had escaped by putting bags over a barbed wire fence when the armed guards were in the toilet;
f)the interpreter who had helped him with his first statement had made an error in saying that the applicant had been sure from the things he had been made to do that he had been in an LTTE camp. The applicant had actually said it was a TVMP camp;
g)his passport was issued on the day that he left Sri Lanka for Singapore; and
h)when he was about to be deported from Singapore airport, he telephoned a friend in Sri Lanka. That friend had bribed an immigration officer at Colombo airport to allow him, the applicant, to pass through the airport quickly.
At the interview with the Reviewer the applicant submitted two letters which, among other things, attested that the applicant had been kidnapped in Sri Lanka by unknown groups.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before him, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The Reviewer accepted that the applicant would be considered rich by Sri Lankan standards and that this could cause him to be the target of extortion. The Reviewer noted that although the applicant’s profession and economic status could have brought him into membership of a number of reasonably conceivable particular social groups, the applicant had said it was access to his wealth that would be the essential factor motivating attempts to extract money from him. To the extent that the applicant had experienced or feared people trying to harass him for his money or other assets, the Reviewer found that this was a criminally opportunistic and mercenary issue which was not Convention-related. The Reviewer did not accept that the state’s failure to pre-empt efforts to rob or extort the applicant would be due to any Convention-related factors, real or imputed, noting that the applicant had originally wanted to leave Sri Lanka because of a generalised increase in crime and a generalised collapse in law and order coupled with growing political instability.
Generally, the Reviewer did not accept the applicant’s claims. In this regard:
a)the Reviewer considered it far-fetched that the CID had jumped to the conclusion that a Colombo goldsmith trying to apply for a tourist visa to visit Australia was an LTTE member or agent. Further, he did not accept that a spy in the Australian High Commission had somehow profiled the applicant for the CID. He was not satisfied that the CID had detained the applicant for any factor, including because he was a Tamil;
b)the Reviewer found that the applicant had not been consistent about his claim that corrupt police officers had tried to “leech money, drink and favours from him whilst holding over him the power to detain him as an LTTE supporter”. The inconsistency in the applicant’s evidence, in light of his performance as a witness overall, led the Reviewer to not believe his claim;
c)the Reviewer found that the applicant had felt uncomfortable in Colombo, but not for Convention reasons. He did not accept that when the applicant had moved to Kalmunai he had abandoned his shop, sold it or given it to someone else;
d)the Reviewer did not accept that the inconsistencies in the applicant’s evidence had anything to do with his proficiency in English and noted that the applicant appeared to be a mentally nimble person. The Reviewer also did not accept the applicant’s claim that his inconsistent evidence was a result of interpreters’ errors;
e)the Reviewer found the applicant’s evidence about his kidnapping by the LTTE or the Karuna group to be implausible. The Reviewer also found the applicant’s evidence about how he guessed the identity of his kidnappers to be inconsistent and untruthful;
f)the Reviewer did not consider the two letters submitted by the applicant to be corroborative of his abduction claims. He found that the letters were generalised and second-hand in what they were reporting. The Reviewer found that they gave the overwhelming impression that they had been contrived to give the applicant room in which to invent his own details, which he had done. The Reviewer thus did not give the letters any weight;
g)the Reviewer considered it unlikely that the applicant had left Sri Lanka on the same day that he had obtained his passport. Even if the applicant had done so, the Reviewer did not give that evidence any weight, finding that it merely suggested that the applicant might have had a flight booked and paid for before he even had a passport in hand. The Reviewer noted that whilst this suggested a hurry consistent with grave urgency, he did not accept the applicant’s evidence about what had made any aspect of the travel rushed or oddly organised. He did not accept the applicant’s story of the abduction, the camp, the Karuna group, the applicant’s escape, or the rush to send for ID documents while he was en route to Colombo;
h)the Reviewer accepted that the applicant had been deported from Singapore in October 2008 and found that the speed with which he had been deported indicated that the deportation of potentially illegal workers from Singapore to Sri Lanka was not unusual or exceptional. The Reviewer found the applicant’s account of how he managed to clear formalities and checks upon re-entry into Sri Lanka to be inconsistent, far-fetched and totally lacking in factual merit. The Reviewer found that although the applicant was deported to Sri Lanka, he did not come to the adverse attention of the authorities or of any other group vetting potential terrorists, separatists, criminals, political opponents or other undesirables at the airport. The Reviewer did not accept that the applicant was able to bribe his way out of Colombo airport. In assessing the applicant’s claim about what would happen to him if he returned to Sri Lanka in the reasonably foreseeable future, the Reviewer gave weight to the ease with which he had found that the applicant had passed unimpeded out of Sri Lanka and back again and that he was able to leave again without attracting harm and without any other relevant difficulty; and
i)the Reviewer found the applicant’s evidence so lacking in credibility that he did not accept that the applicant gave his details to an East Timorese official in the presence of a Sri Lankan policeman. Whilst accepting that a Sri Lankan officer may have been present, the Reviewer did not accept that the applicant had given potentially significant information about himself which could be used against him on his return to Sri Lanka.
The Reviewer did not accept that the applicant would face a real chance of Convention-related persecution upon his return to Sri Lanka. In this regard;
a)the Reviewer noted that according to Department of Foreign Affairs & Trade (“DFAT”) advice, UK Home Office advice and the 2010 United Nations High Commissioner for Refugees (“UNHCR”) Eligibility Guidelines, the applicant had the potential of coming to the attention of Sri Lankan authorities checking to see if he had previously left Sri Lanka illegally but concluded that he would be able to establish that he had departed legally. The Reviewer also noted that the DFAT advice suggested that it was unlikely that the authorities would detect that the applicant had made an asylum claim overseas or, if they did that they would act on that knowledge. The Reviewer found that advice from the UK Home Office, that in the event of enforced return from countries like the UK (or Australia) Sri Lankans of all ethnicities were referred to the CID and that Tamils could be subjected to closer scrutiny, did not suggest that such treatment would amount or lead to serious Convention-related harm of Sri Lankan Tamils upon their return to Sri Lanka;
b)the Reviewer accepted that the applicant might be interviewed by the authorities upon his return to Sri Lanka but gave weight to the fact that on two previous occasions he had left Sri Lanka legally and had been allowed to re-enter without impediment. The Reviewer concluded that if the applicant was interviewed on his return, it would be for the enforcement of Sri Lanka’s generally applicable laws, enacted for a legitimate national goal, i.e. to protect the integrity of its borders and regulate travel across them, and not for any essential and significant Convention-related reason;
c)in the latter regard the Reviewer also found that the applicant did not have a previous record of having been a suspected or actual LTTE member, had not been identified as having relatives in the LTTE and did not have a previous criminal record or an outstanding arrest warrant. The Reviewer found that there was no reliable evidence suggesting that the applicant had ever jumped bail or reporting conditions or that he had ever escaped from custody. The Reviewer also found that there was no evidence to suggest that the applicant had ever signed or refused to sign a confession or a similar document; that he had ever been asked by security forces to become an informer; that he had any kind of scarring linking him to anti-government activity; or that he had any potentially relevant links with London or any other centre of LTTE funding (including Australia);
d)further, the Reviewer did not accept that Tamils were seriously harmed for having left Sri Lanka illegally except in isolated, individual and possibly rare circumstances; and
e)the Reviewer considered evidence suggesting that talk of peace and post-war security in Sri Lanka was premature and that the government was still stigmatising Tamils and making scapegoats to maintain its prestige. However, the Reviewer was not satisfied that this gave rise to a real chance that the applicant would be persecuted for Convention-related reasons.
Having reached the above conclusions, the Reviewer found it unnecessary to consider internal relocation. However, the Reviewer noted that the applicant had provided considerable evidence of being able to reside legally in both Colombo and Kalmunai and that, on the evidence, there was no relevant reason why he could not continue to reside and work in either location.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
1.The Reviewer committed error of law and/or jurisdictional error when the Reviewer misapprehended the Applicant’s claim as “failed asylum seeker” [CB 479](IMR Decision at [p.24.6]) whilst the Applicant’s claim was that he feared persecution owing to the authorities’ suspicion being Tamil who was member of a one of the groups opposed to the government (Reviewer erroneously rejected claims) and thus failed to address whether adequate level of state protection would be available; alternatively country information relied upon should have been put to the Applicant in compliance with common law procedural fairness/natural justice requirements thus the Tribunal committed jurisdictional error.
2.The Reviewer committed error of law and/or jurisdictional error when it failed to properly identify, assess and address the risk of harm in respect of the Applicants’ particular social group being a young wealthy Hindu Sri Lankan of Tamil ethnicity from North East.
3.The Reviewer committed error of law and/or jurisdictional error when he made decision without supporting evidence.
4.The Reviewer committed error of law and/or jurisdictional error when he denied the Applicant natural justice/procedural fairness on a material issue when the Reviewer failed to allow Applicant opportunity to answer in respect of finding that “It merely suggests that he may have a flight booked and paid for before he had a new passport in hand.” (IMR Decision at [p.23.9]).
5.The Reviewer committed error of law and/or jurisdictional error when he rejected the Applicant’s explanation consistent with other evidence concerning the Applicant’s exit and entries at the airports. [CB 479] (IMR Decision at [p.24.1 to 24.4] para 1) and/or finding is unreasonable.
6.The Reviewer committed error of law and/or jurisdictional error when he rejected the Applicant’s explanation consistent with other evidence concerning the Applicant’s risk of persecution. (IMR Decision at [p.25.1 to 25.3 – para 2 and/or made finding without supporting evidence and/or failed give reason for rejecting corroborative account and denied natural justice/procedural fairness on a matter it considers adverse to the Applicant.
7.The Reviewer committed error of law and/or jurisdictional error when he the Reviewer failed to consider all the factors and whether in practical sense he Applicant could relocate: [CB480] (IMR Decision at [p25.5 at para 4). (errors in original)
Ground 1 – Claim misunderstood, state protection, failure to put applicant on notice
The first ground of the amended application contained three allegations, those being:
a)that the Reviewer misunderstood the applicant’s claim to be that he feared persecution as a failed asylum seeker whereas his claim was to fear persecution owing to the authorities’ suspicion that he was a member of one of the groups opposed to the government;
b)the Reviewer consequently failed to consider the availability of state protection; and
c)the Reviewer failed to put certain country information to the applicant so that he might address it.
The allegation was particularised as follows:
The Applicant contends that the claim that he would be suspected of links to LTTE (or Karuna Group). The Reviewer has misapprehended the claim and failed to assess the Applicant’s claim whether the authorities would suspect the Applicant may be member of one of these groups who could be persecuted upon return to Sri Lanka rather than considering the claim as “failed asylum seeker”. (errors in original)
In relation to the first of the three allegations, the applicant submitted that his claim was that he would be suspected of links to the LTTE or the Karuna Group and that the Reviewer had failed to address this claim. During the course of argument the applicant indicated that he did not press that aspect of this allegation which related to the Karuna Group.
As the summary of the applicant’s claims, evidence and submissions set out earlier in these reasons discloses, it is apparent from the Reviewer’s reasons that he was aware of the claims made by the applicant and, in particular, his claim to fear persecution on the ground that he would be suspected of membership of a group opposed to the government. In particular, at p.21 of his reasons the Reviewer relevantly described the applicant’s claims to be ones:
… relating to his status as a Tamil and to links, imputed to him by the army, the Karuna Group and the police and CID to the LTTE in particular and to the cause of Tamil separatism generally. He claims that the factor of having been an asylum seeker returning to Sri Lanka will also attract persecution from the same groups.
However, as submitted by the Minister, the primary evidence on which the applicant relied in support of his claim to fear persecution on the basis of imputed political opinion comprised:
a)the episode which he said occurred in 2006 after he applied for an Australian visa when he was allegedly detained and beaten by the CID;
b)the period after his release from detention in 2006 when the police extorted money and other favours from him; and
c)the episode in 2008 when he was abducted and taken to a camp.
As the summary of the relevant part of the Reviewer’s reasons set out above at [15] records, these allegations were not accepted and, particularly in relation to the abduction allegation, were rejected as untruthful. Further, although expressed in the context of the applicant’s alleged fear of returning as a failed asylum seeker, the Reviewer found that, in substance, there was no reason why the Sri Lankan authorities would consider the applicant to have had any links with the Tamil Tigers or anti-government activity. Contrary to the first allegation in the first ground of the amended application the Reviewer understood and considered the applicant’s claim based on his imputed political opinion.
Because the Reviewer found that the applicant did not have a well-founded fear of persecution for the reasons he alleged, there was no reason for consideration to be given to the availability of state protection. For that reason the second allegation made in the first ground of the amended application does not disclose error on the Reviewer’s part.
As to the third allegation, the applicant submitted that the DFAT advice, the UK Office Home advice and the 2010 UNHCR Eligibility Guidelines relied upon by the Reviewer were not put to him and he was thereby denied an opportunity to be heard on that information. All these documents were cited by the Reviewer in the context of the applicant’s claim to fear persecution upon return to Sri Lanka and, in particular, to his concern at the scrutiny he might undergo at the point of return. The Reviewer noted in this connection:
Looking at the above-cited DFAT advice, UK Home Office advice and 2010 UNHCR Eligibility Guidelines, I note that [the applicant] has the potential of coming to the attention of authorities checking to establish if he previously left Sri Lanka illegally, although I believe he would in due course be able to establish that he did leave legally, and for reasons of being imputed having made [sic] an asylum claim abroad. The DFAT advice suggests that the chance of the second factor being detected and acted upon by Sri Lankan authorities is unlikely …
The UK Home Office advises that in the event of an enforced return from countries like the UK (or Australia) Sri Lankans of all ethnicities are referred to the CID, although a Tamil (particularly from the North and East of the country) might also be subjected to closer scrutiny, but the advice does not suggest that such treatment in and of itself would amount or lead to serious Convention-related harm of Sri Lankan Tamils upon return to the country. (emphasis in original).
The part of the UK Home Office advice which is the subject of this allegation was expressly referred to in submissions to the Reviewer dated 13 October 2010 made on the applicant’s behalf by his advisers. The applicant cannot be said to have been denied an opportunity to comment on information when that information was specifically referred to by his own advisers: Pancharatnam v Minister for Immigration, Local Government & Ethnic Affairs (1991) 26 ALD 217 at 218-219.
The 2010 UNHCR Eligibility Guidelines indicated that the applicant would potentially come to the attention of authorities upon return to Sri Lanka and were thus referred to by the Reviewer in a manner supportive of the applicant’s allegations. The rules of natural justice are designed to ensure that a statutory power, whose exercise will affect the rights of a person, is exercised fairly. Relevantly, a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account when deciding upon its exercise: Kioa v West (1985) 159 CLR 550 at 628 per Brennan J. Consequently, to the extent that the reports and guidelines in question were supportive of the applicant’s claims, natural justice did not require the Reviewer to put them to him.
Remaining to be considered is the Reviewer’s reference to the DFAT advice. The Reviewer observed that that advice suggested that it was unlikely that the applicant would come to the attention of the Sri Lankan authorities “for reasons of being imputed having made an asylum claim abroad” [sic] or that those authorities would act upon that knowledge or imputation. Although the Reviewer did not put the substance of the DFAT advice to the applicant at any point of the review process, for the following reasons it was not necessary that he do so.
Earlier, the RSA assessor, in his reasons for concluding that the applicant did not meet the definition of a refugee, quoted that part of the DFAT advice which concerned arrangements for the detection of suspects and persons with criminal records at entry points in Sri Lanka. The quoted passage spoke of the very limited circumstances in which the Sri Lankan authorities would become aware that a returning national was a failed asylum seeker. The quotation also cited the advice’s reference number which cross-referenced to its inclusion in a detailed list of documentary sources which was set out towards the beginning of the assessor’s reasons. Immediately after that quotation, and as part of the same discussion, the assessor quoted from the UK Home Office advice mentioned above. In that part of their submissions to the Reviewer which concerned the danger which they asserted asylum seekers face when returning to Sri Lanka, the applicant’s advisers referred to the UK Home Office advice, and to an article from The Catholic Leader, and submitted that the applicant was likely to face persecution by the Sri Lankan authorities “on his return to Sri Lanka”.
Although the fact that a matter has been raised before, or by, the RSA assessor does not, of itself, relieve a Reviewer from the obligation to put all material matters to an applicant, if the applicant’s presentation at the review is such that he or she demonstrates an awareness and appreciation of the matter in question, perhaps because of the attention it was given before or by the RSA assessor, then the Reviewer has no obligation to raise it further. The procedural fairness required by the rules of natural justice involves “a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case”: Kioa’s case at 585 per Mason J. At 587 his Honour noted the importance which the law attaches to the need to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he or she may have an opportunity of dealing with it but also suggested that such a step might not be required if the issue and relevant information had already been addressed in the applicant’s application. Later, in Abebe v Commonwealth (1999) 197 CLR 510, it was held by Gummow and Hayne JJ, Gaudron and Kirby JJ agreeing, that the Refugee Review Tribunal (“RRT”) did not breach the rules of natural justice by not putting to Ms Abebe that her claims of detention and rape might not be accepted, given that the credibility of those claims had been expressly doubted by the primary decision-maker and had also been the subject of submissions by her advisers to the RRT itself. Pancharatnam’s case also supports that conclusion, to the extent that an applicant raises the issue in question with the Reviewer.
As, prior to the review, the applicant was aware of the relevant matter canvassed in the DFAT advice and addressed it in his submissions to the Reviewer, he was not denied natural justice on the basis that the Reviewer did not put that matter to him for yet further comment or evidence.
Ground 2 – Particular social group
The second ground of the amended application alleged that the Reviewer failed to assess the applicant’s claims against his membership of a particular social group, identified as “a young Tamil from North East or a young wealthy Hindu Sri Lankan of Tamil ethnicity from North East”. The allegation was particularised as follows:
The Reviewer has been procedurally unfair and made decision turned on unidentified social group [CB476] (IMR Decision at [p.21.7] instead of clearly identifying the social group and dealing with the relevant social group[s] the Applicants were advancing (and ought to have provided the Applicants proper opportunity to deal with that group) simply dealing with the claim as “relatively wealthy or business class” or “goldsmiths” and did not deal with the particular social group advanced by the Applicant.
The Tribunal failed to identify the particular social group/s (young Tamil male from North/East plus attributes) and deal with that claim simply broadly considering the above group; committing jurisdictional error and/or error of law. (errors in original)
The “unidentified social group” referred to in the particulars as the one against which the Reviewer erroneously tested the applicant’s claims was identified in submissions as “relatively wealthy or business class” or “goldsmiths”. However, it should be recalled that the applicant made specific allegations that he had been harassed by the Colombo CID who demanded “money, drink and favours”. Moreover, in his statutory declaration declared 27 September 2010 filed in support of his review application, the applicant said:
I am a goldsmith and I have had my own business. Just being in this profession makes it very clear that I am very wealthy. I escaped from the Karuna Camp. There are many incidents where people within my means are targeted by the men in “White Van”. I had stated in my initial statement of claims all the extortion money I continued to pay until I fled Colombo.
I believe that if I should be forced to return to Sri Lanka, I would be targeted by the Karuna Group or other Paramilitary groups. They would kidnap me for ransom and it is possible that even after paying the ransom my life would be at risk.
It was therefore necessary for the Reviewer to consider whether the harassment the applicant alleged he had suffered and might suffer by reason of his comparative wealth was Convention-related and the Reviewer did not err by doing so.
As to the claim that the Reviewer had failed to consider the applicant’s claim by reference to a group of which he did (also) claim membership, notwithstanding how the allegation had been pleaded and particularised, the applicant’s submission was that the particular social group in question had the following attributes:
a)Sri Lankans;
b)young males;
c)from the East;
d)of Tamil ethnicity;
e)persons likely to be perceived or are suspected of having some allegiance to LTTE or Karuna Group; and
f)possibly holding views opposed to their treatment by the government of Sri Lanka.
The applicant submitted that the Reviewer made a “general assessment against general population of people of the region in Sri Lanka rather than the applicant’s social group”.
Although the Reviewer did not express his reasons by explicit reference to this particular social group, it is plain that he was aware of the claim. At pp.7 and 8 of his reasons the Reviewer quoted the written submissions made by the applicant’s advisers. In those submissions the applicant’s claim to fear persecution by reason of his membership of a particular social group was expressed in the following terms:
ii. Membership of a particular social group
The Applicant falls within the category of young Tamils from the east whom the authorities generally suspect as having links with LTTE members.
We submit that the delegate failed to consider whether the Sri Lankan authorities perceived that [the applicant] was a member of the particular social group that being young Tamils from the east and therefore a LTTE member or collaborator.
Based on the fact that the Applicant was detained on suspicion by the Sri Lankan CID of that very suspicion, and that he was kept (albeit unwillingly) in a Karuna camp for three months and refused to join their cause, it is reasonable to assume that the Sri Lankan authorities would perceive him as having connections with, or being a LTTE member or collaborator.
Whether the Applicant actually supported the LTTE is not relevant. If the Sri Lankan authorities perceived him as having links with, or being a LTTE member, would result in his persecution by the authorities.
It is submitted that the delegate erred by not taking the above reasonable approach in classifying [the applicant] into the prescribed category of a particular social group (link with, member or collaborator of LTTE), whether actual or perceived. (emphasis in original)
It is apparent from the Reviewer’s reasons that he accepted that the applicant was a young Tamil male of Sri Lankan nationality who was born in a named city in the east of Sri Lanka. However, he rejected the contention that the central and critical attribute of the postulated particular social group, that its members were likely to be considered to have some allegiance to the LTTE or the Karuna Group, described the applicant. The basis of the applicant’s allegation that the Sri Lankan authorities might perceive him to have links with such groups arose out of his allegation that he had been abducted and taken to a camp which, depending on which of the applicant’s versions of events is the point of reference, was run by the LTTE or by the Karuna Group. The Reviewer rejected the applicant’s claims to have been abducted and detained in a camp saying that he did not accept that the applicant was being truthful in this regard. To the extent that the applicant claimed that the Sri Lankan authorities might have suspected him of being an LTTE agent because he had applied in 2006 for an Australian visa, that claim was also rejected by the Reviewer as far-fetched.
It is inappropriate to scrutinise the Reviewer’s expression of his reasons too nicely: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. In this case the particular social group in question was defined by certain of the applicant’s own personal characteristics which were fairly commonplace and which the Reviewer accepted as applying to the applicant: his age, sex, ethnicity, origin and nationality, as well as additionally, an important political element. Because of the significance of this political element it was, understandably, relevantly the focus of the Reviewer’s consideration. Having rejected the contention that this political characteristic described the applicant, the Reviewer was not required to give further or more comprehensive consideration to the particular social group of which it was allegedly an attribute, in particular, to express his reasons by reference to the totality of the attributes of the group of which the applicant claimed membership. I find that the Reviewer’s reasons disclose sufficient consideration of the elements of the particular social group in question, and the extent to which it comprehended the applicant, to conclude that he did not err in the manner alleged.
Ground 3 – No evidence for finding
The third ground of the amended application, that the Reviewer made “decision without supporting evidence”, was particularised as follows:
The Reviewer found that the past harassment of the Applicant was “criminally opportunistic and mercenary issue that is not Convention-related” (IMR Decision at [p22.2-22.3]; which has not been supported by evidence/whether or not the Applicant’s evidence otherwise is accepted. (errors in original)
The applicant submitted that the Reviewer did not “have regard to any evidence” in reaching the conclusion that any past or future harassment of him for his money or other assets was for criminally opportunistic and mercenary motivations. The applicant submitted that the Reviewer had not referred to any evidence grounding his conclusion that the exactions made of, or feared by, him were opportunistic and mercenary. The applicant submitted that the Reviewer had also been obliged to consider whether there was any other basis for the alleged criminal activity. He submitted that the Reviewer had failed to allow for the possibility that the extortion might have had a dual character and erred by treating that issue as one simply of a law and order nature.
As noted earlier in these reasons, the Reviewer rejected the applicant’s allegations that any exactions by the CID arose out of their suspicion that he might have had LTTE connections. His allegations that he had cause to fear the LTTE or the Karuna Group for reasons arising out of the alleged kidnapping and detention were also rejected. Having rejected what the applicant had alleged were the Convention-related bases of these purported fears, the Reviewer was left to characterise the possible motivation for the conduct which the applicant alleged had occurred in the past or might occur in the future. In those circumstances, and given that he accepted that the applicant “would be considered rather rich by Sri Lankan standards”, it was open to the Reviewer to conclude that attempts to extract money from the applicant were simply criminally opportunistic and mercenary in nature.
Additionally, as the discussion in [42] above discloses and contrary to the applicant’s allegation that he did not, the Reviewer did have regard to the possibility that the applicant’s extortion-related fears had one or more nexes with the Convention. Consequently, that aspect of the allegation does not disclose that the Reviewer erred.
Ground 4 – Failure to put applicant on notice
The fourth ground of the amended application alleged that the Reviewer did not give the applicant an opportunity to address the Reviewer’s conclusion that his 2008 departure from Sri Lanka on the day he received his passport suggested that he might already have had his ticket. The allegation was particularised as follows:
The Reviewer has been procedurally unfair and denied natural justice to the Applicant when it failed to allow the Applicant to address this issue at the hearing or at any other time in the course of the review of one of the issues on which the decision turns.
The Tribunal erred in failing to allow the Applicant common law procedural fairness/natural justice to deal with the issue. (errors in original)
The applicant submitted that the point in time when he booked his flight out of Sri Lanka in 2008 was a significant issue, at least in relation to the Reviewer’s assessment of his credibility, and yet he had not been heard on it in a meaningful way.
As the Minister submitted, it is important to read the passage which the applicant submits demonstrates error on the Reviewer’s part (set out below in bold type) in context:
I consider it unlikely that [the applicant] left Sri Lanka on the same day as he obtained his passport but even if he did I give the fact no weight. It merely suggests he might have had a flight booked and paid for before he even had a new passport in hand. Whereas that suggests a hurry that could be consistent with grave urgency, I do not accept [the applicant’s] evidence as to what made any aspect of his travel rushed or oddly organised: I do not accept the story of the abduction or the camp, or the Karuna group, or the far-fetched story of escape while guards were in the toilet, or the rush to send for ID documents en route to Colombo.
Reading the passage in context indicates that the Reviewer’s reference to when the applicant might have booked and paid for his flight out of Sri Lanka in 2008 was a matter of no relevance to the conclusion that it was unlikely that the applicant had departed Sri Lanka on the day he received his passport in 2008. The issue with which the paragraph in question was concerned was whether the applicant sought to leave Sri Lanka urgently. The Reviewer rejected that hypothesis because he did not accept the underlying factual allegations on which it was based. Whether or not the applicant had organised a ticket before he had received his passport was a matter of no significance given that the urgency which it might have denoted was not accepted by the Reviewer as having existed. Consequently, the timing of the airline ticket’s purchase in 2008 was not a matter which the Reviewer was required to put to the applicant in order to afford him procedural fairness.
Ground 5 – Applicant’s evidence not accepted
The essence of the fifth ground of the amended application is that the Reviewer rejected the applicant’s explanation of how he exited Colombo airport although it was consistent with other evidence; failed to make inquiries about the issue; failed to have regard to available independent evidence; and arrived at a conclusion which was unreasonable. The allegation was particularised as follows:
The Reviewer failed to have regard to other independent evidence available to him and/or was under duty to make further enquiries. No reasonable person would make such a finding without having regard to other corroborative available evidence such as country information.
The applicant did not press his allegation that the Reviewer had acted unreasonably.
The Reviewer’s concerns about the credibility of the applicant’s story concerning his return to Sri Lanka in 2008 were foreshadowed during the course of their interview and the interview provides background to the ultimate finding on this issue. In his summary of that interview, the Reviewer includes the following history:
I put to [the applicant] that from the time he was about to be deported to the time he arrived in Colombo did not seem to allow much time to put in place what seemed in his account to be an essential means of getting safety through Colombo airport and out into Colombo city. …
I asked [the applicant] what time he arrived back in Colombo and he said 3:00am the next day. Again, I put to [the applicant] that it seemed something of a marvel to be able to put such an arrangement in place so quickly. …
I questioned the plausibility of this account, putting to [the applicant] that it seemed odd to have been able to benefit so perfectly from such an unlikely alignment of difficult-to-manage circumstances, organised long-distance from Singapore.
In that part of his reasons rejecting the applicant’s account of his return to Colombo, the Reviewer likened it to the applicant’s claims about being detained in a camp in 2008 which he had described as untruthful. It can be seen that the Reviewer’s conclusion that the applicant’s account of having managed to clear formalities and checks upon re-entry into Sri Lanka was “inconsistent, far-fetched and totally lacking in factual merit” was open to him on the evidence.
The meaning of the applicant’s allegation that the Reviewer committed an error of law “when he rejected the Applicant’s explanation consistent with other evidence concerning the Applicant’s exit and entries at the airports” is not clear and was not elucidated in submissions. In such circumstances, I am not persuaded that it points to any error on the Reviewer’s part.
As to the suggestion that the Reviewer might have made further inquiries, the applicant has failed to identify what inquiries might have been pursued and what the potential results of those inquiries might have been. In such circumstances, it is not necessary to consider the submission further: Abebe at 578 [194] per Gummow and Heydon JJ, Gaudron and Kirby JJ agreeing. Similarly the applicant did not identify what “available independent evidence” was ignored by the Reviewer or whether it would have affected the outcome of the review. In such circumstances, this part of the allegation is also not made out.
At the hearing of the application the applicant also submitted that the Reviewer had not provided him with certain country information which was the basis of an adverse finding and which had been referred to at their interview. In this regard the applicant referred to the following statement made by the Reviewer appearing in the transcript of the independent merits review interview:
If someone is deported in Singapore so quickly it is quite possibly [sic] that the authorities in Sri Lanka would not be overly concerned about them according to country information that I have read, according country information before me, according to country information that I have read, according to department of Foreign Affairs report about airport checks on people returning to Colombo you will be part of a quite common demographic if you were returning from Singapore after couple of hours.
That allegation was not included in the applicant’s amended application but the Minister made no objection to the argument being advanced. As noted earlier in these reasons, the Reviewer’s obligation is, relevantly, to put an applicant on notice of relevant matters adverse to his interests which the Reviewer might take into account when arriving at his recommendation to the Minister. The Reviewer did this by discussing the relevant information, in the context of Sri Lankan returnees from Singapore, in such a way that the applicant was plainly on notice of the matters which were ultimately referred to by the Reviewer in his reasons. For this reason, no error on the Reviewer’s part is disclosed by this allegation.
Ground 6 – Applicant’s evidence not accepted, no evidence for finding, failure to give reasons, failure to put the applicant on notice
The sixth ground of the amended application alleged that the Reviewer erred by rejecting evidence given by the applicant which was consistent with other evidence in circumstances where the finding made was unsupported by evidence, where no reasons were given for not accepting the corroborative evidence and where certain matters were not put to the applicant for his comment. The allegation was particularised as follows:
The Reviewer failed to assess if there were other instances of harm. Two incidents were tendered by the Applicant, the reviewer decided that these incidents were rare without having regard to any other evidence; decided that the incidents of the nature were rare; failed to give applicant opportunity to address this.
The relevant conclusion by the Reviewer is found on the final page of his reasons where he said:
I do not accept on the information before me that Tamils are seriously harmed for having left Sri Lanka illegally, except in isolated and individual, if not also rare, circumstances like the instances cited by The Catholic Leader and Green Left Weekly.
In relation to the allegations of an absence of evidence for the Reviewer’s finding, of the existence of evidence said to corroborate the applicant’s evidence and of the failure of the Reviewer to give reasons for not accepting or relying on that corroborative evidence, reference should be had to the passages of the Reviewer’s reasons preceding the conclusion quoted above at [55]. In those paragraphs, the Reviewer refers to his consideration of the DFAT advice, the UK Home Office advice and the 2010 UNHCR Eligibility Guidelines discussed earlier in these reasons. It is apparent that the Reviewer’s conclusion quoted above at [55] was part of his discussion of the alleged risks faced by Sri Lankans returning to their country of nationality which commenced on p.24 of his reasons. Consequently, not only was the conclusion in question adequately supported by the evidence, to the extent that the Reviewer had a duty to provide reasons this was discharged by his statement that his conclusion was based on the information before him. It was implicit in that statement that the Reviewer had weighed the evidence to which explicit reference had been already been made and reached his conclusion accordingly.
Moreover, after referring to the applicant’s claim “that he could face serious mistreatment similar to that perpetrated on some passengers of the Merak boat intercepted in Indonesia” the Reviewer stated that he did not accept that the applicant would face a real chance of Convention-related persecution upon return to Sri Lanka. Coming as it does close to the very end of the Reviewer’s reasons, this statement should be understood to be a summary reference to all the statements made by the Reviewer earlier in his reasons in which he rejected the applicant’s claims to fear such persecution. In the circumstances, and to the extent that the Reviewer was required to give reasons, the statement in question was sufficient.
The applicant also submitted that he had not been given the opportunity to comment on the information contained in The Catholic Leader and the Green Left Weekly nor information from which the Reviewer drew his conclusion that returning Tamils only suffered harm in isolated, individual and rare circumstances.
The quotation from The Catholic Leader appearing at pp.8-9 of the Reviewer’s reasons came from an article quoted by the applicant’s advisers in their submissions dated 13 October 2010. For the reasons given above in relation to the first ground of the amended application, such circumstances do not disclose a want of procedural fairness on the Reviewer’s part.
However, the Green Left Weekly presents a different situation. It was not cited by the applicant and the first reference to it in connection with this matter was the Reviewer’s quotation of it in his summary of the material before him. Nevertheless, the reference to that article in the Reviewer’s findings and reasons was by way of an exception to the Reviewer’s general finding that he did not accept that Tamils were seriously harmed for having left Sri Lanka illegally. The substance of the Green Left Weekly reference tended to be supportive of the applicant’s claims in that it recorded isolated instances of Tamils being seriously harmed for having left Sri Lanka illegally. Being information potentially supportive of the applicant’s claims, the relevant portion of the Green Left Weekly did not need to be referred by the Reviewer to the applicant.
But in any event the applicant did not depart Sri Lanka illegally and the Reviewer expressed the view that he would in due course be able to establish that fact upon his return to Sri Lanka. Consequently, the aspect of the Reviewer’s reasons on which the sixth ground of the amended application turns was not in fact relevant to the Reviewer’s recommendation in this matter. It performed no determinative role.
Ground 7 – Relocation
The seventh ground of the amended application alleged that the Reviewer failed to consider matters relevant to whether the applicant could relocate within Sri Lanka and was particularised as follows:
The Reviewer failed to assess all the factors required to assess internal flight simply taking the towns the Applicant lived at in his flight as the sole criterion.
The applicant submitted that the Reviewer erred by concluding that he could relocate elsewhere in Sri Lanka without considering how, in a practical sense, this could be achieved and without having had regard to the practical realities of relocation, in particular, issues such as his background, education and financial resources. He submitted that “in determining the relocation issue the Reviewer failed to assess all the factors required to assess internal flight simply taking the towns the applicant lived at in his flight as the sole criterion” and that it was insufficient for the Reviewer simply to say that he could relocate because he had successfully lived in two locations.
The relevant passage in the Reviewer’s reasons was this:
Having arrived at these conclusions it is not necessary for me to consider internal relocation. However, I do note that [the applicant] has provided considerable evidence of being able to reside legally in both town and country, Colombo and Kalmunai, according to his preference, and on the evidence before me I see no relevant reason why he cannot continue to reside and work in either location.
Plainly, and contrary to the implication in the final allegation of the amended application, the Reviewer’s conclusion did not turn on whether the applicant could relocate within Sri Lanka because, his principal claims having been rejected, it was found that the applicant had no need to relocate. The Reviewer’s observation that the applicant could live in Colombo or Kalmunai reflected the results of a question he put to the applicant during the course of their interview concerning the possibility of relocation. The question concerned whether the applicant had anything to say about the issue of relocation to places in Sri Lanka where he might not face persecution, and he responded that the CID and the Karuna group would follow him everywhere. The Reviewer’s statement quoted above at [64] appears to be no more than an assessment of the applicant’s objection to relocation by observing that, notwithstanding his claims, there was no relevant reason why he could not continue to reside and work in Colombo or Kalmunai.
Conclusion
The applicant has not demonstrated that the Reviewer denied him procedural fairness. For that reason, the application will be dismissed.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 2 November 2011
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