SZQNJ v Minister for Immigration and Citizenship

Case •

[2013] FCA 346

FEDERAL COURT OF AUSTRALIA

SZQNJ v Minister for Immigration and Citizenship [2013] FCA 346

Citation: SZQNJ v Minister for Immigration and Citizenship [2013] FCA 346
Appeal from: SZQNJ v Minister for Immigration and Citizenship & Anor [2012] FMCA 815
Parties: SZQNJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and PETER GACS IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER
File number: NSD 1497 of 2012
Judge: DOWSETT J
Date of judgment: 18 April 2013
Catchwords: MIGRATION – alleged misconstruction of claims – alleged failure to consider claims  
Legislation: Migration Act 1958 (Cth) ss 5, 46A
Cases cited: Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 cited
Date of hearing: 19 February 2013
Place: Brisbane (via video link) (Heard in Sydney)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 35
Counsel for the Appellant: Mr JR Young
Solicitor for the Appellant: Rasan T Selliah & Associates
Counsel for the First Respondent: Mr T Reilly
Solicitor for the First Respondent: Sparke Helmore
Counsel for the Second Respondent: The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1497 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

SZQNJ
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

PETER GACS IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:

DOWSETT J

DATE OF ORDER:

18 APRIL 2013

WHERE MADE:

BRISBANE (VIA VIDEO LINK) (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.the appeal be dismissed;

2.the appellant pay the first respondent’s costs of the appeal.

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 1497 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

SZQNJ
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

PETER GACS IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:

DOWSETT J

DATE:

18 APRIL 2013

PLACE:

BRISBANE (VIA VIDEO LINK) (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

INTRODUCTION

  1. The appellant, a Tamil man, was born in 1981 in Sri Lanka. In 2003 he left Sri Lanka and travelled to Malaysia. He departed Malaysia for Australia in 2009, arriving at Christmas Island on 10 December 2009 without a valid visa. As an offshore entry person within the meaning of s 5 of the Migration Act 1958 (Cth) (the “Migration Act’), he was not permitted to apply for a visa unless the first respondent (the “Minister”) deemed it in the public interest that he be allowed to do so: s 46A(2) of the Migration Act. The Minister’s department has developed a process for dealing with applications for the exercise of this discretion. Under that process, an offshore entry person may request a Refugee Status Assessment (“RSA”) which, in turn is subject to an Independent Merits Review (“IMR”). The IMR may be the subject of judicial review: Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319.

    THE CLAIMS

  2. At various times the appellant has claimed to fear persecution in Sri Lanka from various sources, including:

    ·the Karuna group (described in argument as a pro-government paramilitary group, albeit not part of the Sri Lankan government);

    ·the Eelam People’s Democratic Party (the “EPDP”), a political party which is part of the ruling coalition in Sri Lanka;

    ·the “CID”, presumably a criminal investigation body;

    ·the army; and

    ·the “government”. 

  3. His primary fear arises out of his Tamil ethnicity.  He fears that he may be suspected of having been a supporter or sympathizer of the Liberation Tigers of Tamil Eelam (“LTTE”).  He has also claimed to fear persecution by the LTTE on the basis of imputed support for the government, the appellant’s cousin having been an EPDP member.  However he does not now persist in that claim.  Primarily, the appellant claims that:

    ·he had, whilst at school, been forced to provide some minor services for the LTTE;

    ·he resisted LTTE attempts to recruit him and, in 2003 tried to escape from that organization but was caught and forced to undertake training and/or work for it;

    ·he left Sri Lanka for Malaysia, where the United Nations High Commissioner for Refugees (the “UNHCR”) recognized him as a refugee;

    ·in 2009, whilst in Malaysia, he was arrested for working illegally and, whilst in detention, he was threatened by a Sri Lankan official;

    ·as a result of these threats and his fear that Malaysian authorities would send him back to Sri Lanka, he contacted an agent about coming to Australia and eventually travelled to this country; and

    ·he now fears persecution by the Sri Lankan government and/or its agencies for reason of his past association with LTTE.

    INDEPENDENT MERITS REVIEW

  4. The appellant’s claim has twice been subjected to merits review.  I am presently concerned only with the second review.  The reviewer identified the appellant’s “three core claims” as:

    ·fear of persecution by the Karuna group, the army or the CID for his connection or perceived connection to the LTTE;

    ·fear of persecution for reason of a threat allegedly made towards him by a Sri Lankan official whilst he was detained in Malaysia; and

    ·fear that if returned to Sri Lanka, he might be arrested at Colombo Airport, which fear was based on his apprehension that he might be on a “black list” held at that airport.

  5. As to the first core claim, the reviewer accepted that the appellant had low-level involvement with LTTE whilst he was at school.  However he seems to have rejected most, if not all of the appellant’s other claims to association with LTTE.  The reviewer did not accept that the Karuna group, the CID or the army had any interest in the appellant.  The appellant also claimed to fear persecution upon his return to Sri Lanka, based upon the assertion that whilst in detention in Malaysia, a Sri Lankan official had attended at the detention centre, identified him and others as LTTE members and threatened harm to them should they not return to Sri Lanka voluntarily.  The reviewer described this claim as the “sur place” claim.  It rejected his claim to have been threatened.  These rejections effectively undermined the validity of the third core claim – that the appellant might be on a black list at Colombo Airport, and therefore might be arrested there in the event that he returned to Sri Lanka.

    THE APPLICATION FOR REVIEW IN THE FEDERAL MAGISTRATES COURT

  6. In the further amended application for review filed in the Federal Magistrates Court on 15 June 2012, the grounds, including deleted grounds, were as follows:

    1.The [appellant] was denied a fair opportunity to present his case to the [reviewer] because he was suffering from mental impairment when he was interviewed.

    2.The [reviewer] failed to consider material facts.

    a.The [appellant] was found to be a refugee by the United Nations High Commissioner in Kuala Lumpur, Malaysia and was issued a UNHCR identification card (see paragraphs [11] and [32] of the decision record);

    b.On 10 September 2009, the [appellant] was arrested by police in Malaysia and detained for thirteen days in Kuala Lumpur.  While in detention the [appellant] was addressed and threatened and his details taken by an official of the Sri Lankan High Commission (see paragraphs [15] and [44] of the decision record);

    c.The [appellant] was assessed by a clinical psychologist as showing symptoms of Post Traumatic Stress Disorder (see paragraphs [8] and [33] of the decision record and psychological assessment dated 12 May 2010);

    3.The [reviewer] denied the [appellant] procedural fairness by failing to put his findings making false assumptions as to the [appellant’s] mental capacities, and speculations as to how the psychological findings were compiled, as in paragraph [216] of the decision record, and therefore did not reasonably consider the [appellant’s] mental health condition before making an adverse credibility finding to the [appellant] for comment.

    PARTICULARS

    a.The [appellant] was assessed by a clinical psychologist as showing symptoms of Post Traumatic Stress Disorder (see paragraphs [8] and [33] of the decision record and psychological assessment dated 12 May 2010);

    4.The [reviewer] denied the [appellant] procedural fairness in approaching the matter on the basis that a binary decision had to be made between various items of independent country information, rather than make a reasonable assessment of all the independent country information available to him in assessing the [appellant’s] claims.

    PARTICULARS

    a.At paragraphs [167] to [169] of the decision record, the [reviewer] states that “I do not accept that since the end of the conflict, the mere fact of being a young Tamil male from the east of Sri Lanka would for that reason alone, without further contributing factors, cause a person to be suspected of having been an LTTE member or supporter.  [168]  While the country information is divided on the question, I am guided by the fact that no such assertion is made in the following sources … [169] I further note that the Amnesty International report … does not suggest otherwise.  It argues that young Tamil males from the East who have actual or imputed links to the LTTE [my italics] face risk of arrest.”

    5.The [reviewer] denied the [appellant] procedural fairness by failing to consider integers of the [appellant’s] claims in making an adverse finding, namely that due to his raised profile, the [appellant] is at a heightened risk and therefore suffer serious harm at the hands of the Sri Lankan authorities should he be returned to Sri Lanka.

    PARTICULARS

    a.On 10 September 2009, the [appellant] was arrested by police in Malaysia and detained for thirteen days in Kula [sic] Lumpur.  While in detention, the [appellant] was addressed and threatened and his details taken by an official of the Sri Lankan High Commission (see paragraphs [15] and [44] of the decision record).

    b.At paragraph [211] of the decision record, the [reviewer] refers to an email from the former Malaysia Human Rights Commissioner, which corroborates the [appellant’s] claim that he was visited by an official of the Sri Lankan High Commission.

    6.The [reviewer] erred in not putting findings with respect to an email from the former Malaysian Human Rights Commissioner, as in paragraph [211] of the decision record, to the [appellant] for comment, and thereby denied the [appellant] procedural fairness.

    7.The [reviewer] erred in not putting findings on doubtfulness of genuineness of police reports, the affidavit by Mrs Mylgavanam Maheswary, the [appellant’s] mother’s affidavit of April 2010, and, the [appellant’s] mother’s letter dated 28 February 2011, as in paragraph [215] of the decision record, to the [appellant] for comment, and thereby denied the [appellant] procedural fairness.

  7. Ground 1 is effectively that the appellant was suffering from mental illness at the time of his second review interview and was thereby denied procedural fairness.  Ground 2 has been abandoned.  Ground 3 is that the reviewer denied him procedural fairness by:

    ·failing to put to him doubts concerning information reportedly provided by the appellant to a psychologist;

    ·rejecting that information as corroboration of the appellant’s claims; and

    ·rejecting the proposition that “inconsistencies and implausibilities in his evidence could be ascribed to any aspect of his state of mind”.

  8. Ground 4 is that the reviewer took a “binary” approach to the country information when he should have assessed it on an integrated basis.  The information in question led the reviewer to conclude that a young Tamil male from the east of Sri Lanka would not be suspected of LTTE membership or sympathy merely because of such characteristics.  Ground 5 was abandoned.  One aspect of the evidence concerning that matter was an email from the former Malaysian Human Rights Commissioner which “corroborated” the appellant’s claim that a Sri Lankan official visited him whilst he was in detention in Malaysia.  Ground 6 is that the appellant was denied procedural fairness in that the email was not put to him for comment.  Ground 7 is that the appellant was denied procedural fairness in that the reviewer did not put to him for comment, his doubts as to the genuineness of certain documents and statements in affidavits upon which the appellant relied.

  9. The federal magistrate dealt in detail with the evidence concerning the appellant’s psychological state, concluding that it said little or nothing about his condition at any relevant time.  Her Honour also rejected the complaint that the reviewer had not put to the appellant his doubts about information provided to the psychologist, or as to her opinions based on that information.   As to the “binary approach” to the country information, the federal magistrate concluded that such criticism was unfounded, as was the complaint concerning the email and that concerning the genuineness of documentary and other evidence.  The federal magistrate’s treatment of all issues was exhaustive, logical and persuasive. 

    GROUNDS OF APPEAL

  10. The notice of appeal to this Court raises three grounds, namely:

    (a)The IMR denied the [appellant] procedural fairness by finding his claims to lack credibility; contrary to the mental health assessment before him,

    (b)Denied procedural fairness to the [appellant] by making positive findings on documents produced by him without permitting him to comment,

    (c)Approached the [appellant’s] matter on a binary basis, thereby ignoring the actual task assigned to him, namely to make a recommendation to the first [respondent] regarding the [appellant’s] refugee status.

  11. At the hearing of the appeal, the appellant indicated that he abandoned those grounds and sought to rely on the following grounds:

    1.The [reviewer] denied the [appellant] procedural fairness by fundamentally misconstruing the [appellant’s] claims in relation to being a returned asylum seeker overseas if returned to Sri Lanka.

    2.The [reviewer] made findings on matters in respect of which there was no evidence by finding at [214] at AB 213 that it was not accepted that the [appellant] was on a blacklist of LTTE supporter[s].

    3.The [reviewer] denied the [appellant] procedural fairness by treating the [appellant] as having made a late claim concerning fear of persecution by the Army whereas any reasonable construction of his entry interview showed that the claim had been made at that time.

    4.The [reviewer] denied the [appellant] procedural fairness by failing to deal with his claim to fear persecution from the Government of Sri Lanka (and not merely the Army).

  12. The appellant also relied upon an affidavit by his present solicitor, Rasan Thamiliarasan Selliah. Mr Selliah did not act for the appellant at first instance. He deposes to difficulties in taking instructions from the appellant and in instructing counsel, apparently in an attempt to explain the fact that the appellant now seeks to depart from his existing grounds of appeal and to rely upon issues not raised at first instance. At the hearing of the appeal, I expressed some doubt as to the power of this Court to consider, on appeal, grounds not raised at first instance. This doubt was based upon s 476A of the Migration Act which seems to deprive the Court of jurisdiction at first instance in cases of the present kind. However I now accept that the Court may entertain such grounds. The matters raised in Mr Selliah’s affidavit need not be considered unless the grounds, upon which the appellant now proposes to rely, have demonstrable merit. I shall first consider that question.

    LIKELY INCLUSION ON A BLACK LIST

  13. The first proposed ground concerns the appellant’s claim that he fears persecution upon return to Sri Lanka because he is likely to be on a list of LTTE supporters and sympathizers which list is, or might be held at Colombo Airport.  The appellant submits that the reviewer:

    … fundamentally misunderstood or misconstrued the appellant’s claim in relation to being a returned or failed asylum seeker.  The highest the appellant ever put his case was that he was “likely” to be on a list.

  14. In fact the reviewer observed at para 124 of his reasons, that the appellant did not claim to fear persecution for being a failed asylum-seeker.  His fear was said to arise out of his association with LTTE before he left Sri Lanka.  Nonetheless the alleged error is said to be highlighted by the following passage in the reviewer’s decision, which appears at para 214:

    … I do not accept that during his detention in Malaysia he and others were threatened with retribution by a Sri Lankan official who knows his identity.  I do not accept that he is on any black list in Sri Lanka of LTTE supporters and hence I do not accept that he will be detained and persecuted either on, or shortly after, arrival at Colombo airport.

  15. In his written submissions the appellant submits:

    The [reviewer] assumed that the claim in relation to risk as a returned asylum seeker was dependent on his sur place claim relating to being threatened while in detention in Malaysia.  In fact, they were separate claims.  In fact the only consideration of the claim was a single sentence and it set a bar while [sic] the appellant could not reach and has not attempted to reach.

    Had it been the appellant’s claim that he was in fact “on” the list the “no evidence” ground might not have been available.  However, as the appellant did not claim this, it was a finding which the [reviewer] could make on the basis of evidence.  If his claim was that he was “likely” to be on a list, it would be an answer if there was evidence that he was in fact not on the list.  None was cited and indeed there was no such evidence.

  16. The matter is perhaps more cogently addressed in the appellant’s oral submissions in which this ground was dealt with in conjunction with the second ground, that the reviewer’s refusal to accept that the appellant was not on a black list was not based on any evidence.  The appellant’s first complaint is that he did not claim to be on a list, but rather claimed that it was likely that he was on a list.  In particular, counsel submitted (at ts 40 ll 4-12):

    Now, if the Tribunal says, “Well, you can’t be likely to be on the list because you are not on a list” that, in my submission, is a factual finding which needs evidence.  It is not simply a rejection of the claim because the claim is “I am likely to be on a list”.  If the Tribunal says, “You’re not likely to be on the list because you are not on the list” then, in my submission, then that no evidence point is available.  If his claim is, “I am on the list” and the Tribunal says, “We’re not satisfied that you’re on the list”, then I accept that that doesn’t raise any no evidence point because they are simply rejecting his claim.

  17. It is true that the appellant claimed only that he was likely to be on such a list.  However the relevant question was whether he had a well-founded fear of persecution for a Convention reason.  If he had a well-founded fear that he was on list, and a well-founded fear that as a result of being on the list, he would be persecuted for a Convention reason, then Australia would have protection obligations towards him.  The reviewer’s refusal to accept that the appellant was on such a list did not, of itself, dispose of his claim to fear persecution because he was likely to be on such a list.  However such refusal did not stand alone.  It was one part of a comprehensive rejection of the appellant’s evidence concerning his association with LTTE and his assertions that the army, the CID and the Karuna group had adverse interests in him.  The reviewer accepted only that in 1997-1998, whilst at school, he had provided some assistance to LTTE.  He did not accept that the “authorities” learned of this activity.  The reviewer also concluded that since the end of conflict between the Sri Lankan government and LTTE, a young Tamil male from the east of Sri Lanka would not, for reason of those characteristics alone, be suspected of being an LTTE member or supporter.  These findings disposed of the whole basis of the appellant’s claim that he had a well-founded fear of persecution for a Convention reason.  The alleged basis for such a well-founded fear was not shown to exist.  In particular, his fear of being on a black list was not well-founded.

  1. The question of the treatment of persons returning to Sri Lanka through Colombo Airport was considered in some detail by the reviewer.  For the sake of convenience I should summarize that treatment.  The evidence established that if a person arrived at the airport holding an original Sri Lankan passport and not under escort, he or she would generally go through airport control without further investigation.  If escorted, further enquiries might be made and an “alert list” consulted.  If there were an “alert” concerning the person then he or she might be handed over to the relevant department for further investigation.  A person travelling on an emergency travel document might experience some difficulties in establishing his or her nationality.  He or she would be questioned in order to confirm nationality and identity.  He or she might also be questioned as to how he or she had left Sri Lanka and as to his or her activities in the country of departure.  The person would then be passed to the CID who would make appropriate police checks.  Once the checks had been instigated the returnee would be placed in the custody of a close relative or friend as a surety.  If the person was on a list of suspected terrorists he or she would be handed over to authorities for further investigation.  Persons who have passed through the airport are not subsequently picked up by police.  People with a “clear LTTE profile” or people suspected of money transfer might be detained.  There is, in general, no difference between the treatment of Tamil people and the treatment of Sinhalese people.  Singhalese human rights defenders have been detained for investigation.  The UNHCR reported that some returned refugees had been questioned at the airport, but that there had been no incidents of detention.

  2. In August 2009 the Australian High Commission in Colombo advised that “there were no procedures in place for identifying failed asylum seekers, and that “the only way that the authorities were alerted to a failed asylum seeker returning was if the airlines or IOM [International Organization for Migration] notified them that a person was a deportee or was being escorted”.  Thus the overwhelming evidence seemed to indicate that although a person who is escorted, or has irregular travel documents may be questioned, there is no reason to believe that such a person will be detained unless he or she has the profile of an LTTE supporter or some other terrorist association.  These observations apply to Tamils as to other Sri Lankan nationals. 

  3. All of this suggests that absent any suspicion that he was an LTTE member or sympathizer, the appellant would not be singled out for special attention at Colombo Airport.

  4. The reviewer also found (at para 165) that:

    [The appellant’s] evidence contains numerous internal contradictions, inconsistencies and implausibilities which he was not able to explain to my satisfaction and which, considered cumulatively, caused me to reject the credibility of his claims.

  5. This general finding would be sufficient to justify the conclusion that the reviewer was not satisfied that the appellant actually feared persecution for a Convention reason arising out of his concern that he might be on a black list at the airport or otherwise.  The express rejection of his evidence of association with LTTE, other than for the period of his school years in 1997/98, re-inforces that conclusion.

  6. The reviewer’s finding that he did not accept that the appellant was on a black list, if taken out of context, might suggest that he had failed to address the correct question.  However when it is seen in the context of his findings as a whole, it is clear that he rejected the appellant’s claim to fear persecution for a Convention reason, including his claim to fear persecution because his name was on a black list at Colombo Airport.  That rejection was based upon rejection of most of his evidence as to association with LTTE and as to the authorities’ ignorance of such association as there had been.

    THE SUR PLACE CLAIM

  7. At para 43 of his written submissions, but not in oral submissions, counsel for the appellant submitted that the reviewer had also mistakenly understood the appellant’s case to be that he feared persecution upon return to Sri Lanka solely because of the threats allegedly made by the Sri Lankan official who saw him in the Malaysian detention centre.  I see no justification for this suggestion.  It is true that at paras 206-13, the reviewer discussed a claim described as a “sur place” claim, arising out of the alleged threats by the Sri Lankan official in Malaysia.  A “sur place” claim is generally understood to be a claim to refugee status on the basis of events involving the claimant whilst he or she is outside of his or her country of nationality.  However, as I have said, the appellant’s claim was not so much a sur place claim as a claim that events in Malaysia re-inforced his fear of persecution for a Convention reason in Sri Lanka.  In any event the reviewer concluded that no such threats had been made. 

  8. In summarizing the outcome of his considerations at para 214 of his reasons, the reviewer rejected all three core claims.  The appellant seems to submit that rejection of the sur place claim led to rejection of the claim to fear persecution because of the appellant’s likely inclusion on the black list.  There is no justification for reading para 214 in this way.  The reviewer identified three discrete “core” claims and dealt with them separately.

  9. There is no substance in either proposed ground 1 or proposed ground 2.

    THE “LATE” CLAIM

  10. The third proposed ground of appeal is that the reviewer wrongly treated the appellant as having made a “late” claim concerning fear of persecution by the army.  It was submitted that any reasonable construction of his entry interview showed that the claim had been made at that time.  At paras 195-203 of his reasons the reviewer observed:

    195.I put to him another new claim made at the first IMR interview: that in June 2003, the Army had overrun the area in which he lived and the LTTE had forced him to work for them for fifteen days, digging trenches.  He said this was not correct.  He dug trenches for them during his training. When the Army overran his village the LTTE took him to another place which they controlled and it was there that he helped with digging trenches.  I put to him that earlier he had claimed that he refused their request that he train with them.  He responded that at the beginning they asked him to train but he explained he had family obligations and refused.  Later they forced him to train, digging trenches and bunkers.  I put to him that the Army could not have overrun his area in 2003 as the cease-fire was in force.  He contradicted himself, now saying that he had not said that they captured the area; he had meant that they were there.

    196.I have already found that the CID had no specific interest in the [appellant].  Hence I do not accept that the CID told the Army anything about him.  I base this finding also on the following inconsistency in his evidence.  I put to him that at the first IMR interview, when he was asked why he had gone to Malaysia, he said it was because of his problems with the LTTE and the Army.  Yet in his entry interview and written statement he had only said that he went to Malaysia because of problems with the LTTE.  He had not mentioned anything about the Army.  He said he had mentioned the Army at the entry interview; perhaps the interpreter had left it out.  I find no evidence to support this on the file, and, given my adverse credibility findings, I do not give him the benefit of the doubt about an error in interpreting.

    197.He said the LTTE used to celebrate a festival called Martyrs’ Day, at which he was required to help, and the Army knew about this. When the ceasefire began “in 2003” [note: it in fact began in 2002] he was stopped at an Army checkpoint and asked whether he had helped the LTTE.  The soldier said that after the end of the ceasefire, “the LTTE will go away and we’ll look for you and shoot you.”  I asked why the solder would say that if he did not know for sure that he, the [appellant], had helped the LTTE.  Noting that he was not an LTTE member, just a supporter, he said he’d helped them with transport and purchases.  I put to him that the soldier would not have known that, so why would he threaten him?  He replied that there was an Army camp in his village and officers there saw him helping the LTTE.  I asked why, then, hadn’t they arrested him?  He said that it was during the ceasefire – it was during this period that he helped the LTTE – and so the Army could not arrest him, and in any case “it wasn’t such a serious matter”.

    198.Earlier, he had given a different reason for the Army’s adverse interest in him: that the Karuna group told the Army that he was involved with the LTTE.  He had claimed that as a consequence, he believes he is now on a list of LTTE members and is still sought by the Army.

    199.He claimed the Karuna group knew he had supported the LTTE and knew about the shops where he made purchases for them.  After the group split from the LTTE, they targeted and killed LTTE members.  The group thought that if they could catch him, they would make him talk and this would help them catch other LTTE supporters.

    200.As earlier noted, almost all of these claims were made late in the evidence-giving process – some at the first IMR interview, several others at the second.  While it is reasonable to accept that a claimant may supplement his/her account with additional details, in this case the present claimant’s evidence suggests a pattern of embellishment which casts overwhelming doubt on the credibility of his claims.  I consider that the [appellant] invented these claims as he went along in order to try to fortify his case. 

    201.I do not accept that Army people observed him helping out at any LTTE-organized festival.  I do not accept his claim about being threatened by a solider at a checkpoint. 

    202.I do not accept that he was briefly detained by the Army in 1996 and 1997, tied up and badly beaten. 

    203.I do not accept that the Army or CID have any adverse interest in him.

  11. Clearly, the reviewer rejected various aspects of the appellant’s claims concerning the army.  The appellant asserts that, in effect, the reviewer rejected these claims because they were raised “late” when they actually had been first made at the time of his entry interview.  Throughout the reviewer’s summary of his interview with the appellant and in his findings and reasons, there are frequent suggestions that particular claims were “new” or “late”.  Paragraphs 196 and 200 refer to those suggestions.  In para 200, the reviewer asserts that almost all of the claims were “late”, apparently in the sense that they were first made in, or after the interview with the first reviewer and not at any earlier stage.  In support of this ground of appeal counsel for the appellant referred only to information given in his entry interview as being contrary to the reviewer’s observations in paras 196 and 200.

  12. The appellant’s complaint focuses primarily upon para 196 of the reviewer’s reasons.  He submits that when the reviewer said that the appellant had not mentioned the army in his entry interview, he meant that no statement had been made about the army at that time.  I do not read para 196 in that way.  In my view the reviewer was saying only that the appellant had not, in his entry interview, suggested that he had gone to Malaysia because of any action by the army (as opposed to action by LTTE).  The record of the entry interview appears to be contained in a 46 page document with an attached two page statement by the appellant.  The latter document indicates that the appellant went to Malaysia because of LTTE activity.  At p 11 of the 46 page document there is a record of the appellant’s answer to the question “Why did you leave your country of nationality (country of residence)?”  Again, the answer suggests that the appellant went to Malaysia because of LTTE activity.

  13. At p 13 of the document, the appellant is recorded as answering question 6 (which inquires into the impact of police and security or intelligence operations on his daily life and as to arrest or detention) as follows:

    (a)The army would round us up and beat us because they suspected we were with the LTTE because we are Tamil.

    (b)In Malaysia I was arrested [see Q.1.).

  14. At p 19, when asked whether he wished to add anything, he replied:

    Just that there is also problems that the government and the army still persecute Tamils because of the LTTE.

  15. None of this is inconsistent with my understanding of para 196 of the reviewer’s reasons.  As to para 200 of his reasons, the reviewer there asserts only that almost all of the appellant’s claims were “late”.  The passages in the record of the entry interview to which I have referred do not undermine the correctness of that view.  There is no merit in this ground.

    PERSECUTION BY THE GOVERNMENT

  16. Finally, the appellant asserts that he was denied procedural fairness because the reviewer failed to deal with his claim to fear persecution by the government of Sri Lanka, and not merely by the army, the CID or the Karuna group.  The reviewer considered the appellant’s claim to fear persecution at the hands of each of these three groups.  The appellant submits that his reference to fear of persecution by the “government” encompassed a fear of persecution for a Convention reason by other, unidentified government agencies or the “government” generally.  The word “government” may have various meanings.  In some contexts it may describe a small and identifiable group of people including the head of government and the political heads of government departments, with or without the head of state.  The term may also describe that group plus those members of the legislature who support it.  In other contexts it may describe one or other government agency or all such agencies collectively.  The term may also describe all who exercise authority in a particular community and/or the actions which are performed by them.

  17. The appellant’s allegedly well-founded fear of persecution in Sri Lanka for a Convention reason must be understood in the light of his own evidence as to such fear and the basis for it.  The reviewer rejected the proposition that young Tamil males from the east of Sri Lanka were likely to suffer persecution for reasons of those characteristics alone.  The appellant’s case was otherwise dependent upon his fear of persecution for a Convention reason by the Karuna group, the CID and/or the army, for reason of suspicions about his relationship with LTTE.  He did not suggest that any other agency may have had such suspicions.  It is true that one aspect of the feared persecution was the possibility of being apprehended at Colombo airport upon his return, presumably by immigration officials, and subsequently mistreated, apparently at the hands of the agency which had placed him on any list of suspects.  On his case, only the three identified agencies were possible sources of such information or of any feared persecution.  The appellant may be widely known and disliked throughout government circles as a suspected LTTE supporter or sympathizer, but the case was not run on that basis.  In any event it seems quite unlikely.  The appellant’s case necessarily defined the issues for consideration by the reviewer.  His alleged fear of persecution was of persecution at the hands of the three identified bodies.  There is nothing in this ground. 

    CONCLUSION

  18. In those circumstances no point would be served by granting leave to amend.  All other grounds are abandoned.  The appeal must be dismissed with costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:
Dated:        18 April 2013

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Martin v Taylor [2000] FCA 1002
Martin v Taylor [2000] FCA 1002