SZQUR v Minister for Immigration
[2012] FMCA 290
•13 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQUR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 290 |
| 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. ADMINISTRATIVE LAW – Allegation that the Reviewer failed to consider the applicant’s claim, made a finding which was unsupported by evidence, failed to act judicially, failed to identify a relevant issue, failed to consider relevant country information and failed to take into account a relevant consideration. |
| Migration Act 1958, ss.5, 36, 46A,195A |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Re Minister for Immigration & Multicultural Affairs, Ex parte Lam (2003) 214 CLR 1 Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541 NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89 Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 |
| Applicant: | SZQUR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PETER GACS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2468 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 16 March 2012 |
| Date of Last Submission: | 16 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 13 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr B.C.A Bradley (Pro bono) |
| Solicitors for the Applicant: | Clifford Chance |
| Counsel for the First Respondent: | Mr R. Francois |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2468 of 2011
| SZQUR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| PETER GACS 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 11 May 2010. He lodged an application for a Refugee Status Assessment (“RSA”) dated 7 August 2010 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”).
By letter dated 6 September 2010 an officer in the department administered by the first respondent (“Minister”) advised the applicant that he had been assessed as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 19 September 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. It can be presumed that the applicant was in detention at the time of the RSA assessment and subsequent review.
The evidence makes it clear that the applicant had no visa when he entered Australia. Consequently, he is an “offshore entry person” who cannot make a valid application for a protection visa. However, ss.46A and 195A of the Migration Act 1958 (“Act”) provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa.
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) 243 CLR 319 at 344 [49].
The applicant has made an application to this Court for judicial review of the Reviewer’s decision. He seeks a declaration that the Reviewer’s recommendation is affected by legal error and an injunction restraining the Minister from relying on that recommendation. In order to succeed he must demonstrate that the Reviewer’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied.
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 were set out on pages 3 to 8 of those reasons and are relevantly summarised below.
Entry interview
The applicant made the following claims during his entry interview on 31 May 2010:
a)he was a Hindu of Tamil ethnicity who was born in Jaffna, Sri Lanka;
b)his father was abducted by the army in 1995 and has not been heard of since following which his family moved to Colombo;
c)some time before 1999, on about eight or ten occasions, the police came to his family’s home in Colombo and questioned them about his father’s whereabouts and whether he had been a member of the Liberation Tigers of Tamil Eelam (“LTTE”). They hit the applicant and did not believe that his father had been abducted;
d)after this, he and his family moved to Chennai in India. Their registration in India was due to expire in November 2010 so he made arrangements with a people smuggler to travel to Australia; and
e)if he returned to Sri Lanka he would be arrested and tortured as he had not lived there for a long time. He would also be beaten by Singhalese people because of his Tamil ethnicity. This happened to him two or three times when he was at school.
RSA application
In a statutory declaration declared on 7 August 2010 in support of his application for an RSA, the applicant made the following additional claims:
a)after his father’s abduction his mother became mentally ill and the family moved to Colombo so she could get medical help;
b)in Colombo his family lived in a Singhalese-majority neighbourhood and he and his brother were harassed and beaten by local Singhalese when they went to school;
c)he left Sri Lanka in 1999 because he feared that he would be arrested and killed by the police and the army;
d)in 1999 his aunt from Canada visited his family in Colombo and urged them to leave as it was dangerous there. She arranged their Indian visas;
e)he could not remain in India as he only had a six month visa which had to be extended by the police; and
f)the Sri Lanka authorities would not protect him as he did not have an identification card. He could not obtain one until the age of sixteen but was in India at the time. He had heard that “Tamil boys” without identification cards had been abducted and killed.
Proceedings before the Reviewer
The applicant’s advisers argued in pre-interview submissions dated 3 October 2010 that the applicant feared persecution in Sri Lanka on the basis of his perceived support for the LTTE.
The applicant was interviewed by the Reviewer on 8 April 2011 at which point he made the following additional claims:
a)he had new information, which was that his father had been arrested by the army. His aunt told him this recently but he did not mention it at the RSA interview because he did not know the details and was scared to reveal it;
b)he was told by his aunt that his father had been forced to do some work for the LTTE;
c)he was at a neighbour’s house on the day of his father’s arrest. When his neighbour told him that he could hear the applicant’s mother screaming, he went home and saw people arresting his father. He had memory problems and sometimes had difficulty recalling things quickly;
d)his family became fearful after the Colombo police kept questioning them about his father’s whereabouts. He was only very young at the time so the owner of the house where they were living had answered the police’s questions;
e)if he returned to Sri Lanka the authorities might suspect that he is a former LTTE member as he is a young Tamil male who has been absent for so many years;
f)one day, while on their way to school, he and his brother were harassed by some Singhalese men who pulled at their bags and beat them because they were Tamil and new to Colombo; and
g)Tamils have no security in Sri Lanka. They are kidnapped and killed and do not have the right to speak.
At the hearing, the applicant’s adviser submitted that, based on the possible activities of his father, the applicant had the profile of someone who might have LTTE links. It was submitted that the applicant might come under scrutiny if he returned to Sri Lanka and that this, in turn, might uncover a history of which he had only a sketchy memory. He had a memory of his father having some dealings with the LTTE which was confirmed by his aunt. It was submitted that the applicant’s experience and risk was therefore over and above that experienced by the average young Tamil male.
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. That recommendation was based on the following findings and reasons:
a)the Reviewer found that the applicant was not a credible witness because his evidence contained a new, very late-made claim as well as contradictions, inconsistencies and implausibilities which had not been explained to the Reviewer’s satisfaction. Considered cumulatively, these anomalies caused the Reviewer to doubt the credibility of the applicant’s claims to fear persecution in Sri Lanka;
b)while the Reviewer accepted that the applicant’s father was arrested in 1995, he did not accept that this was because the applicant’s father had supposed or perceived links with the LTTE. The Reviewer found that the applicant had invented this claim in an effort to bolster his case, noting the following:
i)it was implausible, given the importance of this claim to his case, that the applicant would not have asked his aunt about the reasons for his father’s arrest until the very last stage in the progress of his application;
ii)during the course of his interview the applicant made several references to his father’s arrest and the reasons why he feared returning to Sri Lanka. However, it was only towards the end of the interview that he claimed that his father had been arrested because of his LTTE links;
iii)even were the Reviewer to accept that the applicant witnessed his father’s arrest, this did not provide any support for his claim that it was because his father had LTTE connections; and
iv)the applicant contradicted himself about having mentioned his father’s arrest at the RSA interview and also made two erroneous statements about having mentioned the claim about his father’s LTTE links at an earlier point;
c)having made this finding, the Reviewer found that he did not need to consider the actual reasons for the applicant’s father’s arrest. The Reviewer noted, however, that the applicant had not suggested that his father had been arrested for any other Convention reason and there was insufficient evidence to indicate that the arrest was Convention-related;
d)the Reviewer did not accept that the police came to the applicant’s home in Colombo eight to ten times to enquire about his father. While the Reviewer was prepared to accept that the police came to the applicant’s home once or a few times, he considered that this was a routine check of what was a newly arrived family in Colombo;
e)the applicant claimed that he left Sri Lanka in 1999 because he feared that the police and army would arrest and kill him. However, he also stated that in 1999 his aunt from Canada urged the family to leave Sri Lanka because Colombo was dangerous and arranged for their visas to travel to India. The Reviewer considered that it was the applicant’s aunt’s doing – and not the then twelve year old applicant’s – that his family left Sri Lanka;
f)the Reviewer found that even were he to accept that the applicant subjectively feared harm from the authorities at the time of his departure from Sri Lanka, there was no objective basis for that fear because, having found that his father’s arrest was not because he had links with the LTTE, there was nothing in the evidence to suggest that the applicant himself would have been suspected for any reason of having LTTE connections;
g)the Reviewer did not accept that the applicant would be seen as an LTTE supporter if he returned to Sri Lanka, whether because he was a young Tamil from the north or because he was a young Tamil male who had been away for many years. In this connection, the Reviewer noted the following:
i)the applicant left Sri Lanka when he was twelve and had not been back since;
ii)in the Reviewer’s opinion, the weight of the country information indicated that since the end of the conflict the mere fact of being a young Tamil male from Jaffna would not, for that reason alone, cause a person to be suspected of having been an LTTE member or supporter. The Reviewer therefore did not accept that the authorities suspected all young Tamil men from the north and east of having LTTE connections; and
iii)the Reviewer did not accept that the applicant’s long absence from Sri Lanka, whether alone or in combination with him being a young Tamil male, would cause the police to suspect him of having had LTTE links as there was nothing in the evidence to suggest that this additional factor would trigger police suspicions of such an affiliation;
h)country information cited by the Reviewer indicated that returnees to Sri Lanka, including failed Tamil asylum seekers, might possibly face questioning upon arrival but would not face any serious harm as long as they were not on a black list of suspected LTTE members. Given his finding that the applicant would not be under any such suspicion, the Reviewer found that the applicant would not face harm in Sri Lanka as a returning failed Tamil asylum seeker;
i)the Reviewer did not accept that if the applicant returned to Sri Lanka the authorities would not protect him or would harass or harm him because he did not have a national identification card. The Reviewer noted in this regard that the applicant’s passport, which was issued to him when he was ten years old, stated that he did not have a national identification card at that time. Further, the passport and visa for India would demonstrate to the authorities that he left Sri Lanka legally. The Reviewer found that the applicant would be able to obtain a national identification card on his return to Sri Lanka;
j)the applicant claimed during his entry interview that he and his brother were harassed and beaten by Singhalese people on two or three occasions because of their Tamil ethnicity. In his interview with the Reviewer, however, the applicant claimed that he and his brother had their bags pulled and were beaten by some Singhalese men on only one occasion. On the basis of his adverse view of the applicant’s credibility, the Reviewer was prepared to accept that an incident had occurred but only to the extent that the applicant and his brother had had their bags pulled. Even so, the Reviewer did not accept that this was so serious that it amounted to persecution;
k)the Reviewer’s adverse view of the applicant’s credibility was compounded by the inconsistencies in the applicant’s claims concerning his stay in India and why he left. In his entry interview the applicant claimed that he left India because he could not stay longer than ten years, could not find a job and because his family’s registration was expiring. However, in his statutory declaration he claimed that he and his family could not remain in India as they only had a six month visa. This was clearly not so as the applicant lived in India for about eleven years and acknowledged at the interview that his mother and brother remained there; and
l)the Reviewer noted that the country information reports which indicated that the authorities in Sri Lanka continued to pursue former LTTE members and supporters did not state that this applied to Tamils generally, that is, those who had no LTTE connections. In the circumstances, the Reviewer found that the applicant did not have a well-founded fear of persecution by reason of his Tamil ethnicity alone.
Proceedings in this Court
Ground 1 – Failure to consider the applicant’s claim
Ground one of the applicant’s second further amended application was pleaded as follows:
1.The Reviewer fell into jurisdictional error by failing to consider the applicant’s claim that his father was arrested by the Army in 1995.
Particulars
a. The Reviewer accepted that the applicant’s father was arrested in 1995 but did not consider what the actual reason was for the arrest and found that there was insufficient evidence before him to satisfy him that the arrest was convention related.
b.In so finding, the Reviewer failing [sic] to consider the applicant’s claim that the powers of arrest were exercised by the Army and not local law enforcement.
The applicant submitted that although the Reviewer accepted that his father had been arrested in 1995, nothing in his reasoning dealt with the claim that it was the army, and not the police or some other domestic law enforcement body, which exercised the power of arrest or otherwise abducted his father. Paragraph 33 of the Reviewer’s reasons records that the applicant said to the Reviewer that he had new information to provide, namely that he had recently been told by his aunt that the army had arrested his father. The relevant passage is referred to above at [11(a)]. The claim that it had been the army which had, to use a neutral term, detained the applicant’s father was one which the applicant had made as early as his entry interview at Christmas Island on 31 May 2010. In the circumstances, it was not necessary for the Reviewer to describe, in that part of his reasons under the heading “Findings and Reasons”, that it was the army which had detained the applicant’s father. The Reviewer had already referred to the army’s involvement in the detention when he summarized what the applicant had said at his entry interview. There is nothing in the Reviewer’s reasons to suggest that he approached his consideration of this issue on any basis other than that it had been the army who detained the applicant’s father.
The allegation that the Reviewer did not consider the actual reason for the arrest refers to the fact that during his interview with the Reviewer the applicant said that, according to his aunt, it had been because his father had had an LTTE link. In para.89 of the Reviewer’s reasons he expressly referred to the fact that he did not accept that the arrest of the applicant’s father was because he had links with the LTTE or because he was perceived to have had such links. Plainly the Reviewer did consider this claim. He rejected it as an invention.
Further in this connection, it was also submitted at the hearing of this application that the Reviewer should have considered the army’s power of arrest, whether it was dependent on a person having LTTE connections and whether the claimed arrest of the applicant’s father would have suggested that he had LTTE links, with necessary consequences for the applicant and thus for his claim to fear persecution in Sri Lanka. Referring to Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 the applicant submitted that although such a claim had not been articulated at the review, it was nevertheless one which emerged sufficiently clearly from the material which was before the Reviewer that it should have been considered by him. I do not agree. As Allsop J said in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 at [15] in the context of the Refugee Review Tribunal (“RRT”):
Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
The applicant did not point to any material before the Reviewer, such as the country information, which supported any particular conclusion concerning what powers of detention the Sri Lankan army might have had at the relevant time and thus what detention by the army might have signified. While general knowledge indicates that the Sri Lankan army has had a particular interest in LTTE fighters and supporters for some time, the evidence before the Reviewer, as reproduced in the Court Book which was exhibit 3 and the United Nations High Commission for Refugees (“UNHCR”) Eligibility Guidelines concerning Sri Lankan asylum-seekers dated 5 July 2010 which were exhibit 4, did not suggest that in a non-combat situation it had power to arrest, or even a propensity to detain lawfully or unlawfully, people in general or anyone in particular such as, relevantly, persons with LTTE associations. Consequently, there was no claim concerning the significance of arrest by the Sri Lankan army which was unarticulated but nevertheless tolerably obvious on the materials which the Reviewer failed to consider.
Ground 2 – No evidence to support findings
Ground two of the applicant’s second further amended application, that the Reviewer made a finding which was unsupported by evidence, was pleaded in the following terms:
2.The Reviewer fell into jurisdictional error by finding that the applicant contradicted himself about having mentioned his father’s arrest at the RSA interview in circumstances where there was no evidence upon which the Reviewer could have made such a finding.
Particulars
a.The Reviewer found that the applicant stated at the beginning of the evidence before him that he had not revealed in his RSA interview that the army had arrested his father.
b.The Reviewer failed to distinguish between the applicant’s new evidence as to the circumstances giving rise to his father’s arrest as opposed to the fact of the arrest itself, being separate subject matters.
c.The finding of contradictory evidence was a critical step in the making of credibility findings that formed the basis of his ultimate decision that the applicant did not satisfy the criterion for a protection visa and for refugee status.
d.There was no evidence upon which the Reviewer could make such a finding.
In alleging that there was no evidence to support the conclusion that he had contradicted himself at the Reviewer’s interview when he said that he had mentioned his father’s arrest at the RSA interview, the applicant cited the following exchange reproduced at page 3 of the transcript (“T3”):
A:You know, in my RSA interview I didn’t reveal about my father’s arrest. You know, army arrested my father that time I was small. I spoke to my auntie in recent months and she told me the details about his arrest.
R:Are you saying that at the time of the RSA interview, you were not aware of this fact?
A: Okay. During my RSA interview I didn’t have full understanding about this incident and the second thing is I was scared. I was worried and upset whether I can reveal this or not. That’s why I didn’t give the man the idea about this arrest.
R:How do you mean you didn’t have a full understanding of it?
A: Because I was small and at that time I was very small and my auntie only explained me about this arrest over the phone in recent months so I wanted to explain you about that.
R:And you said that during the RSA interview you were also scared to reveal this fact, but you’ve just said that you weren’t fully aware of it at that time. Could you explain please.
A: Yes.
R:Let me explain my question in just a moment. You just said that during your RSA interview you were scared to reveal this information but you also said that you only found out a few months ago. I assume you mean after the interview, so I’m not quite clear of what you are saying.
A: Okay, you know when I had my RSA interview I knew that my father got arrested but I didn’t know anything about it and I was a bit worried to mention that because I didn’t know that I had to tell that or not. And then, I had a discussion with my auntie what happened.
R:You did say in your first interview and also in your written statement that your father had been abducted, so that was already on your file. I’m wondering why you were worried about mentioning it at the RSA interview. I’m just not quite clear on this could you clarify please.
A: I have mentioned in my RSA interview that my father got arrested by the army.
R:Why didn’t your auntie mention this to you earlier, before you left Sri Lanka?
A: Because I didn’t ask her anything about this I didn’t have any thoughts about this when I left Sri Lanka. I was very small that time and I didn’t think about it.
(emphasis added)
The applicant submitted that his statement to the Reviewer, that he had mentioned in his RSA interview that his father had been arrested by the Sri Lankan army, was correct and thus the Reviewer’s finding that he had contradicted himself was a finding for which there was no evidence. However, at no point prior to the interview with the Reviewer had the applicant described his father’s disappearance as an arrest, he had always described it as an abduction; a distinction of some significance. The former implies the exercise of real or purported de jure power while the latter is a kidnapping.
Of significance to this distinction is the fact that the applicant’s allegation that his father had been abducted was coupled with an assertion that his family did not know why this had happened. For instance, in answer 22 of Part C of his entry interview at Christmas Island on 31 May 2010, the following exchange is recorded:
Q:Is there anything else you’re concerned about?
A:There is a big problem with the army or the police as soon as they see me, after I go and stay somewhere, they will arrest me & torture me and harass me.
Q:Why you?
A:They will ask what happened to my father. I won’t have an answer.
He also said in his statutory declaration of 7 August 2010 that he did not know why his father had been abducted. The applicant’s characterisation of his father’s disappearance as an unlawful abduction, rather than a potentially lawful arrest, is borne out by his assertion in his statutory declaration that when the police and army questioned his family at their home in Colombo they wanted to know where his father was, implying that his father had been the subject of some action which lacked legal sanction and of which the army would have been formally unaware.
It is not possible to tell from the RSA assessor’s summary of the evidence provided to her by the applicant the extent to which that evidence came from her interview with him and how much from his entry interview and his statutory declaration. Whatever may be the case, that summary only refers to the applicant saying that his father had been abducted by the Sri Lankan army for unknown reasons and makes no mention of the applicant having said that his father was arrested.
The fact that in his interview with the Reviewer the applicant was aware that his characterisation of the disappearance of his father as an arrest was new information can be discerned by considering the question to which the first statement in the above quotation was a response:
R:… Now, … I understand that you have some further information which you would like to convey to me. Would you like to do that now?
A: Yes.
R:Please do so.
A: Can you re-phrase that sentence for the information about his case? He doesn’t understand that.
Adviser:If I can assist here because I am privy to this information. [SZQUR], what our reviewer would like from you is for you to explain what has happened in recent months in the same way that you have explained it to me when I met you yesterday and today. That is some conversations that you have had with relatives.
The applicant also particularises this allegation by asserting that the Reviewer failed to recognize that his new evidence concerned the circumstances giving rise to his father’s arrest not the fact of the arrest. This misconceives the Reviewer’s findings and reasons and does not point to any relevant error on the Reviewer’s part. The finding of contradictory evidence was concerned only with the nature of the applicant’s father’s detention, not with the reasons for it.
Consequently, for the applicant to say towards the end of the passage quoted above at [20] that he had mentioned in his RSA interview that has father had been arrested by the army was not true. He had not said this; he had said instead that his father had been abducted. The evidence indicates that he knew that these were different things.
As a result, the Reviewer’s finding that the applicant contradicted himself on this point was open on the evidence.
Ground 3 –Failure to act judicially
The third allegation in the applicant’s second further amended application was pleaded as follows:
3.The Reviewer fell into jurisdictional error and failed to act judicially by making an adverse credit finding in part because of a purported delay by the applicant during the interview to raise new evidence when such delay was the result of the Reviewer’s conduct of that interview.
Particulars
a.The transcript of the tribunal hearing [sic] makes plain that the applicant sought to raise this new evidence at the commencement of the interview.
b.The Reviewer failed to distinguish between the applicant’s new claim as to the factual circumstances giving rise to the arrest of his father as opposed to the factual circumstances of the arrest itself.
c.The Reviewer precluded the applicant from providing particulars of that new claim by changing the subject area of his questions before such evidence could be given.
d.The fact that the applicant had allegedly not raised this new claim until the end of the interview was a critical step in the Reviewer’s credibility findings and his “key” finding that the claimant’s father was not arrested for convention related reasons.
In making this allegation the applicant relied again on the exchange quoted above at [20]. He submitted that on any view of that exchange he would be understood to have been attempting to inform the Reviewer that his aunt had recently provided him with information concerning the circumstances of his father’s arrest rather than giving evidence about the fact that his father had been arrested. He alleged that the Reviewer failed to recognise this distinction
He pointed to his use of the word “about” in the quoted passage and submitted that this indicated that he was attempting to address the reasons for the arrest. He submitted that he had been unable to expand on this issue because of the direction the Reviewer’s questioning had taken, which effectively prevented him from discussing this issue, and that it was only later in the interview that he had an opportunity to give evidence about why his father had been arrested.
When the passage in question is considered in the context of the transcript as a whole I accept that this factual assertion is probably correct. In this connection I have particular regard to the applicant’s adviser’s comments reproduced at T8 to the effect that, based on recent instructions, it was arguable that the applicant had a profile of someone who might be suspected of having a link with the LTTE based on the possible activities of his father. The adviser also said that the applicant had some recollection of his father having some dealings with the LTTE which had been confirmed in the recent past by his aunt. I accept that the implication in the Reviewer’s reasons, that the evidence concerning the reasons for the detention of the applicant’s father was invented during the course of the IMR interview, was incorrect. However, it was based on the fact that the applicant did not articulate this aspect of his claim until towards the end of his interview with the Reviewer. Consequently, it was open to the Reviewer to conclude, albeit incorrectly, that it was an invention devised during the interview. An incorrect conclusion of this sort does not amount to legal error.
However, returning to the allegation, it is said that the Reviewer failed to act judicially because he prevented the applicant from giving the evidence he wanted to give at the point he wanted to give it and then relied on the fact that it was given later in the interview to draw an unfavourable conclusion as to the applicant’s truthfulness. The evidence does not support a conclusion that the Reviewer was attempting to prevent the applicant from giving the evidence he wanted to give. It was just a case of the interview going in a particular direction at a particular time and the applicant not saying all he had to say until later. That does not amount to a denial of procedural fairness.
In any event, the duty to act judicially is, in the circumstances, a duty to afford procedural fairness which in turn involves a duty to act rationally and reasonably: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Deane J at 366-367, the law being concerned to avoid practical injustice: Re Minister for Immigration & Multicultural Affairs, Ex parte Lam (2003) 214 CLR 1 per Gleeson CJ at 14 [37]. For the reasons already given, the Reviewer’s incorrect conclusion does not represent illogicality or unreasonableness in the relevant sense.
An applicant who has established a want of procedural fairness on the part of an independent merits reviewer is entitled to succeed unless the Court is satisfied that it could have had no bearing on the outcome; see also Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541; NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89 and Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309. In this case the Reviewer’s factual error did have no bearing on the outcome of the review. His rejection of the applicant’s claim that his father was arrested because he had links with the LTTE or because he was perceived to have had such links had a number of bases. Relevantly for the present allegation, one of those bases was that he considered it implausible that the applicant had not asked his aunt about the reasons for his father’s arrest until the very last stage of his application for protection. In this regard the Reviewer said:
Given the importance to his case if his father really had had links to the LTTE, I do not accept that it did not occur to him at a much earlier state in the progress of his application, if not even earlier, to raise with his aunt the question of why his father was arrested, particularly if, as he claimed, he had previously suspected that his father had some sort of LTTE connection.
By way of reinforcement of this point, the Reviewer went on to say:
Moreover, even at the hearing, the new claim emerged only towards the end …
It can therefore be seen that the mistaken inference which the Reviewer drew about the point in the interview when the applicant gave evidence about the claimed reason for his father’s arrest was mentioned only to give emphasis to the conclusion which the Reviewer had expressed in the immediately preceding sentences. It did not form part of that reasoning and does not render it legally erroneous.
For these reasons, although the applicant has identified a finding which was incorrect, it was not legally erroneous or a finding on which any the conclusions material to the recommendation was based. For that reason, the third ground of the second further amended application does not disclose a basis to conclude that when deciding whether or how to exercise his discretions under ss.46A and 195A, the Minister should be restrained from relying on the Reviewer’s recommendation.
Ground 4 – Failure to afford procedural fairness: adverse issue
The applicant alleged in ground four of his second further amended application that the Reviewer failed to afford him procedural fairness. He stated:
4.The Reviewer failed to afford appropriate procedural fairness to the applicant and fell into jurisdictional error by failing to draw to the attention of the applicant an adverse issue, namely that he did not accept that the police attended on his home on the number of occasions alleged or over the period of time alleged, such finding being central to the rejection of the applicant’s claim that the police repeatedly attended on his home in Colombo to enquire as to where his father was and whether he had joined the LTTE.
Particulars
a.The Reviewer rejected the claim that the police came to where the applicant was living in Colombo eight to ten times to enquire about his father.
b.The Reviewer accepted that they came once or perhaps a few times only.
c.This was a critical step going to the finding that such checks were merely “routine” about what was a “newly arrived” family in Colombo.
d.At no time did the Reviewer draw to the applicant that he intended to make an adverse finding that the police and army did not attend on his house about ten times in the period 1995 to 1999 as alleged in his Statutory Declaration.
Where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard, which ordinarily requires the party affected to be given the opportunity of ascertaining the relevant issues. This will require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592; see also SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 162 [32]; Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at 599 [9].
The finding made by the Reviewer which is the basis of this allegation is found at para.94 of his reasons where he stated:
I do not accept that the police came to where he was living eight to 10 times to enquire about his father. I am prepared to accept that they came once or perhaps a few times but as I put to the claimant at the interview, I consider that this would have been a routine check about what was a newly arrived family in Colombo. I do not accept that they hit him.
The submission made by the applicant in respect of this allegation was that the Reviewer should have put him on notice of the issue concerning whether or not the police and army checks at his family home in Colombo were standard ones. In that regard, notwithstanding how the allegation was framed in the second further amended application, to the extent that there was a relevant issue in play, it was not about the number of checks but the nature of those checks.
However, I am not of the view that the number or nature of the army and police checks made of the applicant and his family in Colombo were, singly or in combination, critical to the outcome of the review. The applicant appears to seek to characterise the army and police visits as examples of harassment but the Reviewer implicitly dismissed them as of no significance. This was because, even if it was accepted that these checks created a subjective fear in the applicant, the Reviewer concluded at para.96 of his reasons that there was no objective basis for that fear.
Even so, and as recorded at T4, the Reviewer did exactly what the applicant submits he should have done when, following the applicant’s description of the army and police checks and his clarification that they had occurred in Colombo and not in Jaffna, the Reviewer observed to the applicant:
It sounds as though these were just standard enquiries by the police.
This was sufficient to alert the applicant to the Reviewer’s doubt that the checks had any relevant significance and thus, to the extent that they may have been a critical issue, to the need to address them further.
Ground 5 – Failure to consider relevant country information
Ground five of the applicant’s second further amended application, that the Reviewer failed to consider relevant country information, was pleaded as follows:
5.The Reviewer fell into jurisdictional error by failing to consider relevant country information in finding that to return to Sri Lanka, the applicant could obtain a National Identity Card.
Particulars
a.The Reviewer found that there was no evidence before him to suggest that the applicant would have undue difficulties or face harm in respect of applying for an NID.
b.The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka was before the Reviewer and specifically noted that police reportedly refused to register Tamils originating from the North and East of the country.
The applicant submitted that the Reviewer’s conduct of the review disclosed that he had amongst the materials before him the UNHCR Eligibility Guidelines concerning Sri Lankan asylum-seekers dated 5 July 2010 which said in footnote 35, amongst other things:
Furthermore, police reportedly refuse to register Tamils originating from the north and the east of the country, a requirement for temporary residence in Colombo, sometimes forcing them to return to their homes; … Based on the available country of origin information, the New Zealand Refugee Status Appeals Authority has recently found that “those most likely to be of interest to authorities at the checkpoints are young Tamil males originating from the north and east of the country, particularly those with: a profile or history of LTTE links; scarring consistent with wounds sustained in hostilities; no identity card or other identity documentation; no Colombo address; an outstanding arrest warrant or criminal record; no employment or other verifiable reason (such as study) for being in Colombo and those without family or other networks in Colombo on which to rely for support”; …
The first part of that quotation says nothing about national identity cards, being concerned with registration required for residence in Colombo and the reference to identity cards in the second part of the quotation says nothing about the ease of acquiring them. This document does not support the contention that the Reviewer was seized of information which had the effect of contradicting or disproving his statement that there was no evidence before him to suggest that the applicant would have undue difficulties or face harm in respect of applying for a national identity card. Also for these reasons, the applicant has not made out his allegation that the Reviewer failed to consider material which then led him to make what was claimed to be an erroneous statement concerning the state of the evidence before him.
Ground 6 – Failure to afford procedural fairness: country information
The sixth ground of the applicant’s second further amended application was not pressed.
Ground 7 – Failure to take into account a relevant consideration
Ground seven of the second further amended application was pleaded as follows:
7.The Reviewer fell into jurisdictional error by failing to take into account a material consideration in making an adverse credit finding on the basis of an inconsistency at [102] of the Reasons as between the Applicant’s Entry Interview and his Statutory Declaration sworn 7 August 2010.
Particulars
a.The Reviewer failed to have regard to answer 32(b) in the Entry Interview, that answer being consistent with the claim made in the Statutory Declaration.
b.The Reviewer was bound to take the whole entry interview into account before making an adverse credit finding against the applicant based on an inconsistency between that document and the Statutory Declaration.
The applicant did not claim that his fear of persecution had anything to do with the terms on which he had been allowed to reside in India. Consequently, although phrased in terms of failure to take a relevant consideration into account, this allegation was really one that the Reviewer had failed to consider information which was relevant to the issues on which he had to make findings in order to make his recommendation. In relation to a similar argument in the context of the RRT, Allsop J said in Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at 423 [78]:
Once it is accepted that the Tribunal dealt with the subject matter or element of the claim, it becomes apparent that the real complaint of the appellant must be that the Tribunal failed to expressly deal with the evidence referred to in the letter of 19 November 1999 and should have, somehow, preferred that material to the countervailing evidence (which it was accepted existed) which supported or tended towards the position adopted by the Tribunal in the emphasised paragraph referred to at [69] above. Thus expressed, it becomes plain that it cannot be a question of the failure to take into account a consideration made compulsorily relevant by the Act or regulations: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and Yusuf.
In this case the Reviewer was required to consider the applicant’s claims in light of the evidence in his possession at the time he decided whether he was satisfied that the applicant met the criteria for the grant of a protection visa. If the Reviewer failed to consider evidence which might have had a bearing on the outcome of the review, in that such failure could possibly have deprived the applicant of a successful outcome because the evidence was not “so insignificant that the failure to take it into account could not have materially affected the decision”, then that would amount to a failure to conduct the review by reference to the correct legal principles correctly applied: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Gibbs CJ at 30, Mason J at 44-45 and Dawson J at 71; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]; Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531 at 542 [49]; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [73]-[83]; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [72].
Relevantly for this allegation, at para.102 of his reasons the Reviewer stated:
My adverse view of the claimant’s credibility is compounded by inconsistencies in his claims about his stay in India and why he left. He claimed in his entry interview that he left India because he could not stay longer than 10 years and he could not obtain a job, and that his family’s registration there was to expire last November. In his statutory declaration, however, he contradicted this claim, now stating that he and his family could not remain in India as they had only a six-month visa which had to be extended by the police. This is clearly not so as he lived there for about 11 years and he acknowledged at my interview with him that his mother and brother are still there.
The information relied on by the Reviewer in this passage was derived partly from question 1 of part C of the applicant’s entry interview questionnaire where the following was recorded:
Q: Why did you leave India?
A:We couldn’t stay longer than 10 years. What can I say, we had nothing to stay for.
Q:Who left?
A:Just me, I can’t get a job, but we can’t stay, there are problems, problems from the police once our registration finishes in November.
The other information came from the applicant’s statutory declaration where he said:
We could not remain in India as we had only a 6 month visa which had to be extended by the Indian police. See police registration certificate attached for my brother and I.
The material which the applicant alleges the Reviewer failed to take into consideration when reaching those conclusions was his answer to question 32(b) of part B of his entry interview questionnaire:
Q:What status did you have (if lawfully resident what documentation did you hold and where is it now)
A:Lawful for 6 months, then we registered with the police and stayed, they gave us registration papers, so my mother can get treatment, we were legal for 10 years.
It is difficult to conclude that the Reviewer would have found the applicant’s statutory declaration to be inconsistent with what had been said in the applicant’s entry interview questionnaire if the answer to question 32(b) of part B had been taken into account. It provides a factual bridge between the applicant’s answer to question 1 of part C of his entry interview questionnaire and what he said in his statutory declaration. If regard had been had to it, the Reviewer would not have been able to find that the statutory declaration contradicted what the applicant had said in the questionnaire. I conclude that this material was overlooked.
Nevertheless, this oversight was of no real significance. The Reviewer’s comments in para.102 of his reasons concerned an issue which was entirely peripheral to the matter he had to decide. Had he concluded that the applicant had not made inconsistent statements in relation to his stay in India, that would have had no effect on his findings concerning whether the applicant had a well founded fear of persecution in Sri Lanka in so far as they depended on intermediate findings as to the applicant’s credit. This is most clearly seen in para.91 of the Reviewer’s reasons where after having earlier dealt with the matters referred to above at [13(b)(i)] and [13(b)(ii)], he said:
My adverse view of his credibility in relation to this claim is also due to the other anomalies in his evidence at the interview. As earlier noted, he contradicted himself about having mentioned his father’s arrest at the RSA interview, and made two erroneous statements about having mentioned the claim about his father’s LTTE links earlier.
The Reviewer’s view of the applicant’ credibility was determined by his evidence and claims concerning the events in Sri Lanka, not what he said about the terms on which he had been able to stay in India and when and why he had to leave. For this reason I conclude that the Reviewer’s failure to consider the information set out in the applicant’s answer to question 32(b) of part B of his entry interview questionnaire could not possibly have deprived the applicant of a successful outcome because the evidence was so insignificant that the failure to take it into account could not have materially affected the decision.
Conclusion
The applicant has not demonstrated that the Reviewer’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied.
Consequently, the application will be dismissed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 13 April 2012
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