SZRCD v Minister for Immigration
[2012] FMCA 1190
•12 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRCD v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1190 |
| MIGRATION – Application to review decision of Independent Merits Reviewer – whether reviewer failed to address an integer of the applicant’s claims. |
| Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 Plaintiff M61/2010E v The Commonwealth of Australia and Others (2010) 243 CLR 319; [2010] HCA 41 SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137; [2003] FCAFC 120 |
| Applicant: | SZRCD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 161 of 2012 |
| Judgment of: | Barnes FM |
| Hearing date: | 4 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin |
| Solicitors for the Applicant: | Legal Aid NSW |
| Counsel for the Respondents: | Mr H P T Bevan |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 161 of 2012
| SZRCD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for declaratory and injunctive relief in respect of a decision of the second respondent, Dr Witton, an independent merits reviewer (the IMR or reviewer), dated 17 December 2011 in which it was recommended that the applicant not be recognised as a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The applicant, a citizen of Sri Lanka, arrived in Australia in November 2010 and sought a Refugee Status Assessment (RSA).
The claims made by the applicant in an entry interview and in the course of the RSA (including in a statutory declaration of 16 January 2011) were put on the basis that he was a Sri Lankan Tamil who had resided in Sri Lanka all his life. He claimed that he and his father had been forced to help the LTTE in 2008 and had subsequently been mistreated by the army. He claimed that in 2010 the Karuna group had threatened and beaten him and told him he had to become a member. He claimed that the Karuna group would catch him and force him to join them and if he refused they would kill him and his family.
On 21 April 2011 the RSA found that the applicant did not meet the definition of refugee. The applicant sought review by the IMR.
However the applicant’s original claims were disclaimed by him on 20 October 2011. The applicant’s adviser notified the Department that the applicant had instructed that he and his family had been taken to India from Sri Lanka when he was very young and that he had not returned to Sri Lanka thereafter. In a written submission to the IMR dated 19 October 2011 the applicant’s adviser claimed that the details the applicant had given in the entry and RSA interviews had all been incorrect and that he had been “forced” by a smuggler to give that story. He claimed the smuggler had “threatened to harm [the applicant’s] family if he gave any different information”.
In the same written submission it was clarified that the applicant feared persecution as a Tamil male were he to return to Sri Lanka on the basis that “the Sri Lankan Army interrogate and beat Tamils regularly suspected of having involvement with the LTTE”. It was asserted that “Tamils [we]re targeted indiscriminately and that the Sri Lankan Government [wa]s using the Sri Lankan Army to cleanse the country of Tamils”.
In addition, the adviser claimed that when the applicant’s family had lived in Sri Lanka, his father had been forced to contribute diesel and supplies to the LTTE and that his father had taken the family to India because he believed that spies had reported this to the Sri Lankan army.
The applicant was also said to claim to fear returning to Sri Lanka as he did not have any identity documents and would “be suspected of assisting the LTTE even though it ha[d] been some time since his family w[as] in Sri Lanka”. It was claimed that he could not seek protection from the authorities as it was the authorities from whom he feared persecution. Various items of country information were referred to by the adviser in support of the proposition that the situation for Tamils in Sri Lanka was dangerous.
The applicant attended an interview with the IMR. The only evidence before the court of what occurred in that interview is the reviewer’s account in his reasons for decision. As ultimately presented to the IMR, the applicant claimed to be a Tamil who was born in northern Sri Lanka in 1987. He claimed that his father, a farmer, had been forced to provide the LTTE with diesel, rice and money and had been detained and interrogated under torture for 10 days. After his release, the applicant’s father took the family to India in 1990 where they remained.
The applicant also claimed that his uncle had been shot by the Sri Lankan Army in his hometown in Sri Lanka in 2006 and that his uncle’s family had disappeared. The applicant thought that what had happened to his uncle may be connected to his father’s assistance to the LTTE. He claimed that he had no relatives in Sri Lanka. At the interview with the IMR the applicant claimed that his father’s connection to the LTTE made it difficult for him to return to Sri Lanka, as the authorities might think he was returning to avenge his father. He is recorded by the IMR as claiming that there were paramilitary groups, like the EPDP and the Karuna group, “who [would] identify [him] as a stranger and [would] identify [him] to the Sri Lankan army”.
His adviser claimed that as a single Tamil male the applicant would attract the attention of the Sri Lankan Army which feared the LTTE would reinvent itself and may regard the applicant as at risk of joining the LTTE, having regard to the fact that the applicant’s father had assisted the LTTE and the fact that the applicant was a single Tamil male. It was submitted that he “might face repeated detention and torture because of his profile as a single young male with links to his father”.
The IMR decision
In his decision the IMR referred to country information in relation to the situation in Sri Lanka. In his findings and reasons the reviewer accepted that the applicant was a citizen of Sri Lanka who was born in Mannar in northern Sri Lanka in 1987 and that at age 3 his family took him with them to India where they had stayed. The reviewer accepted that the applicant’s father had been forced to assist the LTTE before leaving Sri Lanka, by providing them with rice and diesel, and that as a result he was detained for 10 days by the Sri Lankan army, interrogated and physically abused and that this was the reason the applicant had fled Sri Lanka. The reviewer also accepted that the applicant did not possess a Sri Lankan national ID card and that his father’s older brother had been shot in 2006.
The reviewer summarised the applicant’s claims as claims to fear that he would be detained, tortured and killed by the authorities in Sri Lanka who would believe he was an LTTE supporter as his father had been forced to assist the LTTE (and the authorities were aware of this) before the family fled to India, the fact that his uncle had been shot during the civil war and that the applicant was a young, single Tamil male from the north who had been overseas.
In light of independent country information the reviewer accepted that on return to Sri Lanka the applicant “may well be investigated and even interrogated by the Sri Lankan authorities to determine whether he [wa]s considered a security threat”. The IMR also accepted that “the authorities fear[ed] those abroad ha[d] been LTTE supporters and that they may suspect that the [applicant] was a failed asylum seeker”. However the reviewer continued that he:
… finds as significant and determinative that the claimant has spent virtually his whole life out of the country and that he was never personally involved with LTTE. In making this latter finding, the reviewer acknowledges that the claimant was indirectly linked to the LTTE through his father being forced some 11 years previously to have to (sic) assisted the LTTE and that the UNHCR July 2010 Report identifies people suspected of having links with the LTTE as having a potential risk profile. However, given the indirect nature of this link, and the fact that the LTTE forced virtually the whole of the population under their control to support their cause such that virtually all Tamils from the north would have at least some such indirect family link to the LTTE, the reviewer finds that this link is so tenuous that it would not give rise to a real chance that the claimant would be considered by the Sri Lankan authorities to have or have had a LTTE link. That being so, the reviewer finds that there is not a real chance that the claimant’s particular background is such that it would contribute to any conclusion that he is a LTTE supporter.
While the IMR accepted that the authorities may have records about the applicant’s father’s detention and interrogation in 1990 and that his uncle was shot during the civil war, the reviewer had regard to the fact that the applicant’s “father had been released by the military and that the LTTE very commonly required farmers to provide them with assistance and so a large number of Tamil farmers were involuntarily linked in this way to the LTTE”. The IMR found that the applicant’s father had chosen to flee Sri Lanka in 1990 and that the assistance his father gave the LTTE would not give rise to a real chance that the Sri Lankan authorities would consider his father to be a LTTE supporter or sympathiser.
The reviewer also found that the applicant’s uncle’s death in 2006 had been in the context of an ongoing civil war some 16 years after his brother’s detention. The IMR was “not satisfied that the fate of the [applicant]’s uncle would contribute to the authorities believing that the [applicant was] an LTTE supporter”.
The IMR accepted that the applicant would arrive in Sri Lanka without a national ID card, but found that he would have travel papers and would be able to establish his identity and provide the necessary evidence for a national ID card to be issued. The reviewer was of the view that this would be the situation for many Tamils overseas at the time of their eighteenth birthday as they could only apply for an ID card on return to Sri Lanka.
While the reviewer accepted that the applicant may be investigated and even interrogated on return to Sri Lanka, he had regard to independent evidence said to indicate “that Tamils [we]re not at particular risk on return unless suspected of LTTE membership”. The reviewer nonetheless considered “whether such attention from the authorities while suspecting and before reaching a conclusion, might not amount to serious harm”. In this context the reviewer accepted that the applicant’s father had been tortured during 10 days of detention during an investigation in 1990, but found that the current situation in Sri Lanka was “significantly different”. The reviewer had regard to the fact that the civil war had ended, that there were very large numbers of Tamils returning to Sri Lanka and the absence of anything in the particular circumstances of the applicant’s personal background such that he would be suspected as having prior or current personal LTTE links or allegiance. In such circumstances the reviewer found that there was not a real chance that any investigation into the applicant on or after arrival in Sri Lanka would amount to serious harm.
The reviewer was not satisfied, having taken all these factors into account, that there was a real chance the applicant’s background was such as to arouse a level of suspicion on the part of the authorities such that he would suffer serious harm in the reasonably foreseeable future if he returned to Sri Lanka.
The reviewer accepted that the applicant feared harm from the army and pro-government supporters in Sri Lanka. However he had regard to independent country information indicating “that the post-war situation [wa]s such that human rights abuses [we]re declining and that the majority of people [we]re beginning to live relatively normal, albeit post-conflict, lives”. The IMR referred to the country information submitted by the applicant’s adviser in relation to incidents of human rights deprivation and terrorisation of Tamils in Sri Lanka. The reviewer accepted that such events continued to occur. However, the reviewer had regard to the fact that the applicant had not presented evidence that he had suffered in any way in relation to such incidents and found nothing in his particular circumstances that would give rise to a real chance he would face such serious harm for reason of his Tamil ethnicity or his political opinion, imputed or otherwise. The reviewer accepted that, as a minority, Tamils faced discriminatory practices in many areas of life, but found that there was no evidence that there was a real chance that the applicant would suffer in any way in relation to such discriminatory practices. The IMR found nothing in the applicant’s particular circumstances to give rise to a real chance that he would face a level of discrimination such as to amount to persecution for reason of his Tamil ethnicity.
In these circumstances, considering the applicant’s claims individually and cumulatively, the reviewer was not satisfied that if the applicant returned to Sri Lanka he would face a real chance of persecution for reason of his ethnicity, actual or imputed political opinion or membership of a particular social group or for any other Convention reason in the reasonably foreseeable future.
Procedural fairness claim
The applicant sought review by application filed in this Court on 25 January 2012. He now relies on an amended application filed on 3 May 2012. There is one ground in the amended application. It is as follows:
The Independent Protection Assessment Reviewer failed to afford the claimant procedural fairness as he failed to address the claim that para-military groups like EPDP (Eelam People’s Democratic Party) and the Karuna group would identify him as a stranger and would identify him to the Sri Lankan army.
It was contended for the applicant that the IMR had failed to address an integer of his claims. It was said to be apparent from the material before the reviewer that the EPDP and the Karuna group remained active in the north-east of Sri Lanka. It was submitted that the applicant had claimed that what would draw him to the attention of these groups was the fact that he was a stranger and a young Tamil male with no family or friends. This profile was said to be quite separate from his claimed link to the LTTE which depended on knowledge of his family history in the area. It was contended that the reviewer had erred in failing to make any finding about whether being a stranger would place the applicant at risk of attention from the paramilitary groups and that the IMR’s observation that human rights abuses were declining and that people were beginning to live relatively normal lives did not address this claim.
In oral submissions counsel for the applicant referred to country information before the reviewer in relation to the existence of such paramilitary groups said to be working with, but separate from, the government. Such groups were said to target Tamils in the north and east of Sri Lanka, in particular in the area from which the applicant came. It was submitted that a claim arose on the information before the reviewer not only that those groups would suspect the applicant as he was a stranger and identify him to the army, but also that the paramilitary groups would detain him.
It was submitted that the possibility of detention and potential interrogation by such paramilitary groups was a claim that had not been dealt with by the reviewer. This claim was said to be separate from and not connected to the applicant’s claim of fear based on a perceived LTTE connection. It was submitted that the potential for harm to the applicant during such an interrogation process would give rise to a question of effective state protection that had not been addressed by the reviewer and that state protection was a live issue in this case, given the closeness of the paramilitary groups to the Sri Lankan government.
The applicant made this assertion on the basis of what was contained in independent country information, including information considered by the RSA in relation to the claims later disowned by the applicant. However, at that stage he had claimed that the Karuna group had threatened and mistreated him in Sri Lanka because he had not joined them and that he feared that if he refused to do so they would kill him and his family. He had claimed to be afraid of the Karuna Group and that as it was connected to the government he could not seek protection from the authorities. As indicated above, he had also claimed to be fearful that the Sri Lankan army would kill or beat and harass him for what, at that stage, was said to have been assistance he, as well as his father, had been forced to provide to the LTTE in 2008.
In the course of considering these claims, the RSA had referred to independent country information in relation to the Karuna group to the effect that, notwithstanding the end of the conflict, the Karuna faction had not undergone any formal process of disarming, had been connected by observers to incidents of violence in the east of Sri Lanka and had continued to work in coordination with elements of the security forces in some respects. The RSA observed that the country information indicated that since the end of the military conflict the Karuna faction had developed a presence in Mannar and that the Karuna group was involved in the killing and assault of civilians and the recruitment of children.
However, relevant to the contention that a claim arose on the material before the reviewer that the applicant feared harm from a group such as the Karuna group on the basis that he would be identified as a stranger, detained and interrogated, I note that the RSA also observed that there was “no country information that would indicate that the Karuna group [was] continuing to forcibly recruit Tamil males”.
There is no suggestion that in the post-RSA submission (at which time the applicant disowned the earlier claims) the adviser expressly made a claim of the nature that the applicant now contends arose on the material before the reviewer. However reliance is placed on the fact that the adviser’s submission included further country information about the paramilitary groups, under the general heading of “Situation in Sri Lanka”, in support of the proposition that subjugation and systematic persecution of Tamils continued even after the war had finished. Counsel for the applicant referred to a Wikileaks cable dated 18 May 2007 from the US Embassy in Colombo in which a Sri Lankan Defence Secretary was accused of giving orders to the Sri Lankan army commanders in Jaffna “not [to] interfere with [Tamil] paramilitaries on the grounds that they are doing “work” that the military cannot do because of international scrutiny”. The “work” referred to in the cable included extrajudicial killings, extortion, abduction and prostitution by the Tamil paramilitary groups, the EPDP and the Karuna Group. The cable went on to make the point that even though the EPDP and Karuna were comprised nearly exclusively of ethnic Tamils, the crimes they committed were almost always against other Tamils.
In further support of the proposition that the suggested claim arose on the material before the reviewer, reliance was placed on an extract from an Amnesty International Report submitted to the reviewer at the IMR interview conducted on 6 December 2011. Under the heading “Government-backed paramilitary forces target tamils suspected of being LTTE affiliates” Amnesty International referred to information that the “Sri Lankan government ha[d] worked with armed paramilitaries to identify, capture and detain suspected LTTE sympathisers and members” and that “[d]etainees ha[d] been tortured, “forcibly disappeared” and killed”. The Report cited Freedom House’s 2010 Country Report in which it was stated that police functions had been delegated to pro-government paramilitary groups and that:
The pro-government militia groups, some of which have been given the power to detain Tamils, often work with the regular security forces to arrest and torture suspects before releasing them, killing them, or turning them over to the police for further action. Police powers in the Eastern Province, for example, have been delegated to the former LTTE fighters of the TMVP, who now arrest people at will, interrogate them, and transfer them to the police.
Amnesty International also referred to the fact that the paramilitary wing of the EPDP and the TMVP (which it described as also known as the Karuna group) were “paramilitary allies” of the armed forces. In addition, the applicant placed reliance on Amnesty International’s reference to the fact that disarmament after the war had not occurred as planned, and to the Refugee Review Tribunal country advice of October 2010 that some elements of the TMVP still carried arms, that the Karuna faction had not undergone any formal process of disarming and that each of the Karuna and the other faction in the TMVP still had 1,000 or more cadres or supporters and a report from the Danish Immigration Service of October 2010 which referred to the fact that Karuna and his cadres were still very powerful and active in the East.
Counsel for the applicant pointed out that in his decision the reviewer had referred to information about paramilitary groups, including an extract from the 2010 US State Department Human Rights Report on Sri Lanka, to the effect that while the overall number of extrajudicial killings had dropped significantly from the previous year, nevertheless unknown actors suspected of association with pro-government paramilitary groups had committed killings and assaults of civilians. Such paramilitary groups were said to include the two TMVP factions including the Karuna faction in the east as well as the EPDP in Jaffna. The report stated that these and other pro-government paramilitaries were active in Mannar and another area. The report also recorded that while these groups had served more of a military function during the war, often working in coordination with security forces, they now took on increasingly criminal characteristics as they sought to solidify their territory and revenue sources in the post-war environment.
In light of this information counsel for the applicant pointed out that the IMR had accepted that he was born in Mannar in northern Sri Lanka. It was submitted that while the reviewer made no specific finding that the applicant had no family, he had accepted the fact that the applicant had no family or close relatives in Sri Lanka in the context of considering possible referral of non-refoulment issues to the Minister.
The applicant submitted that the reviewer dealt only with his fear that he would be regarded as a supporter of the LTTE and that while the reviewer had referred to his fear of pro-government supporters, there had been no assessment of the fear of paramilitary groups and the likelihood that he would be identified as a stranger in the way that he alleged gave rise to a claim of possible detention and interrogation.
It was contended that a claim arose on the material before the IMR (including the independent country information) not only that the applicant was at risk from these organisations because of his perceived LTTE connection but also because he would be a stranger in the area. It acknowledged that the reviewer referred generally to the absence of anything in the applicant’s “particular circumstances” that would give rise to a real claim that he would face serious harm such as human rights deprivation and terrorisation for reason of his Tamil ethnicity, his actual or imputed political opinion or otherwise. However it was submitted that this finding did not deal with the possibility that the applicant might face harm from the paramilitary groups for a non-Convention reason and that he may not have state protection from such harm for a Convention reason.
It was acknowledged that the applicant did not specifically claim that when the Karuna Group or the EPDP identified him as a stranger they would take him into custody and abuse him before they handed him over to the police. However it was submitted that the independent information before the reviewer was such that it established that that was their modus operandi.
Reliance was placed on the remarks of the High Court in Plaintiff M61/2010E v The Commonwealth of Australia and Others (2010) 243 CLR 319; [2010] HCA 41 in relation to a denial of procedural fairness.
I am not satisfied that this ground is made out, either on the basis pleaded in the amended application and addressed in written submissions or as elaborated upon by the applicant in oral submissions.
It is clear that if a decision-maker fails to make a finding on a substantial, clearly articulated argument relying upon established facts, such failure could amount to a failure to accord procedural fairness in the sense considered in Plaintiff M61/2010E at 394; [24] per Gummow and Callinan JJ and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55]).
As counsel for the Minister pointed out, the Full Court of the Federal Court considered the applicable principles in NABE (No 2), albeit in the context of considering whether the Refugee Review Tribunal fell into jurisdictional error. Such reasoning is of relevance to the decision of an IMR. As the Full Court observed in NABE (No 2) (at [58]), the decision-maker is required to deal with the case raised by the material or evidence before it. Thus, the IMR should not “limit [his] determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raises a case not articulated”. Such an “unarticulated claim must be raised ‘squarely’ on the material available to the [decision-maker]” before the decision-maker is obliged to consider it (see NABE (No 2) at [58] and SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at 273; [2003] FCAFC 120 at [19] per Cooper J).
In NABE the Full Court expressed the view that “the adverb ‘squarely’ [did] not convey any precise standard”, but indicated “that a claim not expressly advanced” had to be “apparent on the face of the material” before the decision-maker and that it would “not depend for its exposure on constructive or creative activity” by the decision-maker (at [58]). Their Honours also referred to a claim which arose “clearly” or sufficiently from the materials before the decision-maker and the case put (at [60] and see SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364; [2003] FCA 709 at [17]).
Relevantly, however, the Full Court made the point in NABE (No 2) (at [62]) that the decision-maker is “not required to consider criteria for an application never made”. As stated in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 (at [114]) (in relation to the Refugee Review Tribunal) the decision must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.
Having regard to such principles, I note first that the applicant’s initial claim to fear the Karuna group (subsequently disclaimed) on the basis that they would harm him because he refused to join them was rejected by the RSA for a number of reasons. Further in the course of his reasons the RSA had regard to the fact that there was no country information to indicate that the Karuna Group were continuing to forcibly recruit Tamil males.
At that stage the applicant had also made a separate claim to fear the Sri Lankan authorities arising from his claimed connection with the LTTE. This claim was also rejected by the RSA on the basis of the diminution in violence following the cessation of the civil war.
In the subsequent written submission from the applicant’s adviser in which the applicant disavowed reliance on those claims, including his claimed fear of the Karuna group, no claim was advanced based on a fear of harm from paramilitary groups. Rather, the applicant claimed to fear harm from the Sri Lankan army. His adviser claimed the army was used by the Sri Lankan government to “cleanse the country of Tamils”. It was claimed that as a Tamil male the Sri Lankan army would interrogate and beat the applicant because he would be suspected of being involved with the LTTE having regard to his father’s former provision of support to the LTTE and the fact that he was a Tamil. His claim was that Tamils were targeted indiscriminately by the Sri Lankan army (not by paramilitary groups).
He also claimed to fear returning to Sri Lanka as he did not have any identity documents provided by the military and would be suspected of assisting the LTTE and that he would be interrogated on return to Sri Lanka. This is obviously a claim of a fear of interrogation by the authorities.
The fact that included in the country information set out in the adviser’s submissions were some references to activities of paramilitary groups does not clearly give rise to a claim of the nature referred to in the amended application that the paramilitary groups like the EPDP and the Karuna group would identify the applicant as a stranger and would identify him to the Sri Lankan army or to the reformulated claim that paramilitary groups like the EPDP and the Karuna Group would identify the applicant as a stranger and would detain and harm him.
Moreover, the fact that the extracted information about the activities of such groups, including reference to extrajudicial killings, extortion, abduction, prostitution and a wide range of criminal activities against Tamils, is not such as to identify a modus operandi in relation to the likely approach of such paramilitary groups to those identified as strangers. I note in that respect that the WikiLeaks cable relied on in support of this ground by the applicant is, in any event, dated 18 May 2007.
Furthermore, and more pertinently, the part of the Amnesty International Report relied on by the applicant does not simply refer to government-backed paramilitary forces targeting Tamils, but rather to targeting Tamils suspected of being LTTE affiliates. It was in that context that Amnesty International referred to the Sri Lankan government working with armed paramilitaries to identify, capture and detain suspected LTTE sympathisers and members.
Similarly, the Freedom House report referred to paramilitary groups having the power to detain “suspects”. The Amnesty International Report went on to refer more specifically to information that the TMVP paramilitary group was known to target persons suspected of LTTE association, including civilians.
In other words, the country information cited in support of the ground does not provide clear support for the proposition that such groups target Tamils who have no relatives in Sri Lanka, that is, “strangers”.
The fact that some country information cited in the submission referred to the activities of paramilitary groups did not clearly or squarely raise “a substantial clearly articulated argument” bearing in mind that as stated in NABE (No 2) (at [68]) a judgment that a decision-maker has not considered a claim not expressly advanced is “not lightly to be made”.
Moreover it is apparent that the applicant’s fears at the IMR interview were put only on the basis that he would be perceived to be connected with the LTTE and feared the authorities, albeit he did claim that the paramilitary groups would identify him to the army.
It is notable that the reviewer recorded that when the applicant was asked what he feared were he to return to Sri Lanka, he expressed that claim in terms of his father’s involvement in helping the LTTE. He was recorded as stating:
I fear for my life because my father helped the LTTE and that is why we moved to India.
and continued:
…if I returned now they might arrest me because my father was supportive of the LTTE.
In other words the applicant clearly linked his claimed fear to a perceived connection with the LTTE and referred to a fear of arrest (which must be arrest by the police). Consistent with this claim he reiterated that his father told him he could not return because he would have a problem with the LTTE.
Furthermore, when asked if there was any reason the Sri Lankan authorities would link him to the LTTE the applicant is said to have referred to what happened to his father by way of interrogation and torture by the authorities in 1990. When asked if there were any other alleged or suspected family links to the LTTE he said that he could not think of any other reason.
The IMR recorded that the applicant stated at the interview that:
I have no family in Sri Lanka and there are para-military groups like EPDP and the Karuna group who will identify me as a stranger and will identify me to the Sri Lankan army.
However, this statement has to be seen in context. The reviewer recorded that he had discussed with the applicant “the “real chance” test of persecution in the light of the country information that the Sri Lankan government brutally put down the LTTE movement and continues to suspect Tamils at home and abroad and [would] be harsh against those suspected” (in other words, suspected of LTTE involvement). The reviewer also put to the applicant country information indicating many thousands of Tamil Sri Lankans returned home from abroad and that there were very few reports of detention. In that context the applicant again reiterated that his father had been suspected of LTTE links and that he was unwilling to return.
The reviewer then discussed with the applicant whether identification of a link to the applicant’s father’s detention would put him at risk from the authorities. In response, the applicant submitted a number of reports about Tamils in India who were LTTE-linked, including in relation to a UK passport holder who had returned to Sri Lanka after 30 years and had disappeared at the airport and a person who returned after a long time and was killed and his body burnt. The applicant acknowledged to the reviewer that there were people returning to Sri Lanka who did not have a link to the LTTE but claimed that his father’s connection made it dangerous for him. In that context he said that the authorities might think he was returning to avenge his father. It was at that point that the applicant stated that he had no family and that paramilitary groups would identify him as a stranger and would identify him to the Sri Lankan army.
The IMR addressed the applicant’s claim to fear the authorities, including the army. Moreover, at paragraph [53] of his reasons for decision the reviewer accepted that the applicant feared harm from “the army and pro-government supporters in Sri Lanka”, but addressed such a claim. The IMR found that the independent country information indicated that “the post-war situation [wa]s such that human rights abuses [were] declining and that the majority of people [we]re beginning to live relatively normal, albeit post conflict, lives”. The IMR went on (at paragraph [54]) to address the country information submitted by the applicant’s adviser about human rights deprivation and incidents of the terrorisation of Tamils in Sri Lanka (which would include the information relied on by the applicant in support of the ground in the amended application). In that context the reviewer accepted that such events occurred, but noted the absence of evidence from the applicant that he had suffered in any related way. Importantly, the IMR also found nothing in the applicant’s particular circumstances (which clearly included the circumstances the applicant claimed at the interview about his absence of family in Sri Lanka) was such that his situation would give rise to a real chance that he would face serious harm (being human rights deprivation and incidents of terrorisation) for reason of his Tamil ethnicity or his political opinion, imputed or otherwise. In this way any broader claims based on the situation for Tamils in Sri Lanka was addressed.
The applicant’s claim in the part of the interview relied on by the applicant was not a claim about detention and mistreatment by paramilitary groups (any more than it was a claim about being harmed in any other way by the paramilitary groups). Rather it was a claim that they would identify him as a stranger and identify him to the Sri Lankan army who would harm him as a Tamil who may be an LTTE supporter. As was clear from the adviser’s submissions, it was the Sri Lankan army and the authorities that the applicant claimed to fear. The reviewer considered the claims in this respect but concluded that the applicant would not be imputed with the political opinion of an LTTE supporter by the Sri Lankan authorities. The IMR was clearly of the view that even if paramilitary groups did bring him to the attention of the Sri Lankan authorities (particularly the Sri Lankan army) he would not be of any interest to them. Thus, if a distinct claim arose in the terms pleaded in the amended application (as distinct from the suggested claim to fear harm from paramilitary groups consisting of detention and interrogation), any such claim was subsumed in a finding of greater generality in the sense considered in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184.
Beyond this, it has not been established that a claim that the applicant would be detained and harmed during that detention by paramilitary groups clearly arose on the material before the reviewer.
The ground relied on by the applicant has not been established. Accordingly the application should be dismissed.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 12 December 2012
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