SZRCI v Minister for Immigration
[2012] FMCA 343
•19 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRCI v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 343 |
| MIGRATION – Independent merits review of refugee claims of offshore entry person – Tamil refugee from Sri Lanka – assessment of risk that investigation of family links to LTTE would involve serious harm – prospects of obtaining national ID card after long absence – whether IMR findings illogical and not based on evidence – no errors of law identified – application dismissed. |
| Migration Act 1958 (Cth), ss.36(2), 46A, 91R(1)(b), 91R(2), 476, 477(2) |
| Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, [2010] FCAFC 108 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577, [2010] FCAFC 159 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402, [2003] FCAFC 231 SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58 SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26 SZQPA v Minister for Immigration & Anor [2012] FMCA 123 SZQVI v Minister for Immigration & Anor [2012] FMCA 222 |
| Applicant: | SZRCI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | RON WITTON, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 191 of 2012 |
| Judgment of: | Smith FM |
| Hearing date: | 19 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 19 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Ower |
| Solicitors for the Applicant: | Legal Aid Commission of NSW |
| Counsel for the First Respondent: | Mr J A C Potts |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 191 of 2012
| SZRCI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| RON WITTON, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived as an illegal entrant to Australia by boat at Christmas Island on 4 November 2010. He presented documents showing that he had been recognised in India as a Sri Lankan refugee before coming to Australia. He made claims to fear persecution if he were to return to Sri Lanka. He also claimed not to have rights of return to India.
His refugee claims were presented at an entry interview, and in a statement submitted in support of an application for a Refugee Status Assessment (the “RSA”) by the Department of Immigration, under procedures established by the Minister to receive recommendations for the purposes of exercising discretions under s.46A of the Migration Act 1958 (Cth) and for other purposes under that Act. A negative assessment of his eligibility for a protection visa was made on 20 April 2011, and the same recommendation was made in a report dated 17 December 2011 by Dr Witton, who performed a merits review under the same procedures (the “IMR”). In the course of the RSA and IMR procedures the applicant was represented and assisted by Florin Burhala Lawyers of Melbourne.
Essentially, the RSA assessor and Dr Witton accepted the background circumstances presented by the applicant, and it appears to me that Dr Witton fairly, and sufficiently for present purposes, summarised his claims in the course of his report:
50.On the basis of the claimant’s evidence, the reviewer accepts:
·that the claimant was born in [city], in northern Sri Lanka, in 1988
·that at age 2 in 1990 his family took him with them to India where they stayed until 1993
·that at age 11 in 1999 he returned to India with his grandmother and stayed there until at age 22 he departed for Australia in 2010
·that in 1999 two of his sisters joined the LTTE and have been missing since the final escalation of the Sri Lankan conflict in 2008‑2009 and may be presumed to have died
·that prior to his departure to India in 1999, he and his parents were questioned by the authorities about the whereabouts of his sisters
·that one of his cousins returned from India prior to the end of the Sri Lankan civil war and was killed in 2006 as a result of riding his bicycle over a claymore mine
·that his parents and his married elder brother and two married younger sisters live in Sri Lanka
·that he gained some schooling in India and worked as a mason
·that he has no national ID card
51.The reviewer has considered his claims relating to
·the claimant’s young age,
·his being a Tamil,
·his being a person who fled Sri Lanka to avoid LTTE conscription and SLA assault,
·all Tamils being suspected of LTTE sympathy,
·his family’s LTTE association and ongoing punishment,
·his parents having been harassed and beaten by the SLA,
·his parents being in an LTTE area,
·his brother being under constant watch,
·his illegal departure,
·his age,
·his being a failed asylum seeker,
·his having spent time in India and Australia,
·his not being able to account for his whereabouts for the last 5 years,
·SLA questioning involving torture and severe harm.
Dr Witton’s report was notified to the applicant on 21 December 2011, and his present application was filed on 27 January 2012. The time limit on this Court’s jurisdiction under s.477(2) of the Migration Act does not arise, since the IMR report is not itself a ‘migration decision’, and the Court’s jurisdiction attaches only in relation to a threatened future decision of the Minister or his officers relying on the report (see SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26).
The applicant’s amended application seeks relief by way of declaration that Dr Witton’s report was “not made in accordance with law, by reason of the grounds of this application”, and an injunction restraining the Minister, by himself or by his Department, from relying on Dr Witton’s recommendations. It is not in dispute that the Court would have power to grant relief of this kind, in accordance with the High Court’s reasoning in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319.
Dr Witton’s report
In his report, Dr Witton referred to the definition of ‘refugee’ in the Refugees Convention, as given effect for the purpose of the Migration Act by s.36(2). He recited the applicant’s refugee claims, and made reference to extensive country information which was cited by the applicant’s agent in relation to the situation of displaced Tamils in Sri Lanka subsequent to the defeat of the LTTE insurgency. He then recited the additional evidence given at an interview held by him in the presence of the applicant’s agent on 6 December 2011.
Dr Witton then, under the heading “Country Information”, said:
34.The reviewer has had regard to country information cited and specifically referred to in the delegate’s decision as well as material submitted by the claimant and his adviser and other relevant material consulted by the reviewer and discussed with the claimant at the interview, and herein cited.
He then expressly referred to sources concerning the current situation in Sri Lanka, referring in particular to the UNHCR eligibility guidelines for assessing the claims of Tamil asylum seekers, which recommended that claims by asylum seekers from Sri Lanka should be considered on their individual merits, and suggested that there were some categories of “potential risk profiles”, including “persons suspected of having links with the Liberation Tigers of Tamil Eelam (LTTE)”. Reference was also made to other reports concerning the current observance of human rights requirements by security agencies of Sri Lanka.
Dr Witton also referred to other information, under the heading “The current situation for returned Tamil asylum seekers”:
42.Information on the current situation for returned Tamil asylum seekers in Sri Lanka is inconsistent. Recent information from human rights organisations indicate that returnees have disappeared, been detained, assaulted, and in some cases killed. Diplomatic advice from the Danish and British governments, however, indicates that aside from normal procedures for questioning returnees, Tamils are not at any particular risk on return to the country, unless suspected of a crime or LTTE membership.
43.Amnesty International’s (AI) Sri Lanka researcher, Yolanda Foster, stated in June 2011 that: ‘the government of Sri Lanka have a history of arresting and detaining rejected Sri Lankan asylum seekers upon their return and we are aware of cases of people being tortured’. In June 2011 the United Kingdom had returned 26, mostly Tamil, Sri Lankan asylum seekers to the country, whereupon they were immediately detained for questioning. In September 2010, AI Australia reported that in the previous year, three Sri Lankan returnees were arrested and physically and mentally tortured. In October 2010 the Refugee Action Coalition of New South Wales reported that three Tamil asylum seekers who voluntarily returned to Sri Lanka were arrested upon arrival and had effectively ‘disappeared’.
44.DFAT advice provided in July 2010 on the treatment of returned failed asylum seekers stated that it was aware of one returnee who claims to have been detained and mistreated in Sri Lanka on arrival and claims he continues to be harassed by authorities, who accuse him of having links to the LTTE. The Advice also notes a Canadian case in which a returnee was interrogated over a 25 hour period and threatened before being released on bail.
45.Articles published by the Australian Broadcasting Corporation (ABC) and Special Broadcasting Service (SBS) in May 2010 report on claims by refugee advocates that at least nine asylum seekers returned to Sri Lanka by the Howard government were killed, and those sent back from mid‑2009 have been held in police custody and sometimes assaulted.
46.A Danish Immigration Service fact‑finding mission reported in 2010, however, that returning Tamils were not at any heightened risk of scrutiny from the authorities:
Asked about the profile of groups who could be screened out for further investigation, IOM replied that there is no particular profile and that Sri Lankans travelling on Emergency Travel Documents, could undergo additional questioning. Sri Lankan nationals who travelled abroad on false documents as well as irregular immigrants will be screened out for questioning by CID upon their return. The procedure has within the last year become more relaxed, but checking is still ongoing. Most of the returnees end the interviewing process within 2‑3 hours.
A diplomatic mission said that the vast majority of Tamils returning at the moment are facing a minimal risk for undergoing a scrutiny at the airport. The source commented that the way people will be screened today seem to be the result of improved intelligence, also exchange of intelligence between countries in Asia. People with a clear LTTE‑profile or people suspected of money transfer would be detained for further investigations. According to the source there is in general no difference in the way Tamil and Sinhalese people are treated at the airport…
47.The 2011 UK Home Office Country of Origin report on Sri Lanka quotes similar advice received from the British High Commission in Sri Lanka on the treatment of returnees:
The British High Commission in Colombo routinely monitors the arrival of returnees at Bandaranaike International Airport in Colombo. All Sri Lankan returnees, regardless of which country they are returning from, go through a process that has previously been reported by this mission whereby they are spoken to by representatives from the Department of Immigration & Emigration (DIE), the State Intelligence Service (SIS) and the Criminal Investigations Department (CID).
Returnees are able to pass through the airport after routine checks are carried out on their identity and documentation.
48.The 2011 UK Home Office Sri Lanka report also quotes (at 25.36) a letter of 30 August 2010 received from the British High Commission in Sri Lanka that notes the effect on airport procedures of the large numbers of Sri Lankans who have returned to Sri Lanka:
At the beginning of 2010, partly due to the large numbers of Sri Lankans being returned from around the world and causing logistical problems, CID procedures were relaxed in that they no longer had to detain returnees until written confirmation was received from the local police. In general, the situation regarding all returnees regardless of race or creed appears to be more relaxed than was reported following the Fact Finding Mission. There is though still inconsistency in the way individuals are dealt with.
(citations omitted)
Dr Witton then, under the heading “Findings and Reasons”, summarised the applicant’s evidence and refugee claims in the paragraphs I have quoted above. Dr Witton then addressed those claims in a global manner, essentially by examining the prospect of the applicant suffering serious harm for any reason in the course of being “investigated and even interrogated by the Sri Lankan authorities to determine whether he is considered a security threat”, taking into account all of the factors to which the applicant had referred as the basis of his fears.
Several of the grounds of review which I shall address below essentially attack the logicality and compliance with law of Dr Witton’s reasoning in the following paragraphs:
52.In the light of the independent country evidence set out above and discussed with the claimant, the reviewer accepts that upon return to Sri Lanka, he may well be investigated and even interrogated by the Sri Lankan authorities to determine whether he is considered a security threat. The reviewer accepts that those considered to be linked to the LTTE are considered to have a risk profile. The reviewer has considered the news reports tendered by the claimant in the interview and accepts that the authorities fear those abroad have been LTTE supporters and that they may suspect that the claimant is a failed asylum seeker.
53.In considering whether there is a real chance the claimant, should he return, suffer serious harm from any interrogation or investigation by the Sri Lankan authorities, the reviewer has taken into consideration that many thousands of Tamils have returned from overseas (see 2011 UK Home Office Sri Lanka Report, 25.36, cited above at paragraph 48) and that while there are occasional reports of such people being interrogated and detained and indeed that some have been harshly treated, their numbers remain relatively extremely low. The reviewer has also taken into consideration the fact that very many Tamil families, and particularly those that resided in LTTE areas, could be considered to have had “links” to the LTTE. This arises from the fact that during the civil war, Tamil families that resided in LTTE areas were commonly required to provide family members as recruits to the LTTE, families and businesses were required to make donations and assist the LTTE, and allegiance to the LTTE was required to be demonstrated on ceremonial occasions. The reviewer finds as significant that the vast majority of the many thousands of Tamils, the majority of which would have had such “links” to the LTTE, who were detained in camps for investigation by the Sri Lankan authorities following the end of the civil war, have been released, indicating that such links alone do not seem sufficient to constitute proof of LTTE allegiance.
54.In the particular circumstances of the claimant, the reviewer finds sufficient determinative factors that lead to a finding that there is not a real chance that his background is such that it would contribute to a conclusion by the Sri Lankan authorities that he is a LTTE supporter and that he would suffer serious harm either because of his background or through any interrogation and investigation by the Sri Lankan authorities into his background. His particular circumstances in this regard are as follows.
55.The reviewer finds as significant and determinative that the claimant was very young when he left Sri Lanka and has spent much of his life out of the country and was never personally involved with LTTE.
56.The reviewer accepts that the authorities would be aware that he had two sisters who were LTTE members and who have disappeared presumed killed in the conflict. The reviewer also accepts that he and his father were questioned in 1999 about his sisters’ relationship to the LTTE and that a record of such questioning may still exist. However, the reviewer has taken into consideration the fact discussed above that the LTTE very commonly required Tamil families to provide children to join the LTTE and so a large number of Tamil families have had family members who were recruited, either voluntarily or by force, into the LTTE. The reviewer has also taken into consideration that, in the context of the then on‑going civil war, family members who had such links, such as the claimant and his father, would often have been detained and interrogated, sometimes harshly, in order to determine whether the family held allegiance to the LTTE. However, with the end of the civil war, the reviewer finds that such past family links would not now give rise to a real chance that the Sri Lankan authorities would consider the claimant to be an LTTE supporter or sympathiser.
57.The reviewer has considered the fate of the claimant’s cousin upon the cousin’s return to India but finds this has no relevance to the situation of the claimant in that the civil war was still in progress at that time and the news report tendered in evidence at the interview clearly establishes that his cousin was killed as a result of riding his bicycle over a claymore mine. The reviewer does not accept that he was killed by the authorities in this manner because of his family association with the LTTE; rather the reviewer finds that his death was due to an accident.
58.The reviewer accepts that Tamils, such as the claimant, returning from overseas will face scrutiny as to whether they are LTTE supporters and the authorities may well assume that the claimant is a failed asylum seeker. The reviewer finds that the authorities may well become aware, or have information about, the claimant’s particular background including the fact that he is a young male Tamil, that he fled Sri Lanka to avoid LTTE conscription and conflict between the LTTE and the SLA, that he and his father had been questioned prior to their departure by the authorities with regard to his sisters’ LTTE involvement, that his parents had lived in a previous LTTE‑controlled area, that his brother remains under government surveillance, that the claimant left Sri Lanka illegally, that the claimant has spent time in India and Australia, but finds nothing in his background, either singularly or cumulatively, such that there is a real chance the authorities would, at the time of his arrival or in the reasonably foreseeable future, determine that the claimant has a profile of being an LTTE‑supporter.
59.In accepting that the claimant may be investigated and even interrogated on return, and that diplomatic advice indicates that Tamils are not at particular risk on return unless suspected of LTTE membership, the reviewer has considered whether such attention from the authorities while suspecting and before reaching a conclusion, might not amount to serious harm. The reviewer accepts that the claimant and his family have been harassed in the past when the authorities investigated the whereabouts of the claimant’s sisters. However, the reviewer finds that the situation currently is significantly different to that when the family relationship to the claimant’s sisters was investigated. This differential situation arises from the civil war having ended, that there are very large numbers of Tamils with varying levels of indirect family LTTE‑links currently returning to Sri Lanka, and the fact that there is nothing in the particular circumstances of the claimant’s own background such that he would already be suspected as having prior or current personal LTTE links or allegiance. That being so, the reviewer finds that there is not a real chance that any investigation on or after arrival into the claimant would amount to serious harm.
60.In sum, the reviewer is not satisfied, having taken all the factors discussed above into account, either singularly or cumulatively, that there is a real chance that the claimant’s background is such as to arouse a level of suspicion on the part of the authorities such that he will in the reasonably foreseeable future suffer serious harm upon return to Sri Lanka.
Dr Witton then, in paragraph 61, made findings addressing a specific concern that the applicant had raised about arriving in Sri Lanka without a national identity card. The applicant’s claim in this respect had not emerged in the course of his RSA statement, nor in the written and oral submissions of his agent, and was only fleetingly touched upon in the course of Dr Witton’s interview. The issue provides the focus of one of the applicant’s grounds of review.
The transcript in this respect shows:
INTERPRETER (THE APPLICANT): I went to India when I was young and I’ve been there for a long time, but if I go back I don’t have an identity to prove who I am and still in Sri Lanka though everything looks – officially, everything looks okay, but still there is kidnapping, still there is killing, still there is torture, so I am scared to go back.
DR WITTON: Okay. I mean, I think your identity would be very quickly established because of your family ties. I agree that Tamils quite often face what you are saying, occasional kidnapping and torture. The test, I have to think is, if there is a real chance that will happen to you. There is always a chance something can happen. There’s a chance I could be hit by a car this afternoon crossing the road, but in that case I have to think, is there a real chance, and I probably think no, it’s not a real chance, it’s just a possibility. So I have to think, is there a real chance you might be kidnapped and tortured by the authorities, given your background? And that is what I will have to think about.
At the end of the interview, in the course of the applicant’s agent’s oral submissions, she said:
MS GOULD: … So therefore our client’s brother should not be taken into the decision, which does not play a part and would affect our own client’s safety. Our client can’t go to that area. In fact, he can’t go to any area in Sri Lanka. The reason being, is he does not have a Sri Lankan identity card. He left Sri Lanka prior to the age of 18 years so he was never issued one. So as far as the Sri Lanka Army are concerned, the last five years, he has not possessed an identity card; his whereabouts have not been known. We questioned our client as to whether he could just simply state, well, he has been in India, and our client emphatically insists that they would not accept that, they would not believe that.
In respect of these concerns about the lack of an identity card, Dr Witton said, in his “Findings and Reasons”:
61.The reviewer accepts that the claimant would arrive in Sri Lanka without a national ID card. However, he would have travel papers and would easily be able to establish his identity through his family such that he could provide the necessary evidence for such a national ID card to be issued. The reviewer finds that he would be in the same situation of very many Tamils who were overseas at the time of their 18th birthday and can only apply for such a card upon their return to Sri Lanka.
Dr Witton then explained generally why he had arrived at a conclusion that the applicant did not satisfy the definition of refugee:
62.The reviewer accepts that the claimant fears harm from the army and its supporters in Sri Lanka. However, the independent country information discussed with the claimant indicates that the post‑war situation is such that human rights abuses are declining and that the majority of people are beginning to live relatively normal, albeit post‑conflict, lives. In this regard, the interviewer notes that his family are living safely in Sri Lanka, albeit under the level of constant surveillance experienced by all Tamils in post‑conflict Sri Lanka, and finds no reason why the claimant would not do so also. The reviewer accepts that his parents and, brother have experienced a level of continued surveillance by the Sri Lankan authorities, described by the claimant as “harassment”, presumably as a result of their having a family member remaining abroad, but the reviewer has had no evidence put to him that they have suffered any harm as a result of this attention.
63.The reviewer has also considered the country information submitted by the adviser with regard to incidents of human rights deprivation and incidents of the terrorisation of Tamils in Sri Lanka. The reviewer accepts that such events continue to occur. However, the reviewer finds nothing in the particular circumstances of the claimant such that his situation would give rise to there being a real chance he would face such serious harm for reason of his Tamil ethnicity or his political opinion, imputed or otherwise. The reviewer accepts that Tamils are a minority population in Sri Lanka and face discriminatory practices in many areas of life. However, the claimant has not presented evidence that he has suffered in any way related to such discriminatory practices and the reviewer finds nothing in the particular circumstances of the claimant such that his situation would give rise to there being a real chance he would face a level of discrimination such that it would amount to persecution for reason of his Tamil ethnicity.
64.In conclusion, the reviewer is not satisfied that if the claimant returns to Sri Lanka, he would in the reasonably foreseeable future face a real chance of persecution by reason of his ethnicity or political opinion (real or imputed). The reviewer is not satisfied that if he returns to Sri Lanka he would face a real chance of persecution for reason of membership of a particular social group or for any other Convention reason. The reviewer has also considered the claimant’s circumstances cumulatively, and in the light of the findings made above, finds there is no real chance, that the claimant will suffer serious harm for a Convention reason. The reviewer is not satisfied the claimant satisfies the definition of a refugee as set out in the Refugee Convention.
65.I find that the claimant, [the applicant], does not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958.
The Grounds of Review
The applicant had the benefit of being represented throughout the course of the proceedings by legal representatives, and his counsel today relied on four grounds set out in the amended application:
1.The Second Respondent made a jurisdictional error in that his decision was irrational, illogical and/or unreasonable. Specifically, the finding that there was no real risk of persecution, was illogical, irrational or unreasonable especially in the light of his findings at [52], [63] and the first sentences of [56] and [58] that:
a.The applicant “may well be investigated and even interrogated by the Sri Lankan authorities to determine whether he is a security threat” [52];
b.“those considered to be linked with the LTTE are considered to have a risk profile” [52];
c.“the authorities fear those abroad have been LTTE supporters and that they may suspect the claimant as a failed asylum seeker” [52], [58];
d.“the authorities would be aware that he had two sisters who were LTTE members and who have disappeared presumed killed in the conflict” [56] and
e.“he and his father were questioned in 1999 about his sisters’ relationship to the LTTE and that a record of such questioning may still exist” [56] and
f.“The reviewer has also considered the country information submitted by the adviser with regard to human rights deprivation and incidents of terrorisation of Tamils in Sri Lanka. The reviewer accepts that such events continue to occur” [63].
2.The Second Respondent misapplied the “real chance” test.
Particulars
a.Despite accepting that the Sri Lankan government was likely to harm those it suspected of being LTTE sympathisers, the Second Respondent required the applicant to prove something more than the likelihood that the government would suspect him in this way.
3.The Second Respondent’s finding at [61] that the applicant “would be in the same position of very many Tamils who were overseas at the time of their 18th birthday and can only apply for such a card (national ID card) upon their return to Sri Lanka” was not available on the evidence and was an error of law.
4.The Second Respondent’s finding at paragraph 53 that “while there are occasional reports of such people (returning Tamils) being interrogated and detained and indeed some have been harshly treated, their numbers remain relatively low” (emphasis added) was not available on the country information.
Ground 1
In his written and oral submissions, counsel for the applicant referred to Dr Witton’s findings at the start of paragraphs 52 and at 56 and 58, which accepted that the applicant would be identified by the Sri Lankan authorities on his arrival and subsequently, and that the authorities would be aware of his sisters’ circumstances and of his whole family background including his absence from Sri Lanka from the age of 11. Counsel pointed out that Dr Witton also accepted that, as a result of this background, the applicant “may be investigated and even interrogated on return”.
Counsel for the applicant accepted that Dr Witton showed at the start of paragraphs 53 and at 59, that he was required to assess the risk that in the course of that investigation and ‘even interrogation’, or as a result of that process, the applicant would face a real chance of ‘being harshly treated’ or suffering ‘serious harm’, and that these references showed an understanding of the tests of persecution raised by ss.36(2) and 91R(1)(b) and (2) of the Migration Act. Counsel accepted that Dr Witton thus had correctly identified an issue required to be addressed at the heart of the applicant’s refugee claims based on his personal and family history.
However, counsel submitted that the conclusion drawn by Dr Witton, expressed in paragraph 54 and in the last sentence at paragraph 59 and summarised in paragraph 61, was an illogical conclusion. It was illogical because a finding of the absence of a real chance of persecution was inconsistent with his own findings that the applicant would be “investigated and even interrogated”. The conclusion was therefore also not based on evidence accepted by the reviewer. It was therefore submitted that the tests of unreasonableness in administrative law, as recently explained by the High Court in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, were satisfied.
The judgments in the High Court in SZMDS have been analysed in the Full Court as raising a test of whether there was a rational and probative basis for an adverse assessment upon which reasonable minds might differ (compare Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577, [2010] FCAFC 159, Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, [2010] FCAFC 108, and SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58).
Ultimately, as I understood the applicant’s counsel’s submissions as explored in the course of exchanges with the bench, this error was demonstrated in the present case by an absence of findings by Dr Witton as to the content of the “investigation and even interrogation [of the applicant] on return”, which Dr Witton had envisaged, before he had arrived at a conclusion that it was unlikely to include or give rise to a degree of harm amounting to persecution.
I accept that there is an absence of detailed reasoning in that respect. However, in my opinion, the law did not require such reasoning to be included, and an unreasonableness of his conclusion is not established nor made apparent by its absence.
It was Dr Witton’s task to assess very intangible issues as to the future risks of serious harm facing the applicant in the situation accepted by Dr Witton. Dr Witton’s expressed reasons show that he clearly put this issue at the forefront of his thinking in a proper fashion, and that he then arrived at a conclusion which was, in my opinion, open to him on the evidence. I am not persuaded that his reasoning discloses illogical reasoning before arriving at that adverse assessment as to future risk, nor that it was not based on evidence before him, including both the applicant’s evidence and all the country information which he expressly identified and which otherwise can be assumed to have generally informed his assessment (cf. SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402, [2003] FCAFC 231, which I quote below).
Counsel for the applicant recited, as an illustration of reasoning which he invited me to adopt, the judgment of Driver FM in SZQPA v Minister for Immigration & Anor [2012] FMCA 123. However, it appears to me that his Honour’s reasoning, whether correct or incorrect, was not based on application of principles found in SZMDS, but rather, as is shown at [29] and [34], was based on his opinion that the reviewer in that case “asked himself the wrong question and thereby fell into error”. I am unable to identify in the present case an indication that Mr Witton asked himself a ‘wrong question’, and it appears to me that he properly focused on the right question.
I am therefore not persuaded that the ground of error raised by Ground 1 is established.
Ground 2
Ground 2, as presented in the written and oral submissions of counsel for the applicant, focused upon the same reasoning by Dr Witton as was attacked under Ground 1. He submitted that the reasoning by which Dr Witton concluded that there was not a real chance that the investigation and interrogation of the applicant on his return would not carry a real chance of serious harm was infected by implicit legal error. That error was a misunderstanding of what has come to be known as the ‘real chance test’. This test, of course, has well entrenched jurisprudence, which was referred to in a well‑known passage in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 571, citing Mason CJ in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379:
“Well‑founded” fear of persecution for a Convention reason
An applicant for refugee status must also establish that his or her fear of persecution for a Convention reason is a “well‑founded” fear. This element adds an objective requirement to the requirement that an applicant must in fact hold such a fear. In Chan, Mason CJ said:
“If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.”
In the same case, McHugh J said that a real chance of persecution excluded a far‑fetched possibility of persecution but that as little as a 10 per cent chance of persecution may constitute a well‑founded fear of persecution.
Chan is an important decision of this Court because it establishes that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term “well‑founded fear” is to invite error.
(citations omitted)
Notwithstanding the High Court’s suggestion that “it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding in the statutory term”, decision‑makers in recent decades have continued to use the language of Chan without error being identified in their references to the ‘real chance test’.
In the present case, Dr Witton’s “Findings and Reasons” which I have extracted above are replete with references to the ‘real chance test’, and his use of that phrase as a descriptor of the degree of risk of serious harm which he was required to address. Considering the context in which these references appear in his report, I would not draw any inference that he reasoned under a misapprehension as to the degree of possibility of risk less than probable, which the Convention reference to well‑founded fear raises. Moreover, counsel for the present applicant did not attempt to identify any passage in the report suggestive of such an error.
In effect, counsel’s submissions were only a different way of presenting the first ground, by inviting me to infer an error of law in relation to the real chance test from unreasonable or illogical reasoning given for an adverse conclusion. However, for the above reasons, I do not consider that there is any manifest unreasonableness which invites that inference.
Counsel’s submissions also took me to passages in the transcript, which were suggested to reveal a misapprehension by Dr Witton of the real chance test. In particular, he took me to a passage at page 11 which I have already extracted above, and to another passage at page 13 of the transcript, where he said:
DR WITTON: Look, this material I am accepting that the Sri Lankan government is very suspicious of people returning from overseas. I accept that if they think someone is sympathetic to the LTTE they will not treat that person well. What I have to think about is whether your background would fit the sort of person that the government would be not only suspicious of but wish to harm because of that suspicion.
There are two difficulties with this argument directed to show evidence of error of law affecting Dr Witton’s adverse conclusions expressed in his report. First, I am unable to find in the transcript any evidence of misapprehension of law on the part of Dr Witton. More importantly, I would not draw an inference from reading a transcript of an earlier interview that Dr Witton remained under any misapprehension of law when he wrote his report, particularly, in view of his prima facie correct appreciation of law show in the language he in fact used when writing his report.
For all of the above reasons, I am not satisfied that Ground 2 has raised any error of law justifying the grant of the relief sought in this application.
Ground 3
Ground 3 challenged Dr Witton’s finding in paragraph 61 which I have extracted above, which answered the applicant’s statements made in the course of his evidence at interview that “I didn’t possess a national identity card” and “I don’t have an identity to prove who I am”.
As I have noted, these claims were not elaborated by any evidence or submission or reference to country information, presented by the applicant or his agent. In particular, the agent did not attempt before, during, or after, the interview to support her oral submission that because the applicant currently does not possess an identity card “he can’t go to any area in Sri Lanka”.
However, before me, counsel for the applicant developed an elaborate contention that Dr Witton’s findings in paragraph 61 of his report, in particular, that the applicant would be “easily able to establish his identity … [and] provide the necessary evidence for such a national ID to be issued”, were not open to him on the evidence before him.
Counsel for the applicant’s written submissions were:
Ground 3 ‑ No evidence point re lack of ID card
16.The finding made at paragraph [61][6] of the second respondent’s decision was an assumption not available on the evidence. No reference was made to country information to support the finding. There was extensive country information before second respondent on the topic of obtaining a National Identity Card. Relevantly, this information was to the following effect:
[6] AB 188
·Returnees can either return on a national passport or on an Emergency Travel document (ETD) which is considered proof of identity in the country of departure[7]. Returning on an ETD is more time consuming for the individual because the Department of Immigration and Emigration (DIE) can only check personal data in relation to the passport[8].
[7] Citation of Human Rights and Security issues Concerning Tamils in Sri Lanka, Report from Danish Immigration service’s fact‑finding mission to Colombo dated October 2010 in Sri Lanka Country of Origin Information (COI Report, July 2011 Tab 18 p.150 [25.37]
[8] Footnote 7 above and Danish Immigration Service; Human Rights and Security Issues concerning Tamils in Sri Lanka, October 2010 Tab 13 p.52
·It ‘normally’ takes 6 months to obtain a replacement National Identity Card (NIC) and in the meantime the individual will be able to identify themselves by their ETD[9]. This is problematic because the ETD is only valid for a maximum of 3 months[10].
[9] Citation of statement by IOM in Sri Lanka Country of Origin Information (COI) Report, July 2011 Tab 18 p.148 [25.32]
[10] IOM statement referred to above as cited in Report of the Foreign & Commonwealth Office information gathering visit to Colombo, Sri Lanka 23‑29 August 2009 Executive summary paragraphs 1.48; 1.54‑1.59 in Sri Lanka Country of Origin Information (COI) Report, July 2011 Tab 18 p.148 [25.32]
·An application for a new National Identity Card (NIC) can be based on a birth certificate and an Emergency Travel Document (ETD)[11]. If a person does not have their birth certificate they must get a new one from the Department of the Registrar General in Colombo[12]*No information was provided on what was necessary to obtain a birth certificate.
[11] Citation of Norwegian Embassy statement reference in Human Rights and Security issues concerning Tamils in Sri Lanka, report from Danish immigration service’s fact‑finding mission to Colombo Sri Lanka 19 June to 3 July 2010 in Sri Lanka Country of Origin Information (COI) Report, July 2011 Tab 18 p.154 [26.09]
[12] Citation of Norwegian Embassy statement reference in Human Rights and Security issues concerning Tamils in Sri Lanka, report from Danish immigration service’s fact‑finding mission to Colombo Sri Lanka 9 June to 3 July 2010 in Sri Lanka Country of Origin Information (COI) Report, July 2011 Tab 18 p.154 [26.09]
·Another document necessary to support an application for a new NIC is a Residence certificate issued by a Grama Seveka (local official) which is a letter endorsed by their stamp[13].
·A person who originally resided in the North will likely have to go to their area of origin to obtain a certificate from their local Grama Seveka, however it may be possible for someone to stay in any location at a fixed address long enough to build a relationship with a Grama Seveka there who will provide them with a certificate[14] [15] [16].
·If the returnees have not stayed in the area within the last 12 months, or if the Grama Sevaka would be a new person, family members, relatives and friends known to the returnee can assist in providing evidence to the Grama Sevaka[17].
·This likely need to travel creates a ‘catch 22’ because returnees need their NIC to be able to travel back to their area of origin in order to procure the supporting document necessary for their application for a new N1C[18] [19].
·It may be possible for someone to stay in any location at a fixed address long enough to build a relationship with a Grama Seveka there who will provide them with a certificate, however this depends completely on the Grama Seveka and their willingness to do so[20] [21] [22].
·Without an NIC evidence supports that a person faces a serious risk of problems or arrest at checkpoints which are common both in Colombo and along roads to the North[23].
·Beyond these risks, it is a legal requirement to produce identification upon request by a commissioner or any prescribed officer and failure to do so can result in the arrest of that person under the Emergency Powers Act[24].
When the above information is taken into account and, given the lack of evidence to support of the second respondent’s assumptive finding, it is clear that the second respondent made a jurisdictional error in likening the applicant’s position to being no different from “very many Tamils who were overseas at the time of their 18th birthday”.
[13] Citation of statements by the British High Commission, IOM and ‘other overseas missions’ in Sri Lanka Country of Origin Information (COI) Report, July 2011 Tab 18 p.154‑155 [26.09]
[14] Citation of statements by the British High Commission, IOM and ‘other overseas missions’ in Sri Lanka Country of Origin Information (COI) Report, July 2011 Tab 18 p.155 [26.10]
[15] Citation of statements by the British High Commission in Sri Lanka Country of Origin Information (COI) Report, July 2011 Tab 18 p.155 [26.09]
[16] Citation of Sri Lanka Registration of Persons Department, 22 September 2010 in Sri Lanka Country of Origin Information (COI) Report, July 2011 Tab 18 p.153 [26.06]
[17] Citation of statement by IOM in Sri Lanka Country of Origin Information (COI) Report, July 2011 Tab 18 p.154 [26.09]
[18] Citation of statement by IOM Sri Lanka Country of Origin Information (COI) Report, July 2011 Tab 18 p.154 [26.09]
[19] Citation of Report of the Foreign & Commonwealth Office information gathering visit to Colombo, Sri Lanka 23‑29 August 2009 Executive summary paragraphs 1.48; 1.54‑1.59 in Sri Lanka Country of Origin Information (COI) Report, July 2011 Tab 18 p.148 [25.32]
[20] Citation of statements by the British High Commission, IOM and ‘other overseas missions’ in Sri Lanka Country of Origin Information (COI) Report, July 2011 Tab 18 p.154‑155 [26.09]
[21] Citation of statement by the British High Commission dated 18 August 2008 in Sri Lanka Country of Origin Information (COI) Report, July 2011 Tab 18 p.155 [26.09]
[22] Citation of statement by IOM in Sri Lanka Country of Origin Information (COI) Report, July 2011 Tab 18 p.154 [26.09]
[23] Citation of letter from the British High Commission dated 12 January 2010 in Sri Lanka Country of Origin Information (COI) Report, July 2011 Tab 18 p.139 [25.08]
[24] US Department of State report 2010 and letter from the British High Commission 12 January 2010 in Sri Lanka Country of Origin Information (COI) Report, July 2011 Tab 18 p.139 [25.07‑08]
In his oral submissions, I was taken to what both counsel said were the most pertinent parts of a tender of lengthy extracts from country information, which formed part of the country information of which Dr Witton can be assumed to have been aware. This included paragraphs from a lengthy report from the Danish immigration service, dated October 2010, which refers to returned asylum seekers travelling either on a Sri Lankan passport or an emergency travel document (“ETD”). This is explained at page 52 in two paragraphs:
VIISituation for Tamils who have returned/have been returned from abroad
VII.1 Entering procedures at Colombo airport, including security measures
As regards, the authorities’ entering procedures for returnees, including returned failed asylum seekers in the Colombo Airport, Mr. W. A. Chulananda Perera, Acting Controller General, Department of Immigration and Emigration (DIE) explained that the returnee can enter the Sri Lankan border with either a national passport or an Emergency Travel Document issued by the Sri Lankan Embassy. If the returnee enters with a national passport, DIE can check the data in a database. Entry with an Emergency Travel Document does not give this possibility. However, an Emergency Travel Document is considered a proof of identity established in the country of departure. DIE registers the details of all returnee, including travel documents, flight numbers and country of return in a register that all law enforcement agencies are given access to.
Mr. Perera said that if an Emergency Travel Document is issued, the Sri Lankan Embassy in the returning country informs DIE about the arrival. DIE questions the returnee about the reason for leaving the country, as well as they clarify citizenship and identity. DIE also checks if the returnee is on a list of wanted persons for court orders, forged documentation etc. If it is the case the deportee is handed over to Criminal Investigation Department (CID).
Counsel for the applicant then gave particular weight to a passage at page 55 of this report:
VIIIID Cards
VIII.1 Returned asylum seekers
The Norwegian embassy informed the delegation that for a returnee who had lost his/her NIC it would not be a problem to obtain a new one. The application for a new NIC can be based on his/her birth certificate and the ETD travel document. If the returnee has lost his/her birth certificate a new copy can be obtained from the Department of the Registrar General in Colombo which is the central registry for all documents.
IOM informed the delegation that returnees who apply for a substitute NIC will have to be verified by the Grama Sevaka/Niladhari (local registrar) in their place of origin. If the returnees have not stayed in the area within the last 12 months, or if the Grama Sevaka would be a new person, family members, relatives and friends known to the returnee would be able to assist in providing evidence to the Grama Sevaka. It would normally take 6 months to obtain a NIC. In the meantime, the returnee would be able to identify himself on the basis of his Emergency Travel Document and/or his birth certificate. If the returnee has a driving license, he/she would already be registered in the system and the process to get a new NIC would be easier.
The spokesman from the British High Commission mentioned that returnees from abroad are able to obtain a new/replacement NIC. The returnee should obtain a copy birth certificate from the Grama Sevaka in their area of origin or through the central registry in Colombo, and must also obtain confirmation of residence from their Grama Sevaka. The spokesperson from the British High Commission informed the delegation that in general, local records have been maintained during the war.
(footnote omitted)
Counsel’s short argument, as I understood it, was that the information that “it would normally take 6 months to obtain an NIC” found in the middle of the second paragraph of the above extract, in combination with other information from a different report suggesting that ETD travel documents could be used as identity documents only for three months after arrival, would leave the applicant with a hiatus period of three months when he would have no identity document which would be acceptable to Sri Lankan authorities. He submitted therefore that the evidence before Dr Witton showed the converse than that the applicant could ‘easily’ obtain a national ID card.
The suggested information about ETDs having limited usefulness as identity documents is found in a 169 page United Kingdom Border Agency Country of Origin Information Report, dated 1 July 2011. In the course of discussing evidence about returned failed asylum seekers, the report says inter alia:
25.29In particular, in reply to the question on what procedures were in place to identify asylum seekers at the airport and those who are wanted by the authorities the same source425 reported:
“The DIE spokesman said that DIE recorded the details of all returnees in a register (logbook). Returnees were then referred to the Criminal Investigations Dept (CID), or sometimes the State Intelligence Service (SIS), without any harassment. If there was a passport, DIE could check the person’s details on their database, but this was not possible with an Emergency Travel Document (ETD). If there was an ID card number, checks could be done referring to the original passport. It was possible to establish whether a person had left the country illegally by looking at the passport as it would lack the embarkation stamp, but this would not be possible with an ETD. ETDs were considered full official documents issued by the Sri Lankan authorities. They were a proof of identity and were valid to go through any checkpoints. ETDs were stamped and returned to the returnee. The role of DIE ended when they passed returnees to CID. …
___________________
425 Foreign & Commonwealth Office (FCO), Report of the FCO information gathering visit to Colombo, Sri Lanka 23‑29 August 2009, 22 October 2009 date accessed 6 January 2010, Executive Summary, paragraphs 1.4; 1.5; 1.6; 1.10; 1.13
…
25.32The FCO October 2009 report428 also reported on whether specific factors would affect the way an individual is treated at the airport. In particular the report recorded:
…
“The IOM representative said that people encountered problems travelling inland if they did not have an ID card. They faced security checks, as the National Identity Card (NIC) was the only document that could prove identity. The Emergency Travel Document could be used, but only for a maximum of three months and they must then apply for an NIC. This could cause problems, as they could not apply for the NIC in Colombo if they originated from Jaffna, Kilinochchi, Mannar, Mullaitivu and Vavuniya, as they must receive Grama Seveka [local official] authority.”
___________________
428 Foreign & Commonwealth Office (FCO), Report of the FCO information gathering visit to Colombo, Sri Lanka 23‑29 August 2009, 22 October 2009 date accessed 6 January 2010, Executive Summary, paragraphs 1.48; 1.54-1.59
In response to this argument, counsel for the Minister submitted that the paragraph from the United Kingdom Border Report in relation to ETD identity cards, also needed to be read with a detailed description of identity cards found in the same report. That information was based on information obtained from a Sri Lankan government website:
IDENTITY CARDS
26.06The latest requirements for applications for new identity cards (IDs); Applications for corrected IDs (CI) and applications for duplicates for lost IDs (LI) are available from this weblink to the relevant section of the Registration of Persons Department444 (accessed on 20 September 2010), which recorded:
“A person who wants to apply for a new, correction or a duplicate ID will have to obtain an application form from the GN [Grama Niladharis, i.e local government officials] of the area, and complete it with the required stamps and photographs and hand it back to the GN who will certify them and forward to the Department through the Divisional Secretary (DS). In the case of school students the applications are to be forwarded through the respective school principals and in the case of estate employees applications are to be forwarded through respective estate superintendants.
“Once the application is received in the Department if it is in order, the applicant will be registered, the ID prepared and will be sent to the DS to be delivered to the applicant through the GN.
“The Department also conducts a one day service for issue of ID cards whereby an applicant can personally handover the perfected application certified by GN and the DS, to the one day counter in the Department and obtain the ID card on the same day. For this the Department charges a service fee of Rs.500/- per ID card.
“The Department also conducts district mobile offices at Divisional Secretariat level as a service for those who live in remote areas of the country to enable them to handover their perfected applications direct to the officers of the Department and also to attend to their problems with regard to obtaining ID cards.
“Institutional mobile services are also conducted by the Department when requests are received from different agencies to do so to facilitate the employees of such institutions to submit their applications for new, corrected or duplicate IDs.
“The Department also issues clearance certificates to authenticate the information provided in the NICs [New National Identity Cards], when requested by security forces, diplomatic missions, Immigration and Emigration Department and various other public sector agencies.
“The Department implements accelerated NIC issuing programmes to cater to the needs of school students who sit GCE (O/L) and A/L Examinations, since it has been made compulsory for them to present the NIC when sitting the examinations.”
___________________
444 Sri Lanka Registration of Persons Department, Services, undated date accessed 22 September 2010
Counsel for the Minister suggested that the information from the Sri Lankan government source, that it was possible to obtain National Identity Cards in periods much shorter than six months, was inconsistent with the source quoted in the Danish report. That source might appear less detailed and authoritative than was the Sri Lankan source quoted in the UK report.
Counsel for the Minister submitted that the general information suggesting that national ID cards could be obtained speedily by people who had the necessary identity documents of birth and local recognition, together with the applicant’s evidence that he already had evidence of birth and well recognised local family connections, provided evidence which, as a matter of law, allowed Dr Witton to arrive at his conclusion that the applicant could easily obtain a national identity card if he applied for one after his return.
I accept that submission of the Minister. On the face of the information to which I was taken, I am not persuaded that there was no evidence before Dr Witton upon which he could have arrived at the conclusions expressed in paragraph 61.
I recently examined the relevant principles in relation to ‘no evidence’ contentions, in a case where a very similar ground was argued before me. In SZQVI v Minister for Immigration & Anor [2012] FMCA 222, at [33]‑[37]:
33.Counsel cited a number of authorities that error of law is constituted by the making of a finding of fact in the absence of any evidence providing “some basis for an inference … even if that inference appears to have been drawn as a result of illogical reasoning” (see Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356).
34.Such an error of law has been held in the Federal Court to amount to jurisdictional error, if the finding is material to a conclusion on a matter required to be found to complete the exercise of jurisdiction, and this was not challenged by the Minister’s representative. The principles were applied by the Full Court of the Federal Court in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402, [2003] FCAFC 231, which was relied on by counsel for the applicant. Their Honours said:
18… But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason.
19This argument, if it were made out, would be sufficient to establish that the Tribunal had made a ‘jurisdictional error’ so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355‑357. If the decision of the Tribunal was ‘Wednesbury’ unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (‘S20’) at 62, 67, 76, 90‑91.
20On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a ‘jurisdictional fact’, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35‑36. It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a ‘bright line’, but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
21In considering the argument now put it must be remembered that the Tribunal is not limited to the evidence that is formally put before it: see s 353(2) of the Act. Subject to the other provisions of the Act, including the implied and express requirements of procedural fairness, the Tribunal can inform itself as it thinks fit, including acting on information that is ‘public’. Nor should it be forgotten in this context that in the course of their duties Tribunal members may well come to have a relatively detailed understanding of the political and legal situation in various parts of the world. Within the limits imposed by the Act itself there is nothing to prevent members from using this information.
35.The suggestion of their Honours that the broad powers of the Tribunal to inform itself may make it difficult to draw an inference of the absence of any evidence to support a finding of fact relating to a matter of possible general knowledge, is consistent with other statements in the High Court and the Federal Court, including statements by Gleeson CJ and Hayne J in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, [2002] HCA 30 which I extracted in SZQHC v Minister for Immigration & Anor [2011] FMCA 851.
36.In SFGB, their Honours were able to arrive at a positive conclusion that there was no evidence before the Tribunal to justify a particular factual conclusion, due to their identification of “information that is clearly to the contrary” in the material before the Tribunal. They appear to have been satisfied that the Tribunal had become confused about the effect of some country information which had been expressly identified by the Tribunal member as the basis for her findings.
37.The principles identified by the Full Court in SFGB have been more recently identified and applied by Collier J in QAAA of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs (2007) 98 ALD 695, [2007] FCA 1918 at [22]‑[33].
Even in the absence of the evidence to which the Minister has now taken me in this case, I would have arrived at the same conclusions as I arrived at in SZQVI, where a similar submission as to the absence of evidence to base a finding of the obtaining of identity papers by a returning failed asylum seeker was rejected by me on two bases.
The first is that the premise of the applicant’s own refugee claim that he would be persecuted after returning to Sri Lanka as a national of that country, was sufficient to allow a conclusion that the country of nationality would probably have recognised that nationality by the issue of relevant nationality papers if, in fact, the applicant were permitted to return to it, and did return to it, whether voluntarily or involuntarily.
The second reason which I pointed to in SZQVI also applies in the present case. This is that Dr Witton expressly did not confine the background and country information which he should be understood to have applied to his assessment of the future prospects facing the applicant. On the authorities to which I referred in SZQVI, it is reasonable to assume that he might have brought to bear a whole range of general and apparently uncontroversial background information concerning the issue of identity documents, and it is therefore difficult to draw any conclusions as to what relevant information was not taken into account by him.
For all the above reasons, I am not persuaded that Ground 3 of the amended application has raised error of law upon which relief could properly be based.
Ground 4
Ground 4 relied upon the same principles of error of law based on findings of fact for which there is no evidence, as I have referred to above. It addressed Dr Witton’s statement at the commencement of paragraph 53, which I shall repeat:
53In considering whether there is a real chance the claimant, should he return, suffer serious harm from any interrogation or investigation by the Sri Lankan authorities, the reviewer has taken into consideration that many thousands of Tamils have returned from overseas (see 2011 UK Home Office Sri Lanka Report, 25.36, cited above at paragraph 48) and that while there are occasional reports of such people being interrogated and detained and indeed that some have been harshly treated, their numbers remain relatively extremely low. …
As I understood counsel for the applicant, he submitted that neither the passage specifically quoted from the UK Home Office by Dr Witton at his paragraph 48, nor elsewhere in that report, was there any reference to there being “many thousands of Tamils” who had returned from overseas. He therefore invited me to conclude that there was no such evidence before Dr Witton.
However, I am by no means satisfied that information to this effect was not contained in the very lengthy UK Home Office report itself, nor anywhere else in what must have been an enormous body of general country information of which Dr Witton might have been aware. Counsel for the applicant took me to no information which contradicted or did not allow Dr Witton’s finding. The asserted absence of information was not conceded by the Minister’s counsel, and it would have been unreasonable to expect him to make any such concession.
I do not consider that the Court, faced by such a submission, is required, unaided, to read through all the country information concerning the situation of Tamil asylum seekers, whether put in evidence before the Court or otherwise, to satisfy itself as to the absence of such references, if there is no apparent illogicality or unlikelihood of there being such evidence that was available to Dr Witton. I am certainly not satisfied that it would have been unlikely that there was such evidence known to him.
Dr Witton’s reasoning was, it seems, based on a general impression as to the volume of returning Tamils to Sri Lanka, that because there were many thousands who had returned and the fact, on the information accepted by Dr Witton, that there was only evidence of relatively few of these being “harshly treated” when interrogated and detained and investigated. There is nothing apparently unreasonable or illogical or unexpected in this reasoning, and I am not satisfied that it was not open to Dr Witton, as a matter of law, to arrive at an assessment that “their numbers remain relatively extremely low”. There may be criticisms made of the merits and weight to be given to this reasoning, but such criticisms go only to the merits of the assessment, and they do not establish that Dr Witton based his report upon a conclusion drawn in the absence of evidence, so as to give rise to error of law.
I am therefore not persuaded that Ground 4 in the amended application raises grounds for the relief sought in the application.
Since I have not been persuaded that any of the grounds presented to me can support the grounds of relief, I must dismiss the present application. It is agreed that costs according to the scale should follow the event.
I certify that the preceding fifty‑seven (57) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 9 May 2012
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