SZREW v Minister for Immigration
[2012] FMCA 1098
•13 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZREW v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1098 |
| MIGRATION – Independent Merits Review report recommends that Australia does not owe applicant protection obligations – judicial review. |
| Migration Act 1958 (Cth), ss.46A & 476 1951 Convention relating to the Status of Refugees and its 1967 Protocol Commonwealth Constitution, s.75(v) |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 DZABS v Minister for Immigration & Anor (2012) 261 FLR 447 SAAK v Minister for Immigration and Multicultural Affairs [2002] FCAFC 86 |
| Applicant: | SZREW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | SUE CROSDALE IN HER CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 422 of 2012 |
| Judgment of: | Lindsay FM |
| Hearing date: | 13 November 2012 |
| Date of Last Submission: | 13 November 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 13 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Atkin |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the First Respondent: | Mr Kaplan |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
That the Application for Review filed on 27 February 2012 is dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the proceedings fixed in the sum of $6471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
SYG 422 of 2012
| SZREW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| SUE CROSDALE IN HER CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application by an offshore entry person who claims that Australia owes him protection obligations under the Refugees Convention and Refugees Protocol. Jurisdictional matters relating to the consideration of such claims under the Migration Act 1958 (“the Act”) was the subject of the decision of the High Court in Plaintiff M61/2010E v Commonwealth of Australia heard jointly with Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 and the High Court found in that case that decisions made by the Minister in the wake of receipt of reports commissioned to see whether or not the bar would be lifted under s.46A of the Act, were capable of giving rise to a jurisdiction to exercise the judicial review jurisdiction.
For a time following that decision the view was taken that it was the report itself that was the “migration decision” under s.476 of the Act, but the Full Court of the Federal Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 made it clear that the actual decision which grounds the jurisdiction of the Court is not the report itself, but the posited reliance by the Minister on a report which is vitiated by error.
The consequences of these decisions for the Federal Magistrates Court and the jurisdiction it exercises pursuant to s.476 of the Act were the subject of some analysis by me in DZABS v Minister for Immigration & Anor (2012) 261 FLR 447. This Court has the same jurisdiction as the High Court has under s.75(v) of the Commonwealth Constitution, but only in relation to migration decisions as they are defined in the Act, and I summarise the nature of the juridisction exercised by this Court in such matters in the wake of those two decisions, in [61] of DZABS as follows:
So, in accordance with the decision in SZQDZ (supra), I must regard the future or anticipated decision of the Minister, a decision-making process not yet completed, to lift the bar under s.46A or grant a visa under s.195A of the Act, as the migration decision which attracts jurisdiction under s.476(1) of the Act. No other conclusion can, with respect, be drawn from the decision in SZQDZ (supra). That future decision must be taken to have the character of being a decision under the Act which the IMR decision itself lacked. Only if it had that character would the jurisdiction under s.476(1) be enlivened, as we are told it was so enlivened in SZQDZ (supra).
The view I took in that decision was that the error identified in the report which was then relied upon by the Minister must be a jurisdictional error, but that was before the decision of Barker J sitting as a Court of Appeal from this Court in SZQGA v Minister for Immigration & Citizenship [2012] FCA 593, and that was a decision I regard myself as bound to follow, in accordance with the doctrine of stare decisis, despite reservations I had in relation to it as expressed in [49] of my decision of WZAPH v Minister for Immigration & Anor [2012] FMCA 773.
So in relation to the adjudication of this matter, and as I embark upon the exercise of judicial review in relation to this matter, it will be enough if I find that the report about which we posit a future reliance by the Minister is vitiated by legal error; that legal error may include errors that amount to a failure to exercise jurisdiction or an excess of jurisdiction, but it is not required that I find a jurisdictional error, and, of course, it will also be sufficient if I come to the view that in the course of the review process, the applicant was denied procedural fairness.
As I indicated, the applicant is an offshore entry person. He was interviewed at entry, the entry interview is summarised at [11] to [17] of the Independent Merit Reviewer’s (“the reviewer”) report. Subsequently, a statutory declaration was provided. That was summarised at [18] to [24], and he then underwent the Refugee Status Assessment (“RSA”) interview which is summarised at pages 124 to 126 of the Court Book.
The applicant’s case throughout those processes was one that was essentially based upon the general matters arising from his status as a Tamil, as a Hindu, and in particular, as a young Tamil Hindu coming from the northern regions of Sri Lanka. It had little, if anything, to do on his own case during those processes with his particular circumstances or particular experiences, and that is probably unsurprising, given that on his own account he had, save for a brief period before travelling to Australia, been resident in India for a period of some 20 years and had been very young at the time of his departure to India from Sri Lanka, albeit that that was at a time when the war between the Sinhalese, who are predominately in the south, and the Tamils, who are predominately in the north, had been underway for some time.
I do not propose to set out in detail the case that he presented in those processes which I have outlined, but the outcome of those was the delegate’s decision at the conclusion of the RSA process, that summarised at [42] of the reasons of the reviewer:
The delegate found that the claimant did not present any credible evidence that his fears were well-founded, and, as he had not resided in Sri Lanka since 1990, based his opinions on what he had been told by his aunt and on a general belief that ethnicity problems were still an issue in Sri Lanka. The delegate stated that the claimant, by his own admission, said he had not experienced any level of persecution in Sri Lanka. The delegate referred to the country information which identified that the human rights and security situation had improved in Sri Lanka. The delegate found that the claimant did not have a genuine fear of harm and there was not a real chance of persecution occurring.
So the case that the applicant had been making to that point had failed for the reasons given by the delegate which reasons are summarised by the reviewer at [42].
Following that, the submission that was made by his legal representatives and migration agents is summarised at [43] of the report, and, again, the content of the summary that is given there is generally consistent with the case that the applicant had been making to that point in the process. It was one that was based upon what might be regarded as a generalised claim in relation to fears of persecution that arose from his membership of the various social groups and ethnicity and religion to which he had referred.
During the course of the IMR interview there were a couple of very significant changes to his account, one of which might, I think, fairly be characterised as a radical change in the nature of his claim. Perhaps the least radical of the changes was the admission that whereas to that point he had been claiming that he had travelled from Sri Lanka to Australia by boat, having travelled from India to Sri Lanka some six months or so previously, he now acknowledged that he travelled directly to Australia from India. More significantly, though, his apprehensions in relation to harm in the event of his return to Sri Lanka were focused, almost exclusively, it might be said, on his own account, upon events that had occurred prior to his departure to India in 1990. The applicant’s are summarised at [66]:
I asked the claimant what he would fear if he was to return to Sri Lanka. He said he did not want to go back because if he found out that he was his father’s son the CID might again start troubling his family. He said they might take him and use this as an opportunity to ask his father to return to Sri Lanka. The claimant said because there were so many incidents that were happening he did not know whether the people were still there and he was worried as to whether these incidents might happen to him.
Again, at [68]:
I asked the claimant whether there was any other reason he would fear harm if he was to return to Sri Lanka. He said there was no other reason but the fear for life.
The reference to the CID in [66] is a reference to matters about which more detail is provided in [58] to [60] inclusive of the reviewer’s decision found at page 129 of the Court Book. He was now, and for the first time in the process, giving an account of his father having been involved in some way, tangential or otherwise, with the principal Tamil fighting force, the LTTE, and perhaps with some other related groups. At [58] the reviewers says:
The claimant said when his father was in Sri Lanka he was involved with the movement and he would go around with his friend. The claimant said there was another group of the movement and some of these members were shot. He said that because of this incident, the local CID came looking for his father. He said the people who were shot belonged to a group that became part of the government. He said at the time his mother was not very well.
Then at [60]:
I asked the claimant about the people who were shot. He said there were four to five movements and the LTTE was one of these movements. He said some people from one of the other movements were killed. He said that was why the CID came in search of his father, but his father was not at home. He said that if his father had been at home on that particular day he would not be alive today.
So even though the story itself is somewhat vague in its particularity it is clear that the applicant is now advancing in the IMR process an account that is not based upon his status as a Hindu Tamil young person from the Northern Provinces simpliciter, but is based upon the particular experiences of his father which he says would result in him having an imputed political opinion which would get him into difficulty and, in fact, which would give rise to persecution if he were to return to Sri Lanka.
Now, unsurprisingly this late and radical change in his account is a matter that concerned the reviewer and she spends a good deal of her report at [93] to [99] discussing the consequences of these changes in terms of the reliability of the claimant’s evidence as to his experiences. She rejects both accounts. That is, she rejects the account given, such as it was given, by the claimant in relation to his father’s experiences and not only that but she goes on to reject the reasons advanced by the applicant in explanation for the change.
The same considerations apply as to whether he left from Sri Lanka or from India. The predicament that these changes have got the applicant in are summarised by the reviewer at [99] of the reasons.
I am not satisfied with the claimant’s explanation for why he was untruthful in his entry interview, RSA interview and IMR submission regarding the country he left from to travel to Australia. I accept that the reason fort the claimant being untruthful in relation to stating he left from Sri Lanka was to strengthen his claim for refugee status, as he had been informed by the agency that if he said he left from India he would be sent back. Furthermore, it casts doubt on the credibility of all of his claims.
I pause there to note that is another instance of an odd usage of expression that occurs throughout the report, which is probably unhelpful. The passage I just read includes the finding by the reviewer that she accepts that the reason for the claimant being untruthful was to strengthen his claim for refugee status. There is a suggestion by the use of that word “acceptance” that that is what was being advanced by the claimant whereas, in fact, it was the opposite that was being advanced by him.
It is an unfortunate expression and it is the usage that also occurs at [106] and [110]. But notwithstanding that, in the light of the discussion of the credibility findings at [93] to [99] the conclusions the reviewer came to in respect of credit matters appear to me to have been open to her.
Now, the applicant’s claim is really advanced upon three grounds in support of the application for review. The first is that the applicant being a Tamil of the Hindu faith would suffer persecution if he were to return to Sri Lanka.
The second is the applicant as a Tamil was at risk from Sri Lankan authorities and other paramilitary groups.
The third is an imputed perception of the applicant belonging to a particular social group, being young Tamil males from the Kilinochchi Province would suffer persecution.
It is said that in respect of each of those arguments the applicant advanced, the reviewer failed to consider and determine the application on each of those bases and committed jurisdictional error. I pause to note that it would be enough for the applicant to establish that the reviewer committed an error falling short of a jurisdictional error.
They are the three grounds that are advanced, but there are a number of related or ancillary submissions that are put in respect of each of those grounds which really focus upon what is said is the inappropriate and, indeed, illogical and unfair way in which the reviewer utilised her credibility findings.
There is no doubt that this is a report, the conclusions of which are clearly based upon findings the reviewer made as to credit. Significant inconsistencies in an applicant’s version of events, together with more minor inconsistencies may entitle the reviewer to make adverse findings in respect of an applicant’s credibility. Now, if authority is needed for that proposition we would find it in the decision of Lucev FM in WZANW v Minister for Immigration [2009] FMCA 1075 at [100] and [104]:
So long as the reviewer undertaking an IMR report exercises considerable care before doing so the reviewer may legitimately rely on an applicant’s failure to raise claims of persecution at the first opportunity in order to reach the conclusion that the subsequent claims were invented. The reviewer should not, however, adopt such a course lightly.
As Lee and Moore JJ said in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 at [30]:
In regard to the Tribunal’s conclusion that the appellant’s claims could be discarded because they had not been raised at the first opportunity, that approach, as the Tribunal was aware, was not to be taken lightly. In this realm there may be many reasons, apparent or latent, that may explain such a circumstance. As authorities and texts in this area of law have made clear, a Tribunal must exercise considerable care before following that course and, obviously, must consider any material that supports the appellant’s case before determining that the failure to raise claims of a fear of persecution at the first opportunity led to a conclusion that the subsequent claims were invented..
The same considerations apply here; it is not so much the claim not having been made at the first opportunity, but a significant change in the ground advanced for the entitlement to protection obligations from a generalised claim to a particularised claim when the particularised claim or the facts supporting it were not matters that were referred to at the earlier phases of the administrative process. Fact finding in the context of a protection visa application may raise special considerations such as problems of communication and mistrust on the part of the applicant. Accordingly, an IMR reviewer must exercise care in relying on an alleged inconsistency between a first interview and later evidence as the foundation for an adverse credit finding. If authority is needed for that proposition it is to be found in SAAK v Minister for Immigration and Multicultural Affairs [2002] FCAFC 86 at [20] to [36] and at[ 42].
Mr Atkin for the applicant has taken me very carefully through the credibility findings of the reviewer in this case and the use to which those credibility findings were put and having given consideration to those matters, I am satisfied that the way in which the reviewer dealt with the credibility issues that arose during the course of the IMR interview was not only appropriate but the conclusions that were arrived at in relation to the claim in partial reliance on those credibility findings were, one could almost say, mandated by the credibility findings themselves.
With respect to the specific contentions as to error, turning firstly to this issue of the Hindu faith, that is a matter that is dealt with at [107] of the reviewer’s reasons. Particular reliance was placed on the second sentence in [107]:
I put to the claimant that I could accept Tamils and Hindus have suffered discrimination but I needed to consider whether he would suffer discrimination that would amount to serious harm for a Convention reason if he was to return to Sri Lanka.
It is said that that amounts to a finding as to the applicant having suffered discrimination on the basis of his religion, but I am not at all persuaded that that is the case. I think there is some force in the submission of the respondent, to be found at [20] of the respondent’s written submission, that the reviewer at that point was merely summarising the terms of an exchange with the applicant during the hearing. In any event, insofar as it goes, a finding of discrimination does not entail a finding as to persecution.
The more fundamental difficulty there in the applicant advancing the reviewer’s dealings with the topic of religion as a ground for review is the fact that there is nothing in the country information that is reviewed by the reviewer; there is nothing in the submission of the applicant’s advisors; there is nothing before the reviewer at all, in my view, that goes any way to suggesting that there is a specific issue in Sri Lanka at the present time with respect to persecution on the grounds of religion per se. It is difficult to see how legal errors associated with the reviewer’s dealing with that issue in the complete absence of any information that suggests that the conclusion that it has come to is unwarranted.
The second ground is the contention that the reviewer overlooked or failed to consider in a proper way the applicant’s claims to fear harm from paramilitary groups. Certainly that fear was posited by him; it was not a major plank of his claim, either in respect of the generalised aspect of his claim or the more particularised aspect, but, nevertheless, it being a part of his claim, it needed to be given genuine, rational, and proper consideration. The relevant finding in relation to that topic is to be found at [96]:
Accordingly, I find that the claimant would not be imputed with a political opinion by the Sri Lankan authorities or CID or paramilitary groups, including PLOTE, because of his father’s association with the LTTE or any of the four or five other groups of the movement, including PLOTE, or the death of members of other groups within the movement. Rather, I am satisfied that these inconsistencies are the result of the claimant’s attempts to fabricate claims of persecution where none has actually been suffered or is actually feared in order to strengthen his claim for refugee status. Furthermore, it casts doubt on the credibility of all of his claims.
A fair reading of the material before the reviewer suggests to me that that was a conclusion on that topic that the reviewer was perfectly entitled to come to, and, once again, I agree with the respondent at [29] of the written submission, that the Court should not infer from the absence of a specific reference to the phrase “paramilitary groups” in [106] of the reasons that this aspect of the claim was not dealt with. That paragraph is the subject of a specific complaint by the applicant. It contains this finding by the reviewer:
I accept the UNHCR report of July 2010 advising that not all young male Tamils from the Northern Province suffer persecution.
It is appropriate to observe that that is not the end of the exercise, of course. It still does not tell us whether or not this particular claimant is one of those young males who will suffer persecution if he is returned. The reviewer goes on, two sentences down:
On the available evidence, including the evidence provided by the claimant, the country information discussed with the claimant in my credibility finding, I do not accept that there is a real chance that the claimant will suffer serious harm amount to persecution if he was to return to Sri Lanka now or in the reasonably foreseeable future because of his ethnicity or because he is a member of a particular social group, young male Tamils who originate from the Northern Province.
But I think what is happening there amounts to this: the reviewer is saying that the generalised claim relating to young male Tamils from the Northern Province is not supported by the country information; that in respect to a particular claimant, there would need to be material advanced which indicated a reasonable fear of persecution for a Convention reason. It is when the attention is given to the particularised claim of the claimant in this case that the issue of credibility looms large.
True it is that credibility has got nothing to do with the assessment of the generalised claim, but it has got everything to do, of course, with the assessment of the particularised claim that the applicant advanced.
That paragraph and the way in which the credibility findings were such an important aspect of the finding in that paragraph is really at the heart of the third ground advanced by the applicant. It is the contention that there was not a proper assessment of his to be owed protection obligations arising from his membership of the particular social group constituted by young Tamil males from the Northern Province.
But it seems to me that the credibility finding, confined as it was to the new particularised claim, or claim relating to the applicant’s specific circumstances arising from what he had claimed was the behaviour of his father in the period prior to 1990, the use to which it has been put there appears to me to have been appropriate.
They are the only grounds advanced by the applicant. As I am unable to identify any legal error associated with the consideration of those issues by the Independent Merits Reviewer, the application for review will be dismissed.
It is appropriate, in my view, that costs follow the event.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 26 November 2012
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