SZRFF v Minister for Immigration
[2012] FMCA 877
•30 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRFF v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 877 |
| MIGRATION – Review of report and recommendation of an Independent Merits Reviewer in relation to an offshore entry person – applicant claiming persecution in Sri Lanka as a young Tamil male – Reviewer finding the applicant’s fears not well-founded – no reviewable legal error. PRACTICE AND PROCEDURE – Observations on the utility of the referral of test cases to the Administrative Appeals Tribunal. |
| Migration Act 1958 (Cth), ss.91R, 414 |
| Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Minister for Immigration v Guo (1997) 191 CLR 559 Minister for Immigration v SZMDS (2010) 240 CLR 611 Minister for Immigration v SZQHH [2012] FCAFC 45 Minister for Immigration v SZQPA [2012] FCA 1025 |
| Applicant: | SZRFF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 443 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 19 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Hammond |
| Solicitors for the Applicant: | Clifford Chance |
| Counsel for the Respondents: | Ms R Graycar |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The further amended application filed on 19 September 2012 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 443 of 2012
| SZRFF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application for an injunction to restrain the first respondent (the Minister) from relying upon a report and recommendation of the second respondent (the Reviewer). The Reviewer’s report is dated 25 January 2012.
The applicant claimed persecution in Sri Lanka on the basis of his ethnicity (Tamil) and imputed political opinion (as an imputed supporter of the Liberation Tigers of Tamil Eelam – LTTE). The following statement of background facts is derived from the submissions of the parties.
The applicant is a Sri Lankan national who arrived in Australia on 7 November 2010. He was negatively assessed by an officer of the Minister’s Department on 13 May 2011. On 10 January 2012 he was interviewed by the Reviewer in an Independent Protection Assessment (IPA). On 25 January 2012 the Reviewer made a recommendation that the applicant not be recognised as a refugee. The current proceedings seek judicial review of that recommendation and relief including a declaration that the recommendation was not made according to law.
The applicant sought protection because he is ethnically Tamil, is Hindu and because he was an auto taxi driver[1] from the Trincomalee District.
[1] An auto is a three-wheeled vehicle with a small motor at the back, which is used for relatively short travelling distances (up to between 30 to 35kms) as opposed to a regular taxi
Specifically, the applicant sought protection because he was, as a young Tamil male, exposed to a real risk of persecution because of his perceived connection to the LTTE, arising from his forced involvement in anti-government hartel protests in 2006 and 2008, and his suspicion as having knowledge of or involvement in a bomb blast in 2008 targeted at a police check point. The applicant further points to being forced to drive members of the LTTE in his auto as a factor linking him to the LTTE. The applicant claims he was at risk, as a “failed asylum seeker returning from the West” of being persecuted by authorities upon his return to Sri Lanka.
The Reviewer found that the applicant would not face a serious risk of harm in Sri Lanka on account of his religion, ethnicity, imputed political opinion or membership of a particular social group.
The judicial review application
These proceedings began with a judicial review application filed on 29 February 2012. The applicant was not at that time legally represented. He has since obtained legal representation. An amended application was filed on 13 August 2012 by solicitors acting for the applicant. The applicant ultimately relied upon a further amended application filed in court by leave on 19 September 2012. The grounds in that application are:
1. The Reviewer fell into jurisdictional error by failing to consider a relevant consideration or address a critical aspect of the applicant’s claim.
Particulars
a.The Reviewer failed to consider the applicant’s claim that the death of his friend who was a Tamil taxi driver, was caused by government officials (army and/or CID), because he was a Tamil driver and there is an assumption that most Tamil drivers are part of the LTTE.
b. The Reviewer failed to consider elements of the applicant’s claim that heightened his risk of being suspected of being linked to or supportive of the LTTE.
i. the Reviewer failed to consider the applicant’s forced participation in a hartel;
ii. the Reviewer failed to ask the applicant about being able to refuse to carry any LTTE members in his auto;
iii. the Reviewer failed to consider the applicant’s claim that the bomb blast in 2008 was caused by explosives fixed in an auto and targeted at a police point.
2. The Reviewer fell into jurisdictional error by failing to have regard to all relevant material.
Particulars
a. In finding that if the applicant is subject to greater scrutiny at the airport, his treatment will not involve serious harm, the Reviewer failed to consider evidence before her of reports of human rights violations against Tamil men in Sri Lanka, including arbitrary arrests and unlawful killings:
i. US Department of State, 2009 Country Human Rights Report: Sri Lanka (11 March 2010);
ii. UK Border Agency, Country of Origin Information Report Sri Lanka (18 February 2010);
iii. The Reviewer failed to consider the applicant’s claim that he had been detained and “hassled” by the police at the airport on his departure from Sri Lanka because he was a Tamil, and he paid a bribe before being cleared.
b. The Reviewer failed to consider evidence before her that supported the applicant’s claim that he is at risk of adverse treatment from the authorities (at the airport or thereafter) because of his status as a failed asylum seeker returning from the West:
i. The Reviewer failed to consider, or failed to consider the entirety of, evidence before her in the UK Border Agency, Country of Origin Information Report Sri Lanka (18 February 2010) 190.
ii. The Reviewer failed to consider evidence before her being an Amnesty International report from 24 September 2010 that Sri Lankan asylum seekers have been tortured after being forcibly returned from Australia (see submissions to Independent Protection Assessment page 16);
iii. The Reviewer failed to consider evidence before her being an Amnesty International Briefing to Committee Against Torture October 2011 that states that Sri Lankan nationals who are failed asylum seekers are likely to be interrogated on return to Sri Lanka (see Post IPA Interview Submission page 2).
3. The Reviewer fell into jurisdictional error by:
i. making a finding for which there was no evidence; and/or
ii. by coming to a conclusion that was so illogical or irrational that no reasonable independent merits reviewer could have reached it.
Particulars
a. The Reviewer found that if the applicant is more closely scrutinised on re-entry to Sri Lanka, the “essential and significant motivation” for this would be the “thorough and rigorous application of security measures, which apply to all Sri Lankan citizens and foreign visitors, which have been enacted in furtherance of the national interest of preventing a recurrence of the recently concluded civil war”.
b. There was no evidence before the Reviewer that supported these findings.
4. The Reviewer fell into jurisdictional error of law by asking a wrong question.
Particulars
a. The Reviewer found that there is nothing in the applicant’s circumstances that would give rise to the authorities imputing to the applicant any political opinion.
b. On the basis the Reviewer found that the applicant was not at any greater risk of adverse [attention] from the authorities (at the airport or thereafter).
c. In considering only the outcome of any questioning or detention of the applicant at the airport (namely, that he could convince the authorities that he did not have any links to the LTTE), the Reviewer failed to consider the process of questioning and possible detention that the applicant may be subjected to in order to convince the authorities of that fact.
5. The Reviewer fell into jurisdictional error by not affording procedural fairness to the applicant for reasonable apprehension of bias.
Particulars
a. The Reviewer used a template for her recommendation.
b. The template was applied inflexibly by the Reviewer in relation to her review of the applicant’s claims and the claims of other IMR applicants.
6. The Reviewer denied the applicant procedural fairness and thereby fell into jurisdictional error.
Particulars
a. The Reviewer relied in part on her inability, in her “own research”, to find any information indicating Sri Lankan citizens claiming asylum in another country are viewed negatively by the Sri Lankan State, in reaching her finding that the applicant will not be persecuted now or in the reasonably foreseeable future because of his membership of the particular social group failed asylum seekers returning from the West.
b. The Reviewer failed to put details, including methods and thoroughness, regarding her “own research” to the applicant for his comment and consideration.
7. The Reviewer fell into jurisdictional error by coming to a conclusion that was so illogical or irrational that no reasonable independent merits reviewer could have reached it.
Particulars
a. The Reviewer did not accept that at his time of departure from Sri Lanka in September 2010 the applicant was considered by the authorities (the police, CID, the Army or paramilitaries such as the Karvanna Group) to be supportive of, linked or connected with the LTTE for any reason whatsoever.
b. This finding was illogical in light of the Reviewer’s acceptance of the applicant’s evidence regarding physical harm suffered in 1994 and his detention in 2008.
8. The Reviewer denied the applicant procedural fairness and thereby fell in[to] jurisdictional error.
Particulars
a. The Reviewer put to the applicant hat she would listen to the RSA interview in considering his claim that he had raised in the RSA interview being threatened in 2010.
b. The Reviewer found at paragraph 89 of the reasons that the applicant had raised for the first time at the IPA interview being threatened in 2010 and that this was a fiction created by him. This contributed to her finding that the applicant will not in the reasonably foreseeable future be perceived by the authorities as a LTTE member or collaborator.
c. In her reasons the Reviewer does not refer to having listened to the RSA interview.
d. Further to c. above, the finding of [t]he Reviewer referred to in b. above is not consistent with the Reviewer having listened to the RSA interview.
e. The transcript of the RSA interview supports the applicant’s claim that he had earlier referred to being threatened by the CID after June 2008.
9. The Reviewer fell into jurisdictional error of law by asking a wrong question and failing to consider a relevant consideration or address a critical aspect of the applicant’s claim.
Particulars
a. The Reviewer considered that detail about what happened to the applicant 2008 was not helpful for looking at his risk of being harmed if he returned to Sri Lanka in 2012.
b. The Reviewer acknowledged that she did not ask the applicant “a great deal” about 1994 and 2008.
c. The Reviewer failed to ask adequate questions to elicit information relevant, or that may have been relevant, to the applicant’s risk of being harmed if he returned to Sri Lanka, including that during his detention in 2008 he was forced to sign a statement in Sinhalese which he did not understand (as explained during the applicant’s RSA interview).
I received as evidence the court book filed on 30 March 2012. I also received the affidavit by Marianne Elizabeth Larkins made on 30 August 2012, to which is annexed a transcript of an interview (POE) conducted with the applicant by an officer of the Minister’s Department on 24 April 2011, and a transcript of the Reviewer’s interview (IPA) with the applicant on 10 January 2012; and the affidavit of Rosslyn Jean Warren made on 5 September 2012, to which is annexed a bundle of documents comprising other reports prepared by the same Reviewer.
Both parties made oral and written submissions. The applicant contends that the Reviewer fell into error (described as jurisdictional error but, more accurately, asserted reviewable legal error) by failing to consider an element or integer of the applicant’s claims, by failing to have regard to relevant material, by making findings of which there was no evidence, by asking the wrong question, by not affording procedural fairness such as to give rise to a reasonable apprehension of bias, by denying procedural fairness by failing to disclose adverse material, by preparing a report which was illogical or irrational, by failing to meet an undertaking that she would listen to the record of interview conducted by the officer of the Minister’s Department and by overlooking a relevant consideration in the consideration of the applicant’s claim. The Minister denies that the Reviewer fell into error in any of these asserted respects.
Consideration
Ground 1 – Did the Reviewer fall into reviewable legal error by failing to consider a relevant consideration or address a critical aspect of the applicant’s claim?
In finding that the applicant has not in the past nor will he be in the future perceived by the authorities as a LTTE member or collaborator, the Reviewer is said to have failed to address critical aspects of the applicant’s claim, namely:
a)the applicant talked at length about his forced participation in hartel protests in 2006 and 2008 during both the POE interview and IPA interview[2]. In spite of this, the Reviewer put to the applicant that people suspected of supporting the LTTE include people who have conducted vigils, which are like protests, but that the applicant had never mentioned anything that indicates he had been involved in such activity[3]. The Reviewer failed to consider the applicant’s forced participation in the hartels in her findings;
b)the Reviewer failed to consider, and in fact declined to discuss, the applicant’s claim that his friend (who appears to have participated in the hartel) who was also a taxi driver, was killed in 2006[4];
c)despite an invitation from the applicant’s agent to do so, the Reviewer declined to ask the applicant whether he had the option to refuse the fare of LTTE members stating instead that “in as much as it’s very well documented that the LTTE forced at gun point people to undertake much more egregious activity that a fare in an auto”[5]; and
d)in finding that the authorities’ treatment of the applicant following the bomb blast, was as a result of the physical location of his business (rather than the fact he was an auto driver) that brought him to the attention of the authorities[6], the Reviewer failed to consider that the bomb blast was caused by explosives fixed in the back of an auto and pointed at a police checkpoint[7], and there were only four or five auto drivers present at Anurajapura Junction at that time who were questioned by the army[8].
[2] POE Transcript page 15; Larkins page 19. IPA Transcript pages 18 to 19; Larkins page 58 to 59
[3] IPA Transcript page 32 to 33; Larkins page 72, lines 21 to 33, page 73, lines 1 to 20
[4] See POE Transcript page 16, lines 3 to 6; Larkins page 20 and IPA Transcript page 34, lines 6 to 7; Larkins at page 74
[5] IPA Transcript page 56, lines 30 to 31; Larkins page 96
[6] CB 218 at [99]
[7] IPA Transcript pages 53 and 54; Larkins page 93 and 94
[8] POE Transcript page 23; Larkins page 27
The applicant contends that these aspects of his claims should have been considered by the Reviewer, as they point towards an increased likelihood that the applicant may be considered by the authorities to be connected to the LTTE. The aspects were not insignificant and the asserted failure to take them into account is said to have materially affected the Reviewer’s decision[9].
[9] SZQRW v Minister for Immigration [2012] FMCA 191 at [38]
I accept the Minister’s submissions relating to the legal principles bearing upon this ground. In order to establish the ground of failure to take into account a relevant consideration, it must be established that the matter the decision maker failed to take into account was a matter that she was bound (usually by statute) to take into account in making a decision[10]. The applicant must point to something, beyond particular factual matters, failure to take account of which does not constitute jurisdictional error.
[10] Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 (Peko Wallsend) at 39 per Mason J (as he then was)
The applicant points to an asserted failure to deal with a critical aspect or integer of his claim, and refers to the decision of Cameron FM in SZQRW v Minister for Immigration & Anor[11]. In that case his Honour (at [38]) referred in turn to the observations of the High Court in Peko Wallsend (Gibbs CJ at 30; Mason J at 44-45 and Dawson J at 71) that not every omission of a reference to evidence or some factual matter in the reasons will constitute jurisdictional error. To establish such an error, what is required is to establish that the evidence overlooked or omitted is not “so insignificant that the failure to take it into account could not have materially affected the decision”. The applicant would need to establish that such a failure could have deprived the applicant of a successful outcome in order to constitute jurisdictional error[12].
[11] [2012] FMCA 191
[12] see SZQRW at [38]
In NABE v Minister for Immigration (No 2)[13] (NABE), the Full Federal Court at [55] referred to the decision of the High Court in Dranichnikov v Minister for Immigration[14] at [24] where the High Court had held that a failure to make a finding on “a substantial, clearly articulated argument relying upon established facts” can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction[15].
[13] (2004) 144 FCR 1
[14] (2003) 77 ALJR 1088
[15] and see also Htun v Minister for Immigration (2001) 194 ALR 244
This ground of review, and what is required to establish that a merits review body has failed to consider an integer of a claim, was recently considered in detail by Justice Reeves in SZOYH v Minister for Immigration[16], who extensively reviewed the relevant case law. In that case, his Honour found that failure to consider distinctly one of the four incidents (but not the other three) that an applicant claimed had been overlooked by the Tribunal in that case constituted a failure by the Tribunal[17] to review the decision since his Honour held that a clear integer of the applicant’s claim had not been dealt with. Notably, a key reason for so finding was that the fourth element of the claim (but not the other three) was independently supported by documentary evidence[18]. The Minister complains that no such corroborative evidence of any of the factual matters the applicant claims have not been addressed by the Reviewer has been provided.
[16] [2012] FCA 713
[17] that case concerned review by the Tribunal under s.414 of the Migration Act 1958 (the Migration Act)
[18] see SZOYH at [43]-[44], [47]
Reeves J set out at [34]-[38] the relevant test on when something constitutes an integer of a claim for the purposes of establishing jurisdictional error and at [38] his Honour noted:
whether a piece of evidence is of the kind that has to be considered by the Tribunal depends on the nature of the evidence concerned, either considered alone or in combination with other evidence, and its significance in terms of the possible effect it may have on the result of the Tribunal’s deliberations.
In the present case, the asserted particulars to Ground 1 are difficult to sustain in the face of the Reviewer’s articulation of the applicant’s claims at [28] of her report[19]. The Reviewer also considered[20] the applicant’s claim in relation to membership of the particular social group of Tamil taxi drivers and found that the applicant would not be perceived by the authorities as a LTTE member or collaborator by reason of his being a Tamil taxi driver, or for any other reason.At [99] of her report the Reviewer stated:
I have previously accepted in 1994 and 2008 [the applicant] was subject to arbitrary arrest, detention without charge and ill-treatment whilst in custody, as were countless other Sri Lankan citizens during that period whom the authorities suspected were linked to or supportive of the LTTE. [The applicant’s] evidence is that the June 2008 explosion occurred in the vicinity of his auto stand at the Junction in which numerous other businesses operated. I do not accept his membership of the particular social group auto/taxi drivers from Trincomalee, considered in addition to or separately from him being a Tamil and/or young male Tamil from the East, was relevant to the authorities’ treatment of him on that occasion. I find it was the physical location of [the applicant’s] business base, and not the nature of his business, that bought him to the attention of the authorities, and combined with his Tamil race and young male Tamil from the East particular group social membership, he was only for that short period of nine hours in June 2008 suspected of being linked to or supportive of the LTTE. On the evidence before me I find now and in the reasonably foreseeable future [the applicant] will not be adversely treated because of his membership of the particular social group auto/taxi drivers from Trincomalee (including any other permutation) or for any Convention reason associated with or based upon employment he has or will undertake as an auto/taxi driver in Trincomalee or elsewhere in Sri Lanka. From this it follows I find he has not in the past, nor will he now or in the reasonably foreseeable future, be perceived by the authorities as a LTTE member or collaborator as a consequence of his membership of the particular social group auto/taxi drivers from Trincomalee, even if he has in the past or does in the future inadvertently provide services to fare paying passengers who have LTTE membership or involvement.
[19] CB 109
[20] CB 218-219 at [98]-[99]
In making the finding at [99], the Reviewer appears to have considered and rejected the claim referred to at [28] of her report (and certainly cannot be said to have “declined to discuss” it).
The premise of Ground 1(b)(ii) is that there is an obligation on the Reviewer to conduct the review or provide a hearing in some particular form, which would require her to ask a particular question, and that a failure to do so constitutes jurisdictional error. However, the requirement to provide an applicant with an opportunity to be heard does not necessarily require an oral hearing: “The duty on the Reviewer to act ‘fairly’ arises from requirements at common law, which does not always require an actual ‘hearing’ as distinct from the applicant being heard”[21].
[21] SZQGL v Minister for Immigration [2011] FMCA 1019 at [47] per Nicholls FM, referring to Kioa v West (1985) 159 CLR 550 at 582 per Mason J
Nor is there any obligation on a decision maker to comment on every item of material before her, to the extent of saying why she rejected a particular item, or attributed less weight to it than another item[22]. In Applicant WAEE v Minister for Immigration[23] (WAEE) at [47] the Full Federal Court held that, while a failure to expressly deal with an issue in its reasons might, depending on the circumstances, lead to an inference being drawn that the merits review body did not deal with that issue, that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.
[22] see NAHI v Minister for Immigration [2004] FCAFC 10 (NAHI) at [14] per Gray, Tamberlin and Lander JJ
[23] (2003) 75 ALD 630
The proposition at [10(d)] above is not so much an assertion of a failure to consider the applicant’s claim as a dispute with the Reviewer’s reasoning.
The factual matters raised by the applicant in the particulars to Ground 1 do not disclose any reviewable error and accordingly, Ground 1 fails.
Ground 2 – Did the Reviewer fall into reviewable legal error by failing to have regard to all relevant material?
This ground is connected to Ground 5 considered below. The applicant contends that by failing to have regard to all relevant material that was before her (as particularised in the further amended application), the Reviewer did not intellectually engage with relevant information that supported the applicant’s claim.
The particulars to Ground 2 identify the material to which the Reviewer is said not to have had regard as evidence about human rights violations against Tamil men in Sri Lanka; specifically reports from the US Department of State and the UK Border Agency, each published in 2010 and a claim by the applicant that he had been detained and “hassled” by the police at the airport on his departure.
A second set of particulars relates to country information that is said to support the applicant’s claim to face adverse treatment on his return as a failed asylum seeker returning from the west: that material included two Amnesty International Reports (2010 and 2011) and a report of the UK Border Agency referred to in particular 2(a).
The applicant asserts that considering the entirety of this country information and details of the applicant’s claim to have been harassed when leaving Sri Lanka, would have required some distinguishing of that information in the course of the Reviewer’s analysis at [97]-[106] of the report[24].
[24] CB 218 to 221
In effect, the applicant is taking issue with the treatment by the Reviewer of the country information at [96]-[107] of the report[25], though the additional particular at Ground 2(a)(iii) is not concerned with country information, but rather with evidence given by the applicant. This appears to relate to the matters dealt with in the report at [58][26].
[25] CB 218-221
[26] CB 203-204
I accept the Minister’s submissions in relation to this ground. It is well established that the choice of country information and the weight to be placed on it are matters for the decision maker[27]. Moreover, the Reviewer, when addressing the claims to which the applicant says the particularised reports are relevant, relied on more recent information, published in 2011, including updated versions of the reports published by the US Department of State and UK Border Agency (both referred to in particular 2(a)). If the applicant's complaint in relation to that particular is that the Reviewer failed to have regard to superseded country information instead of more up to date information then it must be rejected. In view of the fact that the choice of, and weight to be attached to, country information is clearly a matter for the Reviewer, the same must apply to the matters particularised in Ground 2(b) and accordingly this ground also fails.
Ground 3 – Did the Reviewer fall into reviewable legal error by making a finding for which there was no evidence; and/or coming to a conclusion that was so illogical or irrational that no reasonable Independent Merits Reviewer could have reached it?
[27] see the decision of the Full Federal Court in NAHI at [11]
Ground 3 relates to the Reviewer’s finding at [106] that “the essential and significant motivation” for the applicant being scrutinised on re-entry to Sri Lanka, would be the “thorough and rigorous application of security measures which apply to all Sri Lankan citizens and foreign visitors”[28].
[28]CB 221
The applicant complains first that there is no evidence to support findings regarding the motivations of Sri Lankan Government, and secondly, that the Reviewer misapplied s.91R(1)(a) of the Migration Act.
The applicant notes that [106] of the report begins:
If Mr … experiences delays in negotiating his passage through official processes…
The Reviewer seems to have accepted at [106] that the applicant will receive greater scrutiny[29] and then seeks to apply s.91R(1)(a) to reject the applicant’s claim as a failed asylum seeker. It is the delays referred to, and what those delays could entail, which cause the applicant’s fears.
[29] than the average returnee
The applicant claims that the Reviewer also at [106] of the report makes no reference to the applicant, if he is repatriated, being considered as a failed asylum seeker, and failed to consider that the process could involve interrogation and torture.
The applicant has particularised the no evidence claim by identifying the impugned finding as being that, if the applicant is more closely scrutinised than the general class of returnees at the airport on his return to Sri Lanka, the essential and significant motivation for that scrutiny would be the thorough and rigorous application of security measures, which apply to all Sri Lankan citizens and foreign visitors, and which have been enacted in furtherance of the national interest of preventing a recurrence of the recently concluded civil war[30].
[30] at [106], CB 221
For a claim of reviewable error based on the no evidence ground to succeed, there must be no evidence at all, rather than, for example, insufficient evidence[31]. The ground will not be made out if there is some basis in the evidence for the challenged factual finding. This is so even if the evidence is slight[32].
[31] see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ
[32] see SZFWB v Minister for Immigration [2007] FCA 167 at [31] per Kenny J, referring to VAS v Minister for Immigration [2002] FCAFC 350 at [18]-[19] per Gray, Moore and Weinberg JJ and WAJS v Minister for Immigration [2004] FCAFC 139 at [11]-[12] per Wilcox, Marshall and Jacobson JJ
The finding in this case is most appropriately characterised as an inference drawn from the evidence, and not as a finding for which there was no evidence. The evidence from which the inference has been drawn is clearly the country information set out from [101] [33]. For this reason, the “no evidence ground” cannot succeed.
[33] CB 219
The “irrationality/illogicality” ground is not separately particularised. However, the threshold for establishing irrationality of the kind that was the subject of the High Court’s decision in Minister for Immigration v SZMDS[34] is very high. The applicant has failed to identify a finding that is so illogical or irrational as to be incapable of being made by a reasonable decision maker.
[34] (2010) 240 CLR 611
The impugned finding (the finding made at [106][35] together with the finding at [107] that the level of harm to which the applicant would be exposed through closer scrutiny either generally or at checkpoints on his return to Sri Lanka would fall short of serious harm) was open to the Reviewer on the material before her.
[35] CB 221
For these reasons, Ground 3 fails.
Ground 4 – Did the Reviewer fall into reviewable legal error by asking a wrong question?
The Reviewer accepted at [101][36] that young Tamil males from the East who arrive at Colombo airport after having unsuccessfully sought asylum are likely to receive greater scrutiny than others.
[36] CB 219
However, the Reviewer goes on to find at [104][37] that the applicant will not be considered by the authorities to have any imputed political opinion. In what the applicant sees as something of a contradiction, the Reviewer then finds at [106] that if the applicant experiences delays in negotiating his passage through official processes “because as an ethnic Tamil” from the East his identity is more closely scrutinised this would be because of the “thorough and rigorous application of security measures, which apply to all Sri Lankan citizens and foreign visitors”[38].
[37] CB 220
[38] CB 221
The applicant contends that, in making these findings, the Reviewer failed to consider the method the Sri Lankan authorities may employ in applying the rigorous security measures, particularly against a Tamil male from the East, including relevant factors of human rights violations reported against Tamil men[39].
[39] See IPA Submissions, CB 167
The Reviewer assumed that the applicant would be able to convince the authorities during the scrutiny on return to Sri Lanka, that he has no connection to the LTTE. The applicant contends, however, that the Reviewer failed to consider the human rights violations, including arbitrary detention, and possibly torture, that might be inflicted before the authorities are convinced of that fact. The Reviewer is said therefore to have fallen into error by focusing on the ultimate outcome of the “scrutiny” of the applicant, rather than the process itself [40].
[40] Minister for Immigration v SZQPA [2012] FCA 1025 at [60]
The applicant refers to the finding at [104][41] where he claims that the Reviewer failed to consider the human rights violations, including arbitrary detention and possibly torture, that might be inflicted before the authorities are convinced that the applicant has no connection to the LTTE.
[41] CB 220
In my view this case can be distinguished from SZQPA. First the Reviewer did not find that the applicant would need to persuade the authorities that he held no relevant political opinion. Rather, she found at [104][42] that no such opinion would be imputed to him in the first place. Secondly, the Reviewer also considered the level of harm the applicant might experience in the course of questioning and found (at [103])[43] that that questioning would not itself involve serious harm. There is on the facts of this case no basis for finding that the Reviewer asked a wrong question.
Ground 5 – Did the Reviewer fall into reviewable legal error by not affording procedural fairness to the applicant for reasonable apprehension of bias?
[42] CB 220
[43] CB 220
Template considerations have been dealt with by the Full Court of the Federal Court[44]. Special leave to appeal to the High Court was refused[45].
[44] Minister for Immigration v SZQHH [2012] FCAFC 45 (SZQHH)
[45] SZQHH v Minister for Immigration [2012] HCATrans 220 (7 September 2012)
The test is referred to at [37] in SZQHH. Using a template to assess claims of multiple applicants with similar backgrounds is not in itself sufficient to raise a reasonable apprehension of bias.
The applicant complains that the Reviewer appears to have used a template and refers to other decisions by the same Reviewer. It is how the template was used by the Reviewer in the context of the evidence before the Reviewer that is said to raise a reasonable apprehension of bias to the extent that the applicant has been denied procedural fairness: in particular, the matters contained in the report are claimed to have been adopted without taking into account the evidence of the applicant regarding these matters, including evidence from the applicant’s agent[46] in relation to the treatment of failed asylum seekers, and evidence specifically referred to by the Reviewer[47].
[46] Contained in the Post IPA Interview Submission CB 179
[47] CB 210 at [78]
As noted above, the applicant has filed an affidavit exhibiting a number of the same Reviewer’s subsequent reasons for decision in support of this ground, and has attached as Annexure A to his written submissions a table showing similarities on various issues between the various sets of reasons.
The majority of the Full Court in SZQHH drew a clear distinction between using template reasons to address generic claims, and using template reasons to address specific claims made by a particular applicant and held that the “fair minded observer would not think that the Reviewer would fail to continue to bring a fair and unprejudiced mind to deciding each particular application”, merely because of the treatment of the generic claims (at [47]). At [50], the majority held that the Reviewer “brought to bear upon his task an impartial mind that was open to persuasion, not only with respect to the applicant’s specific claims but also the generic claims”, given that each of the claims, aside from the generic aspects, was differentially considered by reference to its “own particular claims and circumstances”.
At [51] the majority held that the fair minded observer:
would expect that if a particular individual did not put anything new to the reviewer on the generic claims, then consistently with the reviewer's earlier decisions, he would come to the same conclusion for the same reasons on the same material. There was no suggestion that the reviewer was using someone else's template reasons for rejecting the generic claims. The complaint is that the reviewer used his own reasons for doing so. If those were the reviewer's reasons for rejecting the generic claim, he was entitled to use and even repeat them, since he had no more material to consider.
Ultimately, the majority concluded that the applicant’s complaint in SZQHH “elevated form over substance” (at [52]). I cannot distinguish this case, particularly when it is observed that the matters the subject of the Annexure are all matters that form part of the applicant’s generic, not his individual, case.
Flick J dissented from the majority in SZQHH. Counsel for the Minister drew my attention to a more recent decision by his Honour in SZRCI v Minister for Immigration[48] (SZRCI). In that case his Honour rejected an application for leave to amend the grounds of an appeal by adding a procedural fairness ground based on the use of a template of “copying and pasting” by the Reviewer. His Honour noted that “where there are differences between the facts and circumstances of a particular claimant” and those differences have not been adverted to or addressed on review, it may be that there has been a failure to consider those facts and circumstances and thus a reasonable apprehension of pre-judgement could arise[49]. But his Honour at [35] distinguished the case before him from SZQHH on the basis that the comparison being argued was in relation to cases considered subsequently to the decision under review: thus any “impermissible ‘copying and pasting’ that may have occurred was thus ‘copying’ from the present recommendation of the [Reviewer] and ‘pasting’ into [the Reviewer’s] subsequent recommendation”: this could have no bearing on the decision under review, but rather only on the later decision. The same view had been reached by Raphael FM prior to the decision in SZQHH in SZQEL v Minister for Immigration & Anor (No2)[50].
[48] [2012] FCA 965
[49] SZRCI at [34]
[50] [2011] FMCA 582
Likewise, I am unable to distinguish this case, where the Court is being asked to conclude from an examination of the treatment of generic aspects of the claims of other applicants in cases assessed subsequently to that of this applicant, that this applicant was denied procedural fairness. In light of the clear and recent authority of the Federal Court in both SZQHH and in SZRCI, this ground fails.
I note, in passing, that Reviewers, like the Refugee Review Tribunal, operate on an inquisitorial basis. While consistency is desirable, decision makers must have regard to the facts in each case. Since 24 March 2012 the review of decisions on the protection claims of offshore entry persons has become the responsibility of the Refugee Review Tribunal. The Tribunal has an advantage in that it can refer test cases to the Administrative Appeals Tribunal (AAT) pursuant to Division 8 of Part 7 of the Migration Act. The purpose of such referral is to provide guidance on important principles or issues of general application. There has not been a referral for many years. In view of the expanded and increasing workload of the Tribunal, the referral of test cases to the AAT could be a useful initiative.
Ground 6 – Did the Reviewer deny the applicant procedural fairness and thereby fall into reviewable legal error?
In considering the applicant’s claims based on being a failed asylum seeker the Reviewer refers to her own research[51]. The applicant submits that to afford the applicant procedural fairness the Reviewer was required to outline with particularity what exactly constituted her own research, and was further required to particularise which parts of the report were based on her research.
[51][102] at CB 219
I agree with the Minister that this ground is misconceived: it was clearly for the applicant to satisfy the Reviewer of the veracity of his claims: Minister for Immigration v Guo[52]. The Reviewer was not satisfied by the evidence relied on by the applicant in relation to the failed asylum seeker issue. On that basis, the claim could readily have been dismissed. However, though under no obligation to do so, the Reviewer then conducted her own research to see whether she could find any other evidence that might support those claims and recorded in her reasons, at [102], that she was unable to locate any such evidence.
[52] (1997) 191 CLR 559 at 596
There is no authority for the proposition that, having unsuccessfully sought out additional evidentiary material, procedural fairness required the Reviewer to put to the applicant details of the nature and scope of the fruitless research conducted. Plainly, the applicant, who was represented, was not denied any opportunity to put forward evidence to support the claim he made. Moreover, in rejecting the claim concerning failed asylum seekers, the Reviewer was not relying on adverse information that was credible, relevant and significant to his claim and was unknown to the applicant[53]. Rather, the Reviewer found that there was no evidence, either from the applicant, or available independently, to support the applicant’s claim in that respect. This cannot amount to a breach of procedural fairness. Ground 6 fails.
Ground 7 – Did the Reviewer fall into reviewable legal error by coming to a conclusion that was so illogical or irrational that no reasonable Reviewer could have reached it?
[53] see for example, SZPAC v Minister for Immigration & Anor [2011] FMCA 517 at [25]
The applicant contends that the Reviewer’s rejection of the applicant’s claim that at the time of his departure he was considered by the authorities to be supportive of, linked or connected with the LTTE was so illogical and irrational that no reasonable independent merits reviewer could have reached it.
In light of the Reviewer’s acceptance at [88][54] of the applicant’s claims regarding the 1994 and 2008 incidents and her acceptance of the attention the applicant received on exit from Sri Lanka it is said to be illogical and irrational to find that the applicant is not considered by the authorities to be supportive of, linked or connected with the LTTE for any reasons whatsoever.
[54]CB 214-215
This ground overlaps with Ground 3 discussed above where the applicant also claimed that a finding was so irrational or illogical as to give rise to jurisdictional error.
As noted above, the threshold for a finding of jurisdictional error on the basis of illogicality or irrationality has been set very high by the High Court in its decision in Minister for Immigration v SZMDS[55]. It requires, as the applicant concedes, that no reasonable merits reviewer could have made the impugned finding.
[55] op cit
Here, the Reviewer was prepared to accept at [88] the applicant’s claims in relation to his detention for three days in 1994 and for nine hours in 2008[56]. However, she then rejected the applicant's claims to have had any further dealings with the Sri Lankan authorities after 2008 for reasons which she set out at [89][57]. The Reviewer also noted[58] that the applicant renewed his identity card every three months up until he departed Sri Lanka in September 2010 and that he departed Sri Lanka through Colombo International Airport using a genuine passport issued in his own name. In those circumstances, it was open to the Reviewer to make the factual finding that the applicant was not of any adverse interest to the Sri Lankan authorities when he departed Sri Lanka in September 2010. Even if that finding were factually erroneous, it was open to the Reviewer to make such a finding and an erroneous finding of that nature could not be classified as illogical or irrational on the authority of SZMDS. On that basis, this ground also fails.
Ground 8 – Did the Reviewer otherwise deny the applicant procedural fairness and thereby fall into reviewable legal error?
[56] CB 215
[57] CB 215
[58] at [90]
In considering the applicant’s claim regarding a specific incident in February 2010, the Reviewer advised him that she would listen to the sound recording of the 2011 departmental (POE) interview in considering the veracity of his claim[59].
[59] IPA Transcript page 50, lines 23 to 26; Larkins at page 50
I accept the Minister’s submission that a Reviewer is not bound to refer in her reasons for decision to every piece of evidence considered: see WAEE at [46]-[47]; and NAHI at [14]. A failure to refer to a matter that is not a critical element of the applicant’s claim cannot give rise to a claim that the applicant has experienced the “practical injustice” held by the High Court in its decision in Re Minister for Immigration;Ex parte Lam[60] at [36]-[37] (per Gleeson CJ) to be central to any finding of breach of the rules of procedural fairness.
[60] (2003) 214 CLR 1
However, where the Reviewer specifically advised that she would do so, failing to consider the POE interview would be procedurally unfair. It may be that the applicant, being satisfied that the POE interview recording would be listened to consciously or subconsciously did not feel the need to provide further evidence about the 2010 incident. Had he not been given the assurance he may have provided a more comprehensive response to the Reviewer’s concerns regarding whether the incident did in fact occur. This is said to be particularly so when the transcript of the POE interview allegedly supported the applicant’s claim that he had earlier referred to being threatened by the CID after June 2008[61]. The applicant contends that, not only was there an apparent departure from the Reviewer’s stated intention, but this departure resulted in unfairness to the applicant given the adverse credibility finding made by the Reviewer[62].
[61] POE Transcript at page 29, lines 33 to 38; Larkins at page 33
[62] Ex parte Lam at [34]
In my view, however, the Reviewer’s reasons do not support the inference that she failed to meet her undertaking to listen to the recording of the POE interview. On the contrary she specifically referred to what the applicant said at that interview at [89] of her reasons[63]. Ground 8 fails.
Ground 9 – Did the Reviewer otherwise fall into reviewable legal error of law by asking a wrong question and failing to consider a relevant consideration or address a critical aspect of the applicant’s claim?
[63] CB 215
The Reviewer accepted at [99] [64] that in 2008 the applicant was subject to arbitrary arrest, detention without charge and ill-treatment whilst in custody and found at [88][65] that this occurred because the applicant was amongst “countless other Sri Lankan citizens during that period whom the authorities suspected were linked to or supportive of the LTTE”. However the Reviewer acknowledged that she had not “asked [the applicant] a great deal about 1994 and 2008”[66], because “I’m not sure that it’s really helpful for looking at your risk of being harmed if you return in 2012”[67].
[64] CB 218
[65] CB214
[66] IPA Transcript page 54, line 33; Larkins at page 94
[67] IPA Transcript page 55, lines 13 to 14; Larkins at page 95
This was despite a suggestion from the applicant’s agent that the Reviewer explore with the applicant what actually happened during his nine hours of detention and whether anything was said to the applicant that might indicate that the applicant was suspected as being part of the bombing that occurred in 2008, a perceived involvement which was central to the applicant’s claim to persecution[68].
[68] IPA Transcript page 54, lines 23 to 25; Larkins at page 94
The applicant complains that, in declining to explore in detail the events of 2008, the Reviewer failed to elicit risk of persecution in the future. In particular, as was explained during his interview with the Reviewer, in the course of his detention and after having been beaten, the applicant was forced to sign a statement in Sinhalese – a language he apparently did not understand and the contents of which were not read or explained to him[69]. The unknown content of this statement was a further aspect of the applicant’s claim that he may be sought by the Sri Lankan authorities.
[69] POE interview page 25, line 30 to page 26, line 2; Larkins pages 29 to 30
The applicant contends that, in failing to ask the applicant about the full extent of his experiences in 2008, the Reviewer asked herself the wrong question and failed to consider a relevant consideration or address a critical aspect of the applicant’s claim: SZQRW at [38].
The finding by the Reviewer that neither of the 1994 and 2008 incidents, the veracity of which she did not question, was relevant to her assessment of whether the applicant faced a real risk of harm if returned to Sri Lanka in 2012, is one that may be contested on its merits. It was, however, one for her to make. This ground also fails, for the same reasons as in relation to Grounds 1 and 4.
Conclusion
The applicant has failed to demonstrate reviewable legal error by the Reviewer. I will therefore order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 30 October 2012
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