SZRFH v Minister for Immigration
[2017] FCCA 2543
•20 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRFH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2543 |
| Catchwords: MIGRATION – Judicial review of an International Treaties Obligations Assessment made by an officer of the Department of Immigration and Border Protection – whether officer assessed applicant’s claim by reference to findings made by previous decision-makers – whether officer failed to consider integers of claims – whether officer disclosed to applicant adverse country information – application dismissed. |
| Legislation: Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), Schedule 5, item 2 |
| Cases cited: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 |
| Applicant: | SZRFH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | GREG BREWER, OFFICER OF DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
| File Number: | SYG 3014 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 31 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms U Okereke-Fisher |
| Solicitors for the Applicant: | Michaela Byers Solicitors |
| Counsel for the First Respondent: | Mr P Knowles |
| Solicitors for the First Respondent: | Minter Ellison |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3014 of 2015
| SZRFH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| GREG BREWER, OFFICER OF DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application under s.476 of the Migration Act 1958 (Cth) (Act) for relief in relation to a decision (Decision) made on 22 October 2015 by the second respondent (Assessor), an officer of the Department of Immigration and Border Protection (Department), that the applicant was not a person to whom Australia owed any “non-refoulement” obligations under the Refugees Convention,[1] or under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), or under the International Covenant on Civil and Political Rights (ICCPR).
[1] Being the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees
The Decision was the outcome of the application to the applicant of what the first respondent (Minister) submitted before the Full Federal Court in SZSSJ v Minister for Immigration and Border Protection was a process the Department had “in place for a number of years for a variety of purposes called an International Treaties Obligations Assessment” (ITOA).[2] The High Court in SZSSJ characterised the ITOA process that was the subject of that case “as a process undertaken by an officer of the Department under and for the purposes of ss 48B, 195A and 417” of the Act.[3]
[2] [2015] FCAFC 125 at [14]
[3] Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 at [56]
No submissions were made to me about the nature and purpose of the ITOA that is the subject of the proceeding before me, other than the Minister submitting that the ITOA was undertaken as a preparatory process to the Minister’s power to deport.[4] I will return to this submission later in these reasons. In any event, the Minister does not submit the Decision is not a “migration decision” for the purposes of s.476 of the Act, or that the Court does not have jurisdiction under s.476 to determine the applicant’s challenge to the Decision.
[4] Transcript of judicial review hearing, 13.5
Background
The applicant is a citizen of Sri Lanka and a Tamil. He arrived on Christmas Island on 3 November 2010 as an undocumented Illegal Maritime Arrival.[5]
[5] CB122
The applicant underwent a Refugee Status Assessment (RSA)[6] in which he claimed he feared persecution by the Sri Lankan Army (SLA) and paramilitary groups aligned with the state because of his Tamil ethnicity and his perceived support for the Liberation Tigers of Tamil Eelam (LTTE).[7] In a decision made on 29 April 2011 the applicant was found not to be a refugee within the meaning of Article 1A of the Refugees Convention.[8]
[6] CB122-136
[7] CB123
[8] CB136
The applicant applied for an Independent Merits Review (IMR) of the RSA. In a decision made on 28 December 2011 the reviewer determined the applicant was not a person to whom Australia owed protection obligations.[9] At the time he was informed of the IMR decision, the applicant was invited to provide any additional information he wished to submit in support of any claim to Australia’s protection obligations under international law.[10] That invitation was made, at least in part, to permit the Department to consider whether the applicant’s case engaged Australia’s complementary protection obligations.[11]
[9] CB190-211
[10] CB218
[11] CB218
By letter dated 13 August 2012 the applicant was informed his case was assessed against the Minister’s “Guidelines for the consideration of post review protection claims” but was found not to meet those guidelines.[12] In the meantime the applicant applied to this Court in relation to the IMR decision. That application was dismissed on 22 November 2012.[13]
[12] CB218
[13] SZRFH v Minister for Immigration & Anor [2012] FMCA 1040 (Nicholls FM)
By letter dated 30 September 2014 the Department informed the applicant that “[d]ue to legal developments and changes to departmental policy, the department will no longer be relying on” the assessment referred to in the Department’s letter of 13 August 2012.[14] Instead, the letter stated the Department “will now undertake a re-assessment of your protection claims as part of a new International Treaties Obligations Assessment (ITOA)” under which there will be assessment of “whether there are any non-refoulement concerns which would prevent the department from progressing removal arrangements” in the case of the applicant. The letter informed the applicant to provide further information to the Department.
[14] CB285
The applicant responded by letter dated 14 November 2014 from his representative in which the applicant stated his claims for protection.[15]
[15] CB288-296
The applicant’s claims for protection
The applicant’s claims, as set out in his representative’s letter dated 14 November 2014, may be summarised as follows:
a)In 1990 the applicant fled to India to live in a refugee camp to avoid being caught up in the conflict between the LTTE and the SLA. The applicant returned to Sri Lanka in 2002 where he lived in a refugee camp.
b)In 2005, after a renewed outbreak of violence, the applicant and his family sought protection in an area of Vavuniya district. The applicant worked as a stonemason for the Tamil Rehabilitation Organisation (TRO). The TRO was located within LTTE controlled territory. The SLA consequently suspected the applicant of being involved in the LTTE. The establishment of a small telecommunications centre at his house in 2007 amplified this suspicion.
c)From 2007 to 2008 the applicant received threatening telephone calls from unknown people whom the applicant believed were linked to the SLA. The people asked the applicant questions that related to customers of the applicant, some of whom disappeared and are presumed dead.
d)In 2008 the applicant was abducted, interrogated, and beaten three times by the SLA on suspicion of being involved in a bomb explosion that occurred in a nearby area.
In addition to these claims the applicant claimed as follows:
a)He has specific medical needs following an unsuccessful kidney stone operation in Concord Hospital on 4 July 2013. One of the conditions is deep vein thrombosis (DVT). The applicant has been declared unfit for work and travel. The applicant claimed that if he were to be returned by plane, his life will be at risk because of the dangers of embolisation associated with DVT.
b)Adequate medical support for serious health conditions such as the applicant’s is not available generally in Sri Lanka; adequate medical attention has been refused in Negombo prison in the recent past; and the applicant, therefore, fears he will not get medical attention.
c)If the applicant is returned to Sri Lanka he will be found to have violated s.45(1)(b) of the Sri Lankan Immigration and Emigration Act because he left Sri Lanka illegally. The applicant fears he would suffer cruel, inhumane, or degrading treatment as a result of being prosecuted and punished under the Immigration and Emigration Act, and that the penalties that will be inflicted on the applicant could be harsher because he may be perceived as having been connected to, or as supporting the LTTE.
In the course of his application for protection, the applicant had provided a number of documents. These included the following:
a)A letter dated 1 February 2013 from the applicant’s sister stating that from 2006 to 2008 the applicant faced harassment from the Sri Lankan authorities because of his suspected involvement with the LTTE, that the applicant was living in hiding at his sister’s residence, and that the applicant left Sri Lanka because of frequent threats to his life.[16]
b)A translation of a document indicating that the applicant’s nephew was a martyr for the LTTE.[17]
c)Photos of the applicant’s brother’s corpse and an announcement of his death.[18]
[16] CB351.3
[17] CB354.5
[18] CB354.5
During his interview with the Assessor on 2 October 2015 (the interview) the applicant reiterated the claims he had previously made, namely, that he fears harm on return to Sri Lanka because of his medical condition, his Tamil ethnicity, his work with the TRO, his involvement in the telecommunications centre, his suspected involvement in a bomb blast, and his status as a failed asylum seeker.[19] The applicant, however, raised the following additional claims:[20]
a)He was involved with the LTTE as a young adult. He said that he helped the LTTE between the ages of 18 and 20. He was heavily involved in arranging meetings and issuing pamphlets and posters, but he did not participate in any conflict or fighting.[21]
b)He assisted two LTTE members by providing accommodation for them at his residence from September 2007 to February 2008.[22] This came about because of a request made in 2005 by a Mr M who was a high-ranking LTTE officer whom his nephew introduced to the applicant.[23] The applicant said that people in the village and even the SLA knew about this, and that the SLA beat him and forced him to identify the two men.[24]
c)The applicant’s brother worked as a chef for the LTTE from 1990 until 2008.[25]
d)In 2015 the applicant’s brother was hit by a car and killed. The SLA was responsible for the applicant’s brother’s death, but made it look like an accident.[26]
[19] CB352.7
[20] CB352.8
[21] CB360.1
[22] CB352.8
[23] CB360.7
[24] CB359.8
[25] CB352.8
[26] CB352.9
After the interview the applicant provided further written submissions in which he made the following claims:[27]
a)One of the reasons the applicant was suspected of being involved in the bomb blast was because his nephew was an LTTE martyr.
b)During one of his journeys in 2005 the applicant was approached by a person named Mr M who told the applicant that, because the applicant’s nephew was an LTTE martyr, and the applicant’s entire family were honoured by the LTTE, Mr M would ask the applicant at some point in the future to help the LTTE by sheltering two LTTE cadres. These two men presented themselves in 2007.
c)The applicant did not reveal these new claims before because other detainees on Christmas Island warned the applicant he would be sent back to Sri Lanka or detained by the Australian Security Intelligence Organisation.
[27] CB353
The Assessor’s Decision
The Assessor first considered the applicant’s claims based on his medical condition. The Assessor said that the Department would separately assess the safety of the applicant’s journey to Sri Lanka.[28] Later in his decision, the Assessor considered whether the applicant formed part of a particular social group of “persons suffering from kidney stones, DTV and Haematuria in Sri Lanka”, but concluded there was no such particular social group, and that “persons suffering from kidney stones, DTV and Haematuria in Sri Lanka” do not fall within the definition of a particular social group in Article 1A(2) of the Refugees Convention.[29]
[28] CB357.9
[29] CB366.5-367.5
The Assessor accepted the applicant’s claims that:
a)he worked with the TRO from 2005 until August 2006, and that he was required to identify himself at checkpoints as he travelled daily between government-controlled areas and LTTE-controlled areas;[30]
b)the applicant started a small communications centre from home, he received threatening phone calls, and the SLA took an interest in who was using the centre;[31] and
c)in 2008 there was a bomb explosion near the applicant’s home; he was suspected of involvement, and taken, and beaten by the SLA on two or three occasions.[32]
[30] CB358.6
[31] CB358.9-359.1; CB365.6
[32] CB359.5
The Assessor did not accept the new claim the applicant made during the interview that from September 2007 to February 2008 he provided accommodation at his residence for two LTTE members, or that he was an LTTE supporter as a young adult. The Assessor:
a)placed weight on the applicant’s not having raised these claims at his entry interview, in the applicant’s RSA application, at his RSA interview, in his submission to the IMR, at his IMR hearing, in his request for Ministerial intervention, or in any of his pre-interview submissions for the ITOA;[33]
b)found the applicant’s testimony, particularly as it related to the two men’s involvement with the LTTE, “lacked detail and spontaneity”;[34]
c)found it implausible that the SLA would not detain the applicant after finding out the applicant had provided accommodation to two LTTE members;[35] and
d)found it implausible that a high-ranking LTTE officer would request the assistance of the applicant two years before requiring the assistance.[36]
[33] CB361.1
[34] CB361.2
[35] CB361.4
[36] CB361.4
The Assessor did not accept the applicant chose to conceal the additional new claims in his earlier statement of his new claims because he feared being deported to Sri Lanka or detained in Australia. The Assessor found the applicant “has fabricated this claim for the purpose of engaging Australia’s non-refoulement obligations”.[37] The Assessor further found that, if the applicant had genuinely assisted the LTTE by distributing pamphlets and arranging meetings, but not by participating in any armed conflict or fighting, he would not have had a genuine fear that his revealing this information would lead to his deportation from or detention in Australia.[38]
[37] CB361.5
[38] CB361.6
The Assessor also considered claims made in a letter dated 1 February 2013 from the applicant’s sister that the applicant submitted to the Department on 17 May 2013 that from 2006 to 2008 the applicant faced harassment from the Sri Lankan authorities because of his suspected involvement with the LTTE, that the applicant was living in hiding at his sister’s residence, and that the applicant left Sri Lanka because of frequent threats to his life.[39] The Assessor also considered the applicant’s claim that his sister told him that in late 2010 a white van had been coming to where he had lived and authorities were making enquiries of him; and that the SLA continued to make enquiries about the applicant to his sister in 2013 and his brother in 2012.[40]
[39] CB361.9-362.1
[40] CB361.8
The Assessor accepted the SLA made enquiries of the applicant’s whereabouts in 2010, given the applicant departed Sri Lanka illegally in 2008; but the Assessor did not accept the SLA continued to threaten the applicant’s sister until 2013. The Assessor did not accept the applicant had the profile of someone who would continue to be of interest to the authorities in Sri Lanka, given the applicant had left Sri Lanka in 2008, and given the Assessor found the applicant did not assist the two LTTE members, or was ever a supporter of the LTTE.[41] Nor was the Assessor satisfied the applicant’s sister was an independent witness of truth. The Assessor placed weight on the applicant’s statement at his ITOA interview that the last time the white van came to the applicant’s sister’s residence was in 2010.[42]
[41] CB362.7
[42] CB362.8
The Assessor also accepted that the applicant had a nephew who had been involved with the LTTE, and that his nephew was killed in 1999. The Assessor, however, did not accept the applicant’s claim that the applicant’s nephew held a high-ranking position within the LTTE, given that the applicant’s nephew died at the age of 19.[43]
[43] CB364.4
The Assessor did not accept that the applicant’s brother worked for the LTTE from 1990 to 2008 or that he had been killed by the SLA in July 2015 (although the Assessor accepted the applicant’s brother died in 2015).[44] The Assessor placed weight on the applicant’s not having made the claim relating to his brother before the commencement of the ITOA process, found the applicant’s testimony lacked detail and spontaneity, and found implausible the applicant’s claim that the SLA successfully conspired to strike the applicant’s brother with a car as he was walking on the street. [45]
[44] CB365.3
[45] CB364.8-365.1
Having made these findings, the Assessor then considered whether the applicant was entitled to protection. The Assessor accepted the applicant fears:[46]
a)harm because of his Tamil ethnicity;
b)harm as a young Tamil male from the north of Sri Lanka;
c)he will be imputed with an LTTE connection on his return to Sri Lanka; and
d)returning to Sri Lanka as a failed asylum seeker because he left Sri Lanka illegally and sought protection.
[46] CB367.7
The Assessor, however, found the applicant’s fears were not well founded. The Assessor first considered the applicant’s claims based on his being a Tamil, and a Tamil from the north of Sri Lanka. The Assessor referred to country information, and in particular to a report prepared by the United Nations High Commissioner for Refugees (UNHCR) which suggested that Tamils are not necessarily at risk of being subjected to serious harm amounting to persecution simply on the basis of race alone. The Assessor also noted that reports from the United Kingdom Border Agency, the United States Department of State, and Amnesty International do not controvert the views expressed by the UNHCR.[47] The Assessor referred to the “more elaborate links” the UNHCR identified had to exist between a Tamil and the LTTE before Tamils could be considered to be at risk because of their possible association with the LTTE.[48]
[47] CB370.5
[48] CB371.2
The Assessor then concluded there was not a real chance that the applicant’s background would lead the Sri Lankan authorities to conclude the applicant is an LTTE supporter or sympathiser.[49] The Assessor relied on the following matters:
a)The authorities had been aware that between 2005 and 2007 the applicant travelled in and out of LTTE-controlled areas when he worked with the TRO, and they permitted the applicant to do so. There was no reason why such travel and employment in the past would now give rise to a real chance the Sri Lankan authorities would consider the applicant to be an LTTE supporter or sympathiser.[50]
b)Although the Assessor accepted the applicant’s communication centre would have been of interest to the Sri Lankan authorities at the time of the civil war, and that the applicant had been beaten on two or three occasions by the SLA, the Sri Lankan authorities would have detained the applicant had they had any definite knowledge the applicant was involved with the LTTE. Further, although the Assessor accepted the SLA would have enquired of the applicant’s whereabouts after he fled to India, the Assessor found the enquiries would have been of a routine nature, given the large number of Tamils who fled Sri Lanka at the time.[51]
c)The applicant’s work with the TRO, his involvement in the communication centre, and his assaults at the hands of the military, occurred before the end of the war; the last time he was in Sri Lanka was 2008 and, before that time, he had spent 14 years in India; the applicant worked only a short time on the TRO project, and ran the communications centre for a short time; the Assessor did not accept the applicant supported the LTTE in the past or is an LTTE supporter at present; and the applicant did not participate in any armed conflict or fighting.[52]
[49] CB373.4
[50] CB373.7
[51] CB373.8
[52] CB374.1
The Assessor then considered whether the applicant had a well founded fear based on his being a failed asylum seeker. The Assessor referred to country information that indicated that returnees who have had an LTTE profile, or a criminal record, or involvement with people smuggling face heavy punishment on return, but was satisfied the applicant did not have any of these profiles.[53] The Assessor accepted, however, that because the applicant had left Sri Lanka illegally, the applicant would face a penalty for violating a law of general application and, this would not amount to persecution.[54]
[53] CB375.1
[54] CB375.3
Having assessed the applicant’s claims against the Refugees Convention, the Assessor considered whether there are substantial grounds for believing there is a real risk the applicant will suffer significant harm. The Assessor found there was no country information that indicated that the applicant would be denied medical treatment in Sri Lanka, even if he were to be imprisoned.[55] The Assessor further found there was no real chance the applicant would be beaten or tortured by the Sri Lankan authorities on his return to Sri Lanka.[56]
[55] CB378.3
[56] CB379.7
Grounds of application
The application contains three grounds of application. In addition, however, at the hearing before me counsel for the applicant relied on a ground that is not stated in the application, and is not included in the applicant’s written submissions. Counsel for the Minister said he could deal with the ground; but he also indicated that if I were not to accept his submission, it might be necessary for the Minister to obtain evidence to deal with it. I indicated that I would deal with the new ground on the basis of the submissions that were to be made to me at the hearing but that, if I were not to accept the Minister’s submissions, I would give the Minister an opportunity to consider whether he requires to put on evidence to deal with the new ground. As will appear later in these reasons, it is unnecessary that I afford the Minister that opportunity.
Ground 1
Ground 1 is as follows:
The Assessor failed to make a fresh assessment in accordance with the undertaking made at the commencement of the ITOA process on 19 [A]ugust 2014.
Particulars
a.At page 15 the Assessor wrote that “During the interview, it was explained to the claimant that while the department intended to make a fresh assessment of his protection claims in assessing his current ITOA, the department may have regard to assessment made by previous officers. . . The claimant was informed that the ITOA interview was an opportunity for him to explain why he disagreed with the findings of previous decision makers; and
b.The Assessor has anchored its decision making process to that of a previous decision maker and has failed to make a fresh assessment as required and fell into error (see SZUBX v Minister for Immigration [2015] FCCA 2882).
In her written submissions counsel for the applicant submitted the error is to be found in the bold portion of the following passage from the Assessor’s reasons:
The claimant attended an ITOA interview on 2 October 2015. During the interview, it was explained to the claimant that while the department intended to make a fresh assessment of his protection claims in assessing his current ITOA, the department may have regard to assessments made by previous officers. . . . The claimant was informed that the ITOA interview was an opportunity for him to explain why he disagreed with the findings of previous decision makers. It was also put to the claimant that it was open to the decision maker to apply the same reasoning in previous assessments if it still applied in his current situation.
Counsel for the applicant submitted the Assessor made the same error Judge Street found the Assessor made in SZUBX v Minister for Immigration & Anor.[57] Counsel submitted the Assessor “erred at law by wrongfully juxtaposing conflicting objectives of the ITOA Interview process such that it can be reasonably inferred that the Applicant was misdirected and misinformed about the ITOA process”.[58] Counsel quoted the following passage from SZUBX:[59]
[I]t was not relevant to the assessment of whether Australia owed the applicant a non-refoulement obligation to ascertain why the applicant disagreed with the findings of previous officers. . . . it was procedurally unfair to conduct the ITOA interview on the basis that it was an opportunity for the applicant to explain why he disagreed with the findings of previous officers when the invitation that had been made was to attend an interview for the purpose of assessing the non-refoulement obligations allegedly owed by Australia to the applicant.
[57] [2015] FCCA 2882 at [13]
[58] Applicant’s Written Submissions, [4]
[59] Applicant’s Written Submissions, [4]. The passage counsel quoted are from [2015] FCCA 2882 at [14] and [15]
Counsel for the applicant further submitted the Assessor did not give the applicant the opportunity to explain why he disagreed with the findings of previous officers. From that, counsel submits it is safe to conclude the Assessor’s wrongful characterisation of the process had the effect of misleading the applicant, thus resulting in the Assessor falling into jurisdictional error.[60]
[60] Applicant’s Written Submissions, [5]
Counsel for the Minister submitted there is nothing to indicate that the Assessor did not bring a fresh mind when considering the applicant’s claims. Counsel submits the Assessor did not reproduce or adopt the reasoning of the previous decision-makers.[61] Counsel also submitted that, in any event, SZUBX is plainly wrong because there is no statutory provision governing how an ITOA is to be conducted and, for that reason, it would have been open to the Assessor to refer to the findings of previous decision-makers, and to use such findings as a starting point for his own assessment.[62]
[61] First Respondent’s Outline of Submissions, [18]
[62] First Respondent’s Outline of Submissions, [19]
Nature of power or function exercised by Assessor
When assessing the competing submissions the first question that must be addressed is the nature of the power or function the Assessor exercised or purported to exercise when undertaking the ITOA process, and the duties, if any, to which the Assessor was subject when exercising or purporting to exercise those powers or functions. Counsel for the applicant and the Minister assume that the Assessor was under a duty to accord the applicant procedural fairness. That shared assumption, however, may not be correct.
As I have already noted at the beginning of these reasons, the nature of an ITOA was examined by the High Court in Minister for Immigration and Border Protection v SZSSJ.[63] The High Court held that an ITOA process attracted an implied statutory requirement to afford procedural fairness. The basis of that conclusion was the unchallenged findings of the Full Federal Court that the ITOA process had been undertaken by officers of the Department to assist the Minister put into effect a procedural decision the Minister made to consider whether to grant a visa under s.195A and s.417 of the Act, or to lift the bar under s.48B of the Act, in the case of each applicant for a protection visa affected by what was described in that case as the “data breach”. The High Court said an ITOA was “accordingly properly characterised as a process undertaken by an officer of the Department under and for the purposes of ss 48B, 195A and 417 of the Act”.[64] The High Court emphasised that the source of an ITOA process that attracted an implied statutory requirement to afford procedural fairness was the Minister’s making a “personal procedural decision to consider whether to make a substantive decision”, in that case, substantive decisions under the non-compellable powers conferred by s.195A, s.417, and s.48B of the Act.[65] The High Court said:[66]
If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister's instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness.
[63] [2016] HCA 29
[64] [2016] HCA 29, at [56]
[65] [2016] HCA 29, at [54]
[66] [2016] HCA 29, at [54]
The High Court also said that “the question whether the Minister personally has made a procedural decision to consider whether to grant a visa or to lift a bar in a particular case or class of cases is a question of fact”.[67]
[67] [2016] HCA 29, at [55]
There is no direct evidence before me about whether the ITOA process that was applied to the applicant is one that has been undertaken to assist the Minister to implement any personal procedural decision to consider whether to make a substantive decision. There is, however, the following statements the Department made to the applicant’s representative in its letter dated 30 September 2014:[68]
The department will now undertake a re-assessment of your protection claims as part of a new International Treaties Obligations Assessment (ITOA). This ITOA will assess whether there are any non-refoulement concerns which would prevent the department from progressing removal arrangements in your case.
[68] CB285
From these statements it is open to infer, and I do infer, that the ITOA process in relation to the applicant was established to assist the Minister to discharge the obligation that arose on the exercise of the power conferred by s.198 of the Act to consider Australia’s non-refoulement obligations before removing an unlawful non-citizen from Australia.[69] That, in effect, is what counsel for the Minister submitted. He submitted that the ITOA process was undertaken as a preparatory process to the Minister’s power to deport.[70] I am not satisfied, however, that that submission is correct.
[69] See, for example, Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
[70] Transcript of judicial review hearing, T13.5
After the Department sent the applicant the letter dated 30 September 2014 s.197C was introduced into the Act with effect from 16 December 2014 by item 2 of Schedule 5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Amending Act). Section 197C provides as follows:
(1)For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2)An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.
Although the ITOA process in relation to the applicant commenced before s.197C of the Act came into effect, the process continued after s.197C came into effect and ended on 22 October 2015 when the Assessor made his decision. In these circumstances, it is not apparent how it could be contended that, at least after 16 December 2014, the ITOA process in relation to the applicant was undertaken for the purpose of assisting the Minister to discharge his obligations under s.198 of the Act given that, because of s.197C of the Act, whether or not Australia has any non-refoulement obligations has not since 16 December 2014 been relevant to the exercise of the power conferred by s.198 of the Act.
Because neither party made any submissions about s.197C of the Act, it is inappropriate for me to say anything further about the effect of that section on whether the Assessor was under any duty to accord the applicant procedural fairness. I will instead assume that the ITOA process, as it was applied to the applicant, was undertaken to assist the Minister discharge a statutory power or to assist the Minister in the implementation of a personal procedural decision to consider whether to make a substantive decision; and that, when undertaking that process, the Assessor came under an obligation to accord the applicant procedural fairness.
Content of Assessor’s duty to accord procedural fairness
The next matter to consider is the content of the duty to accord procedural fairness that arose on the Assessor’s undertaking the ITOA process in relation to the applicant. Relevant to that issue is the following passage from SZSSJ:[71]
[C]ompliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power. The implied condition of procedural fairness is breached, and jurisdictional error thereby occurs, if the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a “practical injustice”.
Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person. Ordinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry.
[71] [2016] HCA 29 at [82] and [83]
From this summary, the applicant will establish the Assessor failed to accord the applicant procedural fairness if the Assessor failed to notify the applicant of the nature and purpose of the inquiry, or of the issues the Assessor would consider, or of the nature and content of information the Assessor might take into account as a reason for coming to a conclusion adverse to the applicant.
The judgment in SZUBX
Given the applicant relies heavily on Judge Street’s judgment in SZUBX it will be convenient if I next consider that judgment before I consider the parties’ submissions.
In SZUBX the Department informed the claimant that it had commenced an ITOA, and that its purpose was to assess whether there were any non-refoulement obligations that would prevent the Department from progressing removal arrangements in relation to the applicant. At the interview the assessor put to the claimant for his comments adverse findings from the applicant’s previous IMR decisions. In addition, the assessor informed the applicant that the ITOA interview was an opportunity for him to explain why he disagreed with the findings of the previous officers.
Judge Street found that the assessor made at least two errors of law. The first is that the assessor acted unfairly by, on the one hand, informing the applicant when inviting him to attend the ITOA interview, that the purpose of the interview was to assess Australia’s non-refoulement obligations in relation to the applicant, but on the other hand informing the applicant at the interview that it was an opportunity for the applicant to explain why he disagreed with the findings of previous officers.[72] The second error his Honour found was that the assessor “deflected himself from the appropriate task by focusing upon explanations as to disagreement with the findings of previous officers, which anchored the assessor to a focus upon adverse findings rather than the underlying reasoning in relation to the applicant’s claims and fears”.[73]
[72] [2015] FCCA 2882 at [15]
[73] [2015] FCCA 2882 at [16]
It may be relevant to note that Judge Street did not consider it inappropriate for the assessor to put to an applicant findings made by a previous decision-maker that were adverse to the applicant, or the reasoning on which the previous decision-maker relied for making such finding. What his Honour found objectionable was the assessor asking the applicant why he disagreed with such findings. That is apparent from the following passage from his Honour’s judgment:[74]
Whilst it was perfectly permissible for the assessor to focus upon the underlying reasoning of earlier findings, or indeed to raise an earlier finding in the process of addressing the underlying reasoning, it was not relevant to the assessment of whether Australia owed the applicant a non-refoulement obligation to ascertain why the applicant disagreed with the findings of previous officers.
[74] [2015] FCCA 2882 at [14]
Thus, what his Honour considered to be objectionable was the assessor asking the applicant why the applicant disagreed with adverse findings made by previous decision-makers; and the reason his Honour found that to be objectionable was that anything an applicant might say about why he or she disagreed with the adverse findings was not relevant.
With respect, it is difficult to see how it can be permissible for an assessor to put to an applicant the adverse findings of a previous decision-maker, and the reasoning that support such adverse findings, and yet also conclude that it is irrelevant what an applicant might wish to say about why such findings and reasoning on which a previous decision-maker relied are incorrect. Presumably, the only purpose of putting to an applicant previous adverse findings and the reasoning that support them is to offer the applicant an opportunity to comment about those findings and the reasoning that sustains them; and in particular to state why those findings should not be accepted. The comments an applicant might offer about previous adverse findings may relate to the decision-maker’s reasoning, or to the decision-maker’s overlooking or mischaracterising information, or may include the production of additional information.
In any event, although I was invited to conclude that SZUBX is clearly wrong, it is not necessary for me to consider whether SZUBX is clearly wrong.
Did the assessor misrepresent to the applicant the nature of the ITOA process?
It is true the Assessor informed the applicant that the interview was an opportunity to explain why the applicant disagreed with the findings of previous officers.[75] That statement, however, must be viewed in the context in which it was made. In particular, the statement should be assessed by reference to what the Assessor said to the applicant immediately before and after he made the statement.
[75] T75. The transcript of the interview before the assessor is annexed to the affidavit of I S Muscatello. The transcript is not numbered, but the lines are numbered. Thus, T75 is a reference to line 75 of the transcript that appears on the second page of the transcript.
The assessor informed the applicant that the ITOA will consider whether Australia has any non-refoulement obligations in relation to the applicant under the Refugees Convention, the CAT, and the ICCPR.[76] He explained what the definition of a refugee was under the Refugees Convention and what Australia’s non-refoulement obligations are.[77] The Assessor further said that, while the Department intended to make a fresh assessment of the applicant’s protection claims, it may have regard to assessments made by previous officers.[78] At that point the Assessor asked the applicant whether he had read the previous decisions concerning the applicant’s case. After the applicant said he obtained assistance in that regard, the Assessor asked whether anyone had explained to the applicant why he had not previously been found to be a refugee.[79] The following exchange then took place:[80]
A.Actually, yeah. I was told by the person, they have mentioned I do not have any problem back in my country, so I can go back to my country.
O:Ok. So this interview is an opportunity for you to explain why you disagree with the findings of the previous officers. Ok. And I’ll give you that opportunity throughout the interview. Ok. And its open to the Department to apply the same reasoning in previous assessments, if it still applied in your current situation.
[76] T45
[77] T50-T60
[78] T65
[79] T70
[80] T70-75
In my opinion the Assessor did not misrepresent to the applicant the purpose of the ITOA interview. In context, the Assessor’s informing the applicant that he had the opportunity to say why he disagreed with the assessments that previous officers had made related to the findings previous decision-makers made that it was safe for the applicant to return to Sri Lanka. There were no other relevant findings that previous decision-makers made that were adverse to the applicant. Previous decision-makers accepted, or at least were prepared to accept, the factual premises of the claims the applicant had made before the applicant was invited to participate in the ITOA process. The previous decision-makers refused the applicant’s claims because they were satisfied that country information showed that the applicant would not face harm if he returned to Sri Lanka, notwithstanding their accepting or assuming as correct the applicant’s claims about what occurred to him before he departed Sri Lanka for Australia.[81] The purpose of the Assessor’s informing the applicant that the interview was an opportunity to explain why he disagreed with previous officers was to inform, and I find it reasonably served to inform, the applicant that the Assessor considered there was an issue about whether the applicant could safely return to Sri Lanka, and that he had the opportunity to make submissions about that issue. There was no unfairness in the assessor having informed the applicant that he had the opportunity to say why he disagreed with the assessments that previous decision-makers had made.
[81] See CB135-136 and CB207
Further, when considering whether the Assessor misrepresented to the applicant the nature of the interview, it is necessary to consider the manner in which the Assessor conducted the interview. After asking the applicant a number of questions about the applicant’s family, where the applicant had lived, his travel to and stay in India, and the applicant’s travel to Australia, the Assessor said:[82]
So I want to summarise the claims that you’ve made in . . . throughout your previous dealings with the Department. I also want to summarise the findings of these past decisions, and give you the opportunity to provide any comment.
[82] T210
After going through the claims the applicant had made, and the findings previous decision-makers made, the following exchange took place:[83]
O:So we’re going to talk about each of your claims later in the interview, but is there any comment that you’d . . . like to make, regarding those previous findings?
A.Yeah, during these past interviews I have given all the correct information, and the incident which I had been affected, but I don’t know how they looked into that, and how they accepted those things, but all were truth, and I have told only the truth, and my own problems.
[83] T260-T265
After adjourning the interview for about fifteen minutes, the Assessor asked the applicant questions about each of his claims. The questions did not consist of the Assessor putting to the applicant adverse findings made by previous decision-makers with an invitation that the applicant comment on those findings. That was obviously not possible for the new claims the applicant raised because the applicant had not raised these claims before previous decision-makers and, therefore, these claims were not the subject of any previous findings by anyone. It was also not appropriate in relation to findings previous decision-makers made about what the applicant claimed happened to him in Sri Lanka, because previous decision-makers accepted or were prepared to accept those claims. Instead, the Assessor went through each of the claims the applicant made, including the new claims the applicant raised at the interview. In addition, the Assessor put to the applicant, not what previous decision makers said about country information concerning Sri Lanka, but information from the 2012 UNHRC Guidelines, the Canadian Immigration and Refugee Board, and a report from the Department of Foreign Affairs and Trade (DFAT) about Tamils in Sri Lanka; and the Assessor did so in the context of informing the applicant that even if the Department were to accept the applicant’s claims about his involvement with the TRO projects, his travelling through government checkpoints each day, the applicant’s starting a small communications centre and receiving threatening calls, and the applicant’s being assaulted by the military because of the bomb explosion, the assessor may still conclude it is not satisfied there is a real chance the applicant’s background would lead the Sri Lankan authorities to conclude the applicant is an LTTE supporter.[84]
[84] T650-T665
The manner in which the Assessor conducted the interview was consistent with the Assessor’s statement to the applicant about the purpose of the interview. The applicant could not reasonably have been under any misunderstanding that the purpose of the interview was for the applicant to present to the Assessor evidence and arguments in support of the applicant’s claims for protection, and that the purpose of his presenting evidence and arguments was to persuade the Assessor that Australia owed non-refoulement obligations to him. That the applicant understood this was the purpose of the interview is confirmed by the applicant’s advancing to the Assessor claims he had not advanced to previous decision-makers.
I also do not accept the submission counsel for the applicant made that the applicant was not given an opportunity to make submissions about adverse findings previous decision-makers made. First, as I have already noted, the Assessor summarised to the applicant the claims he had previously made and the findings previous decision-makers made and asked the applicant whether he had any comments. Second, as I have also already noted, the Assessor put to the applicant information from the 2012 UNHRC Guidelines, the Canadian Immigration and Refugee Board, and DFAT about Tamils in Sri Lanka. Third, at the conclusion of the interview, the Assessor said he would consider any further submissions “up until the day I make the decision”.[85] The applicant acted on that invitation and made further submissions, which the Assessor considered.[86]
[85] T990
[86] CB307-309
This part of the applicant’s claims, therefore, fails.
Did the Assessor fail to make fresh assessment of applicant’s claims?
I do not accept the applicant’s claim that the “Assessor has anchored its decision making process to that of a previous decision maker and has failed to make a fresh assessment as required and fell into jurisdictional error”. That is apparent from the description I have already given of the manner in which the Assessor conducted the ITOA interview. It is also apparent from the Assessor’s reasons for decision. Those reasons show the Assessor identified each of the claims the applicant made, the evidence and submissions the applicant gave about those claims, and considered those claims, accepting some, and rejecting others. The claims the Assessor rejected were claims the applicant did not previously make and, therefore, were not the subject of any findings by previous decision-makers. Further, to the extent the Assessor’s decision was based on country information concerning the position of Tamils in Sri Lanka, it was county information the Assessor himself considered.
This part of the applicant’s claims also fails.
Ground 2
Ground 2 is as follows:
The Assessor failed to consider each integer of the applicant’s claim in relation to his medical condition and his illegal departure from Sri Lanka during the civil war.
Particulars
a.In relation to his medical condition:
i.At page 15 the Assessor accepted that the applicant was being treated for kidney stones and diagnosed with Deep Vein Thrombosis and Haematuria;
ii.At page 15 the applicant claimed: “if he returns to Sri Lanka and is beaten by the Sri Lankan authorities for his involvement in the LTTE, he would be too weak to cope with the beatings and may subsequently die”
iii.The Assessor only considered that the department would take all reasonable steps while removing the applicant from Australia to ensure his life would not be at risk due to his medical condition; and
iv.The Assessor failed to make a finding under the refugee convention for this integer.
b.In relation to his illegal departure during the civil war:
i.At page 33 the Assessor accepted the applicant departed Sri Lanka illegally and he may be questioned on return or even charged under the Immigrants and Emigrants Act;
ii.At page 21 the Assessor accepted that the SLA made enquiries as to the applicant’s whereabouts in 2010 given that he departed illegally in 2008;
iii.The Assessor failed to consider that the applicant departed Sri Lankan [sic] illegally during the civil war which could heighten suspicions that the applicant had LTTE connections and may lead to more aggressive and violent interrogation upon return to Sri Lanka.
That part of the applicant’s written submissions that purports to deal with ground 2 is headed as follows:
Ground Two: Jurisdictional Error: The Assessor Misstated the Applicant’s case
The Assessor failed to identify the accurate Particular Social Group (“PSG”) applicable to the Applicant’s case and thereby fell into error.
The written submissions do not deal with the claims made in paragraph (b) of the particulars to ground 2. I will consider, however, the claims made in paragraphs (a) and (b) of the particulars, as well as the submissions made in the applicant’s written submissions, which depart from the particulars stated in the application.
Claim made in paragraph (a) of particulars
I do not accept the claim made in paragraph (a) of the particulars to ground 2. The Assessor did more than note that the Department would take reasonable steps while removing the applicant from Australia to ensure his life would not be at risk. As I have already noted, the Assessor considered whether the applicant’s medical condition gave rise to a claim under the Refugees Convention and to any complementary protection claims. The Assessor particularly considered whether the applicant would be denied medical treatment for his DTV condition in Negombo prison if the applicant were imprisoned on his return because he departed Sri Lanka illegally, finding there was no evidence the applicant would be denied medical treatment for a convention reason, or that treatment would be intentionally withheld from the applicant to inflict pain, suffering or humiliation on the applicant.[87]
[87] CB378.8-379.1
Claims made in written submissions
In the applicant’s written submissions it is stated that “[a]t the heart of the Applicant’s contention in ground 2 is the proposition that the Assessor considered the wrong Particular Social Group”, namely, persons suffering from kidney stones, DTV and Haematuria in Sri Lanka “for the purpose of deciding whether the Applicant had a well-founded fear of persecution by reason of membership of such a group” (Posited PSG).[88] The applicant submits the particular social group of which the applicant was a member was “failed asylum seekers with medical condition who are unfit to work” (Asserted PSG).[89] The applicant also submits, in effect, that the Assessor misapplied the relevant principles for determining whether a particular social group exists by proceeding on the incorrect basis that whether or not a particular social group exists is to be determined by whether it is perceived within the relevant society that such a group exists.[90]
[88] Applicant’s Written Submissions, page 5, [2]
[89] Applicant’s Written Submissions, page 6, [3]
[90] Applicant’s Written Submissions, page 7, [8] and [9]
Counsel for the Minister submits there was not before the Assessor any claim based on the applicant’s being a member of the Asserted PSG.[91] Counsel further submits that, in any event, the Assessor made findings that adequate health care would be provided to the applicant in Sri Lanka, any punishment that would be imposed on the applicant for leaving Sri Lanka unlawfully would flow from the application of a law of general application, and that, even if the applicant were to be incarcerated for departing Sri Lanka unlawfully, the Assessor was not satisfied the applicant would be denied access to health care in prison.[92]
[91] First Respondent’s Written Submissions, [26], [27]
[92] First Respondent’s Written Submissions, [27]
The first question is whether the applicant expressly claimed he had a well-founded fear or persecution, or that he otherwise feared harm because he was a member of the asserted PSG. That question is to be answered by claims the applicant in fact made based on his medical conditions. The Assessor recorded the claims as follows:[93]
The claimant claims that if he is returned to Sri Lanka his life is at risk due to the dangers associated with his kidney stones, Deep Vein Thrombosis (DVT) and Haematuria. He also claims that he will not have access to adequate medical treatment and will subsequently face life-threatening consequences.
[93] CB366.6
This accurately reflects the evidence the applicant gave at the interview.[94] It also reflects the claim the applicant’s representative made in her letter dated 14 November 2014.[95] In my opinion, therefore, the applicant did not expressly claim he feared harm because he was a member of the asserted PSG.
[94] T275-T335
[95] CB289
The next question is whether, on the material that was before the Assessor, a reasonably competent assessor would have appreciated the applicant claimed he has a well-founded fear of persecution because he was a member of the asserted PSG. That question must be addressed because it has been held that it is possible for the applicant to make a claim that he or she does not expressly articulate. In NAVK v Minister for Immigration and Multicultural and Indigenous Affairs, Allsop J (as his Honour then was) explained when it could be said a claim not expressly made may nevertheless be considered to have been raised:[96]
From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
[96] [2004] FCA 1695 at [15]
This passage related to the statutory duties of the Refugee Review Tribunal, but, in my opinion, applies to the powers and functions of the Assessor under the ITOA assuming, the Assessor was performing a function preparatory to the Minister exercising some power.
It is true the applicant, by his representative’s letter dated 14 November 2014, claimed he “has been declared unfit to work or travel”;[97] and that, in response to the Assessor’s asking whether it was correct the applicant’s representative submitted the applicant had been declared unfit to work or travel, the applicant said he had been declared unfit to work and that he “cannot work”.[98] The reference to the applicant’s being unfit to work, however, was made in the context of the applicant’s claims based on his medical condition. The applicant did not claim he feared harm would come to him in Sri Lanka, not only because of his medical condition, and the absence or withholding of adequate treatment in Sri Lanka, but also because he would be unable to work; and there was no material before the Assessor that could reasonably have suggested that persons who suffered from medical conditions that prevented persons from working had a well-founded fear of persecution for the reason that they are members of such group of persons. In these circumstances, I am not satisfied that a reasonable assessor in the position of the Assessor ought reasonably to have appreciated from the material that was before the Assessor that the applicant claimed he had a well-founded fear of persecution because he was a member of the asserted PSG.
[97] CB289
[98] T329
I also do not accept the applicant’s submission in relation to the Assessor’s reliance on the perceptions within Sri Lankan society to determine the existence of the Posited PSG to the extent it is suggested the Assessor determined that question solely by reference to the perceptions within that society. It is true the Assessor referred to the perceptions of members of Sri Lankan society when determining whether the Posited PSG existed; but the Assessor also referred to the perceptions of persons outside that society. That is apparent from the following passage from the Assessor’s reasons (emphasis added):[99]
I consider that there is no societal perception towards people living with these conditions in Sri Lanka, nor do I consider that people in Sri Lanka, or anywhere else, recognise the social existence of such a group
[99] CB367.1
This part of the applicant’s claims, therefore, also fails.
Paragraph (b) of particulars to ground 2
Counsel for the applicant made no submissions in relation to the claim made in this paragraph of the particulars to ground 2.
The claim is premised on the assumption that the material before the Assessor gave rise to a claim that the applicant’s leaving Sri Lanka during the civil war increased the risk of harm to the applicant on his return. The applicant made no such claim; and no claim can be said to have reasonably arisen on the material that was before the Assessor. Even if it could be said such claim impliedly arose on the material before the Assessor, the Assessor considered adversely to the applicant the factual premises on which it was based. The Assessor was aware that in 2008 the applicant left Sri Lanka at the time of the civil war. The inference is inescapable, therefore, that when the Assessor assessed the applicant’s claims of future harm, the Assessor took that fact into account.
The claim in paragraph (b) of the particulars to ground 2, therefore, also fails.
Ground 3
Ground 3 is as follows:
The Assessor erred considering the applicant’s membership of a particular social group.
Particulars
a.At pages 24-25 the Assessor found that the particular social group of “person [sic] suffering from kidney stones, DVT and Haematuria in Sri Lanka” did not fall within the definition of a particular social group in Article 1A(2);
b.At pages 30-31 the Assessor found that “young Tamil males from the north” do not have a well-founded fear of persecution on the basis of the particular social group alone;
c.At page 25, the Assessor stated that he would consider the claim of “failed asylum seeker” under the convention ground of particular social group; and
d.The applicant’s particular social group is all the above three groups in one; “young Tamil male from the north who departed illegally during the civil war and returning as a failed asylum seeker with serious medical problems”
That part of the applicant’s written submissions that purports to deal with ground 3 is headed as follows:
3. Jurisdictional Error: The Assessor failed to assess an integer of the Applicant’s claim in accordance with the law and adopted an Irrelevant Conclusion.
The Applicant contends that the Assessor failed to assess an integer of the Applicant’s claim in accordance with case law thereby failing to exercise its jurisdiction.
It is apparent that the ground stated in the application, and the ground articulated in the applicant’s written submissions purportedly in support of ground 3, are different. I will consider the grounds stated in the application and in the applicant’s written submissions.
Ground 3 as stated in application
The error the ground claims the Assessor made is not treating the applicant as falling within a particular social group which consisted of the particular social groups the Assessor posited or found existed when assessing the applicant’s claims under the Refugees Convention (Aggregated PSG). There are a number of difficulties with this claim.
a)First, it assumes the Assessor found there exists a particular social group consisting of persons who suffered “from kidney stones, DVT and Haematuria in Sri Lanka”. The Assessor, however, found there was no such particular social group. Assuming (as I have found is the case) the Assessor made no error in concluding no such particular social group exists, the Assessor could not have made an error by not considering whether there existed an Aggregated PSG.
b)Second, the applicant did not expressly claim that there existed an Aggregated PSG. Nor is there, and counsel has not identified, material on the basis of which it could be said that a reasonable assessor in the position of the Assessor ought to have understood that the applicant made such claim.
c)Third, given the applicant accepts the Assessor considered whether the applicant had a well-founded fear of persecution on the basis that the applicant claimed he was a member of each of three particular social groups, and the Assessor rejected each of those claims, it is not apparent that the Assessor’s considering the applicant being a member of the Aggregated PSG could have given rise to a different result. Stated another way, the claim assumes that the risk of harm to which the applicant would be exposed if he were considered to be a member of the Aggregated PSG would be greater than the sum of each of the risks the applicant would be exposed to as a member of each particular social group. Counsel for the applicant has not explained how, on the material that was before the Assessor, such increased exposed risk would arise if the applicant’s claims were considered on the basis of his being a member of the Aggregated PSG.
This part of the applicant’s claims, therefore, also fails.
Claims made in written submissions
This part of the applicant’s written submissions is directed to the manner in which the Assessor dealt with the applicant’s claim that he belonged to the particular social group of “young Tamil males from the north of Sri Lanka”.[100] The applicant submits the Assessor failed to assess that claim in the manner discussed by the High Court in Applicant A v Minister for Immigration and Ethnic Affairs,[101] Applicant S v Minister for Immigration and Multicultural Affairs,[102]and Dranichnikov v Minister for Immigration & Multicultural Affairs.[103] More particularly, the applicant submits the Assessor erred by assessing that claim having regard to the 2012 UNHRC Guidelines which were irrelevant because it did not in terms deal with the particular social group of “young Tamil males from the North of Sri Lanka”.
[100] Applicant’s Written Submissions, page 8, [1]
[101] (1997) 190 CLR 225
[102] (2004) 217 CLR 387
[103] [2003] HCA 26
These submissions do not disclose any error by the Assessor. The Assessor was aware the applicant claimed that one of the reasons he fears harm on return to Sri Lanka was because he was a young Tamil male from the North of Sri Lanka, and the Assessor assessed that claim having regard to country information, which included the 2012 UNHRC Guidelines.[104] These Guidelines were relevant to the assessment of the applicant’s claim because it purported to set out guidelines for assessing the international protection needs of asylum-seekers from Sri Lanka. It was open to the Assessor to rely not only on what those Guidelines said, but also on what they did not state. Two things the Assessor told the applicant at the interview the Guidelines did not state was that “being a Tamil in itself means a person will be persecuted”[105] or that “being a young Tamil male in itself means an individual will be at risk of persecution”.[106] As set out in his reasons, the Assessor also informed the applicant during the interview that a report prepared by DFAT did not identify Tamils to be at risk on their ethnicity alone. In my opinion, it was reasonably open to the Assessor to rely on the absence from the Guidelines and the DFAT report of any reference to young Tamil males being at risk only because they were young Tamil males to reject the applicant’s claim based on his being a member of the particular social group of “young Tamil males from the north of Sri Lanka”.
[104] Their tile is UNHRC Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, UNHRC, 21 December 2012, which is referred to in footnote 77 of the Assessor’s reasons.
[105] T640
[106] T645
Finally, the applicant’s reliance on Applicant A v Minister for Immigration and Ethnic Affairs[107] and Applicant S v Minister for Immigration and Multicultural Affairs[108] is misplaced. Those cases deal with what constitutes a particular social group and how a decision-maker should determine whether an asserted particular social group exists. The Assessor, however, accepted there existed the particular social group of “young Tamil males from the north of Sri Lanka”. Whether or not the Assessor accepted that fact by applying the principles considered in Applicant A and Applicant S is not relevant.
[107] (1997) 190 CLR 225
[108] (2004) 217 CLR 387
This part of the applicant’s claims also fails.
Additional ground raised at hearing
I finally turn to the ground raised by counsel for the applicant at the hearing which is not included in the application or in the applicant’s written submissions. The ground relates to the following passage from the Assessor’s reasons:[109]
The Canadian Immigration and Refugee Board has highlighted that the key issue to consider in light of improvements in the overall security situation remains whether any past involvement in the LTTE, actual or perceived, is currently likely to bring a returnee to the adverse attention of the Sri Lankan authorities.
[109] CB373.2
Counsel for the applicant submitted the Assessor did not put that information to the applicant. That is incorrect. The transcript of the interview shows that the Assessor put to the applicant the very words of the passage from the decision of the Canadian Immigration and Refugee Board that are set out in the Assessor’s reasons.[110]
[110] T655
Conclusion and disposition
The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, to order that the application be dismissed.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 20 October 2017
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