SZRFJ v Minister for Immigration - [2012] FMCA 932

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRFJ v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 932

MIGRATION – Independent merits review of refugee claims of offshore entry person – Tamil from Sri Lanka with family links to LTTE – IMR report made before complementary protection amendments to Migration Act – no evidence that Minister would not consider complementary protection – IMR assessment of refugee claims not irrational or unreasonable – integers of claims were addressed – findings were supported by evidence – no denial of procedural fairness – no grounds for relief established.

Migration Act 1958 (Cth), ss.36, 36(2), 46A, 46A(2), 477(1)
Migration Amendment (Complementary Protection) Act 2011 (Cth)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, [1990] HCA 33
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [2011] HCA 1
Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164, [2010] HCA 48
Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489, [2009] HCA 30
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16
Minister for Immigration & Citizenship v SZQPA [2012] FCA 1025
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, [1996] HCA 6
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319, [2010] HCA 41
QAAA of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs (2007) 98 ALD 695, [2007] FCA 1918
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402, [2003] FCAFC 231
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152, [2006] HCA 63
SZPZI v Minister for Immigration & Anor [2011] FMCA 530
SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207, [2012] FCAFC 26

Applicant:

SZRFJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

DAVID CORRIGAN,
IN HIS CAPACITY AS
INDEPENDENT MERITS REVIEWER

File Number:

SYG 460 of 2012

Judgment of:

Smith FM

Hearing date:

4 October 2012

Delivered at:

Sydney

Delivered on:

29 October 2012

REPRESENTATION

Counsel for the Applicant:

Mr P W Bodisco

Solicitors for the Applicant:

Mariah Criminal Lawyers

Counsel for the First Respondent:

Mr H P T Bevan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 460 of 2012

SZRFJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DAVID CORRIGAN, IN HIS CAPACITY AS
INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant arrived in November 2010 at Christmas Island, travelling on an intercepted boat from India. He presented identity documents, including a passport, showing that he is a national of Sri Lanka who has resided in India as a refugee since 2008. He had no visa to enter Australia, and required a discretionary decision by the Minister before he could apply for a visa.
On 21 January 2011 he requested an assessment by the Department of Immigration of his refugee status (the “RSA”), under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether to allow the applicant to make an application for an onshore protection visa. On 21 April 2011, an officer of the Department of Immigration notified the applicant that he had decided that he was not a refugee as defined by the Refugees Convention.
Under non‑statutory procedures, the applicant applied for independent merits review (the “IMR”), which was performed by Mr Corrigan. Mr Corrigan interviewed the applicant at Scherger Detention Centre on 7 December 2011, and wrote a report dated 23 January 2012 which was notified to the applicant by letter dated 25 January 2012. In his report, Mr Corrigan made a finding that the applicant “does not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958”. He recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.
Throughout the RSA and IMR proceedings, the applicant was assisted by a lawyer from Melbourne. However, he filed an application for judicial review by this Court in Sydney without legal representation, giving Scherger IDC as his address for service. He subsequently obtained representation from solicitors in Sydney, and was represented at the hearing by a barrister. The applicant did not attend, and the Court was not informed as to his present circumstances.
The applicant’s counsel addressed an amended application which was filed at the hearing. It seeks an injunction to restrain the Minister and his officers from relying upon Mr Corrigan’s report, supported by a declaration that the report “was not made in accordance with law”. It is established that the Court has jurisdiction to give relief of this type in a situation such as was addressed by the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319, and that a time limit under s.477(1) of the Migration Act does not apply by reference to the date of the IMR report (see SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207) . The Court has frequently given such relief, upon being satisfied that an IMR report reveals error of law, including denial of procedural fairness, in its reasoning or the procedures followed before its making.
The amended application also seeks a writ of mandamus directed to the Minister requiring him “to determine the applicant’s application according to law”. This appears to refer to the applicant’s application that the Minister exercise power under s.46A(2) to lift the bar against visa applications by an unlawful ‘offshore entry person’. However, the giving of relief by way of mandamus is problematic. It is to be noted that in Plaintiff M61 (supra at [59]), the High Court referred to the ‘non‑compellable’ nature of the Minister’s power, and said that “if the power is exercised, s 75(v) [of the Constitution] can be engaged to enforce” the limits of the power, but that “there being no duty to exercise the power, mandamus will not go to compel its exercise”. Their Honours reasoned that, where the Minister had decided to consider exercising his non‑compellable powers after receiving a favourable RSA assessment or IMR report, “the RSA and IMR processes taken in respect of each plaintiff were steps taken under and for the purposes of the Migration Act”, and were therefore subject to requirements of accordance with law and obligations of procedural fairness. Where these requirements were not met by an IMR reviewer, they said that: “mandamus will not issue to compel consideration, and certiorari would have no practical utility”, but that a declaration as to the error should be made (see [9], and [99]‑[103]). Their Honours also said at [8]:
There being no present threat to remove either plaintiff without a further RSA being undertaken, in which the law would be correctly applied and procedural fairness afforded, it is not now necessary to consider granting an injunction.
The evidence which is before the Court does not include the relevant administrative directions or guidelines for the RSA and IMR procedures which were followed or are currently operative in the applicant’s case. Rather, the applicant’s case was presented on an assumption that relevant administrative guidelines exist, and that they are in the terms which were in evidence before the High Court in Plaintiff M61, to the extent that this evidence is discoverable by reading that judgment.
I am reluctant to make that assumption, given the lapse of time and the evolving nature of immigration policy in relation to ‘offshore entry persons’ since 2010. However, for the reasons which follow, I have decided that the applicant has failed to establish any ground for any relief referable to Mr Corrigan’s report, even on the assumption invited by the applicant.
The absence of relevant evidence as to the current administrative arrangements affecting the making of decisions concerning the applicant by the Minister and his Department after Mr Corrigan made his report, poses particular difficulties when addressing Ground 1 of the application. This ground focuses upon the commencement of the Migration Amendment (Complementary Protection) Act 2011 (Cth) subsequent to the date of his report, and the fact that Mr Corrigan did not address issues of complementary protection.
The difficulties facing this ground were pointed out to counsel for the applicant in the course of the hearing, but he did not tender additional evidence, nor seek an adjournment to enable the tender of evidence to elucidate how the Minister’s current administrative arrangements address issues of complementary protection in their possible application to the applicant’s circumstances. Nor did the Minister seek to clarify this situation. The Minister’s counsel was content to rely upon the absence of evidence showing that issues of complementary protection had not been addressed according to law and procedural fairness subsequent to Mr Corrigan’s report, or would not be addressed according to law in the future before any adverse action was taken in relation to the applicant. As I shall explain, the Minister’s submissions should be accepted in this respect.
I shall below address each of the grounds upon which the present applicant seeks relief, after outlining the evidence as to his application to the Minister and how it was addressed by Mr Corrigan.

The RSA application and IMR report

The form of the applicant’s RSA request which is in evidence invited him to present “your reasons for claiming to be a refugee”, and drew attention to the criteria for the grant of a protection visa provided by s.36(2) and other provisions of the Migration Act as in force prior to March 2012 (see Court Book p.60). The applicant’s lawyers completed this section of the form, by referring to an attached statement signed by the applicant. The statement recounted the applicant’s history before arriving in Australia, which explained why he left his country, and why he feared that he would be harmed if he returned to Sri Lanka.
I do not propose to repeat his history in detail, and shall attempt to confine the extent to which I refer to it when addressing the grounds of review. To do so in a published judgment, might expose the applicant to risks which he genuinely fears. Essentially, Mr Corrigan accepted the applicant’s claimed history and subjective fears of harm as true, but on an objective assessment of the future risks found that the applicant would not be exposed in the future to a ‘real chance’ of persecution within the Refugees Convention if he returned to Sri Lanka. The applicant’s case was clearly one on which minds might differ about this assessment, but the issues before me are whether Mr Corrigan’s report discloses error of law or procedure before he reached his adverse assessment. It is not my function to review the merits of his assessment and to substitute my own assessment.
In short, the applicant’s family were Hindu Tamils living in the Jaffna area during the LTTE insurgency. When the applicant was a young boy, his older sister and one older brother were killed, after they were forcibly recruited by the LTTE. Another older brother was abducted and murdered as a result of the family’s perceived LTTE associations, and Mr Corrigan accepted that a pro‑government militia “and/or military may have been responsible”. The applicant’s family were known to mourn these deaths and to have had contacts with the LTTE, and Mr Corrigan expressly accepted that the applicant “strongly believes that his brother and sister are heroes who fought for the liberation of the Tamil people”.
The applicant himself did not join the LTTE nor actively support it. However, Mr Corrigan accepted that the applicant was interrogated, detained, and mistreated by security forces in 2006, and twice in 2007. He accepted that on the last occasion, the applicant received injuries on the head and his tooth was broken, and “they accused him of training with the LTTE as he had been in a LTTE area for four years, came from a LTTE family and because the LTTE trained a lot of fishermen”. The applicant’s family were concerned that worse was to come, and arranged for him to seek refuge in India by bribing CID officers to allow him to pass through Colombo airport.
Mr Corrigan also accepted evidence that recently the army had showed a continuing awareness of the past LTTE connections of the family. He said:
52.I accept that his mother went to a communication centre to send a photo of sister in LTTE uniform to him. I accept that the authorities had instructed the centre that if they saw someone trying to send such material they should report it and this is what happened. I accept that the army then visited his mother and asked if she sent it and she told the truth that she had. I accept that the army did not say anything further nor give her a warning but just left.
The applicant’s lawyers presented submissions which maintained that the applicant would be specially at risk as a person individually of adverse interest to the Sri Lankan authorities and pro‑government militias, and also generally as a single male Tamil from the north.
The general contention was addressed by Mr Corrigan in one paragraph:
54.The country information set out above indicates a generally improved situation for Tamils since the ending of the war with the UNHCR stating that there was no longer a presumption of eligibility for Tamils originating from the North. The claimant has submitted a number of articles and a number are referred to in written submissions indicating continuing human rights problems for Tamils in Sri Lanka. However in making my assessment, I have given far greater weight to the assessment by the UNHCR in its eligibility guidelines as to the circumstances for Tamils as it presents an authoritative and independent overall analysis of the situation for Tamils and the human rights situation in Sri Lanka. I note that the USDOS and UNHCR have both clearly stated that there exists substantial mistreatment of those suspected of having links with the LTTE. The USDOS noted that the security forces frequently detained and tortured Tamils in the north and east suspected of being sympathetic to the Tigers. The UNHCR guidelines mention the continuing disappearance of those suspected of being linked with the LTTE and note such persons as having a potential risk profile. Whilst the UNHCR has stated that are some reports that young Tamil men, particularly those originating from the north and east of the country, may be disproportionately affected by the implementation of security and anti‑terrorism measures on account of their suspected affiliation with the LTTE, this needs to be read with the statement of the UNHCR that there was no longer a presumption of eligibility for Tamils originating from the North and other information cited above (including the ending of cordon and search operations since the end of the conflict) indicating an improved overall situation for Tamils which would include young, single men from the north. Considering this information overall, I find that the claimant would not face a real chance of persecution, now or in the reasonable future simply on the basis of his Tamil ethnicity or his membership of a particular social group of young, single, male, Tamils from the North or any other variant of these characteristics (such as young, male Tamils from the North).
The applicant’s specific circumstances were then addressed by Mr Corrigan in three paragraphs:
55.I do not accept that there is a real chance that the claimant will be imputed with a political opinion as a supporter of the LTTE, now or in the reasonably foreseeable future. Whilst I have accepted that both his brother and sister were forcibly recruited into the LTTE and later killed, these events occurred many years ago. Whilst, I also accept that another brother was killed by the EPDP and/or military, this incident occurred 9 years ago which is also a long period of time. Whilst I accept that in 2006 and 2007 the claimant was subject to questioning on a regular basis and suffered incidents of detention and physical mistreatment amounting to serious harm from the authorities on suspicion of LTTE involvement (including suspicion of LTTE members visiting his family house), these incidents occurred prior to the ending of the war and on each of these occasions the claimant was released within 2‑3 hours. I have taken into account the claimant’s argument that his position is different to that of his siblings because he is young and unmarried but the fact remains that his other siblings (including three brothers) have not suffered any harm or been the subject of any adverse interest since he left Sri Lanka. I have also taken into account that that the claimant was told the army were enquiring about him before he left for [location] and that he had to pay a bribe to CID officers at the airport to be allowed to leave or else he would be jailed. However, I find these factors are outweighed by the change of country circumstances since his departure from Sri Lanka, the passage of time since this period and the lack of interest by the authorities in the period since his departure in his other family members which includes three brothers. Whilst one brother may have moved to his wife’s village, the fact that he runs a shop there demonstrates that he is not in hiding and that he would be easily traceable if he was of any interest to the authorities or anyone else.
56.In the agent’s submission it was stated that the authorities continue to harass and threaten his parents and that it was difficult for him to speak openly to his family because he knows that such conversations are often listened to by the army and intelligence services. However, when asked about this at the IMR interview, the claimant gave the only example of his family being harassed and threatened since he left Sri Lanka as being that his mother was warned for sending an LTTE photo through a communication centre. Whilst I have accepted that the claimant’s mother was warned by the army for sending an LTTE photo through a communication centre, I note that no other action was taken against her and she has not been the subject of any adverse attention from the authorities or any paramilitary group as a result of this incident. I therefore find that this incident will not lead to any adverse interest in the claimant from the authorities or any paramilitary group. Other than this incident the claimant’s oral evidence did not support the assertion that his family continued to be harassed and threatened and I thereby find that they have not been since he departed Sri Lanka. Whilst I have accepted the claimant believes that his brother and sister were heroes who fought for the liberation of the Tamil people, I have taken into account that the claimant himself has not claimed to have ever been involved with the LTTE.
57.In the light of the improved situation for Tamils generally since the ending of the war, his own lack of personal involvement with the LTTE and the lack of any targeting of any of his family members since he left Sri Lanka (beyond a mere one off warning of his mother) I do not accept that claimant is of continuing interest to the authorities or paramilitary groups such as the EPDP or TMVP that support the government even taking into account that he had been employed as a fisherman. Whilst I accept that paramilitary groups such as the EPDP and TMVP are still involved in human rights abuses as demonstrated by the above country information of the UK Home Office report and the untranslated documents provided by the claimant this needs to be read in combination with country information set out above that indicates an overall improvement in the human rights situation for Tamils from the North evidenced in particular by the statement from the UNHCR that there was no longer a presumption of eligibility for Tamils originating from the North. In making my assessment, I have also taken into account that the claimant has not claimed that he individually was ever subjected to any adverse attention by the EPDP, TMVP or any other paramilitary group. I therefore do not accept that, now or in the reasonably foreseeable future he faces a real chance of persecution on account of his Tamil race, his actual political opinion or an imputed political opinion as a suspected LTTE supporter or membership of a particular social group (his family or as a young, single Tamil male from the North) from the government or any paramilitary group including the EPDP and TMVP.

Mr Corrigan then addressed a further contention made on behalf of the applicant, that he was at risk of mistreatment as a returning unsuccessful asylum seeker:
58.The DFAT country information referred to above provides that the Sri Lankan authorities have no procedures in place to identify failed asylum seekers and that there is no difference in the treatment of deportees or returnees whether they are Singhalese, Tamil or Muslim. It is also stated that their experience in managing the return of Sri Lankans who have made an asylum claim abroad has not shown that they are treated any differently to other deportees. Whilst I note there some reports of the mistreatment of Tamil returnees (one in respect of Sujendran Gunarathnam referred to in a Green Left article submitted by the claimant) and the comments of the Edmund Rice Centre director that all returned asylum seekers are taken into custody and some detained and assaulted (referred to in an agent's submission) these need to be weighed against other information such as that provided by DFAT that those who make an asylum claim abroad are not treated differently to other deportees and the individual circumstances of the claimant. In making my assessment, I have given greater weight to the reports of DFAT and the Danish Immigration Service that are authoritative and specifically charged with giving independent, overall reports of the human rights situation in Sri Lanka and other countries. The country information from DFAT does suggest that there is anecdotal evidence that returning to Sri Lanka as an asylum seeker without documentation could influence how a person was treated at the airport but importantly DFAT states that there is no hard evidence in support of this. The claimant does in fact have some documentation as evidenced by the copy of pages of his passport that he has provided. The claimant does not possess other characteristics (such as illegal departure, the possession of a criminal record or having had an arrest warrant issued in respect of him) which are referred to in the DFAT report as having anecdotally suggested risk. Further, information from the Danish Immigration Service from contact with the British High Commission and Norwegian embassy that they have not heard of returning asylum seekers being mistreated or targeted adds to my assessment. I therefore find, based on the country information and the claimant’s individual circumstances that he does not face a real chance of serious harm, now or in the reasonably foreseeable future, if he were to return to Sri Lanka as a failed asylum seeker whether this is categorised in terms of the Convention grounds of imputed political opinion or membership of a particular social group (failed asylum seekers).
Mr Corrigan concluded his report:
59.I find that the claimant does not face a real chance of persecution on the basis of race, membership of any particular social group (his family, failed asylum seekers or a young, single, Tamil male from the North) or his actual or imputed political opinion now or in the reasonably foreseeable future.
60.Even considering the claimant’s claims cumulatively I find that the claimant’s fear of persecution is not well‑founded. He is not a refugee.
61.I find that the claimant, [the applicant] does not meet the criterion for a protection visa set out in s.36(2) of the Act.
RECOMMENDATION
62.I recommend that the claimant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees.
Mr Corrigan signed his report and dated it 23 January 2012. It was then given to the Minister and to the applicant. There is no evidence as to what has happened subsequently, in relation to the applicant’s status under the Migration Act and his continuing presence in Australia.

Ground 1 of the amended application

This ground is:
Ground One:
That the second respondent did fail to apply the correct test at law.
Particulars
In assessing the applicant’s claims in accordance with s.36(2) of the Migration Act 1958, the second respondent did fail to apply the correct test as contained in the s.36(2)(aa) of the Migration Act 1958 as amended by the Migration Amendment (Complementary Protection) Act 2011.
Counsel for the applicant submitted:
THE FIRST GROUND:
24.In short compass, the applicant relies upon the following:
a.The Migration Amendment (Complementary Protection) Act 2011 established law‑based protection against refoulement which is in addition to that provided by the Refugee Convention;
b.The Amendment took effect on 24 March 2012;
c.The second respondent made his recommendation to the Minister on 23 January 2012;
d.As per schedule 1 item 35 of the Act, the amendments apply “in relation to an application for a protection visa (within the meaning of the Migration Act 1958) ... that is not finally determined ... before the day on which this item commences.”;
e.Prior to the enactment, there was no mechanism for having claims based on a fear of return to torture, a threat to life, or a risk of cruel, inhuman or degrading treatment or punishment, assessed, except via the “public interest” power of section 417 of the Migration Act;
f.The effect of the enactment is to ensure that all protection applicants who do not meet the refugee definition “automatically have their human rights‑based claims assessed at the outset – in a single determination procedure – against Australia’s non‑refoulement obligations under international law’’.
25.Engaging the reasoning in of the full court in SZQDZ v Minister of Immigration and Citizenship [2012] FCAFC 26, as quoted above:
a.the recommendation of the second respondent “has no binding force, imposes no obligations and affects no rights”;
b.the Minister is at liberty to act, or to refrain from acting, on the advice given;
c.the final determination in respect of the claim as made by the applicant has therefore not been made.
26.The second respondent made material findings only in respect of the applicant’s claim for refugee protection.
a.The second respondent specifically cites the finding of the applicant as “not a refugee” in refusing his claim; [CB 273 at 60‑61]
b.The second respondent made no mention of the amended “complementary protection” provisions in citing the relevant law; [CB 257 at 6‑9]
c.The second respondent’s findings in respect of refoulement are specifically expressed in connection with the “Convention grounds” of imputed political opinion or membership of a particular social group. [CB 273 at 58]
27.The applicant submits that, in the circumstances, should the Minister rely upon the recommendation as made by the second respondent on 23 January 2012, the Minister would be making a decision based on the incorrect test as applying under Australian law.
However, it is important to note that the RSA procedures which were in evidence before the High Court in Plaintiff M61 provided for the IMR reviewer to address only the applicant’s eligibility for a protection visa under the criteria in s.36 of the Migration Act as they then provided, i.e. requiring consideration only of refugee status under the Refugees Convention as recognised by the Migration Act. However, the RSA procedures also made provision for the Minister to be advised after receiving an IMR report, in relation to the applicant’s status under other Conventions, and to consider humanitarian issues broadly. In this respect, their Honours noted:
44If, at the end of the RSA process, an offshore entry person was found to be owed protection obligations, the Manual described the consequence as being that a submission would be prepared by the Department for the Minister “advising the Minister that Australia’s protection obligations are engaged and seeking his/her agreement to lift the bar under s 46A of the Act”. By contrast, if the officer making the assessment determined that the person was not a person to whom Australia has protection obligations, no submission would go to the Minister. Instead, an opportunity would be given to seek the review of the decision under the IMR process. If the outcome of the review was negative, an opportunity would be given to the person to provide any new or additional information which he or she wished the Department to take into consideration. A further assessment would be undertaken by the Department of whether any other international treaty obligation was engaged in the particular case. If no other international obligation was engaged, the process for removal of the person from Australia would begin.
Their Honours’ held that, on the administrative arrangements considered in Plaintiff M61, it was the function of the IMR reviewer to examine the applicant’s qualification for a protection visa by reference to the provisions of the Migration Act and current jurisprudence as it stood at the date of his or her report. Their Honours said:
89Although expressed generally – as whether Australia owed the plaintiff protection obligations – the fundamental question to which the assessment and review processes were directed had to be understood as whether the criterion stated in s 36(2), as a criterion for grant of a protection visa, was met. Necessarily, that question had to be understood by reference to other relevant provisions of the Migration Act, and the decided cases that bear upon those provisions. If the legislation and case law were treated as no more than aids to interpretation, the assessment or review would not address the question that the Minister had to consider when deciding whether to lift the bar under s 46A. Whether another, different, question about the application of the Refugees Convention (as amended) according to some understanding of the Convention different from that adopted in Australian legislation and case law could be relevant to the issues presented by the possible application of s 195A need not be considered.
(citation omitted)
I have noted above the complete absence of any evidence before me to show the extent to which the administrative processes in which the present applicant invoked the Minister’s powers under s.46A of the Migration Act might have departed from those which were addressed in Plaintiff M61. To the extent that this can be gleaned from the RSA and IMR forms and procedures shown in the present Court Book, I accept that an assumption that they had not changed appears reasonable, even if I am not prepared to infer that this was the case.
Mr Corrigan’s references in his report to his understanding of his function appears to accord with this assumption. He said:
3.On 21 January 2011, the claimant made a request for a refugee status assessment (RSA) and on 16 May 2011 he applied for independent merits review.
4.This independent review will consider afresh all claims for protection taking into account all available information, including information available to the refugee status assessment officer in reaching the unfavourable refugee status assessment, information provided by or on behalf of the claimant and any additional information the independent reviewer may consider relevant.
RELEVANT LAW
5.Australia is a party to the 1951 Convention relating to the Status of Refugees (the Convention) and 1967 Protocol relating to the Status of Refugees (the Protocol) and, generally speaking, has protection obligations to people who are refugees as defined in Article I of the Refugees Convention.
Definition of’ refugee’
6.Article IA(2) of the Refugees Conventions defines a refugee as any person who:
[ ... ] owing to well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. [ ... ]
7.In conducting an independent merits review, the reviewer is bound by certain provisions of the Migration Act 1958 (the Act) relevant to establishing whether a person is owed refugee protection and the case law bearing upon those provisions. The common law rules of natural justice apply.
8.The question that this assessment must address is whether the claimant, although not an applicant for a protection visa, meets the criterion for a protection visa set out in s.36(2) of the Act which relevantly refers to a non‑citizen to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. That question is to be understood by reference to other relevant provisions of the Act, including ss.36(3)‑(7), 91R‑91T, and the decided court cases that bear upon those provisions.
No criticism was directed at these paragraphs, and they appear to reflect a correct appreciation of Plaintiff M61 and the administrative guidelines which were in evidence in that case. As I have noted above, Mr Corrigan applied his understanding of his task, by confining his findings and recommendation to the applicant’s qualification for a protection visa under the law as in force at the date of his report. He certainly did not address any broader humanitarian or other considerations, and made no recommendation to the Minister as to how they should or could be considered by the Minister.
On the evidence before me, I can discern no error of law made by Mr Corrigan when taking this approach in his report and recommendation, and, in particular, by not addressing issues of ‘complementary protection’. There is no evidence that he was ever requested to address those issues in anticipation of a future examination of them by the Minister, whether before or after the proclamation of the amending legislation.
There is also no evidence that the Minister did not address them after receiving Mr Corrigan’s report, whether before or after the proclamation of the amending legislation. Most importantly, there is no evidence showing any threat that these issues would not be addressed in the future by the Minister or by his Department, when following currently relevant administrative procedures affecting the applicant’s presence in Australia.
I therefore consider that no legal or evidentiary foundation has been shown for the grant of any relief referrable to the commencement of the amending legislation subsequent to Mr Corrigan providing his report to the Minister. It is unnecessary to examine what the form of that relief might take.
I note that the Minister’s counsel principally met this ground by contending that there was no evidence that the applicant or his lawyer ever invoked issues of ‘complementary protection’, or any international law obligations on Australia other than those accepted under the Refugees Convention. There is substance to this submission, since it appears to me that all of the harms feared by the applicant were presented by reference to his claims to refugee status, and not otherwise. Moreover, Mr Corrigan’s findings as to the absence of a real chance of these harms eventuating in the future, might also appear to answer any residual or alternative analysis which might now be performed by reference to the new criteria for a protection visa under the amendments to s.36 of the Migration Act. However, for the reasons given above, I have not found it necessary to examine the documents and legislation to arrive at firm conclusions on these points.

Ground 2 of the amended application

This is:
Ground Two:
That the second respondent made a finding so illogical or irrational that no reasonable independent merits reviewer could have reached it.
Particulars
a)The second respondent concluding at paragraph 58 of his “Findings and Reasons” that the applicant “does not possess other characteristics (such as illegal departure, the possession of a criminal record or having had an arrest warrant issued in respect of him) which are referred to in the DFAT report as having anecdotally suggested risk”.
b)The second respondent made material findings to the effect that the applicant:
·Has a previous record as a suspected LTTE member;
·Had relatives in the LTTE;
·Had been informed upon his departure from Sri Lanka that the authorities were pursuing him;
·Has an illegally departed Sri Lanka;
·Has made an asylum claim abroad.
c)The material findings encompass most of the characteristics referred to in the DFAT report [CB 255].
Paragraph 58 of Mr Corrigan’s report dealt with the situation of the applicant as a person who might be identified at the airport, or subsequently after his return to Sri Lanka, as a person who had unsuccessfully sought asylum in Australia. Mr Corrigan arrived at his conclusion after referring to a number of sources of country information and to “the claimant’s individual circumstances”. However, the focus of the applicant’s argument on irrationality affecting this finding was upon one sentence isolated from that paragraph:
The claimant does not possess other characteristics (such as illegal departure, the possession of a criminal record or having had an arrest warrant issued in respect of him) which are referred to in the DFAT report as having anecdotally suggested risk.
It was submitted that this statement showed an irrational or illogical or unreasonable use of the DFAT information, because it ignored findings which Mr Corrigan had earlier made in his report. In particular, he had made findings which accepted that the applicant had in the past been identified by Sri Lankan authorities as a suspected LTTE member or associate, and as a person who had relatives in the LTTE. It also did not address whether the applicant might be identified by the authorities on his return by reference to other factors referred to by DFAT. It was submitted that “on the basis of these material findings, the vast bulk of the characteristics referred to in the DFAT report are applicable to the applicant”.
The relevant passage from the DFAT advice dated 14 October 2009 was set out earlier in Mr Corrigan’s report:
Q.6 Would any of the following factors affect the way an individual was treated at the airport and if so, how?
R.6. While anecdotal evidence suggested that the below factors could influence how a person was treated at the airport, there is no hard evidence to prove this. As previously stated unless there was an alert on the person in the immigration system at the airport and that matched exactly the biodata information being presented to the immigration officer, the person would not be stopped from entering. Experience in managing the return of Sri Lankans who had departed Sri Lanka illegally and made an asylum claim abroad has not shown that they are treated any differently to other deportees. This also applied to two persons who had prior criminal records, with one having an outstanding arrest warrant.
·has a previous record as a suspected or actual LTTE member;
·has been identified as having relatives in the LTTE;
·has a previous criminal record and/ or outstanding arrest warrant;
·has jumped bail/ escaped from custody;
·has signed a confession or a similar document;
·has been asked by the security forces to become an informer;
·has visible scarring;
·has returned form London or another centre of LTTE fundraising;
·has illegally departed from Sri Lanka;
·has made an asylum claim abroad;
·lacks an ID card or other documentation (CISNET Sri Lanka CX234989).

I consider that the applicant’s arguments fail, because they invite a reading of the challenged sentence which would not reflect a proper understanding of Mr Corrigan’s reasoning, when read in context. Principles of judicial review of administrative decisions require that the stated reasons should not be given a narrow or strained interpretation so as to detect legal error, and I have applied these principles to IMR reports (see SZPZI v Minister for Immigration & Anor [2011] FMCA 530 at [12]‑[13], applying Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, [1996] HCA 6 at pages 272 and 291).
In my opinion, read fairly, the effect of Mr Corrigan’s references in paragraph 58 to the DFAT advice was that, although his earlier findings suggested that some of the ‘anecdotal’ risk factors applied to the applicant, others did not, including the ‘characteristics’ of illegal departure, criminal record, or arrest warrant. His weighing of the DFAT information with other country information and “the claimant’s individual circumstances”, then led Mr Corrigan to make his concluding assessment that the applicant did not face a real chance of serious harm if he was identified as a failed asylum seeker.
I do not accept that, read fairly, the paragraph suggests that Mr Corrigan overlooked his previous findings which had accepted the applicant’s history prior to his leaving Sri Lanka in 2008, and had assumed that the Sri Lanka authorities would be aware of that history if he returned. The contended irrationality of so reasoning is so obvious, that in my opinion it is most unlikely to have been adopted by Mr Corrigan, and it requires a strained reading of his report to find it.
On a fair reading of his report, I am not persuaded that any of the authorities which were cited to me in relation to legal or jurisdictional error shown by irrationality of factual assessments have any application. The stringency of the relevant principles have recently been explained by the High Court in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16, and Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164, [2010] HCA 48).
Once the contended illogicality of reasoning in the sentence taken out of context is rejected, the submissions of the applicant’s counsel amounted in my opinion to an invitation that the Court should itself decide which of the DFAT anecdotal risk factors applied to the applicant, and that the Court should itself assess whether the applicant faced serious harm when identified as a failed asylum seeker. However, this is not its function. On all the material before me, including Mr Corrigan’s findings as to the applicant’s past history, I consider that his ultimate conclusions on this topic were open to him, as a matter of law.
I consider that there was no proper basis shown for the submission that Mr Corrigan’s adverse findings were “not bona fide”.
I therefore do not accept that the arguments in support of Ground 2 have raised any basis for the grant of relief.

Ground 3 of the amended application

This ground challenged Mr Corrigan’s procedures and reasoning concerning a general concern of Tamil residents residing in the area of the applicant’s family. It contends:
Ground Three:
The second respondent denied the applicant procedural fairness and thereby fell into jurisdictional error.
Particulars
a)Before the interview the agent provided a translated copy of a letter from the mother of the applicant.
b)The letter contains specific assertions that: “I wish to point out that still the situation in Srilanka [sic] specially in the poor people faces some sort of harassments in a very indirect manner from the Army Security Forces and from the Government unless a permanent solution is attained to this problem will get eased very soon.”
c)The document was not referred to by the IMR during the interview, nor was it referred to in the “Findings and Reasons”.
d)The second respondent therefore erred in rejecting the contents of the letter without giving the applicant an opportunity to give evidence and make submissions on those issues raised.
The absence of express reference to the mother’s statement of concern is not unsurprising, when Mr Corrigan came to weigh up all the information known to him as to the current and future situation of Tamils in the north and east. The submissions of the applicant’s lawyers had focused on general opinions of government and non‑government sources, and on media publications, and had not given any particular prominence to the mother’s statement. In this context, I do not consider that any inference would arise from the absence of express reference to the mother’s statements in the reasoning in paragraph 54 which I have set out above.
The existence of the letter from the mother was expressly noted by Mr Corrigan in his summary of the evidence which was before him (see his paragraph 13, penultimate dot). This reference tends to suggest that he was aware of the letter, and took its contents into account, notwithstanding the absence of express discussion of the mother’s statement when he made findings as to the general situation of Tamils residing in the north and east (c.f. Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [2011] HCA 1 at [33], [73]).
In all the circumstances, I am not satisfied that Mr Corrigan did not weigh up the mother’s statement of general concern, before arriving at his findings in paragraph 54.
Ultimately, I did not understand the applicant’s counsel to argue that it was not taken into consideration. Rather, he submitted that Mr Corrigan was under obligations of procedural fairness expressly to warn that the mother’s general concern might not be accepted, or might not be accepted as determinative as to the general risks facing the applicant if he returned to his home area.
However, I do not accept that common law principles of procedural fairness required that warning. The general situation of Tamils in the area of the applicant’s family was obviously in issue in the matter being reviewed by Mr Corrigan, and must have been obvious to the applicant and his agent. Mr Corrigan was not under any obligation to expose to the applicant how he might weigh up the country information relevant to an ‘extant issue’, including the statement of concern found in the mother’s letter (see SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152, [2006] HCA 63 at [30], and Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489, [2009] HCA 30 at [51]).
I am not persuaded that the applicant has established any denial of procedural fairness, in relation to the mother’s letter or otherwise.

Ground 4 of the amended application

This ground was:
Ground Four:
The second respondent failed to deal with the full integers of the applicant’s claim.
Particulars
a)In dealing with the applicant’s claim of perceived political opinion as a supporter of the LTTE and one who “believes that his brother and sister were heroes who fought for the liberation of the Tamil people”, the second respondent took account that the applicant “has not claimed to have ever been involved with the LTTE”;
b)In dealing with the applicant’s claim in this way, the second respondent fell into jurisdictional error by asking himself the wrong question.
The framing of the ground and counsel’s submissions in support were somewhat obscure as to the legal principle which was contended not to have been observed by Mr Corrigan in the course of his reasoning. The focus of the submissions was on his reasoning in paragraphs 55 to 57, which I have set out above. The submissions fluctuated whether it was contended that Mr Corrigan failed to address a separate ‘integer’ of the refugee claims, or whether a claim was addressed, but on a legally misconceived basis.
Counsel’s written submission identified the relevant ‘integer’ as being the risk that the applicant might be identified and harmed by the Sri Lanka security agencies and their militia supporters as an opponent of the government, by reason of his future actions or family attributes showing “he strongly believes that his brother and sister are heroes who fought for the liberation of the Tamil people”, as was accepted by Mr Corrigan. In oral submissions, the relevant integer was also identified as another concern expressed by the applicant in his RSA statement: that “they will harm me because I am a single young Tamil male from an LTTE family”.
Counsel submitted that, essentially, these elements in the applicant’s claims concerned an on‑going political opinion or perceived opinion, which might provoke harms in the future, independently of the situations in which the applicant had come to the attention of the authorities and their supporters in the past. They concerned risks of future persecution, which were not fully answered only by Mr Corrigan’s findings that the applicant was not currently a person “of continuing interest to the authorities or paramilitary groups”.
However, in my opinion, Mr Corrigan’s reasoning and findings sufficiently show that he did address these elements in the applicant’s claims. While his reasoning in the three paragraphs which I have quoted above is compressed, it does appear to canvass the full range of possible concerns about future persecution, starting with past events and moving into recent and possible future events.
Mr Corrigan expressly considered the family’s past history of association with the LTTE, the past incidents of questioning of the applicant, and the reported past and more recent inquiries about the applicant. He also sought to assess whether the applicant might be of current interest, to the extent of risking serious harm at the hands of security agencies and militias, including by taking into account the most recent statements from the applicant’s mother. The future implications of the applicant’s family connections and his approval of his sibling’s involvement in the LTTE were then expressly noted at the end of paragraph 56, where Mr Corrigan said:
Whilst I have accepted the claimant believes that his brother and sister were heroes who fought for the liberation of the Tamil people, I have taken into account that the claimant himself has not claimed to have ever been involved with the LTTE.
Counsel for the applicant submitted that this sentence revealed error of law of the type found by Gilmour J in Minister for Immigration & Citizenship v SZQPA [2012] FCA 1025 at [45]. This was the error of treating a finding about past actual involvement in the LTTE as being conclusive or determinative of the existence of future risk of persecution for imputed political association based on links to or associations with the LTTE.
However, I do not consider that Mr Corrigan’s reasoning reveals a similar error. The last sentence of paragraph 56 needs to be read in context, and as leading into the further reasoning in paragraph 57. In my opinion, the context does not show that Mr Corrigan treated the fact that “[the applicant] has not claimed to have ever been involved with the LTTE”, as determinative of a future risk that the applicant might be harmed for his and his family’s continuing association with and support for his deceased brother and sister.
Rather, the reasoning in paragraph 57 shows a weighing of the implications of the applicant in the future being a person known to be a member of a family with LTTE associations, but who had no personal involvement with the LTTE. Mr Corrigan then made findings which expressly addressed his future risks, including by reason of a continuing family association with the LTTE and current and future actual or imputed political opinions supporting the involvement of deceased family members in the defeated insurgency. He found:
I therefore do not accept that, now or in the reasonably foreseeable future he faces a real chance of persecution on account of his Tamil race, his actual political opinion or an imputed political opinion as a suspected LTTE supporter or membership of a particular social group (his family or as a young, single Tamil male from the North) from the government or any paramilitary group including the EPDP and TMVP.
I am not satisfied that these findings did not fully address and exhaust all the integers of the applicant’s refugee claims. Other minds might have differed in the assessment of future risk which Mr Corrigan arrived at, but I am not satisfied that his reasoning reveals any error of law.
I therefore am not persuaded by the submissions supporting Ground 4.

Ground 5 of the amended application

This ground attacked findings made by Mr Corrigan in paragraph 53 and the last sentence of paragraph 55, which rejected a claim by the applicant that a surviving brother was in hiding, to avoid persecution by reason of the family’s perceived association with the LTTE. The ground contends:
Ground Five:
That the second respondent, in finding the “fact that [the applicant’s brother] runs a shop there demonstrates that he is not in hiding and that he would be easily traceable if he was of any interest to the authorities or anyone else”, made a finding for which there was no evidence.
The contention that a finding was made without any support in evidence, was explained in counsel’s written submissions by reference to an extract in the transcript of the applicant’s interview by Mr Corrigan. His written submission was:
47.The fifth ground asserts that the second respondent, in finding the “fact that [the applicant’s brother] runs a shop there demonstrates that he is not in hiding and that he would be easily traceable if he was of any interest to the authorities or anyone else”, made a finding for which there was no evidence. This finding was contained in the Court Book on page 271 at paragraph 55.
48.The only evidence regarding the whereabouts of the applicant’s brother that was before the court was contained in the evidence provided by the applicant during the hearing. This evidence was contained in the following exchange:
REVIEWER: …Also in that submission it mentioned that your brother spends a lot of time in hiding. Has he been targeted by the authorities in recent years?
CLAIMANT: He’s been married and he has three kids and because they have been looking for me he’s scared that he will also be targeted and so that’s why he has been in hiding.
REVIEWER: Has he ever been, in recent years, has he been questioned by the authorities?
CLAIMANT: No. He’s not in our, in my village, he is elsewhere. He has not been questioned.
REVIEWER: Do you know how he goes into hiding and for how long?
CLAIMANT: What I meant was that he’s not living in my village but he has gone to his wife’s village and that’s what I meant to say.
…
Now he doesn’t engage in fishing anymore, he is running a small shop. [Transcript, pages 11‑12]
49.As stated, “[i]f the [Reviewer] makes a finding and that finding is a critical step in [his] ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error”. SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402, 407 [19]. See also Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 [5].
50.The finding that the brother was “easily traceable if he was of any interest to authorities or anyone else” does not obviously arise from the evidence that was before the Reviewer.
However, in my opinion, the evidence pointed to by the applicant shows, rather than otherwise, that it was open to Mr Corrigan to find that the applicant’s brother was not ‘in hiding’ in any real sense. In effect, the applicant said that he was living in his wife’s village, where he was running a small shop. I consider that it was open to Mr Corrigan to conclude that the brother “would be easily traceable if he was of any interest to the authorities or anyone else”, even if minds might differ whether this inference should be drawn. I am not satisfied that there was not “some basis” for the inference (c.f. Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, [1990] HCA 33 at 356, SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402, [2003] FCAFC 231 at [19]‑[20], and QAAA of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs (2007) 98 ALD 695, [2007] FCA 1918 at [22]‑[33]).
I therefore do not accept Ground 5.
Since I have found no basis for the grant of any relief, I must dismiss the application. It is agreed that costs should follow the event, according to the usual scale.

I certify that the preceding sixty‑seven (67) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 29 October 2012