SZRFP v Minister for Immigration
[2012] FMCA 959
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRFP v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 959 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations. ADMINISTRATIVE LAW – Allegation that the Reviewer denied the applicant procedural fairness by not considering an integer of his claims, by failing to have regard to all relevant material, by asking the wrong question and by making a finding which was unsupported by evidence or which was illogical, irrational or manifestly unreasonable. |
| Migration Act 1958, ss.36, 46A, 195A |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 Minister for Immigration & Citizenship v SZQPA [2012] FCA 1025 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 |
| Applicant: | SZRFP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | J. BARTLETT IN THE CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 493 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 15 October 2012 |
| Date of Last Submission: | 15 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Howell |
| Solicitors for the Applicant: | Michaela Byers |
| Counsel for the First Respondent: | Mr H.P.T Bevan |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 493 of 2012
| SZRFP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| J. BARTLETT IN THE CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Sri Lanka who arrived at Christmas Island by boat on 7 November 2010. He lodged an application for a Refugee Status Assessment (“RSA”) dated 22 January 2011 alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
By letter dated 21 April 2011 an officer in the department administered by the first respondent (“Minister”) advised the applicant that he had been assessed as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 2 February 2012, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. The applicant was in detention at the time of the RSA and subsequent review.
The evidence makes it clear that the applicant had no visa when he entered Australia at Christmas Island. In the circumstances and as provided by s.46A(1) of the Migration Act 1958 (“Act”), he cannot make a valid application for a protection visa. However, ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa.
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].
The applicant has made an application to this Court for judicial review of the Reviewer’s recommendation. He seeks a declaration that the Reviewer’s recommendation was not made in accordance with law and an injunction restraining the Minister from relying on that recommendation. In order to succeed he must demonstrate that the Reviewer’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].
For the reasons which follow, the application will be dismissed.
Background facts
The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection were set out on pages 3-11 of those reasons and are relevantly summarised below.
Entry interview
The applicant made the following claims during his entry interview on 12 December 2010:
a)he is an ethnic Tamil;
b)he was born and raised in the Vanni district in Sri Lanka during a period when it was controlled by the Liberation Tigers of Tamil Eelam (“LTTE”);
c)everyone who lived in the Vanni was required to undertake basic self-defence training, followed by border protection service. He was able to avoid the latter by paying the LTTE money, although his brother was sent to the border in Manavara;
d)his family attended LTTE functions in the Vanni because they were compulsory. Sometimes, when the LTTE demanded it, he was forced to provide his services as a carpenter. He and his family had not otherwise been associated or involved with any political group or organisation;
e)his brother went into hiding in 2000 because he did not want to be called for a second time to serve at the border. His family had not seen him since;
f)his family were displaced from the Vanni in March 2009. Afterwards, they moved into a camp which was located in an army-controlled area. Because he had lived in the Vanni, the army suspected him of being a member of the LTTE and called him in for questioning. Their enquiries centred on his missing brother;
g)he was constantly harassed by the army and feared that they would detain or shoot him. With help from his father-in-law, he bribed an officer in the camp and was released. He then left Sri Lanka;
h)his father-in-law was murdered in November after being interrogated about the applicant’s whereabouts.
RSA application
In a statutory declaration declared on 22 January 2011 in support of his application for an RSA, the applicant made the following additional claims:
a)all the local residents in his home area were required to join the LTTE or at least support them in one way or another. Although he undertook basic physical training for the LTTE, he never became a supporter;
b)his missing brother was forced to the join the LTTE and was a member for approximately two years;
c)everyone from his home area was suspected of being a supporter of the LTTE. Because of this, and because of his brother’s involvement with the LTTE, he was questioned and harassed by the Criminal Investigations Department (“CID”) and the Sri Lankan army;
d)after he departed Sri Lanka, the CID attended his father-in-law’s house to look for him. Later, his father-in-law was found dead in his house. The police informed his family that his father-in-law had died as a result of foul play. However, when his sister-in-law went to collect the body she was forced by the army to sign a form saying that he had died as a result of suicide;
e)there was no protection for Tamils generally in Sri Lanka. He was still suspected of being a supporter and a member of the LTTE and feared that he would be killed by the army or one of the groups working for them; and
f)he would not be able to get protection in Sri Lanka.
Proceedings before the Reviewer
The applicant was interviewed by the Reviewer on 11 January 2012 at which point he made the following additional claims:
a)he lived in the camp from March 2009 until July 2010. During this time, the CID, the army and the police questioned him constantly about his brother;
b)his father-in-law was killed for helping the applicant escape. His death was also a warning to others not to escape from the camp;
c)the police told the family to bury his father-in-law’s body instead of cremating it so that it could be examined if there was an investigation;
d)his father-in-law’s death was relevant to his risk of harm in that his father-in-law faced problems because of him. It therefore followed that he would be subject to greater risk. Even now, his family were not allowed to leave the camp;
e)he came from the LTTE heartland and also feared harm for this reason;
f)he feared the “Grease Devils” who targeted and killed Tamil civilians and were backed by the government; and
g)foreign nationals returning to Sri Lanka faced questioning. Hundreds of people had gone missing.
After the interview the applicant provided the Reviewer with, amongst other things, photographs of his deceased father-in-law and various letters of support from Sri Lanka.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before her, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. That recommendation was based on the following findings and reasons:
a)the Reviewer found that any adverse treatment which the applicant might suffer in the future because of his Tamil ethnicity would not amount to serious harm under the Act because:
i)although independent information indicated that ethnic Tamils were subject to harassment by the authorities and were, in some matters such as public service employment, identity documentation and housing, treated differently from non-Tamil citizens, there was also countervailing information about the government’s positive discrimination strategy of recruiting ethnic Tamils into the police force, its expenditure upon rebuilding the applicant’s district and the reduction in the amount of checkpoints and overall security measures which applied to all persons;
ii)the applicant himself did not claim to fear persecution in Sri Lanka because of his Tamil ethnicity although his adviser did on his behalf;
iii)the applicant gave evidence that he had been able to work as a carpenter since 1990 and had had a stable residence, notwithstanding the resettlement in March 2009;
iv)the applicant’s evidence of his treatment by the authorities in the camp related to whether he had knowledge of his brother’s whereabouts. In the circumstances, the Reviewer did not accept that the applicant was forcibly resettled into the camp because of his Tamil race; and
v)the Reviewer found that the “Grease Devil” phenomenon involved night-time assaults on women in rural Muslim and Tamil areas;
b)the Reviewer did not accept that the death of the applicant’s father-in-law was caused by the authorities or, consequently, that the applicant was at risk of adverse treatment for reasons relating to the circumstances of his father-in-law’s death. The Reviewer noted the following matters in this connection:
i)the photographs provided by the applicant showed a deceased male with a dark discoloured area immediately under the left of his chin/jaw line. In the Reviewer’s opinion, this was not incompatible with death by suicide;
ii)although the applicant claimed that the police instructed the family to bury the body to enable later investigation if required, which was consistent with the police forming a view that the death might have been suspicious or unnatural, the Reviewer did not accept the applicant’s conjecture that the police had formed the view that the death was attributable to causes other than suicide;
iii)one of the support letters provided by the applicant post-interview stated that the applicant’s father-in-law had committed suicide; and
iv)even if the death of the applicant’s father-in-law occurred after the authorities visited him, there were no other factors – other than temporal circumstance – linking the death to the applicant’s departure from Sri Lanka or to the visit by the authorities to his father-in-law’s home;
c)the Reviewer did not accept that, as a consequence of his brother’s forced recruitment and the applicant’s forced support of the LTTE, the applicant would be imputed by the authorities with holding an LTTE supporter political opinion, noting that:
i)according to independent information the types of activities which the authorities considered as supportive of or sympathetic with the LTTE’s objectives included active organisational involvement, speaking openly against the government, pursuing cases of disappeared Tamils and providing shelter to alleged LTTE supporters;
ii)the applicant’s evidence at the entry interview was that neither he nor any of his family members were ever associated or involved with any political group; and
iii)although the Reviewer accepted that the applicant was questioned repeatedly by the authorities about his brother’s whereabouts, she found it objectively implausible that the authorities would not have taken further action if they considered the applicant to have been an LTTE supporter or sympathiser;
d)the Reviewer accepted that the applicant was a member of the particular social group of “Tamils from LTTE heartland” but did not accept that he would be adversely treated because of his membership of that group. The Reviewer noted in this regard that although there were reports of Tamils being frequently harassed by the authorities, none of the reports from Amnesty International, International Crisis Group or Human Rights Watch stated that the authorities’ past and present treatment of Tamils born or resident in the Vanni was for the essential and significant reason of their membership of the particular social group of Tamils from the LTTE heartland. Such criticisms as had been levelled against the authorities’ treatment of Tamils from the LTTE heartland had been in circumstances where such persons had also, for additional reasons, been suspected of LTTE support or involvement;
e)the Reviewer accepted that the applicant would be interviewed by the CID, the Department of Immigration & Emigration and the State Intelligence Service upon his return to Sri Lanka but found that such action would be as a consequence of the non-discriminatory application of security measures regulating the entry into Sri Lanka of all returning citizens. In the event that the applicant was detained or questioned by the Sri Lankan authorities in relation to his absence from the camp and/or his activities whilst in Australia, the Reviewer did not accept that such treatment would be for the essential and significant reasons of his Tamil race, his membership of the particular social group of Tamils from the LTTE heartland or his perceived political opinion as an LTTE supporter; and
f)the Reviewer noted that there was no evidence before her, and thus she did not accept, that the Sri Lankan authorities withheld from or denied protection to any of its citizens for the Convention reasons of Tamil race or membership of the particular social group of Tamils from the LTTE heartland.
Proceedings in this Court
In his amended application the applicant alleged:
1.The Second Respondent fell into jurisdictional error by failing to consider all of the Applicant’s claims.
Particulars
a.The Applicant claimed to have some involvement with the Liberated Tigers of Tamil Eelam (LTTE) by paying money to avoid active services, giving a percentage of his salary, attending LTTE functions, providing unpaid carpentry services and his brother’s forced recruitment and disappearance.
b.The Applicant claimed to have a well-founded fear of persecution on the basis of that involvement.
c.The Second Respondent found that the Applicant will not be imputed by the authorities as holding any political opinion, including that of LTTE supporter/LTTE sympathiser/pro-LTTE at [79] on CB 240 and [85] on CB 243.
d.However, there was evidence that supported the Applicant’s claim that he might be persecuted on the basis of involvement with, or support of, the LTTE generally.
e.The Second Respondent failed to make any findings as to whether the Sri Lankan authorities would consider the Applicant to have had some involvement with, or to have supported, the LTTE generally.
f.The Second Respondent failed to consider the Applicant’s claimed fear of persecution on the basis of involvement with, or support of, the LTTE generally and fell into error as in SZHKA v Minister for Immigration [2008] FCAFC 138.
2.The Second Respondent fell into jurisdictional error by failing to have regard to all relevant material.
Particulars
a.There was evidence that supported the Applicant’s claim that he may be persecuted on the basis of involvement with, or support of, the LTTE generally.
b.This evidence was corroborative of, and of critical importance to, the Applicant’s claim.
c.The Second Respondent failed to consider the evidence as per Minister for Immigration v Yusuf (2001) 206 CLR 3232 [sic] at [82].
3.The Second Respondent fell into jurisdictional error by asking herself the wrong question.
Particulars
a.At [73] CB 237 the Second Respondent accepted:
i. Oral evidence and supporting documents are consistent
ii. The Applicant is Tamil
iii. The Applicant was in a Internal Displaced Persons (IDP) camp in Vaviuniya
iv. The Applicant is from Sri Lanka.
b.At [74] CB 237 the Second Respondent accepted:
i. Brother’s disappearance in 2000
ii. The Applicant’s and his brother’s forced involvement in LTTE activities
iii. Deaths of extended family members during the war
iv. Acknowledged that being repeatedly questioned about brother’s whereabouts and verbally threatened to tell the truth involves the serious harm of threat to his life or liberty as set out in subparagraphs 91R(2)(a) and 91R(1)(b) of the Act.
c.At [76] CB 239 the Second Respondent did not accept:
i. His forced resettlement into IDP camps is because of his Tamil race, or that his detainment and treatment whilst living there involved a threat to his life and liberty as set out in subparagraph 91R(2)(a) of the Act.
d. At [79] CB 240 the Second Respondent found:
i. The Second Respondent previously accepted the applicant’s evidence of being repeatedly questioned by the authorities in Vavuniya IDP camps about his brother’s whereabouts, including for several hours at a time, and find [sic] it objectively implausible that the authorities would not have taken further action if they considered on any of those occasions that the Applicant was an LTTE supporter or sympathiser.
e.The Second Respondent erred as in SZQPA v Minister for Immigration [2012] FMCA 123 by focusing upon the outcome rather than the process the Second Respondent asked herself the wrong question and failed to assess the risk of harm.
4.The Second Respondent fell into jurisdictional error by making a finding for which there was no evidence and/or by coming to a conclusion that was so illogical or irrational that no reasonable Independent Merits Reviewer could have reached it.
Particulars
a.The Second Respondent found that Sri Lankan authorities would not persecute a person they did not perceive to be an active LTTE supporter, member or fighter at [79] CB 240.
b.There was no evidence for this finding SZMIB v Minister for Immigration (2008) FMCA 1433 at [18].
c.In the alternative to particular (b) in light of the evidence available to the Second Respondent, this was a conclusion that was so illogical or irrational that no reasonable Independent Merits Reviewer could have reached it Minister for Immigration v SZMDS (2010) 240 CLR 611 at [130].
Grounds 1-3
In para.79 of her reasons the Reviewer made the following statement in respect of the applicant’s claim to fear being imputed with a political opinion supportive of the LTTE:
On the information before me I do not accept that as a consequence of [SZRFP’s] brother [X’s] forced recruitment and border duty prior to his disappearance in 2000, and [SZRFP’s] forced LTTE support in the form of unpaid carpentry services, monetary payment (including to avoid active service and compulsory tax), considered collectively, [SZRFP] has ever in the past or will now or in the reasonably foreseeable future, be imputed by the authorities as holding an LTTE supporter political opinion.
The Reviewer had earlier found that the applicant was not at risk of adverse treatment related to the circumstances of his father-in-law’s death. Further, having accepted the applicant’s evidence about having been questioned repeatedly by the authorities about his brother’s whereabouts, the Reviewer also concluded that it was implausible that the authorities would not have taken any further action if they had considered on any of those occasions that he was a LTTE supporter or sympathiser. The Reviewer said:
I find there is nothing in [SZRFP’s] circumstances, considered cumulatively, upon which the authorities would impute him as holding any political opinion. If the authorities question [SZRFP] about his brother’s whereabouts when he returns to Sri Lanka, I find the questioning will not be for the essential and significant reason of a Refugee Convention reason, as set out in subparagraph 91R(1)(a) of the Act. I find now and in the reasonably foreseeable future [SZRFP] will not be imputed as holding any political opinion, including that of LTTE supporter or any other permutation such as LTTE sympathiser/pro LTTE.
It is plain that the Reviewer considered the applicant’s claimed fear of persecution on the basis that he would be imputed with a political opinion supportive of the LTTE.
The applicant submitted that his claim was not limited to persecution because the Sri Lankan authorities would conclude he had a particular political opinion. He argued that a review of his evidence before the Reviewer, as summarised in her statement of reasons, repeatedly identified one of the reasons he fled Sri Lanka was his fear of persecution associated with interrogation by the authorities: “in other words, fear that the authorities would hold a suspicion that the Applicant may be an LTTE supporter, because of his links to the LTTE …” (emphasis included).
In support of this submission the applicant referred to passages in the information placed before the Reviewer which indicated that his fear was based on the potential that he would be suspected of being an LTTE supporter.
The applicant’s argument focuses on the strength of belief which the hypothesised persecutors might hold concerning him, rather than on the reason for that attitude and, as a consequence, it does not engage with the Convention or the tests which the Reviewer was called upon to apply. This is because the argument does not, in its substance, concern itself with why the applicant might be persecuted. The issue which the Reviewer had to consider was whether any persecution which the applicant was justified in fearing was for a Convention reason, not how strongly the feared persecutors believed the applicant manifested the characteristics which would provoke that persecution. Whether a persecutor merely suspected the applicant of supporting the LTTE and persecuted him on that account is not relevantly different, for the purposes of the Convention, to that persecutor having incontrovertible evidence and a firm belief that the applicant held such opinions and persecuting him on that account.
At the hearing of the present application, the applicant suggested that this argument in fact addressed the objective element of the Convention test, namely whether his fear of persecution was well-founded. He submitted that the Reviewer addressed herself only to potential persecutors whose level of conviction in relation to his perceived political opinion was somewhat more strongly held and suggested that the Reviewer had failed to consider whether potential persecutors, merely suspecting him of supporting the LTTE, nevertheless posed him a real risk. However, the applicant made no claim of this sort either to the Reviewer or at any earlier point. Certainly in the evidence, materials and claims which the applicant submitted he made reference to potential persecutors suspecting him of LTTE involvement but, rather than being a reference to the strength of persecutors’ beliefs and whether this had an impact on whether his claim to fear persecution was well-founded, those parts of his claims should properly be understood to be a reference to the possible imputation to him of a political opinion which he did not hold. As noted earlier in these reasons, the Reviewer considered that issue.
The applicant also referred to Minister for Immigration & Citizenship v SZQPA [2012] FCA 1025, a case whose facts were very similar to certain facts in this case. There, the Reviewer was found to have erred, his error being described by Gilmour J in the following terms:
I … agree with the conclusion of the Federal Magistrate at [34] that in effect the Reviewer asked himself the wrong question, namely, whether the first respondent would be at risk of serious harm from State authorities assuming he was not an active member of the LTTE. The question he should have asked in light of the claims made by the first respondent and the country information which he had was whether he was at risk of serious harm from State authorities by reason of his imputed political opinion if he was “suspected” of having links or an association with the LTTE. (at [45])
SZQPA is distinguishable from this matter. It turned on the Reviewer’s failure to consider the risks posed to that applicant by reason of the imputation to him of a political opinion arising out of potential suspicion that he held such an opinion. In this case the Reviewer considered the applicant’s claims to fear persecution by reason of the imputation to him of a political opinion arising out of potential persecutors’ suspicions of him.
For these reasons, the first ground of the amended application discloses no error on the part of the Reviewer.
The second and third allegations in the amended application were dependent on the applicant succeeding in his arguments on the first ground. In relation to the second ground, the applicant submitted:
Whilst it is for the Reviewer to determine what evidence is to be accepted, and the weight to be given to that evidence, the failure to consider whether the Applicant’s fear of persecution arising from a suspicion that he was an LTTE supporter based on his connections to the LTTE, meant the Reviewer did not give consideration to “independent evidence” which, if accepted, was corroborative of (and the Applicant would submit dispositive of) the Applicant’s claimed fear of persecution. (emphasis included)
In connection with the third ground of the amended application, the applicant submitted:
As in SZQPA, the focus upon whether the Applicant would be imputed with a pro-LTTE political opinion has lead the Reviewer to ignore the Applicant’s claimed fear of persecution, arising from detention and interrogation by security agencies, in the event he were returned to Sri Lanka, upon their suspicion that he may be an LTTE sympathiser based on his accepted LTTE links. In doing so, the Reviewer denied the Applicant procedural fairness.
Because the applicant has failed to demonstrate any error on the part of the Reviewer on the basis that she did not separately consider whether suspicion that the applicant might have held a particular political opinion justified a well-founded fear of persecution for a Convention reason, the related and dependent allegations made in the second and third grounds of the amended application are also not made out.
Ground 4
The first and second particulars of the fourth allegation made in the amended application refer to a finding which, in addresses, the applicant conceded was not expressly made by the Reviewer and thus had to be inferred from the findings which she did make. However, it was not necessary for the Reviewer to make a finding of the sort described by the applicant in the particulars to this allegation and I am not persuaded that, in fact, she did. The Reviewer’s task was to determine the applicant’s claims based on the evidence before her, not to speculate on hypothetical situations. What the Reviewer did, as she was required to do, was to consider the claims made by the applicant and to consider the evidence before her. On that evidence, the Reviewer concluded that the applicant had not made out his claim to have a well-founded fear of persecution on the bases propounded. There is no reason to conclude that the Reviewer made any findings beyond the ones she expressed and for that reason the fourth allegation is not made out.
Finally, the third particular of the fourth allegation misunderstands what was said in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611. The relevant finding and reasons in that case were not concerned with intermediate findings of fact but whether the ultimate decision reached by the decision-maker, in this case the Reviewer’s conclusion that the applicant did not satisfy the Convention test, was irrational, illogical or unreasonable in light of the evidence on which that decision was based. The final particular of this allegation consequently discloses no error on the Reviewer’s part.
Conclusion
The applicant has not demonstrated that the Reviewer’s review was procedurally unfair or not conducted by reference to the correct legal principles correctly applied.
Consequently, the application will be dismissed.
I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 23 October 2012
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