SZRFZ v Minister for Immigration
[2012] FMCA 632
•17 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRFZ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 632 |
| MIGRATION – Judicial review of Independent Merits Review of refugee claims of offshore entry person – young Tamil man from Jaffna – no error of law or procedural fairness found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36(2), 46A |
| Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387, [2004] HCA 25 SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207, [2012] FCAFC 26 |
| Applicant: | SZRFZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRISTINE LONG, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 547 of 2012 |
| Judgment of: | Smith FM |
| Hearing date: | 16 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Bartos |
| Solicitors for the Applicant: | Allens |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs fixed in the amount of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 547 of 2012
| SZRFZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRISTINE LONG, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant arrived at Christmas Island in November 2010 without travel documents, and was taken into immigration detention. At an arrival interview he claimed to fear return to his country of nationality, Sri Lanka. His claims for protection under the Refugees Convention were addressed by the Department of Immigration under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow the applicant to make an application for an onshore protection visa.
On 21 January 2011 the applicant applied for an assessment of his refugee status, assisted by Florin Burhala Lawyers under the IAAAS scheme. He was interviewed, and an officer made a negative assessment on 29 April 2011 (the “RSA”). Further assisted by his lawyers, he then applied for an independent merits review of the determination under the same procedures (the “IMR”). Ms Long performed that function, and interviewed the applicant on 27 September 2011 at Scherger IDC in the presence of his advisor. In a report dated 10 February 2012, Ms Long found that the applicant did not meet the criteria for a protection visa set out in s.36(2) of the Migration Act, and recommended that he not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.
The applicant now seeks judicial review of Ms Long’s report, seeking a declaration that her report was not made in accordance with law, and an injunction restraining the Minister by himself or his Department officers, delegates or agents from relying on its recommendation. This Court’s jurisdiction to entertain the application and to grant relief of this kind in accordance with the reasoning of the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319, [2010] HCA 41 has been upheld by the Full Court in SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207, [2012] FCAFC 26.
The applicant commenced the present proceedings on 12 March 2012, without legal assistance while held at Scherger IDC in Queensland. His application contained no particulars of any grounds of review. He attended the first court listing by audio connection. I made a referral for legal assistance under Part 12 of the Federal Magistrates Court Rules 2001 (Cth), and appointed a hearing for 7 June 2012. That listing was vacated, because of delays in arranging legal assistance in Sydney. However, a hearing was able to proceed on 16 July 2012, at which the applicant was represented by counsel instructed by solicitors. I was informed that the applicant had been released into the community and was living in Melbourne.
Under the judicial review jurisdiction upheld in Plaintiff M61, it is the function of the Court to consider whether Ms Long’s report reveals any error of law, including denial of procedural fairness in its reasoning or the procedures followed. The relief sought in the present application can only be contemplated if I am satisfied that Ms Long made such an error. It is not the function of the Court to engage in merits review of Ms Long’s findings, nor to form its own opinions on whether the applicant should be permitted to reside in Australia as a refugee or otherwise.
The applicant’s counsel relied upon fourteen grounds of review in an amended application filed on 15 June 2012. It is convenient to extract the grounds in full with their particulars at the commencement of the judgment:
1.The Second Respondent did not afford procedural fairness to the Applicant by failing to provide the Applicant with an opportunity to consider and respond to adverse country information.
Particulars
a.The Second Respondent found that there was not a real chance that the Applicant would suffer serious harm if he returns to his country.
b.In reaching that conclusion, the Second Respondent relied on:
i. reports by Amnesty International and UNHCR; and
ii. an advice by the Danish Government that the returnees are of no particular risk unless they are suspected of having a connection with the Liberation Tigers of Tamil Eelam (LTTE).
c.Each of the documents referred to in b was specific evidence used to justify views adverse to the Applicant and to reach that conclusion.
d.Accordingly, the Second Respondent had an obligation to provide the Applicant with an opportunity to respond to, and make submissions on, each of the documents referred to in b.
e.The Second Respondent did not afford the Applicant any such opportunity.
2.The Second Respondent committed jurisdictional error by failing to address, or inadequately addressing, one of the claimed bases for the Applicant’s fear of persecution.
Particulars
a.The Applicant claimed that, if he was returned to Sri Lanka, he would be a member of a particular social group, being young Tamil males who have been away from Sri Lanka for sufficient time (five years) to be suspected of association with the Tamil Tigers.
b.The Second Respondent failed to consider whether the group “young Tamil males who have been away from Sri Lanka for sufficient time (five years) to be suspected of association with the Tamil Tigers” constituted a particular social group for Convention purposes.
c.The Second Respondent failed to consider whether the Applicant was a member of this social group.
d.The Second Respondent failed to consider whether the Applicant had a well‑founded fear of persecution due to this membership of this social group.
3.The Second Respondent committed jurisdictional error by failing to address, or inadequately addressing, one of the claimed bases for the Applicant’s fear of persecution.
Particulars
a.The Applicant claimed that, if he was returned to Sri Lanka, he would be a member of a particular social group, being young Tamil males who are thought to be connected with the LTTE.
b.The Second Respondent failed to consider whether the group “young Tamil males who are thought to be connected with the LTTE constituted a particular social group for Convention purposes.
c.The Second Respondent failed to consider whether the Applicant was a member of this social group.
d.The Second Respondent failed to consider whether the Applicant had a well‑founded fear of persecution due to this membership of this social group.
4.The Second Respondent committed jurisdictional error by failing to address, or inadequately addressing, one of the claimed bases for the Applicant’s fear of persecution.
Particulars
a.The Applicant claimed to fear serious harm from the authorities located in or near his village.
b.In addressing this claim, the Second Respondent only had regard to the conduct of the authorities at the airport in Colombo towards the Applicant.
c.The Second Respondent failed to address, or inadequately addressed, the Applicant’s claim to fear serious harm from the authorities in or near his village.
5.The Second Respondent committed jurisdictional error by failing to address, or inadequately addressing, one of the claimed bases for the Applicant’s fear of persecution.
Particulars
a.The Applicant claimed, in his unauthorised arrival interview, that he feared serious harm from being targeted as a result of the failed attempt by the paramilitary to recruit him to their cause and harassment of him when he refused.
b.The Second Respondent failed to consider this claim and make a finding on this issue.
6.The Second Respondent committed jurisdictional error by failing to address, or inadequately addressing, one of the claimed bases for the Applicant’s fear of persecution.
Particulars
a.The Applicant claimed that, if he was returned to Sri Lanka, he would be a member of a particular social group, being young Tamil male returning asylum seekers.
b.The Second Respondent failed to consider whether the group “young Tamil male returning asylum seekers” constituted a particular social group for Convention purposes.
c.The Second Respondent failed to consider whether the Applicant was a member of this social group.
d.The Second Respondent failed to consider whether the Applicant had a well‑founded fear of persecution due to this membership of this social group.
7.The Second Respondent committed jurisdictional errors by asking the wrong questions or incorrectly applying the law.
Particulars
a.The Applicant claimed to fear serious harm in or near his village.
b.The Second Respondent only considered the Applicant’s past experience in relation to his claim to fear serious harm in his village.
c.The Second Respondent did not consider whether the Applicant is likely to suffer serious harm in the future in or near his village as claimed.
d.By only focussing on the Applicant’s past experience of harm, the Second Respondent asked the wrong question and had no rational basis for determining whether the Applicant has a well‑founded fear of persecution as claimed.
8.The Second Respondent committed jurisdictional errors by asking the wrong questions or incorrectly applying the law.
Particulars
a.The Applicant claimed to fear serious harm in his village.
b.The Second Respondent accepted that the Applicant had suffered ill‑treatment and problems in or near his village, including beatings and being held in custody in 2006.
c.The Second Respondent concluded, for the sole reason that the Applicant had not left his village immediately after the weapons incident in 2005, that the Applicant did not fear the persecution as claimed, even though he did leave his village after incidents of ill‑treatment in 2006 which the Second Respondent accepted had occurred.
9.The Second Respondent made an error of law amounting to jurisdictional error in applying the wrong test as to whether the Applicant meets the criteria for protection visa set out in section 36(2) of the Migration Act 1958 in recommending that the claimant not be recognised as a person to whom Australia has protection obligation under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of the Refugees.
Particulars
a.The Second Respondent considered that the fear of the Applicant had to be “well founded” on the balance of probabilities and failed to apply the real chance test.
b.The Second Respondent:
i. accepted that upon his return to Sri Lanka the Applicant will face discrimination and harassment in his country because he is a young Tamil male from Jaffna;
ii. found that will not suffer serious harm for Convention reasons;
iii. failed to consider that discrimination and harassment may amount to serious harm; and
iv. failed to articulate the nature and intensity of discrimination and harassment that the Applicant was likely to suffer and why that discrimination and harassment did not, in her opinion, amount to serious harm.
c.The Second Respondent accepted that the Applicant was ill‑treated by the authorities in 2006, but nevertheless concluded that because the Applicant did not leave his village until the end of 2006, he did not fear harm.
d.The Second Respondent also erred in concluding, from the fact that the Applicant was able to pass through the airport using his own passport and stay in Colombo, that the paramilitaries and all authorities in Sri Lanka, including the Army, are not interested in the Applicant.
10.The Second Respondent was manifestly unreasonable in concluding that the Applicant did not fear serious harm in his village because he did not leave his village immediately after suffering the harm.
Particulars
a.The Applicant relies on the particulars pleaded in 8.
b.There is no logical inference between the findings and the conclusion.
11.The Second Respondent was manifestly unreasonable in reaching her conclusion that the Applicant did not leave his village and country because he had a subjective fear of harm.
Particulars
a.The Second Respondent accepted that:
i. in 2005, weapons were found by the Army in a place near the house of the Applicant’s family;
ii. the Applicant and his father had problems with and suffered some ill‑treatment from authorities following the incident, including being taken into custody and beaten in 2006, as did a number of others in the area;
iii. the incidents were consistent with country information about similar incidents that occurred in the north of Sri Lanka around that time and is supported by the letter dated 17 June 2009 on the letterhead of a Justice of Peace in Sri Lanka;
iv. those having, or suspected of having LTTE ties may continue to be at risk of serious ill‑treatment from the authorities, the Army and other government aligned groups in Sri Lanka;
v. since the end of the war, reports of abductions disappearances and politically motivated killings do continue to be received and the terror machine established to destroy the LTTE remains in place;
vi. in northern towns such as Jaffna, killings and abductions of government critics have reportedly occurred in late 2010 and early 2011;
vii. in 2010 in the east and north of the country, those suspected of having LTTE connections where subject to similar mistreatment to that of previous years;
viii. there was relatively recent information from human rights organisations which indicates that some returnees have disappeared, been detained and assaulted and even killed;
ix. some Tamil asylum seekers returning to Sri Lanka have suffered serious harm on return to that country;
x. Tamil returnees to Sri Lanka are questioned and screened on their return to Sri Lanka;
xi. Sri Lankan authorities have frequently violated the basic rights of people suspected of being affiliated with or supporters of the LTTE Tamil returnees to Sri Lanka are questioned and screened on their retum to Sri Lanka and that those considered or thought to be supporters of, or affiliated with the LTTE may be at risk of harm;
xii. the Applicant was held in custody for one day and the CID and paramilitaries followed him when he was at school;
xiii. after the weapons incident at the end of his exams at the end of August 2006, the Applicant was beaten and let go; and
xiv. the Applicant was suspected after the discovery by the Army of weapons near his/his family’s house.
b.The Second Respondent based her finding that the Applicant did not fear harm on the fact that he did not leave his village until he completed his exams in 2006, ignoring her finding that he was again subject to a beating in 2006 and left shortly afterwards.
12.The Second Respondent was manifestly unreasonable in reaching her conclusion that the Applicant did not have a subjective fear of harm so that he could not return to his village and country.
Particulars
a.The Applicant relies on the particulars pleaded at 11.a.iv‑11.a.xiv.
b.The Applicant claimed that he was told by UNHCR who visited his camp and Catholic priests that Tamils cannot return to Sri Lanka.
13.The Second Respondent had no probative evidence to support her conclusion that the Applicant would not be persecuted because he is a returning asylum seeker and her finding in this regard was manifestly unreasonable.
Particulars
a.The Applicant claimed:
i. in his statutory declaration that if he returns to Sri Lanka, he would be detained and killed, especially after the authorities realise that he fled seeking protection from another country; and
ii. in his submissions that the risk of persecution to returning asylum seekers applies to all Tamils.
b.The Applicant claimed that he was worried that he would be detained and killed, especially after the authorities realise that he is a returning asylum seeker.
c.The Second Respondent found that the Applicant does not fear harm in Sri Lanka because he has made a claim for asylum in Australia. This finding was said to be based on the Applicant’s “evidence to the [Second Respondent] at the interview”.
d.The Second Respondent failed to take into account the Applicant’s evidence and her finding was based on no evidence.
e.The Second Respondent’s finding was unreasonable, there being no logical connection between the evidence and the inference drawn.
14.The Second Respondent relied on a fact of which there was no evidence.
Particulars
a.The Applicant claimed:
i. in his statutory declaration that if he returns to Sri Lanka, he would be detained and killed, especially after the authorities realised that he fled seeking protection from another country; and
ii. in his submissions that the risk of persecution to returning asylum seekers applies to all Tamils.
b.The Applicant adduced material in support of this claim, showing that Tamil asylum seekers returning to Sri Lanka faced persecution.
c.In the IMR interview, the Applicant claimed that he feared he would be detained and killed, especially after the authorities realise he had fled and sought protection in another country.
d.The Second Respondent relied on the asserted fact that the Applicant’s evidence to the Second Respondent at the interview was that the Applicant does not fear harm in Sri Lanka because he made a claim for asylum in Australia.
e.The Second Respondent relied on this asserted fact in reaching her conclusion.
To give background to my consideration of these grounds, I need to explain how the applicant’s refugee claims were presented to the Department of Immigration and to Ms Long, and to summarise the findings which she made. It is unnecessary to examine the reasoning of the RSA assessor.
The applicant’s refugee claims
In his evidence at various interviews, the applicant explained that he is a young male of Tamil ethnicity from a village in the area of Jaffna in Sri Lanka. He left his family’s home and village in 2007, and lived in Colombo for about three months, until travelling on his own passport to Malaysia. He remained there for a period after his Malaysian visa expired, and then returned briefly to Colombo in February 2008, before travelling to India on a tourist visa. He lived in India on temporary refugee permits until beginning a boat journey to Australia in October 2010.
At an arrival interview at Christmas Island, he was recorded as providing the following reasons for leaving Sri Lanka and for not wishing to return:
1.Why did you leave your country of nationality (country of residence)?
I have many reasons but I give you 3 important
1.Behind our house is unoccupied house, in that house there were a lot mines and weapons stored (Where is your house) [location], Jaffna. S.L. Army suspected that we are responsible for this and my father was beaten up very badly (When this happened) Later in 2006, I was student in Y12 and S.L. suspected me as well, they insisted that father and me report to camp daily to sign (What weapons were in house, did you see them) Not sure, I did not see them. I was scared to go to camp to sign, I had to leave area, left to Colombo then to Malaysia
2.There was Army camp, 500 metres from my house and on my school way and back I had to encounter a lot of harassment (What did they do to you) Harass, question, beat (Why) I had to pass 4 times a day
3Paramilitary groups advised me not to go to school not to pass camp, they tried to recruit me and father was harass by them (Did anything happen to you) They always threatened me and beaten me several times (Is there anything else you wish to add) These are main reasons
…
22.Do you have any reasons for not wishing to return to your country of nationality (residence)?
If I go they will harass me and there won’t be guarantee for my life, even after I left they went my home wanted to know where I am (Who) S.L. Army (What would happen to you if you return) There is no guarantee for my life, I do not know what will happen (Is there anything you wish to add) Under no circumstances I do not wish to go to S.L. I came here seeking protection as I wish to live and continue my studies, I wish to add that there will be some conflicting information on the day of my arrival and today, I gave some false information as I was instructed to do so by the agent and I did not revealed fact that I left India, please forgive me
The applicant later corrected to 2005, the year when he and his father were beaten up, and he also claimed that it was he, rather than his father, who the Army “focused more of their attention on”. He also said in his RSA statement:
Why I left my country:
…
The presence of a relatively large Sri Lankan Army camp made it extremely difficult for me to attend school without being stopped and questioned by members of the Sri Lankan Army. If they were not satisfied with my response they would hit me with their rifle butts until I fell to the ground. They would often point their gun at my chest and threaten to shoot me. This terrified me.
Also, next to my village there was a small jungle area which was used by LTTE as a hideout. Because of this there was a heavy army presence in the area. In late 2005, approximately 5 Tamils were shot and killed by the Sri Lankan Army in this area. Fearing I would also be killed I fled Sri Lanka and went to Malaysia seeking safety.
Even till now, my family are telling me that members of the Sri Lankan Army are attending our home and asking for my whereabouts. If I am forced to return they will intercept me at the airport, detain me and kill me, especially after they realise I fled seeking protection from another country.
What I fear might happen if I go back to my country:
I fear that if I go back to my country I will be detained and eventually killed.
Who I think will harm or mistreat me if I go back:
I think that the Sri Lankan Army will harm and mistreat me if I go back.
Why I believe they will harm or mistreat me if I go back:
I believe they will harm, mistreat me and eventually kill me because I am Tamil and they suspect me of being a member of the LTTE because of the weapons they confiscated near my home.
Why I believe that the authorities in my country will not protect me if I go back:
I believe that the authorities in my country will not protect me because I am Tamil. The Sri Lankan Government is Sinhalese. They have no mercy and will not accept any explanations from me because of my ethnicity.
The Sri Lankan Army and paramilitary groups like the EPDP and Karuna Group are working together with the Sri Lankan Government to rid Sri Lanka of Tamil people, especially those they suspect are involved with the LTTE. Given their suspicions surrounding the weapons near my home, there is little doubt I will be killed if I return. The continued mistreatment and mass slaughter of Tamil people in Sri Lanka is a clear example of what my destiny beholds should I be forced to return.
The applicant’s lawyers provided a written submission to Ms Long on 22 September 2011, shortly before her own interview with the applicant. At its commencement, they summarised his refugee claims and history:
Client’s Background
…
The claims put forward by the Applicant are contained in his statement in support of his application for Refugee Status Assessment and as set out in the body of this submission, in which it is indicated that his fear of persecution is based on his Tamil ethnicity and his imputed political opinion as a supporter of the LTTE.
Persecution arising from race and imputed political opinion
The Applicant fears persecution from the Sri Lankan Army (SLA) and paramilitary groups such as the Karuna Group, due to his Tamil ethnicity and his perceived support of the LTTE.
The Applicant first fled Sri Lanka in March 2007 because his life was in danger. The major incident that caused him to flee took place in 2005, following his arrest and the arrest of his father and his subsequent torture. They were detained after the SLA found an arms cache near their home. The SLA suspected them of either direct involvement in the storage of those weapons, or that they would have information about those who had stored weapons in that place.
Later in the same year, five Tamil tigers were killed by the SLA at a nearby LTTE hideout.
The Applicant was suspected generally of being an LTTE supporter. The Applicant claims that the area that his family came from was a centre of the Tamil Tiger regime. This was one of the main reasons why he was suspected by the authorities of being a member of the LTTE.
The Applicant believes that he will be persecuted if he is returned to Sri Lanka. That persecution will be inflicted by the Sri Lankan army or through other Para-military organisations such as the EPDP. There is well founded evidence that the government of Sri Lanka is using such Para-military groups as agents of terror against the Tamil people (see pages 3&4 below).
The Applicant also states that the country information relied upon by the Case Officer in her RSA Assessment is wrong and untrue. He claims that Tamils are still being pursued, kidnapped, raped and killed in Sri Lanka by the authorities for no other reason other than their ethnicity and imputed political involvement with the LTTE. He claims that the Sri Lankan Government is giving a good report on the state of things in Sri Lanka to simply keep up appearances.
The Applicant does not believe that he had any other choice but to flee Sri Lanka because he feared for his life. He claims that he will be killed by the authorities in his home country because they still suspect him of being a supporter of the LTTE owing to his Tamil ethnicity.
The lawyer’s submission then set out extracts from country information supporting generic submissions that “persecution of the Tamils persists”, that “returned Tamil asylum seekers have been detained and/or tortured upon their return to Sri Lanka”, and that “there are no safe havens for Tamils within Sri Lanka”. Their submission concluded:
Conclusion
Collectively, all the preceding extracts illustrate that the situation in Sri Lanka for Tamils is dangerous.
Accordingly, on the facts before us and the Applicant’s submission of the events surrounding his case, there is little doubt that he holds a well‑founded fear of persecution based on his race and imputed political involvement if he was to return to Sri Lanka.
A transcript of Ms Long’s interview with the applicant and his agent is in evidence before me. It generally confirms the accuracy of a detailed account included by Ms Long in her report. In particular, I accept her description of the following evidence given by the applicant:
48.The reviewer confirmed with the claimant that he had had no difficulties entering and exiting Sri Lanka and asked him if he had any difficulties getting his passport and visa/s. He said that he had no problems because the agent accompanied him. He said that they looked for him in Jaffna and he would have problems there; there was a threat after 2007. The claimant said that if he shows his ID in Colombo the Army will take him; they will suspect him. He said that two days ago 200 people were arrested in Colombo. The reviewer told the claimant that it was of concern that he has exited his country twice and also re entered his country and now he says that he cannot return there. He said that he paid money to an agent and if he goes there alone he will be arrested.
49.The reviewer asked the claimant more about what happened the first time he had trouble from authorities when he was in Jaffna. The claimant said that there was an Army camp close to their home and weapons were found close to their home. The Army suspected that he had contact with the LTTE. This incident occurred in 2005/2006 when he was doing his last exams. They arrested him and beat him in 2006 but the weapons incident happened in 2005. During that period a lot of innocent people were killed and there are reports of this; although his family is not specifically mentioned it happened in his village. He was suspected because he was a young Tamil male. They caught him and beat him and he was scared and left the village. The reviewer queried whether he left the village in 2007. He confirmed that he went to Colombo in 2007. The reviewer asked the claimant if this meant that he stayed in his village after this incident for about a year. The claimant agreed he stayed in his village until he finished his exams at the end of 2006 and then he went to Colombo as if he had not finished his exams all the rest of his study would be wasted. The reviewer asked him if he knew whether anyone else was harmed in relation to the weapons incident. He said that lots of people were beaten and killed and also lots have left Sri Lanka. His father had problems although he is older. The reviewer pointed out that in his RSA he states that he was tortured and his father was arrested. The claimant said that his father was arrested but released because he is older. The reviewer asked the claimant how long he was held after the weapons incident. He said that he was held in custody for one day and the CID and paramilitaries followed him as he was at school. After the weapons incident he was beaten and let go and that happened to all the youths. The claimant said that “it happens like that and paramilitaries shoot them”. The claimant said that his father had to go to the Army “and sign” but he cannot remember if he did so.
50.The reviewer asked the claimant why he cannot return to his country given that his father who also had difficulties at that time, and his other family members are still living there. The claimant said that he is young and the Army is after him and will try to kill him. The other family members are also having problems but they are managing. There is the normal checking and rounding up but his family is managing. If he returns they (the Army/authorities) will ask him why he has returned after being away for five years and will associate him with the Tigers. The claimant said that the Sri Lankan authorities are giving false reports that there are no problems for Tamils in Sri Lanka but Tamils are dying in Sri Lanka. Lots of Tamils in India have refused to return there and some Tamils returning from London were shot.
51.The claimant said that he obtained his A levels in Sri Lanka and has done some work painting in India and he also worked in a hotel in Malaysia for six months, cleaning. He speaks a little English.
52.The reviewer confirmed with the claimant that he is claiming that he cannot return to Sri Lanka because he fears harm there because he is a young Tamil male from Jaffna and because of his background there as he described. The claimant said that he is Tamil and has the background that he described and also the Army camp is close to where he lives. He referred to a report in an Australian newspaper, Green Left Weekly, about the difficulties for all Tamils returning to Sri Lanka. The claimant said that UNHCR representative/s who have come to the camp/centre and Catholic priests “here” have said that Tamils cannot return to/live in Sri Lanka.
53.The reviewer asked the claimant if he is claiming to fear harm in Sri Lanka because he has claimed asylum in Australia. He said that he will be killed if he returns but not because of that; because he is Tamil they will suspect him of being LTTE. If he returns after 5 years they will suspect him of being LTTE. He said that he makes this claim because of what has happened to others who have returned after being away for a few years.
Ms Long’s report
As well as containing a very detailed account of her interview with the applicant, Ms Long’s report contains an accurate narration of the written and oral evidence given by the applicant to the Department of Immigration and the submissions of his lawyers.
She commenced her “Findings and Reasons” with a summary of the applicant’s refugee claims which, as I shall explain further below, appears to me to show a sufficiently balanced and complete attempt to outline how his case had been presented to her. She said:
57.Essentially the applicant claims that he left his country and cannot return there because he is afraid that he will be harmed by Sri Lanka authorities, including security authorities, the police and Army, who suspect/will suspect that he supports/is connected with the LTTE because he is a young Tamil male from Jaffna which is/was the centre of the Tamil Tiger regime, because he has been detained and questioned by the authorities in connection with weapons found near his home in 2005 and because if he returns to Sri Lanka he will be doing so after being away for about five or more years. As the reviewer understands the claimant does not claim to fear harm in his country because he has claimed asylum in Australia. The reviewer asked the claimant if he is claiming to fear harm in Sri Lanka because he has claimed asylum in Australia and he said that he will be killed if he returns but not because he claimed asylum however because he is Tamil they will suspect him of being LTTE and if he returns after 5 years they will suspect him of being LTTE. The claimant also claims that there have been investigations about him at his home recently and that Tamils who are educated and better off are targeted.
Her report contains no detailed analysis of relevant country information concerning the situation of Tamils in Sri Lanka during and after the LTTE insurgency and currently. However, it is apparent that Ms Long probably drew upon a considerable exposure to such information, including a list of sources found in the RSA determination, and the material found in the lawyer’s generic submissions (cf. Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, [2001] HCA 22 at [32], Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, [2002] HCA 30 at [263], and Minister for Immigration & Citizenship v SZQHH (2012) 200 FCR 223, [2012] FCAFC 45 at [39]‑[40]). As have all other recent assessments of Tamil refugee claims which I have seen in recent times, she rejected the ‘generic’ submissions that all Tamils everywhere in Sri Lanka have well‑founded fears of persecution for Convention reasons. Briefly citing well‑known sources, she accepted only:
63.The reviewer accepts that the country information referred to by the claimant supports in a general way the claims that the claimant makes about his fears of returning to that country. The reviewer accepts that those having, or suspected of having, LTTE ties may continue to be at risk of serious ill treatment from the authorities, the Army and other government‑aligned groups in Sri Lanka. …
She also referred generally to other sources for findings that “some Tamil asylum seekers returning to Sri Lanka have suffered serious harm on return to that country”, and that “Tamil returnees to Sri Lanka are questioned and screened on their return to Sri Lanka and … those considered or thought to be supporters of, or affiliated with, the LTTE may be at risk of harm”.
Ms Long then proceeded to consider the applicant’s own history, to decide whether he fell within the general profile of risk which she had accepted by reference to the general information available to her. Because of the multiplicity of grounds of review, it is useful to extract her reasoning which did this:
67.Although the reviewer accepts that there is country information which generally supports the claimant’s claims, clearly the reviewer must determine whether the claimant before the reviewer has a genuine fear founded upon a real chance of persecution for a Convention reason if he returns to his country.
68.The reviewer accepts the claimant’s claims that in 2005 weapons were found by the Army in a place near his/his family’s house which is located near an Army base and that he and his father had problems and suffered some ill treatment from authorities following that incident including in 2006, as did a number of others in the area. This incident is consistent with country information about similar incidents that occurred in the north of Sri Lanka around that time and is supported by the letter dated 17 June 2009 on the letterhead of a JP in Sri Lanka produced by the claimant in support of his claims. The reviewer also accepts that the claimant was suspected with others at that time because he was/is a young Tamil male. Not without some doubt about the matter the reviewer also accepts that the claimant was held in custody for one day as he claims and that the CID and paramilitaries followed him when he was at school. The claimant told the reviewer that after the weapons incident, in 2006 he was beaten and let go and that happened to all the youths; the reviewer accepts that this is true.
69.The reviewer does not accept however that the claimant left his village, or his country, because he feared harm there for the reasons that he claims following the incident. He told the reviewer that he remained in his village until the end of 2006 so that he could complete his studies and finish his final exams because if he had not done so all of his studies would be wasted. In the reviewer’s opinion this conduct is not consistent with the claimant’s claims that he feared serious harm in his village. In the reviewer’s opinion if the claimant had left his village because he feared the very serious harm there that he claims he would not have waited to complete his studies even though this may have jeopardised his future and his future studies.
70.Further the reviewer does not accept that the claimant left his country because he was targeted by authorities/the Army and others as he claims for the reasons that he claims. The claimant travelled to Colombo with his mother and remained in Colombo for three to four months before leaving Sri Lanka using a passport in his name issued to him in Sri Lanka in 2007 according to his evidence to the reviewer. He essentially told the reviewer that he had no problems in Colombo but that was because he stayed inside for the time he was in Colombo so that he would not be identified as from Jaffna. The reviewer does not accept that this is true even though the claimant said that his mother was with him and looked after him in Colombo; it is not consistent with this claim that he was able to leave Sri Lanka through the airport using a passport in his name which he obtained in 2007 with a visa for Malaysia as he told the reviewer he did.
71.Generally the reviewer does not accept that the claimant is of interest to Sri Lankan authorities including the Army and the CID or paramilitaries for the reasons that he claims. According to his evidence to the reviewer he was able to leave his country to go to Malaysia in 2007 using a passport in his own name issued to him in Sri Lanka in 2007, re enter his country using his passport in 2008 and then leave again on his passport to go to India after staying a few days in Colombo, without difficulties. When the reviewer raised this with the claimant as a concern he said that he only stayed in Colombo for a few days and did not return to his village and was able to pass through the airport using his passport because an agent helped him/was with him; in the reviewer’s opinion this is not a reasonable explanation given the claimant’s claims. He claimed before the RSA interviewer that he is of such interest to authorities in Sri Lanka that there were investigations about him at his home recently and in the reviewer’s opinion he could not have passed through authorities at the airport on three occasions using a passport in his name as he said that he did if Sri Lankan authorities were interested in him as he claims. The reviewer does not accept as true that authorities in his country are conducting investigations about the claimant. Having regard to the country information referred to by the claimant in support of his claims the reviewer accepts that Tamils returning to Sri Lanka are sometimes questioned and investigated and suffer harm and harassment on their return to Sri Lanka if they are thought to be connected with the LTTE. The reviewer accepts that the claimant being a Tamil young male from Jaffna could be questioned on return to Sri Lanka but does not accept that the claimant will be investigated and suffer harm including because of his/his father’s past experiences on return to Sri Lanka; as discussed above he has left and returned to Sri Lanka on three occasions and the reviewer does not accept that it will be any different for the claimant if he now returns there after a longer period away from his country. His father and other family members remain living in Jaffna.
72.The reviewer finds that the claimant does not fear harm in his country because he has made a claim for asylum in Australia; this was his evidence to the reviewer at the interview.
73.While the reviewer accepts that the claimant will face discrimination and harassment in his country because he is a young Tamil male from Jaffna, the evidence before the reviewer does not enable the reviewer to conclude that there is a real chance that this claimant will suffer harm amounting to serious harm from the Army, the police, authorities, members of paramilitary groups, or anyone else in Sri Lanka, either now or in the reasonably foreseeable future because of his political opinion or imputed political opinion, his race, because he is a Tamil from Jaffna, because of his membership of a particular social group or for any other Convention reason, if he returns to his country.
74.Having regard to the above the reviewer is not satisfied, on the evidence presently before the reviewer, that the applicant has a well‑founded fear of persecution in Sri Lanka within the meaning of the Convention.
75.I find that the claimant, [the applicant], does not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958.
Ground 1
This ground alleges a denial of procedural fairness in relation to Ms Long’s reliance upon adverse country information. However, it encounters difficulty because it fails to identify any particular piece of adverse information which was relied upon by her, and which had any element of novelty or controversy or other aspect requiring a specific invitation for comment.
Ms Long’s findings which rejected the generic Tamil refugee claims made by the applicant’s lawyers do not appear to me to be based upon any surprising or controversial information, and no evidence has been led before me from the applicant or his lawyers to establish this. In the absence of any focused submission and evidence showing practical injustice arising from Ms Long’s conclusions as to the effect of country information consulted by her, I was unpersuaded that this ground is made out under the well established principles of procedural fairness which I have identified and applied in recent judgments, including SZQHC v Minister for Immigration & Anor [2011] FMCA 851 at [29]‑[39], and SZQNF v Minister for Immigration & Anor [2011] FMCA 965 at [54]‑[57].
As the Full Court has recently confirmed, not every piece of country information which may have informed an adverse assessment of refugee claims needs to be specifically drawn to the attention of an applicant. Much background information will be uncontroversial or very familiar to applicants or their lawyers, particularly in cases such as the present. Moreover, any new information carrying a degree of novelty or surprise or practical prejudice in the absence of an invitation for comment, can be sufficiently raised by the gist being put to an applicant in the course of an interview or otherwise (see Minister for Immigration & Citizenship v SZQHH (2012) 200 FCR 223, [2012] FCAFC 45 at [25]‑[35], and [68]).
To establish this ground, the applicant tendered the full contents of the “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum‑Seekers from Sri Lanka”, 5 July 2010, and a February 2011 report of Amnesty International entitled “Forgotten Prisoners: Sri Lanka Uses Anti‑Terrorism Laws To Detain Thousands”. It was common ground that these documents were probably within the general body of information consulted by Ms Long, but I was left unclear what was the purpose of this tender. In any event, it was not submitted that these reports contained any information of which the applicant’s lawyers could be assumed to have been unaware, particularly, since they were listed in the RSA assessment as items 6 and 8.
Counsel for the applicant also pointed out that the extract from another Amnesty publication provided at page 11 of the written submission of the applicant’s lawyers did not support Ms Long’s opinion that not all Sri Lankan Tamils, with or without the applicant’s particular attributes, faced a well‑founded fear of persecution. However, I could not understand how this point established a denial of procedural fairness, merely because the submission based on this extract was not accepted by Ms Long.
In another submission, counsel for the applicant criticised the imprecision with which Ms Long put to the applicant in the course of her interview that: “the independent country information and from organisations like Amnesty International and UNHCR they suggest more, a lot of Tamil people are returning to, um, Sri Lanka without difficulty” (see transcript page 27 line 20, also page 25 line 28).
However, I am unable to see how this establishes a denial of procedural fairness. There is no evidence suggesting that this particular information was inadequately summarised in its ‘gist’ or substance put to the applicant, without the need for precision in citation of the source. Moreover, there is no evidence before me that this information was surprising to the applicant or his lawyers. It also does not appear to me that ultimately it was relied upon adversely to the applicant in Ms Long’s report, in a manner showing that a denial of procedural fairness would have materially affected her report.
Counsel for the applicant withdrew the contention that Ms Long unfairly relied upon the contents of a report by the Danish Government. Moreover, the ‘inconsistency’ in country information as to the treatment of failed returning asylum seekers, noted by Ms Long at paragraph 64 when citing that report, was immaterial to her conclusion that the applicant did not have a well‑founded fear of persecution for that reason. As I shall explain below, Ms Long’s conclusion about this was based upon the applicant’s express denial of having a fear for that reason.
For all the above reasons, I am unpersuaded by any of the submissions made in support of Ground 1.
Ground 2
The applicant first made reference to a concern about being persecuted for having been absent from Sri Lanka for five years, in the course of his responses to Ms Long’s questions towards the end of his interview. He said “if I return back after, ah, 5 years they will suspect me that I have helped LTT and in that suspicion they will kill me” (see transcript page 28 line 2, and page 31 line 2).
However, at no time did the applicant nor, more importantly, his lawyers, ever articulate a discrete claim to fear persecution by reason of being a member of a particular social group constituted by ‘young Tamil males who have been away from Sri Lanka for sufficient time (five years) to be suspected of association with the Tamil Tigers’.
At no time in the applicant’s dealings with the Department or Ms Long was any evidence pointed to suggesting that there might be such a sub‑group of young Tamil males ‘distinguished from society at large’ by these attributes (c.f. Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387; [2004] HCA 25 at [36]). Nor, in my opinion, was it now shown to me that such evidence existed in the material which was before Ms Long.
I therefore accept the submissions of the Minister’s counsel that the refugee claim, which Ground 2 suggests was not addressed by Ms Long, was neither ‘articulated’ nor ‘clearly arose’, so as to give rise to the obligation upon which this ground is premised (cf. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1, [2004] FCAFC 263 at [60], [63] and [68]).
I also accept the Minister’s submissions that it was open to Ms Long to have understood the applicant’s concern about returning to Sri Lanka after 5 years as a subordinate or consequential part of his principal claim that he is a person who had previously been, and would still be, suspected of associating with the LTTE. I therefore accept that Ms Long’s report should be understood to have adequately dealt with this applicant’s concern as part of his claim which was formulated by his lawyers as “imputed political opinion as a supporter of the LTTE”. In my opinion, she then sufficiently addressed this claim with the findings which I have set out above, culminating with her conclusion at paragraph 73.
Ms Long was clearly aware of the applicant’s concern when she wrote her report, since she recited his relevant statements. Her reasoning at paragraph 71 as to the risk of the applicant encountering harm when being questioned on return to Sri Lanka, then expressly found that the ease with which he passed immigration controls in 2007 and 2008 would not “be any different for the claimant if he now returns there after a longer period away from his country”.
In my opinion, the generality of Ms Long’s subsequent findings was intended, and did, address all of the separate components of the applicant’s history which he presented, and which she rejected, as reasons for finding that upon his return he would be suspected of association with the LTTE, including the period of his absence from the country. Her conclusions ‘subsumed’ the component which Ground 2 now seeks to characterise as a claim not addressed (c.f. Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, [2003] FCAFC 184 at [47], and SZQMA v Minister for Immigration & Citizenship (2012) 127 ALD 305, [2012] FCA 433 at [39]).
In my opinion, the manner in which the applicant and his lawyers presented his refugee claims to the Department of Immigration and to Ms Long is clearly to be contrasted with the ‘particular social group’ claims which were found in other cases to have been raised by claimants, and not addressed by IMR reviewers (for example, by North J in SZQII v Minister for Immigration & Citizenship (2012) 126 ALD 479, [2012] FCA 402, and Rares J in SZQJH v Minister for Immigration & Citizenship (2012) 126 ALD 488, [2012] FCA 297).
I conclude that it was open to Ms Long to address the applicant’s refugee claims which presented his attributes as a Tamil, including as a young male Tamil from Jaffna, and as such a person who had been absent from Sri Lanka for five years, as essentially invoking considerations of ethnicity and perceived political association with the LTTE. I consider that her findings at paragraph 73 fully addressed all the applicant’s fears of persecution in the terms in which they were presented.
I therefore do not accept the submissions presented in support of Ground 2.
Ground 3
As I have noted, Ms Long expressly considered and made findings which addressed the applicant’s past and future attributes as a “young Tamil male from Jaffna”. She also considered, and rejected, the applicant’s claims that if he returned to Sri Lanka he would be perceived as being such a person “who is thought to be connected with the LTTE”.
For the reasons given above, I do not accept the alternative way in which an error of the type found in Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389, [2003] HCA 26 and explained in NABE (supra) was sought to be established under this Ground.
Ground 4
I am not persuaded that the absence of specific discussion by Ms Long of the risks of future persecution which might face the applicant if he returned to live in his home village reveals that she did not consider those risks.
The applicant’s refugee claims were framed in terms which asserted a well‑founded fear of security agencies and paramilitary supporters of the government throughout Sri Lanka. He essentially relied upon his account of events before be left Sri Lanka, which were analysed by Ms Long in paragraphs 68 to 70 of her report. She concluded at paragraph 70 that his departure from the village was not motivated by fear of serious harm in his village. Ms Long then generally addressed his fears of persecution if he returned to Sri Lanka, with findings that he was not of any interest “to Sri Lankan authorities including the Army and the CID or paramilitaries for the reasons that he claims”. She thought that his passage several times through Colombo airport in 2007 and 2008 using his own passport supported this finding. She also considered his general attributes as a “young Tamil male from Jaffna”, but was not satisfied that these would expose him to a real chance of “harm amounting to serious harm from the Army, the police, authorities, members of paramilitary groups, or anyone else in Sri Lanka” for any Convention reason.
The generality of these findings encompassed all localities in Sri Lanka where the applicant might go if he returned, including the location of his family’s home. In the context of Ms Long’s previous detailed narration of his evidence and claims, and her express analysis of his history, I am not satisfied that before making these findings she failed to consider any part of his evidence concerning his previous experiences in his home village. I am not satisfied that her findings which clearly did address the future risks of persecution facing the applicant, did not encompass the risks he might face if he returned to his home village.
The added contention in Ground 4 that the applicant’s fears based on his history in his village were “inadequately addressed” does not clearly invoke any recognised head of error of law or procedural fairness, but opens up the merits of Ms Long’s findings. For reasons which I have pointed to above and shall explain further below, I am not satisfied that Ms Long’s reasoning at any point falls foul of tests of legal error by unreasonableness in factual conclusions.
I do not consider that any of the submissions addressing Ground 4 have established a basis for the relief claimed by the applicant.
Ground 5
The applicant did not give prominence to his claim that paramilitary groups supporting the government had unsuccessfully attempted to recruit him, since this was mentioned by him only in his first interview at Christmas Island. More prominence was given by him and his agent to his claims that members of paramilitary groups harassed him between his home and school as a suspected LTTE associate. They cited country information suggesting that these groups continued to receive tolerance, if not support, from the government for brutal treatment of LTTE suspects. However, Ms Long fully and accurately identified in her report all the references by the applicant to his encounters and fears in relation to paramilitary groups (see paragraphs 14, 26, and 31).
As I have pointed out above, Ms Long’s general findings expressly encompassed the applicant’s fears of future harm from paramilitary groups. I am not persuaded that she overlooked anything in the applicant’s evidence when making these findings.
Ground 6
Contrary to the assertion in this ground, Ms Long undoubtedly did address the claim made by the applicant at the RSA interview and by the applicant’s lawyers in their written submission, that he was at risk of being persecuted on his return to Sri Lanka by reason of his having unsuccessfully made an application for asylum in Australia. She discussed this with the applicant and his lawyer at her interview. The transcript shows:
ReviewerJust one, one more thing I want to, um, talk to you about, um, and I’ll talk to your advisor about, um, because it’s in that submission that I got, is, are you claiming to particularly fear harm in Sri Lanka because you’ve sought asylum in Australia, is that one of your claims or not
And you, if, if, yep, I’ll repeat that, um, are you claiming to fear harm if you return to Sri Lanka because you’ve claimed asylum or claimed refugee status in Australia
ApplicantAh, ah, whatever, ah, it may be, if I go back to, ah, Sri Lanka I will be killed
Hundred per cent
ReviewerUm, but are you claiming you’ll be killed because you’ve been, you know you’ve claimed, made an application for a protection visa or claimed to be a refugee in Australia
ApplicantAh, not because of that, being a Tamil and also they will suspect me as LTT person, and they will (inaudible - voice is too soft)
Okay, ah, if I return back after, ah, 5 years they will suspect me that I have helped LTT and in that suspicion they will kill me
The transcript also shows that the topic was again raised by Ms Long several pages later. The second exchange with the applicant and his advisor is not entirely clear on that part of the transcript. It shows that Ms Long invited clarification of the applicant’s earlier clear denial of such a fear, in the light of general assertions about his previous evidence and submissions that “everything is true”. However, the applicant did not provide any compelling reason for discounting his earlier specific response disclaiming a fear from having claimed protection in Australia, and his advisor appears to have accepted that Ms Long might rely upon it.
Notwithstanding the submissions of counsel for the applicant to the contrary, in my opinion, the applicant’s responses at interview clearly allowed Ms Long, as a matter of law, to arrive at her ultimate conclusion:
72.The reviewer finds that the claimant does not fear harm in his country because he has made a claim for asylum in Australia; this was his evidence to the reviewer at the interview.
In my opinion, this finding sufficiently addressed the claims which Ground 6 contends Ms Long failed to address.
Her other findings clearly did address the applicant’s separate concerns, that past incidents of mistreatment on suspicion of LTTE association and his absence for five years, would lead to his being identified at Colombo airport and subsequently as a person of interest to Sri Lankan authorities and their supporters. She concluded at paragraph 71 that “being a Tamil young male from Jaffna [he] could be questioned on return to Sri Lanka”, but she did not accept that he would encounter any greater difficulties than when he freely passed through immigration controls in 2007 and 2008.
I am therefore unpersuaded by this Ground, and other grounds which challenge the evidentiary basis and reasonableness of Ms Long’s finding made in paragraph 72 of her report.
Ground 7
Counsel for the applicant supported this ground with the same submissions made in support of Ground 4.
In my opinion, it fails for the reasons given above.
As I have pointed out above and below, Ms Long’s general findings did address the future risks facing the applicant in accordance with the ‘real chance’ test of prediction. There is no substance in the complaint that she made these findings after “focussing on the Applicant’s past experience of harm”, since this is well established as an appropriate if not necessary basis of making assessments of future risks in cases such as the present (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, [1997] HCA 22 at 575–576).
Ground 8
I found this ground and its particulars obscure, and counsel for the applicant was not able to formulate what were the ‘wrong questions’ addressed by the Tribunal and the ‘incorrect’ applications of law which were relied upon.
Essentially, as with several other grounds, its particulars appear to challenge the rationality of Ms Long’s reasoning in paragraphs 69 and 70, when rejecting the applicant’s claim that he left his village and Sri Lanka as a result of having encountered very serious harm in that location and as a result being of continuing interest as a suspected LTTE associate.
These grounds and the submissions made in support contend that these adverse findings were inconsistent with her findings in paragraph 68, which accepted the applicant’s evidence that he was mistreated with his father in 2005 after the discovery of a weapons cache, that at this time and subsequently he was suspected and harassed “because he was/is a young Tamil male”, and that in 2006 “he was beaten and let go and that happened to all the youths”.
However, I am not persuaded that there was no evidentiary foundation for the subsequent adverse findings, nor that they display any obvious illogicality by way of inconsistency with earlier findings, nor that Ms Long overlooked any element in the applicant’s claimed history. Her adverse conclusions made broad evaluations of all of the applicant’s evidence and the manner in which it was presented to Ms Long at an oral interview. I accept that different conclusions might have been open, but essentially it appears to me that Ms Long drew conclusions which were open to her notwithstanding that reasonable minds might differ. In my opinion, they pass the current tests of unlawful conclusions of fact (see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16, SZMWQ v Minister for Immigration & Citizenship (2010) 187 FCR 109, [2010] FCAFC 97, MZXSA v Minister for Immigration & Citizenship (2010) 117 ALD 44, [2010] FCAFC 123, Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, [2010] FCAFC 108, Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164, [2010] HCA 48 at [32]‑[37], and SZOOR v Minister for Immigration & Citizenship (2012) 127 ALD 1, [2012] FCAFC 58 at [15], [85] and [114]).
I am not persuaded that this Ground has established any basis for the relief claimed.
Ground 9
I can find no evidence in Ms Long’s report that she assessed the future risk of persecution facing the applicant on a balance of probabilities test, rather than on the ‘real chance’ test. The contrary is, in my opinion, clearly shown in the language of paragraphs 67, 73 and 74. It was appropriate, and consistent with Guo’s Case (supra) for her to make that assessment based on findings expressed in positive or negative terms as to the past history claimed by the applicant, and upon which he sought to persuade her that his fears for the future were ‘well‑founded’.
In my opinion, the criticisms made by the applicant of Ms Long’s assessments of future risk go only to the merits of those assessments, and do not persuade me that she made them under any misapprehension of law as to the tests of ‘well‑foundedness’ under the Refugees Convention as adopted by s.36(2) of the Migration Act.
I therefore can find no basis for upholding Ground 9.
Ground 10
For the reasons explained above in relation to Ground 8, I am not persuaded that the challenged part of Ms Long’s reasoning fails to pass the established legal tests of reasonableness.
I consider that it was not illogical for Ms Long to assess the existence of the applicant’s claimed fears arising from events in 2005 and 2006 by reference to his subsequent conduct in choosing to stay at home in his village until completing his studies. She was not bound, as a matter of law, to accept the applicant’s explanations about this. Minds might differ as to the drawing of inferences from his conduct and their significance, but I do not consider that Ms Long’s reasoning lacked any evidence capable of supporting her conclusions.
Ground 10 should therefore not be upheld.
Ground 11
For the same reasons, this challenge to Ms Long’s conclusion as to the applicant’s reasons for leaving Sri Lanka to travel to Malaysia and India also fails. In my opinion, the particulars and submissions in support of this ground do not rise higher than a plea for the Court to arrive at its own contrary conclusion. However, even if I were of that opinion, it could not support the grant of the relief sought.
Ground 12
This ground was only faintly supported in the written and oral submissions of the applicant’s counsel.
In my opinion it is premised upon a misreading of Ms Long’s reasoning. I do not consider that she ultimately proceeded upon a finding that the applicant currently lacked a subjective fear of the persecution which he claimed might face him in the future if he returned to Sri Lanka. She made a material finding as to the absence of fear only in relation to the consequences of his making an unsuccessful claim for asylum in Australia. Otherwise, I would understand her adverse conclusions in paragraphs 73 to 75 and following to be founded upon her objective findings that the applicant would not face more than questioning and investigation falling short of serious harm. That assessment might have been influenced by her earlier findings concerning the applicant’s motives for leaving his village and Sri Lanka in 2007 and 2008, but in my opinion there was an independent foundation for her adverse report to the Minister.
In any event, even if Ms Long’s report should be read as making an implicit finding that the applicant currently lacked subjective fear of serious harm upon return, I am not persuaded that this finding would not pass the reasonableness test under the above authorities.
I would therefore not uphold Ground 12.
Ground 13
In my opinion, the applicant’s submissions in support of this ground invited the Court to find that no conclusion was open, as a matter of law, that a person with the applicant’s background as a young Tamil male from Jaffna would not meet the Convention definition of refugee. However, the background country information in evidence before me is patently less extensive than that available to Ms Long, and the Court also lacks the opportunity to assess the applicant in an interview. The evidence before me would not cause me to make the factual conclusion which this ground invites. I remain of the opinion that the assessment of the risks facing Tamil asylum seekers, and in particular the applicant, clearly falls within the province of the Minister and those advising him, and not the Courts of Australia.
I am not persuaded that the submissions in support of Ground 13 have shown any proper ground for granting the relief sought.
Ground 14
As I understood it, this ground traversed the same territory as Ground 6. In my opinion, it fails for the same reasons.
Conclusion
Since I do not consider that any of the grounds and submissions presented on behalf of the applicant have established an entitlement to the relief claimed, I must dismiss the application.
As I have observed in other recent cases, in my opinion, the interests of asylum seekers in judicial review proceedings are not assisted by their legal advisors maintaining a large number of separate grounds for review (see SZQPG v Minister for Immigration [2011] FMCA 978 at [27]). It is not acceptable for applicants’ lawyers to think that they do not need to isolate and develop an applicant’s best ground, because a judge at first instance or appeal will do this for them. I continue to believe that it is the responsibility of lawyers appearing for applicants to engage in a thorough analysis of all potential grounds, and to focus their submissions upon, at most, a few grounds which provide the best prospect of success. This did not occur in the present case, resulting in unnecessarily complex written submissions, a protracted and unfocused hearing, and the above lengthy and complex judgment.
It is agreed that costs should follow the event and be assessed by reference to the usual scale.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 17 August 2012
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