SZRUJ v Minister for Immigration
[2013] FCCA 283
•14 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRUJ v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 283 |
| Catchwords: PRACTICE AND PROCEDURE – applicant’s application for adjournment – whether applicant had satisfactory explanation for delay in seeking adjournment – whether utility in granting adjournment – whether interests of justice required adjournment – application for adjournment refused. |
| Legislation: Constitution, s.75 Migration Act 1958 (Cth), ss.5, 36, 46A, 189, 195A, 91R, 91S, 91T, 91U, 476, Pt.7 |
| Cases cited: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; NABE vMinister for Immigration No 2 (2004) 144 FCR 1; [2013] FCCA 283; NAFF v the Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2010] FCAC 10; Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231-28; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; SZQXX v Minister for Immigration & Anor [2012] FMCA 415; VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAC 29 |
| Applicant: | SZRUJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PETER MCDERMOTT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2042 of 2012 |
| Judgment of: | Judge Emmett |
| Hearing date: | 14 May 2013 |
| Date of Last Submission: | 14 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 14 May 2013 |
REPRESENTATION
| The applicant appeared in person with the assistance of a Tamil Interpreter |
| Counsel for the Respondents: | Patrick Knowles |
| Solicitors for the Respondents: | DLA Piper Australia |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2042 of 2012
| SZRUJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| PETER MCDERMOTT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of conduct leading to the recommendation by the second respondent, being an independent merits reviewer (“the Reviewer”), dated 23 July 2012 and handed down on 30 July 2012, that the applicant not be recognised as a person to whom Australia has protection obligations.
The applicant seeks an injunction restraining the first respondent from relying on the recommendation of the second respondent. The applicant also seeks a declaration that, in recommending to the first respondent that the applicant is not a person to whom Australia has protection obligations, the second respondent made an error of law.
The applicant claims to be a citizen of Sri Lanka and of Hindu faith and Tamil ethnicity.
Background
On 4 November 2010, the applicant arrived in Australia at Christmas Island as an offshore entrant.
On 30 November 2010, an entry interview was conducted with the applicant by an officer of the Department of Immigration and Citizenship.
On 16 January 2011, the applicant made a request for a Refugee Status Assessment (“RSA”).
On 20 April 2011, an officer of the Department of Immigration and Citizenship found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom Australia has protection obligations.
On 5 May 2011, the applicant applied for an independent merits review of the RSA.
On 23 July 2012, the Reviewer recommended that the applicant not be recognised as a person to whom Australia has protections obligations.
On 20 September 2012, the applicant filed an application in this Court seeking judicial review of the Reviewer’s recommendation.
Legislative framework
The legislative framework relating to judicial review of the conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations is accurately and comprehensively explained in the submissions of the solicitor for the first respondent, Mr Markus, from the Australian Government Solicitor, in SZQXX v Minister for Immigration & Anor [2012] FMCA 415, as follows:
“2. The provisions of the Migration Act 1958 (the Act) directly relevant to the Refugee Status Assessment (RSA) and Independent Merits Review (IMR) processes are ss 5, 46A and 195A.
3. Section 5 relevantly provides the following definitions:
"offshore entry person" means a person who:
(a) entered Australia at an excised offshore place after the excision time for that offshore place; and
(b) became an unlawful non-citizen because of that entry.
…
"excised offshore place" means any of the following:
(a) the Territory of Christmas Island; …
…
"excision time", for an excised offshore place, means:
(a) for the Territory of Christmas Island--2 pm on 8 September 2001 by legal time in the Australian Capital Territory …
4. The applicant, being a non-citizen, who entered Australia at Christmas Island without valid travel documents at a time after the relevant ‘excision time’, and thereby became an unlawful non-citizen[1] is an 'offshore entry person'.
[1] See s 14(1) of the Act.
5. Section 46A relevantly provides:
(1) An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non-citizen.
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3) The power under subsection (2) may only be exercised by the Minister personally.
…
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
6. By operation of s 46A(1), unlawful non-citizens are unable to apply for a valid protection visa.[2] However, s 46A(2) provides that the Minister for Immigration and Citizenship (the Minister) has a discretionary power to determine that an offshore entry person may make a valid application for a visa of a class specified if the Minister thinks that it is in the public interest to do so. This is commonly referred to as a decision to 'lift the bar' on the prohibition contained in s 46A(1). Subsection 46A(3) provides that this power can only be exercised by the Minister personally. Subsection 46A(7) of the Act makes it clear that the power vested in the Minister under s 46A(2) is a non-compellable power.
[2] s 46A(1) of the Act
7. Similarly, section 195A relevantly provides:
Persons to whom section applies
(1) This section applies to a person who is in detention under section 189.
Minister may grant visa
(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5) The power under subsection (2) may only be exercised by the Minister personally.
…
8. By operation of s 195A(2), the Minister has a personal discretionary power to grant an offshore entry person who is in detention a visa of a particular class if the Minister thinks that it is in the public interest to do so. Subsection 195A(5) provides that this power can only be exercised by the Minister personally.
9. Since late 2001,[3] successive governments adopted various policies to deal with offshore entry persons. In developing these policies, and the processes which were adopted by the Department of Immigration and Citizenship (the Department) to implement these policies, care was taken to ensure that Australia does not breach its international obligations; i.e. that persons who are assessed as refugees under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (the Convention), as modified by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the Protocol), are not returned to a country where that person has a well-founded fear of persecution.
[3] Following the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) (the Excision Act), which inserted a majority of the provisions referred to above into the Act.
10. As part of this process, the Department developed an offshore refugee status assessment process.
11. Until the election of the Labor Government on 24 November 2007, most such processing occurred, as part of the so called “Pacific solution”, on Nauru, but some processing also occurred on Manus Island and on Christmas Island.
12. In February 2008, the Government announced that asylum claims of future unauthorised boat arrivals would be processed on Christmas Island. It also announced that it had initiated discussions with Nauru over the closure of the centre on Nauru, and that it was commencing discussions with Papua New Guinea concerning the future of the processing centre on Manus Island.
13. On 29 July 2008, the Minister announced that the Government had decided to strengthen and enhance the RSA process and that the enhancements would include:
13.1 provision of publicly funded independent advice and assistance (a commitment that has since been met under the Immigration Advice and Application Assistance Scheme, which is available for the initial RSA and any subsequent independent merits review);
13.2 independent merits review for people receiving unfavourable refugee status assessments;
13.3 improved procedural guidance for departmental officers conducting refugee status assessments; and
13.4 external scrutiny of the RSA process by the Immigration Ombudsman.
14. In Plaintiff M61/2010E v Commonwealth and Ors (2010) 243 CLR 319 (M61), the High Court determined that s 46A(2) and 195A(2) constituted two distinct steps that the Minister could personally exercise: firstly, to consider whether to exercise the discretion to lift the bar, and secondly, to exercise that discretion.
15. The High Court has interpreted the former Minister’s announcement of 29 July 2008 that all unlawful non-citizens who entered Australia at Christmas Island making claims for protection would be assessed according to the new RSA procedure as the Minister having decided to take the first of those steps, and as the Minister having required the Department 'to undertake the enquiries necessary to make an assessment and, if needs be, review the conclusions reached'.[4] That is to say, the announcement has been interpreted as encompassing 'a decision by the Minister to consider whether to exercise either of [the powers conferred by s 46A or s 195A] in respect of any offshore entry person who makes a claim that Australia owes the claimant protection obligations' as well as 'a direction [pursuant to which direction the Department has established and implemented the RSA and IMR procedures] to provide the Minister with advice about whether power under s 46A or s 195A can or should be exercised'.[5]
16. The High Court held that an RSA, and any subsequent IMR, constitute conduct 'under and for the purposes' of the Act on the basis that the conduct occurs after the Minister 'has begun the task of considering whether to exercise power under either s 46A or s 195A'[6] and 'for the purposes of informing the Minister of matters ... relevant to the decision whether to exercise one of those powers in favour of a claimant'.[7] The High Court also held that the conduct directly affects the rights and interests of a claimant by prolonging detention.[8]
17. The High Court held that the fundamental question to which the RSA and IMR processes were directed is whether the criterion stated in s 36(2) of the Act, as a criterion for grant of a protection visa, was met.[9] Whether that criterion is met depends on the terms of s 36(2) itself , as well as on the various other provisions of the Act that explain or define concepts within it, or mould its application in particular circumstances. These include ss 36(4)-(7), 91R-91U, and the definitions of relevant words and phrases in s 5.
18. The High Court concluded 'that the assessment and review must be procedurally fair and must address the relevant legal question or questions'.[10] This conclusion was said to follow from the findings referred to above and to reflect 'well established' principles governing the limits of the exercise of a statutory power affecting rights or interests.[11]
19. As the RSA and IMR processes do not arise from the valid application of a visa and therefore are not reviews conducted by the Refugee Review Tribunal, the procedural fairness obligations prescribed in Part 7 Division 4 of the Act do not apply. Instead, the principles of common law procedural fairness apply.[12]
Jurisdiction and relief
20. The Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution, that is, to grant a writ of mandamus or certiorari, or injunction.[13]
21. In M61, the High Court held that mandamus will not issue to compel the Minister to reconsider exercising the power given by ss 46A or 195A, and that the unavailability of mandamus meant that there was no utility in granting certiorari to quash the IMR recommendation.[14] The High Court left open the issue of whether an injunction was available.
22. The first respondent submits that while an injunction is necessary to enliven the jurisdiction of this Court,[15] should the Court be minded to grant relief, an injunction is not necessary or appropriate in circumstances where there is no immediate threat of the applicant being removed from Australia in reliance of the IMR recommendation. Instead, the Court can be satisfied, as the High Court was in M61,[16] that a declaration that the recommendation is affected by legal error will be sufficient for the Department and Minister to not rely on a recommendation.”
[4] M61 (2010) 243 CLR 319 at [70].
[5] M61 (2010) 243 CLR 319 at [66].
[6] M61 (2010) 243 CLR 319 at [67].
[7] M61 (2010) 243 CLR 319 at [73].
[8] M61 (2010) 243 CLR 319 at [76].
[9] M61 (2010) 243 CLR 319 at [89].
[10] M61 (2010) 243 CLR 319 at [78].
[11] M61 (2010) 243 CLR 319 at [73].
[12] M61 (2010) 243 CLR 319 at [91].
[13] s 476 of the Act.
[14] M61 (2010) 243 CLR 319 at [99]-[100]
[15] Darabi v Minister for Immigration and Citizenship [2011] FMCA 371 at [27]-[31]
[16] M61 (2010) 243 CLR 319 at 360-361 [101]-[104].
The applicant’s request for Refugee Status Assessment
On 16 January 2011, the applicant made a request for a Refugee Status Assessment.
The applicant provided a statement in support of his protection visa application in which he stated the following:
a)The applicant is a 28 year old male, born in Thambalakamam, Trincomalee, Eastern Province, Sri Lanka.
b)In 2001, the applicant’s brother was shot dead by the army on suspicion of being an LTTE (undefined) supporter. Following the applicant’s brother’s death, the army came to the applicant’s house and interrogated and assaulted him. Since this incident, he has been fearful of being harmed by the army.
c)The applicant moved to Vanni and opened a Tailor shop in Thevipuram in 2006. In 2007, the applicant became engaged to marry however the LTTE did not allow him to marry, wanting him to make uniforms instead. In June 2008, the LTTE took the applicant to a camp and forced him to make uniforms for 6 months, without pay.
d)The applicant escaped a bombing in January 2009 and hid in a bunker in Iraddivaikal for three months. The applicant was then injured in his forehead and was taken to hospital. Whilst at hospital, the applicant was advised by some of the employees to leave because once he recovered he would be taken to an army camp and interrogated and tortured.
e)The applicant escaped the hospital and travelled to India via Colombo. Whilst in India, the applicant feared that if the Indian police became aware that he had been involved with the LTTE, then he would be deported back to Sri Lanka.
f)The applicant fears that he cannot live any where in Sri Lanka without local residents giving information about him to the police.
g)The applicant fears that if he returns to Sri Lanka, he will be arrested, interrogated, imprisoned, and beaten or killed.
h)The applicant believes that those wanting to harm him include the Sri Lankan army, the CID, the police, other political groups who support the government in identifying LTTE supporters as well as the Indian government.
On 20 April 2011, an officer of the Department of Immigration and Citizenship found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom Australia has protection obligations.
Independent Merits Review and conduct leading to recommendation
On 6 May 2011, the applicant lodged an application for review of the RSA finding by the Reviewer.
The applicant provided further documents in support of his review application.
On 21 May 2012 the applicant was interviewed by the Reviewer.
The Reviewer noted that it had before it the Department’s file and other materials available to it from a range of sources.
The decision of the Reviewer is accurately summarised by counsel for the first respondent in his written submissions as follows:
“THE REVIEWER’S RECOMMENDATION
6. The Reviewer reached the same conclusion as the RSA Officer. The Reviewer stated that his main reason for rejecting the Applicant’s claims was his adverse view of the Applicant’s credibility (CB 214 at [120]). In particular, the Reviewer found:
(a) The Applicant had said on arrival at Christmas Island that the boat on which he had arrived had departed from Sri Lanka when in fact it had left from India (CB 214 at [121]);
(b) The Applicant claimed in his statutory declaration that he had been beaten by the Army. He did not make this claim in his initial entry interview and, in his interview with the Reviewer, he made a number of inconsistent statements about the alleged beating. At one point he claimed that he was beaten by the CID rather than the Army. Later he claimed that he had in fact been beaten by the Army but said he could not recall the details of the incident. Ultimately, the Reviewer did not accept that the Applicant had been beaten by either the Army or the CID (CB 214-215 at [122] and [123]).
(c) The Applicant gave inconsistent evidence as to whether his brother was killed by the Army of the CID. As a result, the Reviewer did not accept the Applicant’s claims that his brother was killed by the authorities (CB 215 at [125]).
(d) The Applicant gave inconsistent evidence as to the whereabouts of his surviving brother (CB 215 at [124]).
(e) The Applicant gave inconsistent evidence about the work he was forced to do for the LTTE – he initially claimed he was forced to sew uniforms but later said he was sewing civilian clothes (CB 216 at [132]). The Reviewer accepted that the Applicant may have made civilian clothes for LTTE members but did not accept that this would result in him being perceived as a supporter of the LTTE (CB 216-217 at [132]-[134]).
(f) At one point during his interview with the Reviewer, the Applicant claimed to fear harm from LTTE aligned paramilitary groups. However, he had previously claimed that he feared harm from the Army and ‘did not have a problem’ with these paramilitary groups (CB 217 at [135]-[136]).
7. In rejecting the Applicant’s claims the Reviewer also noted that the Applicant had been able to leave Sri Lanka legally and that no attempt had been made to extradite him from India. These matters suggested that the Applicant would not face persecution upon return to Sri Lanka (CB 215-216 at [128]).
8. The Reviewer accepted as plausible the Applicant’s claim that the LTTE prevented him from marrying and forced him to work as a tailor (CB 218 at [142]). However, the Tribunal relied on information published by the United Nations High Commissioner for Refugees (‘UNHCR’) which suggested that Sri Lankans from the north of the country are no longer in need of protection solely on the account of such indiscriminate harm (CB 218-219 at [143]).
9. The Reviewer also found that the Applicant’s scarring is not likely to put him at risk of significant harm. The Reviewer noted that the CID had examined the Applicant’s scarring when he was in hospital and, apparently, took no action. The Reviewer also observed that the Applicant’s scarring was not obvious (CB 222 at [156]). ”
The proceeding before this Court
(i) Adjournment application by applicant
At the commencement of the hearing this morning, Mr Rintoul sought leave to assist the applicant despite no legal qualification. Counsel for the first respondent, Mr Knowles, did not object to leave being granted to Mr Rintoul to assist the Applicant in an adjournment application. Accordingly, leave was given to Mr Rintoul to assist the applicant for that purpose.
On behalf of the applicant, Mr Rintoul sought an adjournment of today’s hearing on the basis that the applicant had only recently sought assistance from RISE (Refugee Survivors Ex-Detainees and Non-Governmental advocacy and welfare organisation that assist asylum seekers and refugees and is located in Melbourne). In support, Mr Rintoul read the affidavit of Madhuni Kumarakulasinghe, affirmed 14 May 2013. Mr Kumarakulasinghe’s affidavit was read without objection. Mr Kumarakulasinghe deposed that the applicant contacted RISE for assistance at the end of April 2013 and documents were received from him by RISE on 28 April 2013. Mr Kumarakulasinghe deposed that on 7 May 2013 RISE spoke with Ms Nicola Cannon from PILCH, advising that they no longer have a copy of the audio recording of the applicant’s hearing with the Reviewer. RISE then contacted the first respondent’s solicitor, Ms Hooper and a copy of the audio tapes was provided to the applicant on 8 May 2013. Mr Kumarakulasinghe deposed that he was informed by PILCH that they were not acting for the applicant, although PILCH had referred the matter to Michaela Byers, a sole practitioner who provides pro bono legal services to asylum seekers, in December 2012.
Mr Rintoul informed the court that persons from RISE were considering the applicant’s case and counsel had been approached, but no amended application had been prepared. Mr Rintoul submitted that the Reviewer’s decision was affected by error in that the Reviewer found an inconsistency to exist in respect of evidence given by the applicant at the first interview and the second interview.
A similar issue was referred to in Mr Kumarakulasinghe’s affidavit as “one example of an error”. Mr Kumarakulasinghe also referred to a complaint in relation to the country information relied upon by the Reviewer and a finding by the Reviewer that the circumstances of the applicant’s family in Trincomalee are stable, when in fact they are not. Mr Kumarakulasinghe also submitted that a psycho-social report about the applicant provided to the Reviewer was not considered.
The adjournment application was opposed by the first respondent on the bases that no satisfactory explanation had been provided by the applicant for his delay in seeking an adjournment, or his delay in seeking legal advice; and, that the complaints about the Reviewer’s decision referred to had insufficient prospects of success such that it would be in the interests of justice to grant an adjournment to the applicant for a further opportunity to seek legal advice. Counsel for the first respondent, Mr Knowles, also submitted that the first respondent would suffer substantial prejudice in respect of irrecoverable costs in circumstances where any costs order made against the applicant for the costs thrown away by the first respondent to date would be theoretical only.
I accept the submissions of counsel for the first respondent. The applicant has had more than eight months to obtain legal advice. At a directions hearing 14 November 2012, I provided the applicant with the contact details of legal services providers and translating and interpreting services in documents headed in his own language and gave the applicant until 30 January 2013 to file and serve any amended application and additional evidence, including any transcript of the hearing of the Reviewer. There has been no further evidence provided by the applicant to explain his substantial delay in seeking legal advice beyond his impecuniosity and his inadequate knowledge of written and spoken English. However, as stated above, on 14 November 2012, the applicant was provided with relevant contact details in documents headed in his own language.
There must be some responsibility on an applicant to pursue his case with due diligence. I am not persuaded that this applicant has pursued his case before this Court with any diligence. Mr Kumarakulasinghe’s affidavit was received only this morning and not sent to the first respondent’s solicitors at all. This matter was set down for hearing today on 14 November 2012, some six months ago.
Further, the complaints made by the applicant about the Reviewer’s decision, as referred to by Mr Kumarakulasinghe in his affidavit and Mr Rintoul in his submissions to the Court this morning, do not identify an error with any reasonable prospects of success such that the interest of justice would be served in granting the applicant an adjournment.
There is nothing to suggest that any misinterpretation of the applicant’s evidence given either at the first interview or the second interview was such that the applicant was deprived of an opportunity to put his case (See Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231-28 at [38]).
Moreover, in relation to the specific complaint made by the applicant about the misunderstanding of his evidence relating to his fear of paramilitary groups in Sri Lanka, the Reviewer noted that it informed the applicant that the evidence he gave to the Reviewer was different from what he said at the entry interview, and read out to the applicant the applicant’s evidence given at the entry interview. The Reviewer invited the applicant to comment and explain why what he had told the Reviewer was different from what he had said at the entry interview. The Reviewer also told the applicant that he had said at the entry interview that he was not afraid of the paramilitary groups in Sri Lanka, only the army. The Reviewer noted the applicant’s response that the groups “are all working together like this”. This is not a responsive explanation. In the circumstances, there cannot be any jurisdictional error arising from an inconsistency found to exist by the Reviewer in the applicant’s evidence on this issue.
The other complaints referred to by Mr Kumarakulasinghe in his affidavit appear to do no more than cavil with the findings made by the Reviewer. Such complaints invite merits review which this court cannot undertake. In relation to the applicant’s complaint referred to by Mr Kumarakulasinghe’s affidavit that applicant psychosocial report about the applicant was not considered, this matter is dealt with below.
Accordingly, the applicant’s application for an adjournment of today’s hearing was refused.
(ii) Grounds of judicial review
The applicant confirmed that he relied on the ground contained in an application filed on 20 September 2012 as follows:
“That the decision of the second respondent, the Independent Merits Reviewer, was affected by legal error”
The ground was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of the ground and in support of the application generally.
The applicant stated that the Reviewer had failed to take note of his evidence relating to his fear of the paramilitary and that he had been forced to sew clothes for the LTTE. The applicant also said that when he first arrived in Australia, he and his fellow boat arrivals all said that they came from India. He said that three days later they told the truth that in fact they had come from Sri Lanka and that everyone but the Reviewer accepted that statement. The applicant also said that the Reviewer failed to consider his fear of the paramilitary if he was to return to Sri Lanka.
The Reviewer did not accept that the applicant had a well founded fear of persecution from any member of the paramilitary groups given that the applicant had said that he did not have a problem with them at the entry interview. As stated above, that inconsistent statement given at the entry interview was put by the Reviewer to the applicant for explanation in circumstances where the applicant appeared to assert to the Reviewer that he did fear persecution from paramilitary groups. It was open to the Reviewer not to accept the applicant’s explanation and not to accept that the applicant has a well founded fear of persecution from paramilitary groups.
The Reviewer also considered whether the applicant would be imputed with a political opinion as a suspected member or support of the LTTE because he made clothes for the LTTE against his will. The Reviewer did not accept the applicant’s claim ever to have sewn clothes for the LTTE. In any event, the Reviewer found that if the applicant had made clothes for the LTTE against his will, it would not have imputed the applicant with a political opinion as a supporter of the LTTE. Again, that finding is open to the Reviewer on the evidence and material before it and for the reasons it gave.
In relation to the applicant’s assertion that everyone accepted that he came from Sri Lanka, having first said that he came from India, the Reviewer was entitled to rely on the applicant’s original statement that he came from India as reflecting adversely on the applicant’s credit.
The Reviewer adverse credibility finding in relation to the applicant arose from several pieces of evidence given by the applicant which the Reviewer found to be inconsistent. The Reviewer also noted that the applicant had been able to leave Sri Lanka legally and that no attempt had been made to extradite him from India. The Reviewer also relied on country information that Sri Lankans from the North of the country are no longer in need of protection solely on the account of past indiscriminate harm.
The Reviewer also noted that the applicant’s migration agent had provided a psychosocial report dated 30 January 2012, but that it was not a medical assessment of the condition of the applicant. A fair reading of the Reviewer’s decision record makes clear that the Reviewer gave careful consideration to all claims made by the applicant and his migration agent. In the circumstances, the Reviewer considered the applicant’s psycho-social report, but did not find it compelling. There is nothing before this Court to suggest that the Reviewer’s consideration of the report was in error.
Further, it cannot be suggested that the applicant’s mental state deprived him of a meaningful opportunity to participate in the hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [19] per Gleeson CJ; Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [20] per Keane CJ.
There is no evidence before this court to suggest that the Reviewer’s decision record is inaccurate or incorrect in any respect. As stated above, the applicant has had ample opportunity to file evidence of his application to this Court, including any transcript of the Reviewer’s hearing. In the circumstances, the Court accepts as accurate the Reviewer’s summary of the applicant’s oral evidence and the exchanges it had with the applicant at the hearing (See NAFF v the Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1). The Reviewer also noted that it invited submissions from the applicant’s migration agent but that the agent declined to make any further oral submissions beyond the written submissions already provided.
A fair reading of the Reviewer’s decision record makes clear that the Reviewer informed the applicant of issues arising in the review particularly, those that related to the applicant’s credibility. The Tribunal’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
The Reviewer placed substantial reliance on country information published by the UNHCR, which it also discussed with the applicant at the hearing and gave to the applicant’s migration agent in writing for comment. The Reviewer considered the response provided by the applicant’s migration agent to this information. It is well established that the country information to which a decision maker, such as the Reviewer, has regard to and the weight to be attributed to that information is a matter for the decision maker (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2010] FCAC 10; VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAC 29).
I accept the written submissions of counsel for the first respondent that the Reviewer gave consideration to all claims squarely arising form the material before him consistent with his obligation as enunciated in NABE vMinister for Immigration No 2 (2004) 144 FCR 1. The Reviewer also considered whether the applicant was entitled to complementary protection pursuant to s.36(2)(aa) of the Migration Act 1958 (Cth).
Accordingly, none of the applicant’s complaints reveal any jurisdictional error on the part of the Reviewer.
Conclusion
A fair reading of the Reviewer’s decision record makes clear that the Reviewer understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support, including written submissions by the applicant’s migration agent. The Reviewer put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Reviewer also put to the applicant independent country information before it and invited the applicant to comment upon it, both at the hearing and in writing and also identified other independent country information to which it had regard. The Reviewer then made findings based on the evidence and material before it. Those findings of fact were open to the Reviewer on the evidence and material before it and for the reasons it gave. A fair reading of the Reviewer’s decision record makes clear that the Reviewer reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Reviewer’s conduct in recommending that the applicant not be accepted as a refugee was made according to law.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 14 May 2013
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