SZRXX v Minister for Immigration and Anor

[2013] FCCA 1179

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRXX v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1179

Catchwords:
MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations.

ADMINISTRATIVE LAW – Allegation that the Reviewer made incorrect findings of fact, failed to consider all relevant evidence and failed to consider a claim.

ADMINISTRATIVE LAW – Whether Minister must consider relevant evidence in his possession or in the possession of his department even if it is not brought to his attention.

Legislation:

Migration Act 1958, ss.36, 46A, 195A, 477

Cases Cited:

Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319

SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191
SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicant: SZRXX

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: DR P MCDERMOTT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: SYG 2243 of 2012

Judgment of: Judge Cameron

Hearing date: 5 August 2013

Date of Last Submission: 5 August 2013

Delivered at: Sydney

Delivered on: 27 August 2013

REPRESENTATION

Solicitors for the Applicant: Rasan T Selliah and Associates

Counsel for the First Respondent: Ms B Tronson

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2243 of 2012

SZRXX

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

DR P MCDERMOTT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived at Christmas Island by boat on 18 June 2010. He lodged an application for a Refugee Status Assessment (“RSA”) dated 12 September 2010 alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).

2. By letter dated 12 January 2011 an officer in the department administered by the first respondent (“Minister”) advised the applicant that he had been assessed as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 2 March 2012, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. It can be presumed that the applicant was in detention at the time of the RSA and subsequent review.

3. The evidence makes it clear that the applicant had no visa when he entered Australia at Christmas Island. In the circumstances and as provided by s.46A(1) of the Migration Act 1958 (“Act”), he cannot make a valid application for a protection visa. However, ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa.

4. It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].

5. The applicant has made an application to this Court for judicial review of the Reviewer’s recommendation. He seeks a declaration that the Reviewer’s recommendation was not made in accordance with law and an injunction restraining the Minister from relying on that recommendation. In order to succeed he must demonstrate that the Reviewer’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].

6. For the reasons which follow, the application will be dismissed.

Background facts

1. The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection were set out on pages 3 to 9 of those reasons and are relevantly summarised below.

RSA application

1. The applicant made the following claims during his entry interview at Christmas Island on 14 July 2012:

   a)he could not return to Sri Lanka as the Criminal Investigation Department (CID) and Special Forces “will shoot me” because he had seen three boys being shot in a cemetery;

   b)one week after he was elected as a college secretary, two people from the Liberation Tigers of Tamil Eelam (LTTE) came to see him to seek his support. He stated that after the visit he was standing near the Arsadi Hotel when a van pulled up near him and the Thamil Mikkal Vidual Puligal (TMVP) detained him. His captors took him to the camp of the forest department and questioned him as to whether he was supporting the LTTE or studying. He was detained at the camp for two days and beaten;

   c)he was then taken to the Meenakam office where he was beaten by other people.  He sustained injuries to his shoulder and chin when he was again questioned by the LTTE [sic]. He stated that his shoulder was broken. His captors took him to a hospital and told him to say that his injuries were sustained in a motorcycle accident. He stated that his kidnappers were not in uniform and told him that he should join the TMVP;

   d)he was not involved with the LTTE; and

   e)members of the TMVP had told him to join them and he was forced to join the group.

2. In a statutory declaration declared on 12 September 2010 in support of his application for an RSA, the applicant made the following claims:

   a)he was born in Batticaloa, in the Eastern Province of Sri Lanka and is of Tamil ethnicity;

   b)he was a student at Batticaloa College of the Sri Lanka Institute of Advanced Technology until 2009;

   c)he was approached by two people from the LTTE in March 2009. He informed the president of his college union about the visit;

   d)he was abducted by two men in a van four days after that visit. During his abduction, he was placed in a dark room where bags were placed over his face and he was beaten for a day. The next day his abductors noticed that his shoulder was broken and that his chin required stitches. He was left in the doorway of a hospital and told to tell the hospital staff that he had been in a motorcycle accident. His captors threatened to shoot his family if he said that he had been beaten. He was asked to join the TMVP after he recovered from his injuries. His arm remained bandaged for a month and his right hand required physiotherapy;

   e)one month after he was released from the camp he witnessed uniformed members of the army Special Forces shooting three boys in a cemetery. They were alerted to his presence when he tripped on a stone. He then went to his uncle’s house where he stayed for two days. He asserted that the CID came to his house and threatened to kill his brother;

   f)he was on a boat in Merak Harbour (in Indonesia) for several months. His details were given to the Sri Lankan authorities by the International Organization for Migration (IOM). One of the Sri Lankans who returned to Sri Lanka had been detained in prison. He claimed to fear further persecution by the authorities if he was to return because his photograph had been on the internet and in other media sources;

   g)if he was to return to Sri Lanka he faced a real chance of serious harm from the LTTE and Government authorities such as the TMVP and the CID.  He faced a real chance of persecution for reasons of race and political opinion; and

   h)it would also be obvious that he had departed and he would be reported to the authorities.

Proceedings before the Reviewer

1. The applicant was interviewed by the Reviewer on 8 July 2011 when he said that his claim related to two incidents:

   a)being abducted by the TMVP; and

   b)witnessing the execution of three young men in a cemetery.

2. He made the following additional allegations at the interview with the Reviewer:

   a)the injuries he suffered during his captivity occurred at the Meenakam office and were the result of being hit with a rifle butt;

   b)his captors were part of the TMVP;

   c)he denied that he was a member of the TMVP, but was being forced to join;

   d)in relation to the alleged murders, he stated that he saw a jeep and four motorcycles near the cemetery at about 12.30 or 1am. The cemetery was close to his home and he was curious to know what was going on.  He climbed a pile of stones and saw two or three men in army uniform and three young men being shot. He was terrified and tripped and fell while getting off the stones. He stated that the men must have heard the noise of his fall and turned towards him. He then ran to his uncle’s house where he stayed for two days.  With the help of an agent, his father and uncle then arranged for him to go to Negombo;

   e)the Special Forces would shoot him because he was an eyewitness;

   f)his passage was arranged by an agent for $3,000. The agent brought him to the airport and obtained his boarding pass;

   g)when inconsistencies in his account were put to him, the applicant stated that he was not in danger from the LTTE and that he had never claimed that he was.  He claimed that the translation in his statutory declaration was incorrect and that he had meant that he was in danger from the TMVP. He admitted that he had referred to the TMVP as the Tigers;

   h)while on a boat that was berthed in Merak Harbour for several months, he was part of a group that was addressed by a Singhalese naval officer.  The officer gave them assurances that it was safe to return to Sri Lanka and that were no problems there.  When the Tamils protested, the officer spoke to them in Singhalese in a threatening tone.  The applicant admitted that he did not understand Singhalese;

   i)he had been informed by a Ms Sara Nathan that his details had been provided to Sri Lankan authorities by the IOM.  The IOM interviewed all of the people on the boat and took their details and he believed that they had passed that information to Sri Lankan authorities because they were trying to persuade them to return to Sri Lanka.  The UN took photographs of them and he believed that it had passed them on to “the authorities” but could not be sure;

   j)he did not know why he had been taken to hospital if he was suspected of being a Tamil Tiger; and

   k)hostilities being over, everyone who fled Sri Lanka was suspected of being an LTTE member.  He believed that his life would be in danger from the “CID as a Tamil anyone going back is in danger of being killed and the same will happen to me”.

3. At the IMR interview, the applicant also tendered a photograph showing a number of men, including himself, in a cell in Merak. The Reviewer was advised that the photograph was published in The Australian on 29 December 2009. The applicant also presented an unsigned statement from Ms Nathan which included the following statement:

   I was informed by those in the detention cell with [the applicant] that a person identified as Capt Kapil of the Sri Lankan Navy visited the cell and interrogated all the Sri Lankan asylum seekers, including [the applicant].

   When the Reviewer put to him that before their interview he had made no mention of the visit from the naval officer, the applicant stated that he had mentioned it at the entry interview.

4. After the applicant’s interview with the Reviewer, his agent lodged two submissions, respectively dated 10 February 2012 and 22 February 2012.  The second submission made the following claims:

   Our client faces serious harm in Sri Lanka on the following Convention grounds:

   1.His race (ethnicity) as a Tamil;

   2.His actual/imputed opinion including of being ‘actual perceive sympathizers/supporters of the LTTE’ or being critical of the Sri Lankan government; and

   3.His membership of the following social groups:

   ·    Young Tamil men from the East; and

   ·    Failed Tamil asylum seekers from the North or East of Sri Lanka.

Reviewer’s findings and reasons

1. After discussing the claims made by the applicant and the evidence before him, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. That recommendation was based on the following findings and reasons:

   a)the Reviewer found that the applicant had implicitly admitted to “some involvement” with the TMVP.  In this connection, the Reviewer referred to the applicant’s claim at his entry interview that he had no involvement with the LTTE and compared this with his later response of “TMVP – forcing me to join” to a question asking him “the nature/level” of involvement.  The Reviewer considered that, on a fair reading of the answer, it was plausible that the applicant had admitted involvement with the TMVP.  The Reviewer found that that if the applicant was not involved with the TMVP he could have said so, as he had in relation to the LTTE. The Reviewer found that the TMVP was familiar with the applicant and that he was acceptable to them as a member. That finding was based on the applicant’s statement at his entry interview that he was asked to join the TMVP once he had recovered from his injuries.  The Reviewer did note, however, the applicant’s claim at the entry interview that the TMVP would “try to make me join them but I don’t want to” if he went back to Sri Lanka, suggesting that even though he had some involvement with the TMVP he did not want to be involved;

   b)the Reviewer noted that the applicant had claimed in his statutory declaration and in his written submissions that the two men who visited him had been from the LTTE, whereas he could be understood to have said at the entry interview that they had been from the TMVP.  In this connection the Reviewer quoted the applicant as having said at his entry interview:

   … after 1 week two people came to see me.  LTTE people came to see me and they said you have to support us.  There is hotel in Arsadia and I was standing at the front – They came in a van and later took me away. (emphasis added by Reviewer)

   The Reviewer concluded that the applicant could be understood to have been saying there that the two men who visited him were the ones who later abducted him outside the hotel in Arsadia.  The Reviewer did not think it plausible that the two men who asked the applicant to join the LTTE later abducted him and interrogated him on whether he was a member of the LTTE.  He was prepared to give the applicant the benefit of the doubt and assume that they were not;

   c)the Reviewer did not accept that the applicant was abducted and detained by the TMVP because he considered that the applicant’s version of events was implausible. In this regard, the Reviewer referred to the following:

   i)inconsistent evidence presented by the applicant concerning why he was released from detention. The Reviewer noted that at the IMR interview the applicant had stated that he was released because his mother made a formal complaint to police. However, in the submission dated 10 February 2012, the applicant’s agent said that the applicant’s mother did not make a formal complaint and only enquired as to his whereabouts.  The Reviewer also found that the fact that the applicant’s mother sought assistance from the police was inconsistent with the applicant’s claims that he was of such interest to the authorities as an alleged LTTE supporter that he was abducted and would not be protected by the government if he were to return to Sri Lanka;

   ii)the implausibility of the applicant’s claim that he was the only person who was detained for interrogation at the TMVP camp, considering that he claimed that he was detained some time in March 2009 which was a few months before the end of the conflict.  The Tribunal noted the applicant’s later claim that there might have been other prisoners at the camp but found that this inconsistency was another reason indicating that the applicant was not a reliable witness;

   iii)the implausibility that the TMVP would take the applicant to hospital if they had beaten and interrogated him for being an LTTE supporter; and

   iv)the Reviewer also noted that even if he accepted that the applicant was abducted, it was not plausible that his detention was an indicator of serious harm in the foreseeable future given that the result of that detention was an invitation to join the TMVP.  Further, the Reviewer noted that he did not claim at his entry interview that the TMVP were a threat to him, only that they would tell him to join them.

   d)the Reviewer considered that as the LTTE had recruited children to their army it was plausible that executions of young boys had occurred.  However, he had a serious reservation as to whether the applicant had witnessed the execution alleged to have taken place in the cemetery. He did not accept that it was plausible that the applicant went to view the incident, having regard to his claim that he had been abducted and injured a month before.  He found the applicant’s account to be “not reliable”;

   e)the Reviewer did not accept that the applicant was in danger from Sri Lankan CID or Special Forces.  In this connection, he referred to his previous findings about the alleged cemetery incident and the fact that the applicant had been able to leave Sri Lanka on a valid passport. The Reviewer did not consider it plausible that the applicant would have been allowed to leave if he had been wanted by the Sri Lankan CID or Special Forces;

   f)the Reviewer did not accept that the applicant faced a real chance of serious harm from the TMVP.  The Reviewer came to this conclusion because the applicant had only made this claim at the IMR interview and not at his entry interview or in post-interview submissions. The Reviewer also referred to his finding that the applicant had implicitly admitted to some involvement with the TMVP;

   g)after considering all of the evidence before him, the Reviewer did not accept that, following the cessation of hostilities, the applicant faced a real chance of persecution on the basis of his race or ethnicity.  In this regard, the Reviewer referred to the UNHCR’s ‘Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka’ issued on 5 July 2010 which stated that since hostilities had ended, Sri Lankans from the north of the country were no longer in need of protection solely on the basis of indiscriminate harm;

   h)the Reviewer did not consider that there was any evidence which supported the applicant’s claim that he would face a real chance of persecution on his return to Sri Lanka as a member of a social group of failed asylum seekers from the north or east of Sri Lanka or as a member of the particular social group of young Tamil men from the east.  In this connection, the Reviewer referred to the evidence from which he had inferred that the applicant had some involvement with the TMVP and the fact that he left Sri Lanka legally on a valid passport.  The Reviewer also considered country information and did not accept that it indicated that returned asylum seekers faced a general risk of persecution;

   i)the Reviewer noted that the photograph that was published in The Australian on 29 December 2009 was different from the photographs provided by the applicant. The photograph published in The Australian depicted four young men whose faces had been covered with black stripes to obscure their identities. The Reviewer therefore did not consider that the published photograph had any significance.  The Reviewer came to this conclusion because the applicant was unable to be identified from the photograph or from the accompanying caption.  The Reviewer also did not accept that the applicant had a profile that would attract the attention and interest of the Sri Lankan Government;

   j)the Reviewer also found that it was not plausible that the photograph which appeared in The Australian or any photograph of the applicant on the internet or any media source would cause him to be persecuted if he were to return to Sri Lanka. In this regard, the Reviewer referred to the fact that the applicant remained in Indonesia for some five months afterwards without any apparent incident or request from Sri Lanka that he be deported;

   k)the Reviewer did not accept that the details of Tamils on the vessel docked in Merak Harbour were ever provided to the Sri Lankan Government by the IOM or the UN.  The Reviewer referred to the lack of evidence presented by the applicant to support this allegation and the fact that Ms Nathan did not include it in her statement;

   l)the Reviewer was prepared to accept that a Captain Kapil of the Sri Lankan Navy had addressed a group of Tamils and endeavoured to persuade them that it was safe to return to Sri Lanka. However, the Reviewer did not accept that the captain had interrogated the applicant or would have been allowed to.  In this regard, the Reviewer also noted that the applicant did not make any mention of the captain except at the IMR interview, despite having had legal advice in the preparation of his 12 September 2010 statutory declaration.  The Reviewer considered that if the claim were true he would have made it when he first sought Australia’s protection; and

   m)the Reviewer also did not accept that the claimant was, or was imputed to be, an LTTE sympathiser.  The Reviewer noted in this regard the applicant’s inconsistent evidence, the lack of evidence supporting this claim, his findings concerning the applicant’s claimed detention by the TMVP and interrogation by Captain Kapil and the fact that the applicant had departed Sri Lanka without difficulty while using a valid passport.

Proceedings in this Court

1. The applicant sought an extension of time to bring these proceedings. However, by reason of the decision of the Full Court of the Federal Court in SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207, even if these proceedings were commenced out of what s.477 of the Act might consider to be the statutory time limit, there is no need for the Court to consider that provision as it does not apply in the present circumstances.

2. In his amended application the applicant alleged:

   1.The Second Respondent failed to take into account relevant material, and/or misunderstood or misdescribed part of the applicant’s evidence, and took into account irrelevant material. This led to a failure to consider the applicant’s claim that he faced a real chance of serious harm from the TMVP.

   Particulars:

   (a)The Second Respondent erroneously perceived an inconsistency in the identity of the group which abducted the applicant, as follows:

   (i)     The Second Respondent erroneously concluded that the applicant said in his entry interview that the men who visited him at the college were TMVP members. This is contrary to the applicant’s entry interview evidence that the men were LTTE, which he has consistently maintained.

   (ii)    The Second Respondent erroneously concluded that the applicant had an “involvement” with the TMVP, contrary to the evidence and the denial by the applicant.

   (b)The above errors contributed to the Second Respondent erroneously rejecting the applicant’s evidence that it was the TMVP who abducted the applicant, severely beat him and told him to voluntarily join them. This is contrary to the applicant’s consistent evidence of his fear of the TMVP provided at the entry interview, at the Refugee Status Assessment hearing – which was largely accepted in the RSA decision; at the IMR hearing; and in written submissions by his agent.

   2.The Second Respondent failed to take account of relevant material and/or misunderstanding or misdescribing part of the applicant’s evidence, which led to a failure to consider the applicant’s further claim that he had an imputed political opinion of being a perceived sympathiser of the LTTE.

   Particulars

   The errors referred to in Ground 1 above, led to a failure of the Second Respondent to accept that the applicant’s past abduction and physical assault by the TMVP was due to him being perceived to be linked to the LTTE.

3. A third allegation was not pressed.

Ground 1

1. In support of the first ground of the application, the applicant submitted that the Reviewer made three erroneous findings which he summarised as follows:

   a.an erroneous finding on the identity of the 2 men who visited the applicant after he was elected to a student leadership position;

   b.an erroneous finding that the applicant had not made a claim of a feared threat from the TMVP at his entry interview; and

   c.an erroneous finding that the applicant had an involvement with the TMVP.

a) The two men who called on the applicant

1. The applicant submitted that the Reviewer concluded erroneously that the two men who visited him at his college were not LTTE as he claimed but part of the same group which subsequently abducted him and which he identified as the TMVP. 

2. This submission misunderstands the Reviewer’s findings.  Relevantly, they were:

   I am prepared to accept that in his student leadership position it is plausible that the claimant would attract the interest of groups such as the LTTE or the TMVP.  There is, however, an inconsistency in the accounts given by the claimant as to the identity of his alleged abductors.  It has been submitted that the two men who visited the claimant at the college were members of the LTTE; this was submitted to be the case in the post-interview submission.  The claimant himself in his statement dated 12 September 2010 mentioned that the men claimed to be LTTE: but, of course, that does not mean that they were LTTE.  A fair reading of what the claimant said in his entry interview is that in his initial account the men who visited the claimant at the college were in fact members of the TMVP.  In that entry interview the claimant has claimed that the two men who visited him at the college and who sought his support for the LTTE had later come in a van and took him away.  He states “… after 1 week two people came to see me.  LTTE people came to see me and they said you have to support us.  There is hotel in Arsadia and I was standing out the front – They came in a van and took me away.” (page 11).  On a fair reading of his response the claimant has used the word “they” to refer to the “two men”.  It is plausible that the TMVP would want to know whether a Tamil student leader was associated with the LTTE.  But it is not plausible that the two men who visited the claimant at the college were members of the LTTE who interrogated and beat him to find out if he was a member of the LTTE.

   To understand the account of events that is put forward by the claimant it is important to know the identity of the two men.  This is a matter on which I am inclined to give the claimant the benefit of the doubt and assume that the abductors were not the same as the two men who visited the claimant at the college.

3. Properly understood, the Reviewer was saying that because the applicant had said that “they” visited him and that “they” abducted him, it appeared that the applicant alleged that “they” were the same men on both occasions.  Therefore, the Reviewer observed that, on a fair reading, this statement could be understood to be an allegation that the first men were the TMVP, the abductors having been expressly alleged by the applicant to have been TMVP.  However, the Reviewer considered it implausible that the men who first asked the applicant to support the LTTE later abducted him so that he could be interrogated about his possible involvement with that organisation.  The Reviewer therefore concluded that the two sets of men were different.

4. Having done so, the Reviewer gave no further consideration to the men who called on the applicant at his college.  Specifically, he made no finding whether or not they were LTTE as the applicant has alleged.  Presumably this was because, as the applicant had resiled at the IMR hearing from a claim to fear the LTTE, the identity of the men was not relevant to the Reviewer’s enquiry as they were, at least, not TMVP.

5. In those circumstances, the first part of the applicant’s first allegation does not disclose error on the part of the Reviewer.

b) The applicant claimed the TMVP were a threat to him

1. The relevant finding by the Reviewer was set out in para.64 of his reasons:

   … He did not then [i.e. after he was allegedly held by the TMVP] receive any threat from the TMVP.  In his DIAC entry interview the claimant did not then claim that the TMVP were a threat to him, only that they would ‘tell me to come and join them’.

2. The applicant submitted that, contrary to the Reviewer’s statement in that paragraph, he had claimed a threat from the TMVP at the entry interview.  Reliance was placed on the interview transcript.  The evidence does not support a conclusion that the Reviewer had, amongst the materials before him, transcripts or sound recordings of the applicant’s interviews with officers of the Minister’s department and I conclude that he did not.  What the Reviewer did have were the notes of the interviews.  What was relevantly recorded in the notes of the entry interview was:

   Q:What would the TMVP do to you if you went back?

   A:They would tell me to come and join them

   Q:What would happen if you joined the TMVP?

   A:I don’t like them, I don’t want to join them and it will also cause problems with the LTTE.

   …

   Q:After they released you what did you do?

   A:I was in bed rest with injured hand.

   Q:Did they continue to harass you? 

   A:Yes, when they came my mother would confront them and say that he is sick with an injured hand.  When the hand is better he will come and join you.

   …

   Q:Who are you scared of?

   A:Both of them.

   Q:What would the TMVP do?

   A:They would try to make me join them but I don’t want to.

3. That evidence supported the Reviewer’s finding which is the subject of this part of the first ground of the application.  Consequently, that finding did not manifest the error alleged by the applicant.

4. Nonetheless, the transcript of the entry interview records something different from the officer’s notes of it:

   D:Are you more scared of the army that you saw in the cemetery or the LT…TMVP?

   I:From both of them.

   D:Okay. So what would the, why would the… What would they TMVP do if you went back?

   I:They will ask me to come and join them.

   D:Mm.

   I:And they will hit me and do all these things…

5. The “Guidelines for Independent Merits Reviewers”, which were included in the Court Book which was Exhibit “A” provided that the Minister’s department was to supply to reviewers “all relevant files and other documents” required for an independent merits review.  I have found that transcripts of the applicant’s first two interviews were not available to the Reviewer.  Consequently, the information which the applicant submits the Reviewer should have considered in relation to this aspect of his claims was not known to him.  However, the information, in the form of the sound recordings of the interviews, was in the possession of the Minister, or at least of his department. 

6. In M61 it was held (at 353-354 [78]) that the Minister’s consideration of the power to lift the bar which s.46A of the Act imposes on the ability of an offshore entry person in immigration detention, such as the applicant, to make a valid application for a protection visa is conditioned on the observance of the principles of natural justice. Their Honours said:

   Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.

7. If the Minister fails to consider evidence which might have had a bearing on the outcome of his consideration, in that such failure could possibly have deprived the applicant of a successful outcome because the evidence was not “so insignificant that the failure to take it into account could not have materially affected the decision”, then that would amount to a failure to conduct the review by reference to the correct legal principles correctly applied: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Gibbs CJ at 30, Mason J at 44–46 and Dawson J at 71. However, it can be assumed that the Minister has not yet made a decision on whether to exercise his s.46A discretion. In the circumstances, it is unlikely that the information in the transcript, being the applicant’s claim that the TMVP would assault him if he did not join them, will not now be provided to the Minister as part of the materials to be taken in account by him when considering whether to exercise his s.46A discretion. On that basis alone, it would be inappropriate to direct that an injunction issue against the Minister.

8. However, even if the information were not to be supplied to the Minister, unless it would be of some real significance to his consideration, failure to consider it would not amount to a denial of natural justice.  The claim to fear harm at the hands of the TMVP arose out of the applicant’s allegation that he had been abducted by that organisation, a claim which the Reviewer did not accept.  In those circumstances I am not persuaded that future consideration by the Minister of the exercise of his discretion would be affected by ignorance or knowledge of the applicant’s claim that the TMVP would assault him if he did not join them.  

9. In the circumstances, the relevant error alleged by the applicant is not made out.

c) The applicant had no involvement with the TMVP

1. At para.69 of his reasons, the Reviewer said:

   It is important to bear in mind that the claimant had made a statement from which an inference can be made that he had, at the very least, an involvement with the TMVP.  His later assertion that he is at danger from the TMVP is inconsistent with his initial response at the DIAC entry interview where he can be regarded as admitting to some involvement with the TMVP or his allegation that he would be asked to join the TMVP.

2. The applicant submitted that the Reviewer misinterpreted one of his answers recorded in the entry interview questionnaire where he said in response to a question concerning his involvement with armed or political groups in his home area:

   TMVP – Forcing me to join

3. The applicant referred in this connection to the following exchange recorded in the transcript of his interview with the Reviewer:

   R:Well I must say, when I read this question, it seems to me that you actually were a member of the TMVP because you … the words you used were ‘forcing me to join’.

   I:What I meant was they were forcing me to join, I did not say that I joined.  They were forcing me, they threatened me and said I must join them once I get well.  They threatened me that they would kill me if I don’t join them.

   The applicant also referred to an exchange recorded in the transcript of his entry interview but that passage contained nothing substantively different from what the applicant said to the Reviewer at their interview. 

4. At paras.53-57 of his reasons the Reviewer set out his reasoning relevant to this issue:

   I asked the claimant questions about whether he has been a member of the TMVP.  In his entry interview where the claimant is asked about the nature of his involvement with ‘armed groups, political groups, or religious groups’ operating in his area.  The claimant states that he had no involvement with the LTTE (‘LTTE – not involved’).  However, in response to a question asking him the ‘nature/level’ of involvement the claimant has stated ‘TMVP – forcing me to join’.

   On a fair reading of the answer that the claimant gave at the DIAC entry interview at Christmas Island, I consider that it is plausible that the claimant has admitted an ‘involvement’ with the TMVP.  If the claimant was not involved with the TMVP he could have stated that he was ‘not involved’ as he had indicated for the LTTE.

   To fairly assess the nature of his involvement with the TMVP it should also be taken into account that there is a reference in the record of his interview where he states that if he went back to Sri Lanka the TMVP would ‘try to make me join them but I don’t want to’.  Even though the claimant has some involvement with the TMVP, he has also indicated that he does not want to be involved.

   In discussing the nature of the involvement of the claimant with the TMVP I have also had regard to his statement dated 12 September 2010 in which he states that after he was detained, he was ‘asked … to join the TMVP once I recovered from my injuries’.  He also states at the IMR interview that his mother had made a similar statement to the TMVP.  In this account of events the claimant is indicating that the TMVP are familiar with the claimant who is acceptable to them as a member.

   At the IMR interview the claimant categorically denied ever being a member of the TMVP.  As a matter of fairness to the claimant I informed him that when I read the entry interview question it would seem that he was a member of the TMVP.  He did not, at the DIAC interview at Christmas Island, deny any involvement with the TMVP as he did in regard to the LTTE.  I do not accept his denial as plausible and consider on the basis of an examination of his statement at the entry interview that he had some involvement with the TMVP.  I accept that it is plausible that the claimant may have been subject to some pressure to join the TMVP, but that he nevertheless had some involvement with them.

5. As those passages demonstrate, the evidence before the Reviewer did permit a conclusion that the applicant had had some involvement, even if unwillingly, with the TMVP.  Consequently, this part of the first allegation is not made out.

Ground 2

1. The second ground of the application depended for its success on the applicant making out his first ground.  As he has failed to do that, this ground also fails.  But in any event, and contrary to the applicant’s allegation, the Reviewer did consider the applicant’s claim to fear persecution by reason that he would be imputed to have political opinions sympathetic to the LTTE.  The Reviewer said at paragraphs 62-64:

   … The version of events that is put forward by the claimant is that he was a person of such interest to the authorities that he was abducted for interrogation on suspicion of being an LTTE supporter. …

   There are two aspects of his version of events about his alleged detention that do not seem to be plausible: (i) his claim that the TVMP [sic] took him to hospital after they beat him because he was suspected of being a member or supporter of the LTTE …

   … I put to the claimant that if the TMVP had suspected him of being a Tiger, they would not have taken him to the hospital.  The claimant replied: “I do not know for what reason”.  I voiced my concern to him about this aspect of his claims and did not receive any real explanation.  It is implausible that the TMVP would have taken the trouble to take the claimant to hospital after he was savagely beaten because they thought that he was a member of the LTTE.  I do not believe this account of events. …

   … Even if it [is] accepted that the claimant was abducted by the TMVP (which is not my conclusion) it is not plausible that this detention is an indicator of serious harm to the claimant in the foreseeable future.  The result of that detention according to the account of the claimant is that he was invited to join the TMVP.  He did not then receive any threat from the TMVP.  In his DIAC entry interview the claimant did not then claim that the TMVP were a threat to him, only that they would “tell me to come and join them”.

2. From those statements it can be inferred that the Reviewer did consider, albeit in a somewhat unspecific way, the applicant’s claim to fear harm on the basis of perceived LTTE sympathies.  In this connection, it should be recalled that the only persons whom the applicant allegedly feared were the TMVP and also that the Reviewer did not accept the applicant’s claims to have been abducted and assaulted by them or to face a real chance of being persecuted by them in the future.  Consequently, such claims as the applicant made to fear persecution because of perceptions that he supported the LTTE were subsumed by the Reviewer’s broader conclusion that the TMVP had not persecuted him in the past and, in all probability, would not do so in the future.

3. For those reasons, the second ground of the application is not made out.

Conclusion

1. The applicant has not demonstrated that the Reviewer’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied

2. Consequently, the application will be dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  27 August 2013