SZRXX v Minister for Immigration and Border Protection
[2014] FCA 1419
•23 December 2014
FEDERAL COURT OF AUSTRALIA
SZRXX v Minister for Immigration and Border Protection [2014] FCA 1419
Citation: SZRXX v Minister for Immigration and Border Protection [2014] FCA 1419 Appeal from: SZRXX v Minister for Immigration & Anor [2013] FCCA 1179 Parties: SZRXX v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and DR P MCDERMOTT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER File number: NSD 1919 of 2013 Judge: NICHOLAS J Date of judgment: 23 December 2014 Catchwords: MIGRATION – independent merits review – where written summary of entry interview inaccurately recorded appellant’s responses during interview – whether transcripts or sound recordings of entry interview available to reviewer – whether inaccuracies in summary affected outcome of review – whether errors of legal significance
Held: errors of no legal significance in that they did not affect outcome of review – appeal dismissed
Legislation: Migration Act 1958 (Cth) ss 46A, 195A Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319Date of hearing: 26 May 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 44 Counsel for the Appellant: Mr LI Karp Solicitor for the Appellant: Rasan Selliah & Associates Counsel for the First Respondent: Mr D Hughes Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The second respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1919 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZRXX
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentDR P MCDERMOTT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
23 DECEMBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration and Border Protection.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1919 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZRXX
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentDR P MCDERMOTT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
NICHOLAS J
DATE:
23 DECEMBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 27 August 2013. By his judgment the primary judge (Judge Cameron) dismissed the appellant’s application for judicial review of the decision of the second respondent (the Reviewer) who, on 2 March 2012, recommended that the appellant not be recognised as a person to whom Australia owed 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 (the Refugees Convention). The first respondent (the Minister) seeks to uphold the judgment under appeal; the Reviewer has submitted save as to costs.
The appellant is a citizen of Sri Lanka and is of Tamil ethnicity. He arrived at Christmas Island by boat on 18 June 2010 without a visa. Pursuant to s 46A(1) of the Migration Act 1958 (Cth) (the Act) the appellant cannot make a valid application for a protection visa. However, the Minister may, pursuant to a discretion conferred by ss 46A and 195A of the Act, determine that the appellant may make a valid application for a visa of a specified class or grant a visa in the absence of a valid application.
The recommendation which the appellant sought to impugn was made by the Reviewer as part of what is referred to by the Minister as Independent Merits Review (IMR). Such a review occurs in the context of the statutory framework considered by the High Court in Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319 (M61), including ss 46A and 195A of the Act. In M61, the High Court held that where a reviewer conducts an IMR for the purposes of the Minister considering whether to exercise power under ss 46A or 195A “the assessment and review must be procedurally fair and must address the relevant legal question or questions”.
PROCEDURAL BACKGROUND
The appellant arrived at Christmas Island on 18 June 2010. An entry interview was conducted on 14 July 2010 (the Entry Interview). This interview was conducted with the assistance of an interpreter in the Tamil language. A typewritten statement of claims dated 12 September 2010 (appellant’s statement of claims) was submitted by the appellant’s migration adviser. The appellant applied for a refugee status assessment (RSA) and was interviewed for the purposes of that assessment on 15 September 2010 (the RSA Interview).
On 12 January 2011 the appellant was notified that the Australian Government had determined that he did not meet the definition of “refugee” in the Refugees Convention and that he was not a person to whom Australia owed protection obligations.
In early February 2011 the appellant applied for IMR. On 8 July 2011, as part of the IMR, the appellant was interviewed (the IMR Interview) by the Reviewer. The Reviewer did not have transcripts of the Entry Interview or the RSA Interview to inform his review. He relied upon a summary note of the Entry Interview and a report from the RSA officer who interviewed the appellant on 15 September 2010. Written submissions in support of the appellant’s application for IMR were lodged by his immigration adviser on 10 and 22 February 2012 following the IMR Interview.
On 2 March 2012 the appellant was notified that the Reviewer was not satisfied that he was a person to whom Australia owed protection obligations under the Refugees Convention.
THE APPELLANT’S CLAIM
The appellant’s claim for refugee status is based on two incidents which he alleges occurred immediately before he fled Sri Lanka. First, the appellant claimed he was abducted and beaten by the Tamil Makkal Viduthalai Pulikal (TMVP) for his perceived sympathies to the Liberation Tigers of Tamil Eelam (LTTE). The appellant described the first incident at his Entry Interview. The summary of the Entry Interview records the appellant’s version of events as follows:
In March 2009 I was elected as a union secretary and 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 Arsadi and I was standing out the front – They came in a van and took me away. They have a camp in the forest. They asked are you supporting LTTE or studying and then they beat me up. They kept me for two days and they took me to a place called Meenakam. These people said are you LTTE and the [sic] beat me up in the chest, in my shoulders and my chin. Bones broke in my shoulders and my chin.
The next day when they came they realised my shoulders were broken and they took me to hospital but they said I had to say I had a motorcycle accident or they would shoot my family. They said after I get better I should join TMVP.
The appellant also claimed he witnessed the extrajudicial execution of three boys by the Sri Lankan Special Forces at a cemetery near his home. However, the second incident was not the subject of the appellant’s judicial review application and does not form part of his appeal to this Court.
The appellant also claimed protection on the basis that he will be persecuted as a failed asylum seeker if he is returned to Sri Lanka. However, this claim was also not pressed before the Federal Circuit Court or in this appeal.
APPLICATION FOR JUDICIAL REVIEW
In his amended application dated 11 January 2013 the appellant raised the following grounds of review before the primary judge:
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.
A third ground of review was not pressed.
The first ground of review asserts that the Reviewer failed to consider the appellant’s claim that he faced a real chance of serious harm from TMVP. This failure was said to arise out of a mistaken appreciation of the statements made by the appellant during the Entry Interview and the RSA Interview. The second ground of review is dependent upon the first in so far as it relies upon the same mistaken appreciation of the appellant’s statements as are relied upon in support of the first ground.
GROUNDS OF APPEAL
The appellant’s notice of appeal identifies the following three grounds of appeal:
1.The Federal Circuit Court erred in finding that the Second Respondent had not fallen into jurisdictional error by a failure to take into account the sound recording of the Department of Immigration and Citizenship entry interview (DIAC) held on the 14 July 2010 and/or the sound recording of the Refugee Status Assessment (RSA) interview held on 15 September 2010.
Particulars
(a)The Second Respondent held at [59]: “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.” That was contrary to the appellant’s evidence in his DIAC interview.
(b)The Second Respondent held at [69]: “The claimant has not at any time advanced any reason why he has a well-founded fear of persecution from the TMVP if he now returned home. At his entry interview the claimant did not make such an allegation against the TMVP.” That was contrary to the appellant’s evidence in his DIAC interview and in his RSA interview.
(c)The Second Respondent held at [64]: “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’.” That does not accurately reflect the appellant’s evidence in his DIAC interview.
2.The Federal Circuit Court erred in finding that the Second Respondent had not fallen into jurisdictional error by an erroneous characterisation of the evidence.
Particulars
(a)The Second Respondent erroneously found that the appellant said in his DIAC interview that the men who visited him at the college were TMVP members. That was contrary to the appellant’s evidence in the DIAC interview that the men were LTTE, which he consistently maintained at the RSA interview.
(b)The Second Respondent erroneously found that the appellant had not at any time advanced any reason to fear the TMVP. That was contrary to the appellant’s evidence in the DIAC interview that his abductors and attackers were the TMVP, which he consistently maintained in his RSA interview.
(c)The Second Respondent erroneously concluded that the appellant had an “involvement” with the TMVP, contrary to the evidence and the denial by the appellant.
3.The Second Respondent failed to consider the appellant’s claim that he had an imputed political opinion of being a perceived sympathiser of the LTTE.
The appellant’s grounds of appeal assert that the primary judge should have found that the Reviewer’s decision was affected by jurisdictional error. However, the availability of the remedies sought by the appellant does not depend upon him establishing that the Reviewer’s decision was affected by jurisdictional error. The appellant may be entitled to a declaration in suitable terms if it is shown that, contrary to the primary judge’s conclusion, the Reviewer committed a legal error that could have affected the outcome of the IMR. At the hearing, leave was granted to the appellant to amend his notice of appeal by replacing the references to “jurisdictional error” in grounds 1 and 2 with “legal error”.
GROUND 1
The first ground of appeal argued by the appellant was that the primary judge should have found that the Reviewer erred by failing to take into account sound recordings of the appellant’s Entry Interview and RSA Interview.
The primary judge set out his findings in relation to the sound recordings of the interviews at paras [25] to [28] of his judgment:
25. … 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.26.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.
27.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...28.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.
The primary judge then referred to M61 and concluded at [30]-[31]:
30.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.
31.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.
It seems to me that the primary judge has dealt with the inconsistency between the summary of the Entry Interview and the sound recording of the Entry Interview in three ways: first, he has concluded that the sound recording was not available to the Reviewer (even though it was in the possession of the Minister or his department); second, that it would be inappropriate to grant the appellant relief (the primary judge referred specifically to injunctive but not declaratory relief) on the basis that it is unlikely that the information in the sound recording would not now be provided to the Minister when considering whether or not to exercise his discretion under s 46A of the Act; and third, it had not been established that the Minister’s consideration of the appellant’s case would be affected by the contents of the relevant sound recordings even if they (or relevant parts of them) were not brought to the Minister’s attention.
Counsel for the Minister did not seek to uphold the primary judge’s decision on the second ground because, as he conceded, this was not a matter argued by the Minister before the primary judge. Instead he accepted that if the appellant established that the Reviewer’s decision was affected by a legal error that could have affected the outcome of the review, then it would be appropriate to make a declaration in appropriate terms.
The first question that arises is whether the sound recordings of the Entry Interview and the RSA Interview were available to the Reviewer. The primary judge concluded that the Reviewer did not have the sound recordings amongst the materials before him. However, the primary judge also found that the sound recordings of the interviews were in the possession of the Minister or at least of his department.
The primary judge’s reasons were published prior to the judgment of the Full Court in Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287 (SZRMA). In the joint judgment of Mansfield, Gilmour and Foster JJ the Full Court found that updated country information in the form of a Guidance Note was available to the independent merits reviewer despite it being common ground that a copy of the Guidance Note had not been provided to him. The Full Court referred to the following observations of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 44-45:
Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister’s discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand. … It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.
The principle thus identified by Mason J was applied by the Full Court in SZRMA in upholding a Federal Magistrate’s finding that the decision under review was vitiated by a failure to take into account the most current information available to the independent merits reviewer in that case.
In arriving at its decision the Full Court in SZRMA distinguished the facts of the case before it from the general position in relation to the making of inquiries. As the Full Court observed at [20]:
Generally speaking, a person such as the Reviewer may, but has no duty to, conduct inquiries at the Reviewer’s own initiative: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; 259 ALR 429 at [1]. However, the federal magistrate said at [76] that the Guidance Note was in a “special category” as it was prepared by the Department, and that the Reviewer “should have checked whether a more recent country advice for Iran was available” from the Department or the Tribunal before relying on the Tribunal’s Country Advice for Iran of 19 August 2010. In fact it appears that the Reviewer did so, having referred to the UK Home Office “Country of Origin Report” of June 2011.
The Full Court stated at [47]:
… There is no material relied on by the appellant on this appeal which suggests that the Reviewer did not have, or should not routinely have had, access to the relevant primary materials held by the Department. It appears that … the Guidance Note did not come to the attention of the Reviewer. But the Guidance Note was clearly available to him, being a document of the Department at whose request and under whose structure the Reviewer performed his role.
The Full Court also stated at [60]:
… It is not a matter of the IMR as an independent statutory entity being ascribed constructive knowledge of the detailed contents of the departmental file provided to it. The IMR was part of the departmental administrative structure established to provide recommendations to the appellant in aid of the appellant’s consideration whether to exercise power under s 46A or s 195A of the Act, and the Reviewer’s task was to be performed in accordance with accepted legal principles because of the underlying statutory foundations. As a departmental construct, it had available to it the Guidance Note.
The Full Court’s decision in SZRMA provides some support for the proposition that, contrary to the primary judge’s decision in this case, the relevant sound recordings were available to the Reviewer. However, assuming the relevant sound recordings were available to the Reviewer, the question that arises is whether they could have made any difference to the outcome of the IMR. In my view they could not have made any difference. This is because the Reviewer rejected the underlying factual premise upon which the appellant based this aspect of his claims for reasons unconnected to any misunderstanding on the part of the Reviewer as to the statements made by the appellant at the Entry Interview. I will return to this topic later in these reasons when considering the specific legal errors which are said by the appellant to have been made by the Reviewer.
GROUND 2
In the appellant’s written submissions and in oral submissions before the Court, counsel for the appellant identified three issues concerning the Reviewer’s reasoning which it was said gave rise to legal error on the part of the Reviewer. Those issues were as follows:
1.Whether the appellant had claimed in his entry interview that the men who visited the appellant at his college were TMVP;
2.Whether the appellant claimed a fear of the TMVP; and
3.Whether the appellant had an involvement with the TMVP.
Those issues are a summary of the particulars to Ground 2 of the appellant’s notice of appeal.
Issue 1
The first issue identified by the appellant was that the Reviewer found that the appellant said in his Entry Interview that the men who visited him at his university were members of the TMVP (see Ground 2(a)).
The Reviewer outlined his findings and reasons on this issue at paras [59] to [60]:
59.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 [sic] and I was standing at the front – They came in a van and later 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.
60.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.
(Emphasis in original)
As the primary judge pointed out at para [20] of his reasons, the appellant’s submission misunderstands the Reviewer’s finding. The Reviewer did not find that the men who visited the appellant at the college were TMVP members. On the contrary, the Reviewer found that the men were not members of the TMVP. At para [59] of his reasons, the Reviewer identifies an ambiguity in the appellant’s description of the incident caused by the appellant’s use of the word “they”. This reading is open on the summary of the Entry Interview. It is also open on the transcript of the Entry Interview. However, having identified the ambiguity, the Reviewer gave the appellant “the benefit of the doubt” and proceeded on the basis that the two men who visited him at the university were not members of the TMVP. He made no finding as to whether or not they were LTTE members.
As the Reviewer did not make the factual finding which the appellant asserts was made in error, Ground 2(a) of the appellant’s notice of appeal is not made out.
Issues 2 and 3
The second and third issues identified by the appellant are closely related. The second issue was that the Reviewer found that the appellant had not at any time advanced any reason to fear the TMVP (see Ground 2(b)). The third issue was that the Reviewer found that the appellant had some involvement with the TMVP (see Ground 2(c)).
The Reviewer set out his reasoning in relation to the Appellant’s involvement with the TMVP at paras [53] to [57]:
53.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’.
54.On a fair reading of the answer that the claimant gave at the DIAC 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.
55.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.
56.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.
57.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.
The primary judge found at para [37] of his reasons that the evidence before the Reviewer permitted a conclusion that the appellant “had had some involvement, even if unwillingly, with the TMVP”. There can be no doubt that a finding of an “unwilling” involvement, ie. that the TMVP was forcing the appellant to join, was open on the facts. However, the appellant argued that the Reviewer’s finding that he had an “involvement” with the TMVP went beyond his being forced to join.
At para [69] of the Reviewer’s reasons, he sets out reasons for rejecting the appellant’s claim that he feared harm from the TMVP:
The post-interview submission of the claimant does not include a claim that the claimant faces a real chance of serious harm from the TMVP. For the sake of completeness I should advise that I do not accept the contention of the claimant in his statement of 12 September 2010 that he faces a real chance of facing serious harm from the TMVP. The claimant has not at any time advanced any reason why he has a well-founded fear of persecution from the TVMP [sic] if he now returned home. At his entry interview the claimant did not make such an allegation against the TMVP. He made a claim that his life was in danger from the CID and that the Special Forces will shoot him. I informed the claimant that at that initial interview he was asked whether there are ‘any other reasons why you can’t go back to Sri Lanka?’ The claimant was advised that he had then replied: ‘No, there are no other reasons.’ At the entry interview the claimant was asked what the TMVP would do if he went back and he replied: ‘They would try to make me join them but I don’t want to.’ 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.
It is possible to infer from para [69] of the Reviewer’s reasons that he found that the appellant had an involvement with the TMVP that went beyond an “unwilling” involvement. An “unwilling” involvement would, at least, not be inconsistent with a claim to fear harm from the TMVP. There was no evidence before the Reviewer to support a finding that the appellant had an involvement with the TMVP that went beyond his being forced to join should he return to Sri Lanka.
However, even if on a proper reading of the Reviewer’s reasons, he found that the appellant had more than an unwilling involvement with the TMVP, that is not the end of the inquiry. At paras [63]-[64] the Reviewer sets out his findings in relation to the appellant’s claim that he was abducted and beaten by the TMVP:
63.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 TMVP took him to hospital after they beat him because he was suspected of being a member or supporter of the LTTE and (ii) his claim that he was the only person who was detained in the TMVP camp. In fairness to the applicant he was advised of my concerns of these aspects of his version of events.
Claim that the TMVP took him to hospital. The version of events that is put forward by the claimant is that after he was abducted and beaten by the TMVP; the TMVP took him to hospital. 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.
Claim that the claimant was the only person who was detained in the TMVP camp. In his statement dated 12 September 2010 the claimant claims that he was the only person who was taken by the TMVP to the camp: in that statement he states ‘There were no other people at this camp’ [9]. The claimant alleges that this abduction occurred sometime in March 2009 which was a few months before the end of the conflict. It does not seem plausible that in the closing days of the civil war the claimant would have been the only person in that camp who was the focus of attention of the army or the TMVP. The claimant does not appear to have such a profile that would warrant such attention by the authorities or the TMVP. It does not seem probable that the claimant, who was a college student albeit a recently elected student leader, would warrant such sole attention by the TMVP at such a crucial stage in the war. As a matter of fairness to the claimant I asked the claimant, through his agent, to confirm whether the claimant was the only person who was detained at the camp. The agent in his submission dated 14 February 2012 has stated, ‘[the appellant] could not see any other prisoners but as he was held in a dark room he does not know whether there may have been other prisoners at the camp.’ The claimant has now resiled from the allegations in his statement. He now states that ‘There may have been other prisoners at the camp.’ This inconsistency is another reason why I have come to the conclusion that the version of events that is put forward by the claimant is not reliable.
64.I do not accept that the claimant was abducted and detained by the TMVP. I base my finding on the implausibility of his version of events. I regard as highly implausible his claim that at the closing stage of the war he was the only person who was detained for interrogation at the TMVP camp. He has now resiled from that claim. I also base my finding on his claim that the TMVP took him to hospital. I regard it as highly implausible that he would have been taken to the hospital by the TMVP if they had bashed him to interrogate him for being an LTTE supporter. Even if it [sic] 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’.
The Reviewer therefore rejected the primary basis upon which the appellant claimed to have a fear of the TMVP. That rejection was based on the two implausible aspects of the appellant’s version of events outlined by the Reviewer and was not affected by any misunderstanding of the appellant’s answers at his Entry Interview. Thus, the entire factual premise upon which the appellant’s claim that he feared the TMVP was rejected for reasons that did not depend upon the accuracy of the summary of the Entry Interview relied upon by the Reviewer. It follows that any error arising out of the Reviewer’s use of the Entry Interview is without legal significance because it did not affect the outcome of the IMR: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [53] citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351-352 per McHugh, Gummow and Hayne JJ.
So far as para [69] of the Reviewer’s reasons is concerned, it is important to note that it is prefaced by the observation, “For the sake of completeness …”. This makes clear what I understand from the Reviewer’s reasons as a whole, that is to say, the appellant’s claims in relation to the TMVP were rejected by the Reviewer due to the inherent implausibility of his account of events rather than anything he said or did not say in the Entry Interview.
GROUND 3
The final ground of review argued by the appellant was that the Reviewer failed to consider the appellant’s claim that he had an imputed political opinion of being a perceived sympathiser of the LTTE. There are no particulars in support of this ground of the appellant’s notice of appeal. It was not developed either in the written submissions filed by the appellant or orally.
The Reviewer considered and rejected the appellant’s claim that he had an imputed political opinion of being a perceived sympathiser of the LTTE at paras [106] to [108] of his reasons:
106.I have to consider the claim made that the claimant has an actual/imputed political opinion, including of being an actual/perceived sympathiser of the LTTE or being critical of the Sri Lankan Government.
107.I do not accept that the claimant has an actual/imputed political opinion of being an actual/perceived sympathiser of the LTTE. At the entry interview at Christmas Island the claimant declared that he had no involvement with the LTTE and did not make any claims against the LTTE. This claim that the claimant is an actual/perceived sympathiser of the LTTE is inconsistent with the claim in his statement dated 12 September 2010 that he faces a ‘real risk of facing serious harm by LTTE’. The claimant has not been consistent, in the IMR interview he backed away from any claim that [sic] was in danger from the LTTE. His denial is not explicable by reason of the changed circumstance that the LTTE have been defeated. The claimant explained that he referred to the TVMP [sic] as the Tigers. I do not accept this explanation as I informed the claimant that his statement makes the claim that he is in danger from both the LTTE and Government authorities such as the TMVP and the CID. This statement has an interpreter’s declaration that the contents of the declaration have been accurately interpreted from the English language to the Tamil language and so I have concluded that the claimant did make a claim that he faces a ‘real risk of facing serious harm by LTTE’. I do not accept that there is any evidence which would support the contention that the claimant is an actual/perceived sympathiser of the LTTE.
108.Another matter that I rely on for my conclusion that the claimant does not have an actual/imputed political opinion of being an actual/perceived sympathiser of the LTTE is my conclusion that he was [sic] not been detained by the TMVP as being a LTTE supporter and that he has some level of involvement with the TMVP or is, at the very least, acceptable to them as a member.
The primary judge found that the Reviewer had considered the appellant’s claim to fear persecution by reason of imputed political sympathies to the LTTE. The primary judge referred to [62]-[64] of the Reviewer’s reasons, where the Reviewer considered the appellant’s claim that he was abducted and beaten by the TMVP on the basis of a perceived sympathy to the LTTE (as outlined above). The primary judge concluded that, while it was unnecessary for him to consider this ground of judicial review on the basis of his earlier findings, it could be inferred from those paragraphs “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.”
Whether reliance is placed on [62]-[64] or [106]-[108] of the Reviewer’s reasons, it is clear that the Reviewer considered the appellant’s claim to fear persecution by reason of imputed political sympathies to the LTTE. Therefore, this ground of appeal must also fail.
DISPOSITION
The appeal will be dismissed. The appellant must pay the first respondent’s costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 23 December 2014
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