SZSAB v Minister for Immigration
[2013] FCCA 2205
•19 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSAB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2205 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Assessor did not take a relevant consideration into account, failed to consider an integer of the applicants’ claims, failed to apply the correct test and denied the applicants procedural fairness. |
| Legislation: Migration Act 1958, ss.36, 46A, 195A |
| 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 SZQPA vMinister for Immigration & Citizenship [2012] FMCA 123 Minister for Immigration & Citizenship v SZQPA [2012] FCA 1025 SZQGE v Minister for Immigration & Citizenship [2011] FCA 1018 |
| First Applicant: | SZSAB |
| Second Applicant: | SZSAC |
| Third Applicant: | SZSAD |
| Fourth Applicant: | SZSAE |
| Fifth Applicant: | SZSAF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | CHRISTINE LONG IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File Number: | SYG 2297 of 2012 |
| Judgment of: | Judge Cameron |
| Hearing date: | 18 March 2013 |
| Date of Last Submission: | 18 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2013 |
REPRESENTATION
| Counsel for the Applicants: | Mr P. Bodisco |
| Solicitors for the Applicants: | Stanford Lawyers |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2297 of 2012
| SZSAB |
First Applicant
| SZSAC |
Second Applicant
| SZSAD |
Third Applicant
| SZSAE |
Fourth Applicant
| SZSAF |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| CHRISTINE LONG IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant family are citizens of Sri Lanka who arrived at the Cocos (Keeling) Islands by boat on 21 April 2011. The first and second applicants claim that they are in a de facto relationship and that the third, fourth and fifth applicants are their children. On behalf of themselves and their children the first and second applicants lodged applications for a Protection Obligations Evaluation (“POE”) alleging that they were refugees and, as such, people to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
By letter dated 1 August 2011 an officer in the department administered by the first respondent (“Minister”) advised the applicants that they had been assessed as not meeting the definition of “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Assessor”) who, on 17 May 2012, recommended that the applicants not be recognised as persons to whom Australia has protection obligations under the Convention or under Australia’s complementary protection obligations. It can be presumed that at all relevant times the applicants were in detention, although it appears that they were in community detention at the time of the review.
The evidence makes it clear that the applicants had no visas when they entered Australia at the Cocos Islands. In the circumstances and as provided by s.46A(1) of the Migration Act 1958 (“Act”), they cannot make valid applications for protection visas. However, ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicants making such applications and may grant visas to them.
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicants if he received advice to that effect, advice which would be based on the recommendation of the Assessor: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].
The applicants have made an application to this Court for judicial review of the Assessor’s recommendation. They seek a declaration that it was not made in accordance with law and an injunction restraining the Minister from relying on it. In order to succeed the applicants must demonstrate that the Assessor’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].
For the reasons which follow, the application will be dismissed.
Background facts
The recommendation made by the Assessor was supported by written reasons. The facts alleged in support of the applicants’ claim for protection were set out on pages 5 to 18 of those reasons and are relevantly summarised below.
Entry interview
The first applicant made the following claims during his entry interview on 14 May 2011:
a)he was a Roman Catholic of Tamil ethnicity;
b)he was born in the Mannar District in Sri Lanka and had lived in that region for most of his life. His father lived in the Mannar District. He had a sister who also lived in the Mannar District, another sister who lived in Colombo, a brother who lived in India and another brother who had been taken from the Mannar District by the army about a month before the entry interview;
c)from 1993 to 2011 he had been self-employed as a fisherman;
d)he was in a de facto relationship with the second applicant and together they had had three children, born in 2004, 2006 and 2008;
e)he left Sri Lanka because he was being targeted by the Sri Lankan Army and Navy. He stated that the navy suspected that he was a member of the LTTE and had boarded his boat and hit him. He had been beaten by sailors who broke one of his teeth and left him with a scar. The army came to his house and searched it a number of times between 2006 and 2008. He had seen the army take his brother and was afraid that they might take him too. The army had also hit people standing on the street and only let fisherman fish when they wanted them to;
f)the army bombed his home area and in 2009 they shot his step-sister in the shoulder when she was running into a church; and
g)neither he nor any members of his family had been involved in or associated with any political group or organisation in Sri Lanka.
The second applicant made the following claims during her entry interview on 14 May 2011:
a)she was a Hindu Tamil;
b)she was born in the Mannar District in Sri Lanka and had lived in that region until her departure for Australia. Her parents and two sisters lived in Sri Lanka and she had an elder brother who was missing;
c)she was married to the first named applicant and together they had had three children, born in 2004, 2006 and 2008; and
d)she left Sri Lanka because one of her brothers had been captured, allegedly by the army, and had been missing for five months. Her husband had also been “taken and assaulted” by the army and she was afraid when he went fishing that he would not return.
POE applications
In a statutory declaration declared on 9 June 2011 in support of his application for a POE, the first applicant further claimed:
a)his birth certificate stated that he was Singhalese due to his father’s origin and Sri Lankan custom;
b)whilst out fishing in 2007, he gave fuel to the LTTE. He had been afraid that if he did not do so they would steal his boat and that if was then found by authorities, he would be accused of smuggling items for the LTTE. He feared that if the authorities believed that he was smuggling items for the LTTE he would disappear or be killed;
c)the Sri Lankan Army and Navy suspected that all fisherman in the area were smuggling goods to the LTTE;
d)the army had conducted round-ups during which they came to his house and interrogated him, accusing him of being an LTTE supporter and of smuggling things to the LTTE;
e)between 1998 and 2011 the army and navy interrogated him three or four times;
f)the second applicant’s brother was taken by the army in or about December 2010 because they believed him to be an LTTE supporter. He had not been heard from since;
g)in February 2011 the army took his elder brother to a camp because they suspected him of being an LTTE supporter. Shortly before making the statutory declaration he was told by his sister-in-law that his brother had returned but had been tortured and interrogated and had disclosed that he had three sisters and a brother;
h)given what had happened to his brother and brother-in-law, if he returned to Sri Lanka he would be seriously harmed or killed by authorities because he was a Tamil and imputed to be an LTTE supporter; and
i)he could not stay anywhere in Sri Lanka because the police and army had records relating to him and he would be suspected of being an LTTE member or supporter.
In a statutory declaration declared in support of her application for a POE the second applicant stated that her claims were identical to those of the first applicant. She also claimed that:
a)she was a Sri Lankan Tamil of Roman Catholic faith;
b)she was in a de facto relationship with the first applicant; and
c)she feared that she would be seriously harmed or killed by the Sri Lankan government or affiliated parties because her husband was a Tamil and had been imputed with a pro-LTTE profile. She would not be safe anywhere in Sri Lanka.
In their personal details forms submitted with the POE applications, the first and second applicants both noted that between 2002 and 2011 they had stayed more than twenty times at the home of the first applicant’s father. They had done so when there were problems in their own village and on most of these occasions they stayed for about seven to ten days.
The applicants’ advisers also sent the Minister’s department a submission dated 25 July 2011 in support of the applicants’ claims. The submission addressed discrepancies between the applicants’ accounts and the first applicant’s claims that he was or would be suspected of co-operating with the LTTE and would be at risk of persecution in his country for his political profile or imputed political profile. Country information was also provided which suggested that Tamils from the north and east of Sri Lanka were likely to receive greater scrutiny than other Sri Lankans and that the level of scrutiny was even higher for Tamils who had connections with the LTTE, had departed illegally from Sri Lanka and who did not have an identity card or other documentation.
Proceedings before the Assessor
The first and second applicants were interviewed by the Assessor on 25 January 2012 at which time the first applicant made the following additional claims:
a)he and his siblings had Singhalese birth certificates but grew up as Tamils speaking Tamil;
b)he started living with his Hindu wife in about September 2002 and they lived as Christians after they married;
c)in 2006 and 2007 he applied for Sri Lankan identity cards for his wife and himself but despite paying the fee he had not received them. He did not know if he or his wife would be able to obtain identity cards if they were to return to Sri Lanka;
d)all of his village had been targeted during the war. After the war specific people, including himself, were targeted;
e)he and his family had stayed with his father for ten to fifteen days after he gave items to the LTTE. He always took his family with him when staying with his father and never left them alone;
f)his wife had not known that the army had been worrying him because he had given items to the LTTE as he had not wanted to frighten her;
g)in 2008 or 2009 a navy surveillance patrol came and beat him, calling him an LTTE supporter. That beating left him with a scar and swelling on his head which caused him to faint and be hospitalised. At first, he did not tell his wife about the incident because she was pregnant and he had been able to hide the injury but he eventually did so after a neighbour told her of the beating. Prior to this incident he had been attacked at sea and beaten many times. He could not remember when those beatings occurred but the other beatings and interrogations he referred to in his statutory declaration occurred at army/navy camps. On one occasion he was taken from his home and on another he was taken from a cordon. He hid the bruises from the beatings from his wife by wearing a shirt and telling her that he had fallen over;
h)he decided to leave Sri Lanka when a soldier threatened to kill him. This was ten or fifteen days before he and his family left on 27 March 2011. He was taken to a field with others in a round-up search and forced to kneel. Each person was spoken to separately and was told that the others had spoken to the army about them. A soldier told him that they knew he was a supporter of the LTTE and said that once they got all the evidence they would shoot him. The first applicant told them that he had not done anything wrong and was released after about two hours. He did not tell his wife about the threat but did tell his father who said that he should leave. He had not previously told anyone else about the incident because he was immensely afraid and it was only after he was released from immigration detention in Australia that he realised he could speak about it;
i)despite his claims that he and his family had had trouble with the authorities and that he had never had a passport, his father had been able to obtain his birth certificate and his brother-in-law had been able to collect his passport from the relevant government agencies and send them to him;
j)when he last spoke to his family, in October 2011, his father and elder brother lived in the Mannar District and his sister lived with her husband in India. His brother was taken in July but was released in June. His brother was interviewed four or five times between June and October 2011. Another sister lived in Colombo but he had not seen her since she was small;
k)when they left Sri Lanka his wife’s family were still living in Mannar District but two sisters lived in India as refugees and one brother had been abducted in Sri Lanka;
l)he could not relocate to Colombo because he spoke Tamil not Singhalese;
m)he had not gone to India as a refugee because he believed that the Indians caused the destruction of the Tamils and his sister had discouraged him because of the difficult life in the camps; and
n)he feared returning to Sri Lanka because he feared that he would be targeted and killed by the army because he had helped the LTTE in 2009 by giving food to some of its members. After the war the army was determined to wipe out those who had helped the LTTE. Although he had told the Minister’s department that he gave fuel to the LTTE, because he was afraid he had failed to say that he had also given food.
At the interview with the Assessor, the second applicant made the following additional claims:
a)she and the first applicant had not married because of family conflict over the rites by which they would be wed;
b)her husband worked intermittently as a painter when the army prevented him from fishing;
c)she had lived with her husband and children in the Mannar District near an army camp and in an area which was controlled by the army. The family would move to her husband’s father’s home when the situation was tense. They would usually stay one or two days but in 2009 they stayed fifteen to twenty days as her husband had had problems;
d)she did not have a Sri Lankan identity card despite she and her husband each having applied for one about two or more years before they left Sri Lanka. They applied for the cards because the situation in Sri Lanka was escalating and they were thinking about relocating within the country;
e)the people who went out to sea with her husband had told her that the police had records about her husband and that she should take him away. Her husband did not tell her about the police records but told her before they left that they had to leave or they would be killed;
f)they made the decision to leave Sri Lanka approximately fifteen days before their departure, when her husband was tortured, harassed and threatened by the army for transporting goods to the LTTE in 2009. Until that point, the army had had no evidence but on that day, when people were taken to a public ground, he was singled out. Her husband initially did not tell her what had happened because it would have frightened her and she only became aware that he had serious problems two months before they left Sri Lanka. Until that incident she had been unaware that her husband had been involved in incidents with the army or navy. When the decision was made to leave, she “nagged him for details” but he did not tell her any specifics, only that they were leaving. She claimed that he did not tell her that he had been hurt at the field and apart from a head injury from when he had been beaten with a rod, she had not previously noticed any injuries;
g)her husband’s brother-in-law sent a copy of her birth certificate as they did not bring any identity documents with them to Australia because they left in a hurry;
h)her husband would be imputed to be a supporter of the LTTE and because of this the army would kill them. She feared returning to Sri Lanka as she believed they would have problems with the LTTE and the army because her husband would be seen as someone who helped the LTTE. The army had taken and returned her husband’s brother. The army had often come and asked about their whereabouts. She did not know why she was afraid of the LTTE;
i)nothing had specifically happened to her in Sri Lanka but she had seen other young women being raped;
j)Sri Lanka had not “returned to normal” after the war and she had heard a lot of stories about people being unable to sleep as men in masks had been seen slashing people in August 2011;
k)she would not be able to live safely in her home town or any other part of Sri Lanka because they did not have identity cards, did not know when they would be able to get cards and without them would have to return to their own village;
l)they could not live in peace in Sri Lanka and if they were returned, they might not reach Sri Lanka alive; and
m)she had not been to India and had not thought about travelling or moving there because her husband’s sister had discouraged them.
On 14 February 2012, the applicants’ adviser provided a post-interview submission which addressed concerns the Assessor had raised in the interview and also included a copy of a written submission dated 13 January 2012 which had not previously been provided to the Assessor. The post-interview submissions made the following clarifications of the claims made at the interview with the Assessor:
a)the first applicant had not been shot by the army in the incident immediately before the family’s departure because the Red Cross was active in Sri Lanka and the army was waiting for further evidence before killing him;
b)the first applicant had not disclosed the threats against his life until late in the protection visa application process because he had not considered them to be relevant;
c)the first applicant had not disclosed any threats or beatings to the second applicant because he had been trying to protect her. Any discrepancies in their evidence arose because he had failed to disclose to her all of the details of his interrogations;
d)the first applicant had suffered instances of detention and physical abuse between 1998 and 2011. The first instance was in 1998, when he was detained for four hours and beaten in an army round-up. The second occurred in 2007, when he was assaulted and detained by soldiers after an army vehicle was damaged and a soldier hurt. The third incident occurred in 2009, when he was captured and beaten by the Sri Lankan Navy while at sea fishing after the navy had been informed that he had delivered fuel to the LTTE in 2008 and food in 2009. The beating caused him to be hospitalised. In 2011 he was interrogated several times and on one occasion beaten because captured LTTE members had informed the army that he had assisted them. His brother had also been taken to a camp in February 2011 because he had been suspected of being an LTTE supporter. Finally, in March 2011, the first applicant was taken to an army base, beaten and told by an army officer that he might soon be shot; and
e)the first applicant applied for an identity card for himself (only) in 2006 and then applied for cards for the whole family in 2007, on both occasions receiving no response.
The 13 January 2012 submission suggested that the first applicant had been transporting goods for the LTTE in 2007, 2008 and 2009 and had not disclosed this earlier because he had thought that the Australian government would take a “dim view” of him because of it. It was also submitted that the applicants would have an increased risk of harm from the Sri Lankan authorities because they had applied for asylum in Australia. The submission also referred to country information.
A further submission dated 2 May 2012 was received by the Assessor but it was essentially a copy of the post-interview submissions made in February.
The applicants’ adviser sent a further submission, dated 24 April 2012, in response to a letter from the Independent Protection Assessment Office dated 13 April 2012 inviting further submissions in relation to the recently-introduced complementary protection regime. The submission made the following claims:
a)in light of the first applicant and his brother having previously been detained, interrogated, seriously physically abused and tortured, and his brother-in-law having disappeared, the applicants submitted that if they were to return to Sri Lanka the authorities would subject them to cruel, inhuman and degrading treatment. The first applicant feared that he would again be detained, interrogated and tortured by authorities. The applicants claimed that their fear of significant harm was well-founded due to their Tamil ethnicity and imputed LTTE sympathies;
b)independent country information suggested that Tamils were grossly overrepresented in arrests under Sri Lanka’s Prevention of Terrorism Act, which was said to provide impunity to state officials who committed human rights abuses and allowed for discrimination against Tamils through arbitrary arrest, detention and torture;
c)independent country information suggested that human rights abuses were occurring in Sri Lankan prisons and that there was a strong possibility that failed asylum seekers would be detained and mistreated by authorities; and
d)returning the family to Sri Lanka would be a breach of Australia’s obligations under the United Nations Convention on the Rights of the Child (“Children’s Convention”).
Assessor’s findings and reasons
After discussing the claims made by the applicants and the evidence before her, the Assessor found that the applicants did not meet the criteria for the grant of protection visas. She consequently recommended that they not be recognised as persons to whom Australia has protection obligations. That recommendation was based on the following findings and reasons:
a)the Assessor accepted that the country information referred to by the applicants and additional country information consulted by her supported “in a general way” the applicants’ claims to fear returning to Sri Lanka and that “those having, or suspected of having, LTTE ties may continue to be at risk of serious ill treatment from the authorities”. She also accepted the applicants’ claims about their identities, familial relationship, nationality, ethnicity and that the first applicant had worked as a fisherman in the Mannar District. However, she concluded that the applicants had not told the truth and had embellished their claims to assist them in their application to remain in Australia;
b)the Assessor did not accept:
i)that the first applicant had assisted the LTTE or was of interest to the army, navy or other authorities as claimed;
ii)that there were Sri Lankan police records pertaining to the first applicant of the type claimed;
iii)the first and second applicants’ explanations of the discrepancies in their accounts about the interrogations and why the second applicant only became aware of the first applicant’s issues with the Sri Lankan Army and/or Navy about ten to fifteen days before they left Sri Lanka. The Assessor found that if the first applicant had been beaten, and to the extent he claimed, the second applicant would have become generally aware of the beatings and injuries and would have given evidence about them which was consistent with the first applicant’s evidence. The Assessor did not accept as reasonable the first applicant’s explanations as to how he hid the injuries from the second applicant and therefore did not believe that he was beaten as claimed;
iv)that after the Sri Lankan civil war ended in May 2009 the first applicant had been targeted because he had assisted the LTTE and had been denounced to the authorities; and
v)that either of the first and second applicants’ brothers had been taken or tortured by the army or that the applicants would be perceived as supporting the LTTE because of their respective brothers;
c)the Assessor found that:
i)the claim that a soldier had told the first applicant that he would be shot for assisting the LTTE was an embellishment of his claims for protection. The Assessor observed that the first applicant had not made this claim in his original claim for protection and she did not accept that he had been too afraid to tell Australian authorities earlier or that he had not originally considered it relevant; and
ii)the claim that between 2007 and 2009 the first applicant transported parcels and food, not just fuel, to the LTTE, was an embellishment of his evidence to strengthen his claim to be a refugee. The Assessor did not accept as reasonable his explanation that he did not mention this in his protection visa application or entry interview because he was “afraid that the Australian government would take a dim view of him”. The Assessor therefore did not accept that the first applicant had assisted the LTTE as he claimed, that he would be targeted for harm by the authorities for this reason, that the applicants would be monitored by those authorities or that enquiries had been made about the first applicant by those authorities;
d)the Assessor accepted that the first applicant had been harassed by the army/navy because that claim was consistent with country information which reliably indicated that, during the hostilities in Sri Lanka, Tamils who worked as fishermen around the north of the island had sometimes been harassed and threatened by the army/navy and by the LTTE. The Assessor accepted that the first applicant had been questioned by the army or navy whilst fishing and that during the war in Sri Lanka the army/navy generally suspected fishermen of assisting the LTTE but she did not accept that he had been targeted for harm for that reason or that he suffered, or would suffer, serious or significant harm for that reason;
e)the Assessor was of the opinion that the available country information concerning the situation for returned asylum seekers was inconsistent but accepted that recent information from human rights groups indicated that Tamil returnees might be questioned and screened on their return to Sri Lanka and that some had disappeared while others had been detained or assaulted. The Assessor also accepted that some Tamil asylum seekers returning to Sri Lanka had suffered serious and/or significant harm upon their return and that this might happen to future Tamil returnees. The Assessor accepted that the applicants might be questioned on their return to Sri Lanka because of the way they had departed that country, their claims for asylum in Australia and their lack of identity cards. However, the Assessor considered that their chance of suffering serious or significant harm for those particular reasons would be remote given that she did not accept the first applicant’s claims about his connections to the LTTE; and
f)the Assessor also did not accept, to the extent they made such a claim, that the claimants had not received national identity cards in Sri Lanka because they were, or were considered to be, Tamils or because of any imputed connection with the LTTE. The Assessor referred in this connection to the applicants having family members who lived and worked in the same area as they had lived and that the first applicant’s father was Singhalese and had previously helped his son with the authorities. The Assessor also did not accept that the first applicant’s father and brother had left that area, to the extent that the applicants made that claim.
Proceedings in this Court
In their amended application the applicants alleged:
1. That the Reviewer failed to take a relevant consideration into account when assessing the applicant’s claim for complementary protection under s36(2)(aa) of the Migration Act 1958.
Particulars
In assessing the applicant’s claim for protection under the complementary protection provisions, the Reviewer failed to take into account those material findings made by the Reviewer:
·that the applicants will be questioned by authorities on return to Sri Lanka because of the way they left their country, because they are returning there after claiming asylum in Australia and because they are not in possession of national ID cards – as held in paragraph [120] of the decision;
·that the applicants will be returning to their country “with their four young children” – as held at paragraph [120] of the decision; and
…
2. That the Reviewer failed to assess the full integers of the applicant’s claim.
Particulars
In assessing the applicant’s claims for protection under s 36(2)(aa) of the Migration Act 1958, the Reviewer failed to deal with the claim for complementary protection advanced by the applicant, namely:
·that Tamils are “grossly overrepresented in the numbers of Sri Lankans arrested under the Prevention of Terrorism Act”; and
·that returning the applicants’ children to Sri Lanka in the circumstances “would be in breach of Australia’s obligations under the Convention on the Rights of the Child, in particular articles 3, 6, 22 and 37.
3. That the Reviewer failed to apply the correct test at law.
Particulars
The Reviewer failed to apply the complementary protection provisions to the applicant’s claims.
4. That the Reviewer denied the applicants’ [sic] procedural fairness.
Particulars
In failing to invite the applicants to appear before the Reviewer in person to give evidence or present arguments under the complementary protection provisions, the applicants were denied procedural fairness.
The applicants did not rely on a third particular of the first allegation.
The applicants’ case turned on para.120 of the Assessor’s reasons where it was said:
While the assessor accepts that the first and second named claimants, who will be returning to their country with their four young children (three of whom are the other claimants), will be questioned by authorities on return to Sri Lanka because of the way they left their country, because they are returning there after claiming asylum in Australia and because they are not in possession of national ID cards, the assessor considers that their chance of suffering serious or significant harm on return, for those reasons is remote especially given that the assessor does not accept as true that either the first named claimant or the claimants’ brothers are or have been of interest to authorities because of a connection, or imputed, connection to the LTTE. …
Relevant legislation
Section 36 of the Act relevantly provides:
Section 36 – Protection visas
(1) There is a class of visas to be known as protection visas.
(2) A criterion for a protection visa is that the applicant for the visa is:
…
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …
(2A) A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
Ground 1
Referring to SZQPA vMinister for Immigration & Citizenship [2012] FMCA 123 and Minister for Immigration & Citizenship v SZQPA [2012] FCA 1025, the applicants submitted that the Assessor’s focus on the likely outcome of their possible detention and interrogation upon their return to Sri Lanka led to her asking herself the wrong question and to her failing to consider whether they might suffer significant harm before they could convince the authorities that they were not active LTTE members.
The applicants submitted that the material before the Assessor indicated that Tamils were grossly overrepresented in arrests made under the Prevention of Terrorism Act; that detainees, particularly suspected LTTE supporters, were routinely tortured and mistreated by authorities; that returnees faced harm; that there were issues with the prison and judicial systems in Sri Lanka; and that children were vulnerable. They submitted that these factors raised concerns about their detention in circumstances where they would be returning to Sri Lanka without documentation, in the company of children, with no explanation of where they had been and in circumstances where, they asserted, the Assessor had found that the first applicant had previously faced significant harm in Sri Lanka as a fisherman in that he had been detained and had been of interest to the army and the navy. The applicants submitted that these claims had not been taken into account when the Assessor considered the complementary protection criteria.
It must be kept in mind that the applicants’ allegation in the first ground of the amended application was that when reaching her decision the Assessor had not taken account of her findings:
· that the applicants will be questioned by authorities on return to Sri Lanka because of the way they left their country, because they are returning there after claiming asylum in Australia and because they are not in possession of national ID cards – as held in paragraph [120] of the decision;
· that the applicants will be returning to their country “with their four young children” – as held at paragraph [120] of the decision; …
Contrary to the assertion arising out of the first particular, the Assessor did consider the consequences for the applicants of being “questioned by authorities on return to Sri Lanka”. She found any associated risk of serious or significant harm to be remote. Importantly, that finding did not stand alone but was reached after the Assessor had already said in para.110 of her reasons that she accepted that:
… Tamil returnees to Sri Lanka are questioned and screened on their return to Sri Lanka and accept[ed] that those considered or thought to be supporters of, or affiliated with, the LTTE may be at risk of harm. …
When the Assessor’s reasons are viewed as a whole, she can be understood to have concluded that these were the only people who would be at risk of harm at the point of return in Sri Lanka.
As a result, this case is distinguishable from SZQPA v Minister for Immigration. That is because, in this case, the first applicant failed to prove that he had assisted the LTTE, that he would be perceived as an LTTE supporter because of his brother and brother-in-law or that he was of any interest to the Sri Lankan authorities. In SZQPA the independent merits reviewer (“Reviewer”) accepted that SZQPA had had links with the LTTE, albeit not as a member or an active supporter. It was that prior association with the LTTE which made it necessary for the Reviewer in that case to consider whether SZQPA faced a risk of harm at the airport upon his return while his true status was determined. It was the absence of such an association in this case which meant that the Assessor did not have to consider that issue further than she did.
Turning to the second particular of the allegation, the applicants did not identify why the likely presence and minority of the third, fourth and fifth applicants at the airport in Sri Lanka was, in the circumstances, a relevant consideration. If they sought to imply that the test of significant harm should be applied differently to minors than it would be applied to adults, they did not explain how or why this might be so. In any event, para.120 of the reasons indicates that the Assessor did take account of the fact that upon a return to Sri Lanka the adult applicants would be accompanied by the child applicants. In light of her conclusion that the applicants did not fall within the classes of persons who might be at risk of harm at the point of return, no further or particular consideration of that fact was necessary.
Ground 2
The applicants submitted that the Assessor had failed to consider the integers of their claims relating to the type of interrogation they would experience at the airport and had also failed to consider a discrete issue relating to the three minor applicants which they said enlivened rights under the Children’s Convention. They submitted that the latter claim clearly arose from the material before the Assessor.
The first element of the second ground of the application,
· that Tamils are “grossly overrepresented in the numbers of Sri Lankans arrested under the Prevention of Terrorism Act”,
concerned the applicants’ ethnicity and the risk of significant harm which this was said to pose to them upon a return to Sri Lanka.
In para.121 of her reasons the Assessor said:
The evidence/information before the assessor does not enable the assessor to conclude that there is a real chance that the claimants who are the subject of this assessment, or any one of them, will suffer harm amounting to serious harm from the Army, the Navy, the police, government authorities or anyone else in Sri Lanka, either now or in the reasonably foreseeable future because of his/her political opinion or imputed political opinion, his/her race, because he/she is a Tamil from the Mannar District, because of his membership of a particular social group, including fisherman from the north/northwest of Sri Lanka, or for any other Convention reason, if he/she returns to his/her country, Sri Lanka.
In para.123 she said:
The assessor also finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the claimants, or any one of them, being removed from Australia to a receiving country, in this case Sri Lanka, there is a real risk that they or any one of them will suffer significant harm there.
When considered as a whole, the Assessor’s reasons disclose that the reference in para.123 to complementary protection was not an afterthought, formality or fig leaf attempting to conceal a lack of consideration of the complementary protection criteria. References to the significant harm criterion for the engagement of Australia’s complementary protection obligations were also made in paras.111, 113 and 120 of those reasons, indicating that the Assessor considered the applicants’ claims against both the Convention and the complementary protection criteria. Given the manner in which the Assessor’s reasons were structured and expressed, I conclude that the factual findings recorded in para.121 were relied on by the Assessor in reaching the conclusion expressed two paragraphs later in para.123. I therefore conclude that the Assessor did consider by reference to the complementary protection criteria that part of the applicants’ claims which was based on their ethnicity.
The second element of the second ground of the application concerned the Children’s Convention. Contrary to the applicants’ allegation the Assessor was not obliged to have regard to that treaty. In SZQGE v Minister for Immigration & Citizenship [2011] FCA 1018 Bennett J said:
Grounds 4 and 5 refer to international treaties to which Australia is a party. The treaties are not part of Australian law except to the extent that they are incorporated by legislation. The relevant legislation is s 36(2)(a) of the Act which directs attention to the Refugees Convention as amended by the Refugees Protocol, not the treaties. … (at [13]).
In this case, the relevant legislation was s.36(2)(aa) which, as the above reasons explain, was acknowledged and applied by the Assessor.
Ground 3
The applicants submitted that their claims to fear serious harm as failed asylum seekers and to fear being targeted by the authorities at the airport were rejected by the Assessor because she found that they did not have a sufficient Convention nexus. The applicants submitted that the Assessor transposed her findings in relation to the Convention test to her findings in respect of the complementary protection test and by so doing impermissibly imported the need for a Convention nexus into complementary protection considerations. They submitted that the Assessor had therefore failed to apply the s.36(2)(aa) test.
The applicants also submitted that there was no evidence that the Assessor had considered the criteria for significant harm found in s.36(2A) in the context of their claims, i.e. that they would suffer degrading treatment, torture, cruel or unhuman treatment or punishment during any detention which might arise on their return as asylum seekers without identification and travelling with three minors.
The Assessor made findings of fact concerning the applicants generally, including that the authorities would not perceive them to have an LTTE connection, and it was open to her to apply those findings to both the Convention and complementary protection claims, which is what I find she did. Based on those factual findings, the Assessor drew two separate conclusions: the first at para.122 of her reasons, that she was not satisfied that upon a return to Sri Lanka the applicants faced persecution with a Convention nexus; and the second, at para.123 of her reasons, that there were no substantial grounds for believing that the applicants faced a risk of significant harm for the purposes of Australia’s complementary protection obligations.
For those reasons, the allegation that the Assessor failed to apply the complementary protection provisions to the applicant’s claims is not made out.
Ground 4
The applicants submitted that at their interview with the Assessor they had not been afforded an opportunity to give evidence on their claims under the complementary protection provisions and that the Assessor made findings on that issue without providing them an opportunity to lead further evidence on it. The applicants submitted that the Assessor had denied them procedural fairness by failing to invite them to a further interview to address the complementary protection criteria.
The applicants also argued that in circumstances where they faced a language barrier, three of them were minors and they had limited time to discern the issues relating to complementary protection and provide submissions on them, the Assessor should have taken special care to afford them natural justice by inviting them to a further interview. In this connection, the applicants submitted that the invitation to provide information relating to the complementary protection criteria was sent on 13 April 2012 and required a response by 27 April 2012.
The applicants’ submission that they had not been afforded an opportunity to give evidence on their complementary protection claims at the time of their interview before the Assessor ignored the fact that at that time the complementary protection provisions of the Act had not yet commenced.
As to the other issues raised by the applicants, on 13 April 2012 the Independent Protection Assessment Office wrote to the applicants’ solicitors inviting them to provide information relevant to the complementary protection criteria by 27 April 2014 or such later date as might be allowed if further time was sought. The applicants’ solicitors did not seek additional time to respond or indeed seek an opportunity of any sort, including a further interview, to put further material before the Assessor. In such circumstances, and given that the applicants had no right to an oral hearing, the fact they were not offered a second interview is not indicative of error.
Further, the submission concerning the applicants’ language and other difficulties overlooks the fact that they were represented and that their solicitors did not seek additional time to respond to the letter of 13 April 2012 in order to deal with such issues, even though they were advised that a request for an extension of time would be considered.
For these reasons, the fourth ground of the application does not disclose error on the Assessor’s part.
Conclusion
The applicants have not demonstrated that the Assessor’s review was procedurally unfair or not conducted by reference to the correct legal principles correctly applied.
Consequently, the application will be dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 19 December 2013
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