SZSBD v Minister for Immigration

[2013] FCCA 1777

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSBD v MINISTER FOR IMMIGRATION & ORS [2013] FCCA 1777

Catchwords:
MIGRATION – Persecution – review of post review protection claims assessment.

ADMINISTRATIVE LAW – Allegation that the assessment affected by a denial of procedural fairness.

Legislation:

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

Cases Cited:
Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505
Kioa v West (1985) 159 CLR 550
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594

Applicant: SZSBD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ANABELLE O’BRIEN IN HER CAPACITY AS DIRECTOR, PROTECTION OBLIGATIONS (VIC), DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Third Respondent: ELIZABETH GRADY IN HER CAPACITY AS DIRECTOR, MINISTERIAL INTERVENTION (NSW & VIC), DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

File Number: SYG 2362 of 2012

Judgment of: Judge Cameron

Hearing date: 24 October 2013

Date of Last Submission: 24 October 2013

Delivered at: Sydney

Delivered on: 5 November 2013

REPRESENTATION

Counsel for the Applicant: Ms S. Whiteman

Solicitors for the Applicant: Shine

Counsel for the First Respondent: Mr B. O’Donnell

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2362 of 2012

SZSBD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ANABELLE O’BRIEN IN HER CAPACITY AS DIRECTOR, PROTECTION OBLIGATIONS (VIC), DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Second Respondent

ELIZABETH GRADY IN HER CAPACITY AS DIRECTOR, MINISTERIAL INTERVENTION (NSW & VIC), DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived at Christmas Island by boat on 1 March 2010.  On 1 May 2010 he lodged an application for a refugee status assessment 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 (“Refugees Convention”).

2. On 21 June 2010 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 Refugees Convention. That decision was subsequently reviewed by an Independent Merits Reviewer (“Reviewer”) who, on 18 April 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.

3. On 31 May 2011 the applicant applied to this Court for judicial review of the Reviewer’s decision.  On 16 November 2011 that application was dismissed by Raphael FM.  On 16 March 2012 the Federal Court dismissed an appeal from the decision of Raphael FM. 

4. During the pendency of his original judicial review application in this Court, the applicant sought an assessment of his claims under Australia’s international treaty obligations.  On 23 January 2012 the International Treaties Obligation Assessment (“ITOA”) Assessor (“ITOA Assessor”) found there to be no new information which would have changed the earlier assessment of the applicant’s refugee status. 

5. On 10 September 2012 the applicant also sought ministerial intervention under s.46A of the Migration Act 1958 “(Act”) and asked that his claim be assessed against the complementary protection criteria found in s.36(2)(aa) of the Act. On 26 October 2012, the Director, Ministerial Intervention (NSW & VIC), wrote to the applicant advising him that that request would not be sent to the Minister for consideration.

6. On 19 October 2012 the applicant commenced these proceedings, originally seeking further judicial review of the Reviewer’s decision.  That claim was not pursued and the matter proceeded on a different basis. In his further amended application the applicant sought:

   a)a declaration that the assessment by the Director, Ministerial Intervention (NSW & VIC) in October 2012 denied him procedural fairness;

   b)a declaration that the Minister cannot rely on the ITOA assessment because it was not made in accordance with law; and

   c)an injunction restraining his removal from Australia.

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

Background facts

Independent Merits Review

1. The facts alleged in support of the applicant’s claim for protection were set out in the Reviewer’s reasons for his recommendation and are relevantly summarised below.

2. The applicant made the following claims at his entry interview on 28 March 2010:

   a)in July 1995 his family home was shelled and they left it permanently;

   b)he travelled to India for his sister’s wedding, having been issued with a passport in 2007;

   c)his mother lived in Sri Lanka.  He had last seen his father in 2007;

   d)from 2002 to 2009 he worked in a family-owned fishing business.  From 2007 to 2009 he also painted buses on the weekends and worked casually as a bus conductor;

   e)during the period he worked as a bus conductor, the Eelam People’s Democratic Party (“EPDP”) sometimes asked to use his bus.  In May 2008 the EPDP crashed the bus and so on the next occasion they asked for it (on 12 December 2009) the bus owner refused to give it to them.  On 13 December 2009 the EPDP stopped the bus and shot the driver but he, the applicant, managed to escape.  The EPDP had stopped the bus in retaliation for being refused its use;

   f)the army and the EPDP had been looking for him since he ran away from the bus and had also harassed his mother.  They had been looking for him because he had refused to give the EPDP the bus and because his brother, who had died in 1997, had been a member of the Liberation Tigers of Tamil Eelam (“LTTE”); and

   g)his only involvement with the LTTE was when he was a student and had undertaken “mandatory training”.

3. The applicant made the following claims in his application for a refugee status assessment and in a statutory declaration which supported that application:

   a)in 2008 he had lent his bus to the United National Party (“UNP”) and they damaged it.  He had had no choice but to lend it to them because he had previously lent it to other political parties.  Later, when the EPDP asked for the bus he refused.  The next day the army came looking for him but he was not there and they shot his driver instead.  He left his area and went into hiding for two and a half months; and

   b)his brother had been killed while fighting the Sri Lankan Army (SLA).  When he was working as a bus conductor he had been beaten by the SLA.  They suspected that he was an LTTE supporter because he had given free transport to Tamil children from orphanages and schools.

4. At his interview with the Reviewer on 21 November 2010, the applicant additionally claimed that:

   a)he had saved money, bought a bus and engaged a driver;

   b)the EPDP had intended to shoot him but had shot his driver instead.  His driver had shouted that it was the EPDP shooting and told him to run away.  He had not made those claims earlier because he was uneducated and had not been asked clearly.  The reference at his entry interview to the EPDP damaging the bus must have been an error made by the interpreter;

   c)he was from a “Heroes” family which might be a reason the SLA was interested in him; and

   d)his mother had gone into hiding because she had been threatened by the SLA and EPDP.  She had eventually moved to India.

IMR 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 then set out in s.36(2) of the Act. The Reviewer recommended that the applicant not be recognised as a person to whom Australia had protection obligations under the Refugees Convention. That recommendation was based on the following findings and reasons:

   a)the Reviewer found that the applicant was relatively well-educated.  He found that the applicant had added to his claims at different times and did not accept his explanations of the discrepancies between his initial story and his later claims.  The Reviewer found that for the purpose of advancing his claims for refugee status the applicant had sought to better his story by putting himself at the centre of it.  He found that the applicant was not a credible witness and was prepared to exaggerate and fabricate in order to enhance his claim for protection.  Although accepting some aspects of the applicant’s history, the Reviewer did not accept that he had owned a bus or that he had ever had any association or involvement with the EPDP, UNP, SLA or LTTE or that anyone sought to harm him for any reason;

   b)although accepting that the applicant was a Tamil male from the north of Sri Lanka and that his brother who had been killed about fourteen years earlier had been an LTTE member, the Reviewer did not accept that those facts had given rise to any issues or concerns for the applicant.  The Reviewer noted that the applicant obtained his passport in 2007, that he had travelled in and out of Sri Lanka, that following the defeat of the LTTE he had lived in Sri Lanka without being of adverse interest to the authorities, that he had not been detained and that he had continued to live and work at home.  These matters indicated to the Reviewer that the applicant had not been of adverse interest to the authorities or to anyone else.  The Reviewer also did not accept that the involvement of the applicant’s brother with the LTTE a long time before would cause the authorities to investigate or harm the applicant on his return to Sri Lanka; and

   c)the Reviewer did not accept that the applicant’s history gave him a profile that would be of adverse interest to the authorities or anyone else or, if he returned to Sri Lanka following his claim for refugee status in Australia, that that would be known or of any interest to the authorities.

ITOA

1. On 25 May 2011, the applicant’s representatives wrote to the Department’s International Obligations and Intervention Support Section, submitting, amongst other things, that the circumstances of the applicant’s case invoked Australia’s obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (“Convention against Torture”) and the International Covenant on Civil and Political Rights 1966 (“ICCPR”).

ITOA findings and reasons

1. On 23 January 2012 the ITOA Assessor found that there were no substantial grounds for believing that the applicant would face a reasonable, real and personal risk of being tortured as outlined in the Convention against Torture. In this connection:

   a)the ITOA Assessor found that there was little evidence to suggest that public officials would torture a Tamil such as the applicant solely for his ethnicity.  The ITOA Assessor found that there was no evidence that the applicant had encountered any issues at checkpoints and cordons and noted that the applicant had had a passport, had been able to travel without any difficulties and had voluntarily returned to Sri Lanka after visiting India for his sister’s wedding;

   b)whilst accepting that the applicant’ family had been displaced, the ITOA Assessor also found that the applicant had continued to live in the Northern Province during the conflict and following the LTTE’s defeat in 2009 without coming to the adverse attention of the authorities or being detained by them;

   c)the ITOA Assessor noted country information which indicated that persons suspected of being members of the LTTE might be arrested, detained, harassed or face discrimination from authorities but found that there was no evidence that the applicant had been trained in the use of arms or had served with the LTTE fighting forces.  After taking into account the lack of evidence that the applicant had been interrogated or harassed because of his brother’s involvement with the LTTE, the ITOA Assessor did not accept that any mandatory training which the applicant might have received from the LTTE or his brother’s involvement with the LTTE would cause him to be of particular interest to the Sri Lankan authorities if he returned there;

   d)the ITOA Assessor gave weight to the Reviewer’s conclusions that the applicant had sought to better his story and had been prepared to exaggerate and fabricate in order to enhance his claims.  The ITOA Assessor found that no new information had been presented to change that conclusion.  The ITOA Assessor also gave weight to the Reviewer’s finding that there were clear inconsistencies in the applicant’s claims about having refused to hand his bus over to the EPDP;

   e)the ITOA Assessor found that the applicant had never claimed to have been charged with or arrested for a crime or to have been sent to a rehabilitation camp as thousands of young Tamils suspected or known to have been involved with the LTTE had been.  The ITOA Assessor further noted that the applicant had continued to live and work in the same region and had not claimed to have faced issues with the authorities when he travelled to India in 2007; and

   f)the ITOA Assessor concluded that while there were ongoing human rights issues in Sri Lanka, there was little credible evidence to indicate that the applicant had a profile which would put him at risk of being of interest to public officials or of being arrested, detained or tortured.  The ITOA Assessor found that although the applicant might be identified and questioned by the authorities if he returned to Sri Lanka, given his low profile it was unlikely that he would attract adverse attention which would result in a real risk of torture.

2. Based on the information before him, the ITOA Assessor found that there were no substantial grounds for believing that the applicant faced a real risk of being deprived of his life arbitrarily or of being subjected to cruel, inhuman or degrading treatment, torture or punishment from a state or non-state group which would give rise to Australia’s non-refoulement obligations under the ICCPR.  In this connection:

   a)the ITOA Assessor noted that the applicant had not claimed to have been charged with a crime in Sri Lanka or to have had a criminal record and that the death penalty had not been exacted in Sri Lanka since 1976;

   b)after referring to country information about the situation of Tamils in Sri Lanka, the ITOA Assessor noted the antecedent finding that the involvement of the applicant’s brother in the LTTE would not cause the applicant to be of interest to the authorities;

   c)the ITOA Assessor found that the applicant’s claims regarding an incident with the EPDP and his claims that the EPDP and SLA had been looking for him and had harassed his mother were inconsistent and not credible.  The ITOA Assessor accepted that the applicant might have been employed as a bus conductor but did not accept that he had been targeted by the EPDP or by the SLA as he claimed; and

   d)the ITOA Assessor was satisfied that the applicant did not have a profile that would attract adverse interest from the authorities or paramilitary groups if he returned to Sri Lanka.

3. The ITOA Assessor noted advice that the applicant manifested symptoms of anxiety and depression, that his mental health had been deteriorating because of the length of time he had spent in immigration detention and that he had attempted self-harm.  The ITOA Assessor found that the applicant did not suffer from a diagnosed mental illness and that his symptoms could be attributed to the length of time he had spent in detention and to the protracted refugee status assessment and judicial review processes.  The ITOA Assessor noted that the applicant had been referred for consideration of community detention and was satisfied that his mental health would improve once the process had been resolved. 

4. The ITOA Assessor concluded that there was no new information which changed the previous assessment of the applicant’s refugee status and that the applicant’s circumstances did not warrant his case being considered against “the s.195A guidelines”. The ITOA was said to be valid for six months, absent a change in the country information or the applicant’s circumstances.

5. On 30 January 2013, the Director of the Protection Obligations Section (VIC) agreed with the ITOA Assessor’s assessment.

Ministerial intervention – Post Review Protection Claims (“PRPC”) assessment

1. As noted above at [5], on 10 September 2012 the applicant sought ministerial intervention and asked that his claims be assessed against Australia’s complementary protection obligations.  In a submission attached to that request, the applicant’s representatives argued that the applicant had had only seven years of education and came from a family traditionally involved in fishing but the Reviewer had found him to be relatively well-educated and had failed to recognise his ongoing psychological problems.  It was submitted that the Reviewer’s impressions largely arose out of the incompetence of interpreters who had not conveyed the applicant’s sentiments effectively.

2. In an internal minute dated 25 October 2012, a case officer in the Minister’s department recommended that the applicant’s case not be referred to the Minister for consideration.  After referring to the applicant’s claims and to the findings of the Reviewer and the ITOA Assessor, the case officer found that the applicant had not provided any new information which would challenge the Reviewer’s conclusions on his Refugees Convention-related claims or which contradicted the ITOA Assessor’s findings.  The Director of the Ministerial Intervention Unit (NSW & VIC) agreed with the case officer’s assessment and the applicant was notified of the unsuccessful outcome of his request by letter dated 26 October 2012.

Proceedings in this Court

1. In his further amended application the applicant alleged:

   1.Because the Applicant is a person who has not yet made an application for a protection visa, s 35 of Schedule 1 of the Migration Amendment (Complementary Protection) Act (No. 121 of 2011) makes s36(2)(aa) (as amended) applicable to the definition of “protection obligations” for the purposes of the Act in considering claims for protection made by the Applicant on and after 24 March 2012.

   2.The First Respondent has previously announced that all people who arrive and are offshore entry persons who provide claims or information which prima facie may engage Australia’s protection obligations would be assessed for the purposes of s46A.

   3.The Applicant has made claims that prima facie engage Australia’s protection obligations as defined under the Migration Act.

   ITOA

   4.The Respondent cannot lawfully act on the basis of the International Treaties Obligations Assessment because:

   a.that Assessment applied the wrong test when assessing the Applicant’s claims for protection; and/or

   b.is no longer a valid assessment; and/or

   c.it was made by a process that denied the Applicant procedural fairness in that he was not given any opportunity to:

   i.      be heard in person on the questions relevant to the Assessment; and / or

   ii      respond to the substance and source of information that the Assessor relied upon as being credible, relevant and significant in making that Assessment.

   PRPC Assessment

   5.The assessment by the Director, Ministerial Intervention (NSW& VIC) dated 25 October 2012 has been attended by a denial of procedural fairness and/or errors of law for the reasons given below.

   Particulars

   6.On 10 September 2012, the Applicant wrote to the Department of Immigration and Citizenship requesting that the First Respondent consider exercising his power under s46A(2) of the Act.

   7.On 16 October 2012, the request was acknowledged by the Department and the Applicant was advised that he would be assessed against the post review protection guidelines for the purposes of s46A(2). The Applicant was invited to submit supporting material within 7 days and was warned that if no contact was made during that period, the assessment would be made on material already available.

   8.On 25 October 2012 the Director, Ministerial Intervention (NSW& VIC) completed an assessment and found that the Applicant did not meet the post review protection guidelines and accordingly no request to the Minister under s46A(2) would be forwarded.

   9.On 26 October 2012 the Department of Immigration and Citizenship notified the Applicant by letter that the Applicant’s case had been assessed against the Minister for Immigration and Citizenship’s Guidelines for the consideration of post review protection claims but that the Applicant’s case had not met the Guidelines and therefore would not be referred to the Minister.

   10.The International Treaties Obligation Assessment dated 30 January 2012 was valid for six months from the date of the assessment and accordingly, became invalid on 30 July 2012.

   11.By relying on the out-dated International Treaties Obligation Assessment, the Director, Ministerial Intervention (NSW& VIC) relied on an irrelevant consideration in her recommendation dated 25 October 2012.

   12.The Director, Ministerial Intervention (NSW& VIC) relied on material in conducting the assessment which was not put to the Applicant.

   13.The Director, Ministerial Intervention (NSW& VIC) in conducting the assessment, applied the wrong test under s 36(2)(aa) by:

   a.failing to consider if the Applicant will suffer significant harm as defined under s36(2A)(a)-(e) of the Act; and/or

   b.failing to consider the definitions of ‘significant harm’ that appear s 5(1) of the Act; and/or

   c.applying the wrong standard of proof when assessing the Applicant’s claims for protection; and/or

   d.applying the test in the International Treaties Obligation Assessment; and/or

   e.failing to separately consider it from the test under s 36(2)(a).

   14.Further, the assessment by the Director, Ministerial Intervention (NSW& VIC) included consideration of whether Australia would have protection obligations by reason of the likely detention of the Applicant upon return to Sri Lanka but did not consider the state of the law in that regard explained by this Court in Minister for Immigration v SZQPA [2012] FCA 1025.

1. Notwithstanding how it was pleaded, the applicant’s case was principally encapsulated in his written submissions in the following terms:

   The process used to produce the ITOA relied on in the PRPC assessment denied procedural fairness to the Applicant by reason of not putting to the Applicant for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered to bear upon the claims made by the Applicant. In relying on the ITOA, the PRPC assessment perpetuated the earlier denial of procedural fairness.

2. The applicant submitted that he had not been provided with all the information relied on by the ITOA Assessor when the latter made the ITOA recommendation and that this amounted to a denial of procedural fairness.  In this connection the applicant referred in his written submissions to a number of documents which post-dated submissions he had made in support of his ITOA application but which, he said, had not been provided to him.  In support of this submission, the applicant relied on an observation made by Lander and Gordon JJ in Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505 at 553 [262]:

   The ITOA was completed after SZQRB made his written submission and before the Country Information that was relied upon was put to SZQRB.  SZQRB was never asked to comment upon the MOU or its effectiveness. Some of the Country Information was published after SZQRB’s written submission.  The process that led to the ITOA was flawed in that the assessor failed to accord SZQRB procedural fairness by bringing to his attention information that the ITOA might rely upon for concluding that returning SZQRB would not breach Australia’s non-refoulement obligations under the CAT or ICCPR.

3. It can be accepted that the documents to which the applicant referred were published after 25 May 2011 when he provided his written submissions in support of his ITOA application.

4. A party liable to be directly affected by an administrative decision to which the rules of procedural fairness apply is to be given the opportunity of putting information and submissions to the decision-maker in support of an outcome that supports his or her interests. In order that that right can have substance, the party affected is to be given the opportunity of ascertaining the relevant issues, which will require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The party affected is also entitled to be informed of the nature and content of adverse material that is credible, relevant and significant and which the decision-maker has obtained from sources other than that party, as well as of any adverse conclusion that the decision-maker has reached which would not obviously be open on the known material, and to address that new material and those unexpected conclusions by further information and submission: Kioa v West (1985) 159 CLR 550 at 628-629; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 96-97 [140]; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 162 [32]; Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at 599 [9].

5. Although a party liable to be affected by an administrative decision is entitled to be informed of the nature and content of adverse material, unless something particular turns on a document which contains such information, it is not necessary that the party be provided with a copy of that document.  In most cases it is the information, not the document in which that information is contained, which must be advised or supplied.  It was not suggested in this case that the documents in question had any significance beyond the information they contained.  Consequently, the fact that they were not supplied to the applicant does not amount to a denial of procedural fairness.

6. Nevertheless, if the information contained in those documents was adverse to the applicant, or the documents identified an issue of which the applicant was unaware, and those matters were not advised to the applicant before the ITOA process was completed, then a failure to observe the rules of procedural fairness would have occurred.  The applicant submitted that the situation in Sri Lanka changed from time to time and so information was liable to become out of date.  While that might be so, the applicant did not identify in what respects the information in the documents was different from the information he had when he provided his written submissions or what new issues might have been identified in the documents.  He also did not identify why, if there was indeed new information, it was adverse to him.

7. In those circumstances, the applicant has not made out his allegation that in the ITOA process he was not provided with information which procedural fairness required be made known to him.  The applicant’s allegation that he was denied procedural fairness in the PRPC process was based on the allegation that he had been denied procedural fairness in the ITOA process.  As the latter allegation was not made out so too was the former allegation not made out.

8. At the commencement of the hearing of this application the applicant said that he did not press the allegation that the ITOA had been invalid once it was more than six months old.  Notwithstanding that initial abandonment of this aspect of his claims, the applicant later did rely on that ground.  The implication of his submission was that reliance in the PRPC process on an out-of-date ITOA amounted to a denial of procedural fairness.  The Court was not taken to any statutory or regulatory provision which prevented the ITOA reasons from being considered by later decision-makers if the six month period had expired.  Nor did the applicant demonstrate that information in the ITOA was incorrect because it had been superseded by new information and that such a fact was known to the person who prepared the PRPC assessment.  In such circumstances, this submission does not persuade me that the applicant was denied procedural fairness in the PRPC assessment process.

Conclusion

1. The applicant has not demonstrated that he was denied procedural fairness in the PRPC process on the basis of a denial of procedural fairness in the ITOA process.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  5 November 2013