SZSCF v Minister for Immigration, Multicultural Affairs & Citizenship

[2013] FCCA 823

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSCF v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP & ANOR [2013] FCCA 823

Catchwords:
MIGRATION – Review of conduct leading to recommendations of Independent Merits Review Assessor – whether recommendations made according to law – whether Independent Merits Review Assessor failed to accord the applicant procedural fairness – whether Independent Merits Review Assessor applied the correct legal principles – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.36

Cases cited:
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZSCF

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: JILL BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: SYG 2454 of 2012

Judgment of: Judge Emmett

Hearing date: 16 July 2013

Date of Last Submission: 16 July 2013

Delivered at: Sydney

Delivered on: 16 July 2013

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Mr Matthew Alderton (Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2454 of 2012

SZSCF

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

J BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for judicial review of conduct leading to the recommendation by the second respondent, being an independent merits review Assessor, dated 20 August 2012 and handed down on 22 August 2012, that the applicant not be recognised as a person to whom Australia has protection obligations.

2. The process of review is accurately summarised by the solicitor for the first respondent as follows:

   “2. The Commonwealth established a Refugee Status Assessment (RSA) process by which officers of the Department of Immigration and Citizenship (the Department) may consider claims made by offshore entry persons that they are owed protection obligations, in order to make determinations which may inform the possible exercise of the Minister’s non-compellable power under either ss 46A, 91L or 195A of the Migration Act 1958 (Cth) (the Act).

   3. The Commonwealth also established a process by which an offshore entry person may seek independent merits review (IMR) of an unsuccessful assessment under the RSA process.

   4. The Minister accepts that this Court has jurisdiction to determine the claim for injunctive relief; and that, if any legal error was identified in the recommendation of the IMR, then the Court would have power to make a declaration identifying that error, if such a declaration were thought to have utility.[1]

   5. Whilst the applicant also seeks orders in the nature of mandamus and certiorari, it is not appropriate for the Court to grant such relief because the Minister does not have a duty to exercise (or even consider exercising) his non-compellable power under s 46A(2), 91L or 195A of the Act.[2]

   6. Although the applicant has also applied in writing for time to be extended for him to file his application under s 477(2) of the Act, such an order is not required.[3]”

   [1] WZAPN & Ors v Minister for Immigration & Anor [2012] FMCA 235 at [23]-[25]

   [2] Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319 at [99]-[100]

   [3] SZQDZv Minister for Immigration and Citizenship (2012) 200 FCR 207

3. The background and the applicant’s claims are accurately summarised by the solicitor for the first respondent in written submissions as follows:

   “7. The applicant is a citizen of Sri Lanka who entered Australia as an unauthorised boat arrival and was taken to Christmas Island on 7 February 2010: CB 265, par 2.

   8. On 7 March 2010, an Entry Interview was conducted with the applicant: CB 6-26; CB 267-268, pars 20-24.

   9. On 19 September 2010, the applicant applied for a RSA (CB 33-44) and appointed a migration agent to assist him with that application: CB 27-32; CB 64-68.

   10. The applicant set out his claims for protection in a statutory declaration dated 19 April 2010 (CB 45-48) and was interviewed by an RSA officer in connection with these claims on 21 April 2010: CB 259, par 39.

   11. The applicant claimed that he was a Sri Lankan national of Tamil ethnicity who was born in 1990 in the North of the country: CB 45, pars 1-2. In 2008, his brother was detained by the Sri Lankan Army (SLA) because he was suspected of transporting supplies for the LTTE: CB 45, par 8. The applicant was also suspected of working for the LTTE and was detained and interrogated in late 2009 whilst passing through a checkpoint: CB 46, pars 11-13. He was also detained on another occasion in late 2009 and had to spend the day doing manual labour in an army camp: CB 46, pars 14-16. After the SLA came to the applicant’s home looking for him, his parents decided it was no longer safe for him to remain in Sri Lanka and he departed for Australia: CB 47, pars 16-22.

   12. The applicant also provided the Department with a number of identity documents in support of his protection claims: CB 69-92.

   13. On 7 May 2010, the applicant was notified that he had been assessed as not meeting the Convention definition of a refugee: CB 93-103. The RSA officer found that the applicant’s oral evidence at the interview was “vague” and contained a number of discrepancies which led it to doubt the credibility of his claims: CB 101-102. The RSA officer found in these circumstances that the accepted independent country information (ICI) did not support the applicant’s claims that he would face persecution if he returned to Sri Lanka: CB 102-103.”

4. On 5 November 2010, the applicant lodged an application for an independent merits review of the RSA. An accurate summary of recommendations made in a first independent merits review, dated 9 November 2010, and a second independent merits review, dated 5 May 2011, are accurately summarised by the solicitor for the first respondent in written submissions as follows:

   “The first Reviewer

   15. Before the first Independent Merits Reviewer (the first Reviewer), the applicant claimed in a typed five page written statement that he had recently been informed by his family that his brother was forced to sign a statement implicating the applicant in LTTE activities. He also claimed that the SLA and various paramilitary groups group had to him family home looking for him and that his Sinhalese neighbours had reported him to the authorities. The applicant also attempted to explain the inconsistencies that the RSA officer had identified in his evidence: CB 114-118; CB 269-270, pars 40-52.

   16. By a letter dated 5 September 2010, the applicant’s representative provided written submissions which outlined the applicant’s claims for protection, including a new claim that the applicant would face harm on the basis of his illegal departure from Sri Lanka and his subsequent claim for asylum in Australia: CB 119-121. The written submissions also took issue with the RSA officer’s adverse credibility findings (CB 121-124) and referred to various ICI said to support the applicant’s claims: CB 124-142; CB 270-271, pars 53-57.

   17. On 11 September 2010, the applicant attended an interview before the first Reviewer: CB 217-273, pars 58-71.

   18. On 9 November 2010 the applicant was notified that the first Reviewer had recommended that the applicant was not owed protection obligations: CB 143-169; CB 273, par 72.

   19. Following the High Court’s decision in Plaintiff M61/2010E,[4] the applicant was invited to a fresh review: CB 170-172. The applicant’s representative subsequently provided further written submissions in support of the applicant’s claims on 7 and 14 February and 7 March 2011: CB 173-174; CB 178-188; CB 190-193.

   The second Reviewer    

   20. The applicant was interviewed by a different Independents Merits Reviewer (the second Reviewer) on 14 February 2011: CB 273-276, pars 73-87. 

   21. On 11 November 2011, the applicant provided the Department with an undated letter from Rev. Fr. John Bosco: CB 194-195.

   22. On 5 May 2011, the second Reviewer also recommended that the applicant was not owed protection obligations (CB 276.3) but on 12 April 2012 Judge O’Dwyer made a declaration by consent that the second Reviewer had not afforded the applicant procedural fairness by failing to consider an integer of his claims: CB 196-197.”

   [4] Plaintiff M61/2010E v The Commonwealth of Australia op. cit.,

The process and recommendation of the third independent merits review

1. The process and recommendation of the third independent merits review (“IMR”) are accurately summarised by the solicitor for the first respondent in written submissions as follows:

   “23. The applicant was again invited to a fresh review and was interviewed by a different Reviewer (the third Reviewer and second respondent) on 12 June 2012: CB 276-281, pars 91-114.

   24. Prior to this interview, the applicant’s representative provided further written submissions further outlining the applicant’s claims for protection: CB 200-202. It was submitted that the applicant’s purported psychological problems and head injuries impacted on his ability to give evidence: CB 202. The submissions also took issue with previous adverse assessments that had been made of the applicant’s credibility (CB 203-205) and provided updated ICI in support of the applicant’s claims: CB 205-142.

   25. In addition, the written submissions set out the applicant’s claims to satisfy the complementary protection criterion in s 36(2)(aa) of the Act namely, that the applicant was at a real risk of significant harm from people smugglers and from the conditions he would face if he was imprisoned in Sri Lanka: CB 220-229. The applicant’s representative also provided a further written statement from the applicant which sought to correct a “mistake” made in his previous statements about how he travelled to Australia: CB 230-232; CB 276, pars 88-90.

   26. On 8 June 2012, the applicant’s representative provided the third Reviewer with copies of pages from the applicant’s passport: CB 233-236.

   27. On 19 June 2012, the third Reviewer wrote to the applicant inviting him to provide any further information he wished in support of his claims (CB 238) and his comment in writing on various ICI which the third Reviewer considered was relevant to the review: CB 239-241; CB 281, par 115.

   28. On 19 June 2012, the applicant’s representative provided copies of the written submissions that had previously been provided to the second Reviewer: CB 243.

   29. By a letter dated 2 July 2012, the applicant’s representative also responded to the third Reviewer’s invitation to comment on the relevant ICI: CB 246-260; CB 281-282, par 116.

   Recommendation of the third Reviewer

   30. On 20 August 2012, the third Reviewer recommended that the applicant was not a person to whom Australia owed protection obligations. As noted above, this recommendation is the subject of the applicant’s challenge in these proceedings.

   31. The third Reviewer was prepared to give the applicant the “benefit of the doubt” and accept his claims that his brother had worked as a truck driver transporting vegetables in Sri Lanka and that he had been detained and beaten in 2008 because he was suspected of working for the LTTE on account of his Tamil ethnicity and regular truck driving: CB 294-295, pars 138-139.

   32. The third Reviewer also accepted that the applicant had been detained on two occasions in 2009 by the SLA where he was forced to work and was beaten: CB 295, par 140. The third Reviewer did not accept, however, that the applicant was detained because he was suspected of being associated with the LTTE or because of his relationship with his brother and instead found on the basis of the accepted ICI that he had been detained on an arbitrary basis: CB 296, par 140.

   33. The third Reviewer also did not accept that the applicant had travelled with his brother on truck journeys. Given the identified “inconsistencies and shortcomings” in his evidence, the third Reviewer found that this claim was “created by him to bolster his claims of eligibility for Australia’s protection obligations”: CB 293, par 135.

   34. In reaching these findings, the third Reviewer expressly found that the applicant had a “sufficient degree of mental development and maturity to give evidence” and she did not accept that the “numerous discrepancies” in his evidence were explained by any of the factors advanced by his representative namely, the applicant’s young age, inexperience and alleged memory problems due to a head injury. The third Reviewer also had regard, whilst noting that the applicant was over 18 years of age, to the MRT-RRT Guidelines and information from the UNHCR about assessing the claims of minors and vulnerable persons: CB 292, pars 132-134.

   35. The third Reviewer was therefore not satisfied that there was a real chance that the applicant would be perceived as holding a political opinion on account of his brother’s previous arrest and suspected LTTE involvement or that he would otherwise come to the adverse attention of the authorities because he was a member of his brother’s family: CB 296, par 141.

   36. The third Reviewer also found on the basis of the applicant’s own evidence that since 2008 his brother was no longer the subject of adverse attention from the authorities and she did not accept as plausible the applicant’s claim that his brother was forced to sign a statement in late 2009 implicating the applicant as a LTTE supporter: CB 292-297, par 142.

   37. Whilst the third Reviewer accepted that there existed a particular social group of young Tamil males from the North, she did not accept on the basis of the ICI before her that the applicant would be perceived as an LTTE supporter for any of these factors individually or in combination (including that he was unmarried): CB 297, pars 143-144.

   38. Nor did the third Reviewer accept that any discrimination that the applicant may suffer for these reasons would amount to “serious harm” as defined by s 91R(2) of the Act: CB 298, par 144. The question of what constitutes “serious harm” within the meaning of s 91R was a question of fact and degree for the Reviewer as the sole arbiter of the facts.[5]

   39. The third Reviewer found further on the evidence before her that the applicant departed Sri Lanka on a passport in his own name and rejected his claim that his departure had been “illegal”: CB 298, par 145.

   40. The third Reviewer was also not satisfied that there was a real chance that the applicant would face harm due to security measures put in place by the authorities at Colombo airport. In particular, the third Reviewer did not accept on the basis of the accepted ICI that the authorities would suspect the applicant of being a supporter of the LTTE because of anything in his past, including his previous detentions, his travel to Australia via India and/or his claim for asylum in Australia: CB 298-299, pars 146-147. Nor did the IMR accept that there was a real chance that the applicant would be subjected to any harm in relation to his irregular boat travel from India to Australia which was facilitated by people smugglers: CB 300-301, par 149.

   41. The third Reviewer expressed doubts about the reliability of the applicant’s claim that his neighbours had reported him to the authorities but found, in any event, that even if such an allegation had been made the authorities would be unlikely to suspect the applicant in the absence of other evidence implicating him as a supporter of the LTTE. The third Reviewer also found that any enquiries made by the authorities with the applicant’s family concerning the applicant’s whereabouts were simply made in the ordinary course of investigating the absence of a missing family member who was registered at that address: CB 300, par 148.

   42. For these reasons, the third Reviewer was not satisfied that the applicant had a well-founded fear of persecution: CB 301, pars 150. These findings were open to the third Reviewer on the evidence before her and the Court cannot review the merits of her decision.[6]

   Complementary protection findings

   43. Having found that the applicant was not a person to whom Australia owed protection obligations under to Refugee Convention within the meaning of s 36(2)(a) of the Act (at CB 301, par 151), the third Reviewer properly proceeded to consider whether the applicant satisfied the complementary protection criterion set out in s 36(2)(aa).

   44. The third Reviewer did not accept that there was a real risk that the applicant would suffer significant harm from persons involved in (or associated with) the arrangements under which he travelled from India to Australia: CB 301, 152-153. In reaching this finding, the third Reviewer took into account the time which had expired since the applicant’s journey had taken place in early 2010, the Department’s confidential handling of information provided by offshore arrivals, the fact that his family had not received any adverse attention from the people smugglers (who had returned the applicant’s passport to his family) and the existence of a number of other asylum claimants on the boat: CB 301-302, pars 154-157.

   45. On the basis of the applicant’s own evidence that he had a national ID card, his passport was currently with his family and there was nothing preventing them from sending it to the applicant in Australia, the third Reviewer did not accept that the applicant would return to Sri Lanka undocumented: CB 302, par 158. The third Reviewer also relied on her previous rejection of the applicant’s claims that he would be perceived as an LTTE supporter by the authorities or that he would otherwise face harm at Colombo airport: CB 302, pars 159-160. The third Reviewer also found that there was no evidence before her to indicate that the applicant had breached any Sri Lankan laws and did not accept that he would be of adverse interest to the authorities merely because he had applied for asylum in Australia: CB 303, par 161.

   46. In light of her previous findings and the accepted ICI before her, the third Reviewer did not accept that there was a real risk that the applicant would be subject to detention on his arrival in Sri Lanka, the conditions of which would constitute torture, cruel or inhumane treatment of punishment, or degrading treatment or punishment as set out in subparagraphs 36(2A)(c),(d) and (e) of the Act. Nor did she accept that any discrimination faced by the applicant in accessing justice and other matters controlled by the Sri Lankan government would constitute substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm as defined by s 36(2A)(a)-(e) of the Act: CB 303, pars 162-163.” 

   [5] VBAS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 216 ALR 307 at [28] per Crennan J

   [6] Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 272

Proceeding before this Court

1. On 26 October 2012, the applicant filed an application seeking judicial review of the third independent merits review Assessor’s recommendations.

2. On 18 December 2012, the applicant was represented by Mr Karp, of counsel, at a directions hearing before me.

3. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the IMR interview, as well as submissions in support.

4. The applicant was unrepresented at the hearing this morning, although had the assistance of a Tamil interpreter.

5. At the commencement of the hearing, the applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.

1. The applicant confirmed that he relied on the grounds contained in an application filed on 26 October 2012 as follows:

   “1. The decision of the second respondent was affected by legal error in that in recommending to the first respondent that the applicant not be recognised as a person to whom Australia owes protection obligations the IMR was not procedurally fair.

   2. The decision of the second respondent was affected by legal error in that in recommending to the first respondent that the applicant not be recognised as a person to whom Australia owes protection obligations, the IMR did not proceed by reference to correct legal principles, correctly applied.”

2. Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Ground 1

1. Ground 1 was not supported by particulars, evidence, or submissions and makes a bare assertion that does not, by itself, disclose any error capable of review by this Court.

2. I asked the applicant in what way the IMR had been procedurally unfair. The applicant responded that he had been badly affected. He had nothing further to say.

3. A fair reading of the IMR and statement of reasons does not support the applicant’s bare assertion.

4. The applicant was interviewed at Darwin on 12 June 2012 as part of the process of the IMR in the presence of his migration advisor and with the assistance of a Tamil interpreter. The IMR Assessor’s statement of reasons first and correctly identified the relevant law to be applied to its findings. The statement of reasons then summarised the applicant’s claims and evidence given by him on 7 March 2010 at his entry interview on Christmas Island. The IMR Assessor then summarised the applicant’s RSA application, the RSA interview, and a post RSA statement of the applicant and submission by his advisor. The IMR Assessor then summarised the first IMR interview and recommendation and the second IMR interview and recommendation.

5. The IMR Assessor then referred to a statement by the applicant, dated 4 June 2012, provided in support of the third review in which he continued to rely on his previous evidence in support of his RSA and review requests.

6. At the third interview, the applicant’s claims were explored with him in significant detail and matters of concern arising from his evidence were put to him, and his responses were noted. The applicant’s advisor also made oral submissions. Further, the applicant was invited by letter, dated 19 June 2012, post interview, to provide any further information that he wished in support of his claims. A further letter, dated 19 June 2012 was sent to the applicant giving him particulars of country information adverse to his claims and inviting the applicant to comment. On 29 June 2012, the applicant’s representative responded to the IMR letters.

7. The IMR statement of reasons identified with particularity the country information to which it had regard.

8. Ultimately, the IMR Assessor comprehensively rejected the applicant’s claims of past harm for the reasons claimed. His claims and evidence were found to be unreliable and inconsistent both internally and with independent country information. He was found to be apolitical in his attitude towards the LTTE and the Government of Sri Lanka and it was not accepted that he would be perceived now or in the reasonably foreseeable future to be an LTTE supporter. It was also not accepted that the applicant faced serious harm as a returnee and failed asylum seeker. The IMR Assessor considered whether the applicant was owed protection obligations both as a Convention refugee and under the alternative criterion. The IMR Assessor concluded that the applicant is not a person to whom Australia has protection obligations either under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth). The findings made were open on the evidence and material and for the reasons given, including there adverse credibility findings. Credibility findings are a matter par excellence for the relevant decision maker (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

9. In the circumstances, the applicant had every opportunity to put his case forward and to meet the concerns raised by the IMR Assessor that were adverse to him.

10. A fair reading of the IMR statement of reasons does not support the applicant’s bare contention that the process was procedurally unfair. Quite to the contrary. The applicant has not identified any particular manner in which he says the IMR was conducted procedurally unfairly and none is apparent on the face of the IMR and its statement of reasons.

11. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 was not supported by particulars, evidence, or submissions and makes a bare assertion that does not, by itself, disclose any error capable of review by this Court..

2. The applicant had no submission to make in support of Ground 2 other than to assert again that he was badly affected.

3. To the extent that Ground 2 complains that the IMR “did not proceed by reference to correct legal principles, correctly applied”, a fair reading of the IMR statement of reasons does not support such a complaint. As stated above, the IMR Assessor clearly identified the relevant and correct legal principles to be considered and applied to the findings of fact that it made and upon which its conclusions were based. As stated above, the findings made were open on the evidence and material and for the reasons given.

4. I accept the submission of the solicitor for the first respondent, Mr Alderton, that the applicant has not said anything this morning to point to any error of law in the IMR and none is apparent on the face of the statement of reasons and review process.

5. Accordingly, Ground 2 is not made out.

Conclusion

1. A fair reading of the third IMR, including the statement of reasons, makes clear that the IMR Assessor understood the claims being made by the applicant; explored those claims with the applicant and his migration advisor at an interview; and, had regard to all material provided in support. The IMR Assessor put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The IMR Assessor also put to the applicant both at the interview and in writing independent country information before it that was adverse to the applicant’s claims and invited the applicant to comment upon it. The IMR Assessor then made findings based on the evidence and material before it. Those findings of fact were open on the evidence and material and for the reasons given. A fair reading of the IMR statement of reasons makes clear that conclusions were reached based on the findings made and to which the correct law was applied.

2. In the circumstances, the IMR recommendations that the applicant was not owed protection obligations were made according to law.

3. The proceeding before this Court should be dismissed with costs.

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

Associate: 

Date:  16 July 2013