SZTFG v Minister for Immigration & Border Protection

[2014] FCCA 2902

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTFG v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 2902

CATCHWORDS
MIGRATION – Review of conduct leading to recommendation of Independent Protection Assessment – whether recommendation made according to law – whether the Independent Protection Assessor failed to apply the test of serious harm in accordance with s.91R(2)(a) of the Migration Act 1958 (Cth) – whether an inference should be drawn that the Independent Protection Assessor made a finding that the applicant would be detained by authorities if he was returned by force to Sri Lanka – whether it was open to the Independent Protection Assessor to find that there was not a threat to the applicant’s liberty – no error of law – application dismissed.

Legislation
Constitution, s.75
Migration Act 1958 (Cth), ss.5, 5AA, 14, 36, 46A, 189, 195A, 91R, 476, Pt.7

Cases
Plaintiff M61/201 v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947
SZQPA v Minister for Immigration and Citizenship & Anor [2012]  FMCA 123
Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025

Applicant: SZTFG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: PENELOPE HUNTER IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER

File Number: SYG 2006 of 2013

Judgment of: Judge Emmett

Hearing date: 14 October 2014

Date of Last Submission: 14 October 2014

Delivered at: Sydney

Delivered on: 11 December 2014

REPRESENTATION

Counsel for the Applicant: Mr Paul Bodisco

Solicitors for the Applicant: Michaela Byers, Solicitor

Counsel for the Respondents: Mr Timothy Reilly

Solicitors for the Respondents: DLA Piper

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2006 of 2013

SZTFG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

PENELOPE HUNTER  IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of conduct leading to a recommendation by the second respondent, being an independent protection assessor (“the Assessor”), dated 20 October 2012 and handed down on 24 October 2012, that the applicant not be recognised as a person to whom Australia has protection obligations.

2. The applicant seeks an injunction restraining the first respondent from relying on the recommendation of the second respondent. The applicant also seeks a declaration that, in recommending to the first respondent that the applicant is not a person to whom Australia has protection obligations, the second respondent made an error of law.

3. The applicant claims to be a citizen of Sri Lanka and Tamil ethnicity and Hindu faith.

4. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims for protection and a summary of the second respondent’s conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations.

Background

1. On 1 December 2011, the applicant arrived in Australia at Christmas Island as an offshore entrant.

2. On 6 February 2012, an entry interview was conducted with the applicant by an officer of the Department of Immigration and Citizenship.

3. On 29 January 2012, the applicant made a request for a Protection Obligations Evaluation (“POE”).

4. On 8 March 2012, an officer of the Department of Immigration and Citizenship found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom Australia has protection obligations. On the same date, the applicant’s POE was referred for an Independent Protection Assessment (“IPA”). 

5. On 20 October 2012, the Assessor recommended that the applicant not be recognised as a person to whom Australia has protection obligations.

6. On 26 August 2013, the applicant filed an application in this Court seeking judicial review of the conduct leading to the Assessor’s recommendation.

Legislative framework relating to judicial review of the conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations

1. An applicant, being a non-citizen, who entered Australia at Christmas Island without valid travel documents at a time after the relevant ‘excision time’, and thereby became an unlawful non-citizen is an 'offshore entry person' (see s.14(1) of the Migration Act 1958 (Cth) (“the Act”)).

2. Section 5 of the Act relevantly provides the following definitions:

   “excised offshore place"  means any of the following:

   (a)     the Territory of Christmas Island; …

   …

   “excision time",  for an excised offshore place, means:

   (a)     for the Territory of Christmas Island--2 pm on 8 September 2001 by legal time in the Australian Capital Territory …

3. Section 5AA of the Act relevantly states the following:

   “Meaning of unauthorised maritime arrival

   (1)  For the purposes of this Act, a person is an unauthorised maritime arrival if:

   (a)  the person entered Australia by sea:

   (i)  at an excised offshore place at any time after the excision time for that place; or

   (ii)  at any other place at any time on or after the commencement of this section; and

   (b)  the person became an unlawful non-citizen because of that entry; and

   (c)  the person is not an excluded maritime arrival.

   Entered Australia by sea

   (2)  A person entered Australia by sea if:

   (a)  the person entered the migration zone except on an aircraft that landed in the migration zone; or

   (b)  the person entered the migration zone as a result of being found on a ship detained under section 245F and being dealt with under paragraph 245F(9)(a); or

   (c)  the person entered the migration zone after being rescued at sea.

   Excluded maritime arrival

   (3)  A person is an excluded maritime arrival if the person:

   (a)  is a New Zealand citizen who holds and produces a New Zealand passport that is in force; or

   (b)  is a non-citizen who holds and produces a passport that is in force and is endorsed with an authority to reside indefinitely on Norfolk Island; or

   (c)  is included in a prescribed class of persons.

   Definitions

   (4)  In this section:

   “aircraft” has the same meaning as in section 245A.

   “ship” has the meaning given by section 245A.”

4. Section 46A of the Act relevantly provides:

   “(1)  An application for a visa is not a valid application if it is made by an offshore entry person who:

   (a)  is in Australia; and

   (b)  is an unlawful non-citizen.

   (2)    If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.

   (3)    The power under subsection (2) may only be exercised by the Minister personally.

   …

   (7)    The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.”

5. Similarly, s.195A of the Act relevantly provides:

   “Persons to whom section applies

   (1)     This section applies to a person who is in detention under section 189.

   Minister may grant visa

   (2)     If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

   (3)     In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.

   Minister not under duty to consider whether to exercise power

   (4)     The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

   Minister to exercise power personally

   (5)     The power under subsection (2) may only be exercised by the Minister personally.”

6. As the poe (previously Refugee Status Assessment) and ipa (previously Independent Merits Review) processes do not arise from the valid application of a visa, they are not reviews conducted by the Refugee Review Tribunal. Accordingly, the procedural fairness obligations prescribed in Part 7 Division 4 of the Act do not apply. Instead, the principles of common law procedural fairness apply (see Plaintiff M61/201 v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at [91] (“M61”).

7. In M61, the High Court held that mandamus will not issue to compel the Minister to reconsider exercising the power given by ss.46A or 195A of the Act, and that the unavailability of mandamus meant that there was no utility in granting certiorari to quash the IPA recommendation (see M61 at [99-100]). However, an applicant may be able to injunct the first respondent from acting upon a recommendation of an Independent Protection Assessor.

The applicant’s request for Protection Obligations Evaluation  

1. In support of his protection visa application, the applicant provided a statutory declaration in which he claimed that:

   a)The applicant had his life threatened in Sri Lanka by para military groups which operate with the Sri Lankan Army (“SLA”).

   b)The applicant had a friend, Mano, who ran a phone shop, and another friend, Babi, who was a trishaw driver. The applicant would occasionally help his friend Mano at the phone shop, and the three of them would go to the beach and drink.

   c)One day the applicant went to see Mano, who informed the applicant that Babi had been taken by the SLA.

   d)The SLA later called the applicant and asked him questions about his friendship with Babi. The caller asked the applicant whether he knew about the whereabouts of Babi. The applicant stated that Babi had been taken by the SLA. The caller denied this and stated that the applicant was missing. The SLA requested that the applicant attend an SLA camp in order to answer more questions. The applicant did not attend.

   e)The SLA called the applicant again, and the call was answered by the applicant’s mother. The SLA insisted that the applicant attend an SLA camp, however, the applicant was worried that if he did so, he would not return, as had been the case with others.

   f)The applicant finally agreed to attend the SLA camp after being threatened again.

   g)The applicant was later informed that Babi may have been an intelligence officer for the Liberation Tigers of Tamil Elam (“the LTTE”). Nobody approached or talked to the applicant about Babi for another 2-3 weeks, when another of the applicant’s friends was wounded in an attack. The applicant went to visit the friend in hospital.

   h)The applicant returned from the hospital with another friend on a bicycle and noticed that he was being followed by a motorbike. The applicant had something sprayed in his face by the motorbike passenger and fell down. A white van pulled up beside the applicant, whereupon the applicant ran away.

   i)When the applicant returned home to his family, he told them what had happened. His family moved him around “to a few different places” before the applicant finally settled with an uncle in Colombo. The applicant was the subject of “many restrictions” while in Colombo. The applicant was so fearful for his life that he asked his uncle to send him out of Sri Lanka.

2. On 8 March 2012, an officer of the Department of Immigration and Citizenship found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom Australia had protection obligations under the Convention. 

3. The officer noted that in addition to the applicant’s written claims, the applicant supplied documentary evidence to show that he had registered with the United Nations High Commissioner for Refugees (“UNHCR”) in Malaysia on 13 April 2011 and Indonesia on 24 October 2011. No further information had been received from the UNHCR as to the applicant’s refugee status.

4. The officer further noted that the applicant claimed to have departed Sri Lanka for India in September 2007. The applicant then departed India in September 2009, transited through Singapore, resided in Malaysia for a period of approximately two years, then resided in Indonesia before departing for Australia by boat.

5. The officer found that the applicant’s claimed fear of the SLA was not genuine. The officer referred to the applicant’s conduct in visiting his friend in hospital and found it improbable that the applicant would have risked detection by the SLA had he been threatened, as claimed.

6. The officer also noted that there was no further contact between the SLA and the applicant in the intervening 2-3 weeks before the applicant departed for Colombo. The officer found that, were the applicant of genuine interest to the SLA, it would be reasonable to expect further contact, at least by phone but more likely in person.

7. On the basis of these findings, the officer was not satisfied that the applicant had been contacted by the SLA, nor that he was a person of interest to them. Consequently, the officer was not satisfied that the applicant would be arrested, detained or harmed by the SLA, were he to return to Sri Lanka.

Independent Protection Assessment and conduct leading to recommendation

1. On 8 March 2012, the applicant’s POE was referred for an Independent Protection Assessment.

2. The applicant provided further documents in support of his review application, including further written submissions and country information and a mental health assessment of the applicant.

3. On 3 August 2012, the applicant was interviewed by the Assessor. The applicant’s migration agent was present and the interview was conducted with the assistance of a Tamil interpreter, who appeared by telephone.

4. The Assessor noted that she had before her the Department of Immigration’s file and other materials available to it from a range of sources.

5. The Assessor did not find the applicant to be a generally reliable witness, particularly in his perception of certain events. The Assessor found that the applicant had made significant additions to his original claims, such as claims relating to torture and recent inquiries as to his whereabouts, that were not true and were embellishments designed to assist his application for protection or address perceived weaknesses in his claim.

6. The Assessor had regard to a mental health assessment provided by the applicant. The Assessor noted that the counsellor had not identified any particular incidents of torture or trauma involving the applicant, which the Assessor found limited the weight to be given to the report.

7. The Assessor accepted that the applicant had a friend named Mano who ran a phone shop and that he also had a friend named Babi. The Assessor did not accept that Babi was an LTTE intelligence officer.

8. The Assessor accepted that two to three weeks after the applicant heard that Babi had been detained, the applicant had been contacted by the SLA by telephone. The Assessor also accepted that a subsequent telephone call was received by the applicant from the SLA which was more insistent that he attend an SLA camp and that abusive language may have been used. The Assessor found that this was not due to any increased interest in the applicant, but rather because the applicant had ignored the previous SLA request.

9. The Assessor did not accept that it was the intention of the SLA to detain the applicant indefinitely or to torture him. The Assessor found that the applicant was not suspected of any association with the LTTE, despite his association with Babi, and that he was of no great interest to the SLA.

10. The Assessor considered the applicant’s claims in relation to the abduction attempt involving a white van. The Assessor found that the incident was random and that the applicant had not been under any form of surveillance prior to the incident. The Assessor further found that had this incident been a genuine attempt to abduct the applicant due to a suspected involvement with the LTTE, there would have been subsequent enquiries made of his family following the incident.

11. The Assessor accepted that, following the alleged abduction attempt, the applicant travelled to Colombo to live with his uncle. The Assessor found that the applicant subsequently left Sri Lanka on a passport issued in his own name. The Assessor found that had the applicant been of any adverse interest to the Sri Lankan authorities, he would not have been able to acquire a passport in his own name or leave in the manner he did. The Assessor rejected as an embellishment the applicant’s assertion that his passport was forged.

12. Further, the Assessor did not accept that the applicant could have returned to Sri Lanka without incident in August 2009 and subsequently departed again, if he was of adverse interest to the Sri Lankan Authorities.

13. The Assessor did not accept the applicant’s claim that six weeks prior to the interview with the Assessor, unknown men had attended the applicant’s home in Sri Lanka and made inquiries of the applicant’s sister. The Assessor found it illogical that the authorities would show no interest in the applicant and then conveniently make inquiries before his interview with the Assessor. The Assessor considered this to be a further example of the applicant embellishing his claims and as being indicative of the unreliable nature of his evidence.

14. The Assessor accepted that the applicant may have a subjective fear of harm if returned to Sri Lanka but, on the basis of country information, did not accept that there was any objective basis for this fear. The Assessor did not accept that the applicant would be of any interest to Sri Lankan Authorities or pro-government paramilitary groups were he to return to Sri Lanka. The Assessor also did not accept that the applicant faced a real chance that he would experience significant economic hardship or denial of capacity to subsist based upon his ethnicity.

15. Finally, the Assessor considered the applicant’s claim that, as a failed asylum seeker, the applicant would be detained and subjected to persecution. The Assessor found that the applicant does not have a profile that would make him of adverse interest to the Sri Lankan Authorities because the applicant: did not have an outstanding arrest warrant; has no criminal record; has no actual or imputed connection with the LTTE; departed Sri Lanka legally; and, had documents to prove his identity.

16. Based on country information, the Assessor accepted that those suspected of being LTTE members or alleged to have a criminal record may face a risk of harm. However, the Assessor found that the applicant had no such profile.

17. The Assessor considered the applicant’s claims, both separately and cumulatively, and concluded that the applicant did not hold a well-founded fear of persecution in Sri Lanka for a Convention reason.

18. On the basis of her previous findings of fact, the Assessor found that there were not substantial grounds for believing that there was a real risk that the applicant would suffer significant harm and therefore did not satisfy the complementary protection criterion pursuant to s.36(2)(aa) of the Act.

The proceeding before this Court

1. The applicant was represented before this Court by Mr Paul Bodisco, of counsel.

2. The applicant relied on the ground contained in an Amended Application filed in Court at the hearing, by consent. That ground is as follows:

   “GROUND ONE:

   The RRT has applied the wrong test pursuant to section 91R(2)(a) of the Migration Act 1958 (Cth) and/or asked itself the wrong question.

   Particulars

   a. By undergoing a qualitative assessment of the nature and degree of the harm experienced by the applicant when being questioned and investigated by the authorities at the airport, the reviewer failed to apply the test of serious harm pursuant to s 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protection & Another [2014] FCA 947 at [30] and [45].”

1. Counsel for the applicant, Mr Bodisco, contended that the greater scrutiny that the Assessor found that the applicant may face by way of questioning and investigation by Sri Lankan authorities as a Tamil male from the North, led to the reasonable inference that such a process could lead to the applicant’s detention. Mr Bodisco submitted that, in such circumstances, the Assessor should have found that there was a threat to the applicant’s liberty and that, accordingly, pursuant to s.91R(2)(a) of the Act, the applicant was at risk of serious harm.

2. In support, Mr Bodisco referred the Court to WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (“WZAPN”) where North J stated at [30] and [45] as follows:

   “30. The conclusion from the language and structure of s.91R(2) is that serious harm in s.91R(1)(b) is constituted by a threat to life or liberty, without reference to the severity of the consequences to life or liberty.

   …

   45. By making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s.91R(2)(a), and thereby fell into jurisdictional error.”

3. In further support, Mr Bodisco referred to SZQPA v Minister for Immigration [2012] FMCA 123 at [29] where Driver FM stated as follows:

   “29. In my view, the error in the Reviewer’s approach was to focus on the likely outcome of the possible detention and interrogation of the applicant on return to Sri Lanka rather than to consider the process of interrogation to which he would be subjected and the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities that he was not an active LTTE member or supporter, notwithstanding his family’s connection with the LTTE and his own role. It would be arguably possible to characterise the error as a failure to address part of the applicant’s claims, or as a finding for which there was no evidence or which was illogical or irrational or as a failure to have regard to relevant evidence. Those grounds are, however, pointers to the real problem. The Real problem was that, except in relation to the issue of arms caches, the Reviewer focused on the ultimate outcome of interrogation and detention rather than the process of detention and interrogation itself.”

4. The approach of Driver FM was upheld on appeal by Gilmour J in Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025.

5. The ratio behind the decision in WZAPN is a finding that the asylum seeker was in fact detained. However, in the case before this Court, a fair reading of the Assessor’s reasons overall does not support a finding by the Assessor that the applicant would be detained.

6. The decision record of the Assessor makes clear that it understood that the agent for the applicant submitted that the applicant “will be identified at the airport, detained and subject to persecution.”

7. However, the Assessor did not accept that submission.

8. The Assessor did accept that the applicant may face questioning and investigation by the Sri Lankan Authorities, if forced to return. The Assessor stated that she had closely reviewed the country information on the fate of Tamils returning to Sri Lanka and considered the report from Amnesty International regarding reports of Tamil asylum seekers who have been detained and tortured upon their return to Sri Lanka. From a thorough review of this information the Assessor did not accept that all failed asylum seekers are subject to serious harm amounting to persecution. The Assessor found that a balanced consideration of the information led to the conclusion that individuals with a particular profile may face problems on their return because of their profile, such as being suspected of being an LTTE member or having a criminal record. However, the Assessor found that the applicant does not have any profile that would give rise to a real chance of persecution.

9. As stated above, the Assessor accepted the possibility that, if forced to return, the applicant may face questioning and investigation by authorities and, as a Tamil from the North, may face greater scrutiny. However, the Assessor did not accept that the applicant would be questioned harshly or that the process of questioning could give rise to serious harm. The Assessor concluded that the applicant did not fall within any of the risk categories identified in country information.

10. The Assessor found that the applicant’s particular circumstances were such that he did not have an outstanding arrest warrant, had no criminal record, had no actual or imputed connection to the LTTE, departed the country legally on his own valid passport, and was not involved with the media or Non-Government Organisations. The Assessor also noted that the applicant had documentation that proved his identity. The Assessor concluded that the applicant did not have a profile that would make him of interest to the Sri Lankan Authorities if he returned now, or in the reasonably foreseeable future. The Assessor concluded that on the country information before it and the particular circumstances of the applicant, he did not have any profile that would give rise to a real chance of persecution on his return.

11. I accept the submission of the first respondent that there is nothing on the face of the Assessor’s decision record to suggest that the Assessor thought that the possibility of questioning and investigation was itself detention, or would lead to detention. The Assessor made no finding that the applicant would be detained by authorities on his return.

12. The applicant conceded, through counsel, that in the event that I was to find that the Assessor had not made a finding that the applicant would be detained by authorities on his return or that one should draw such an inference, the applicant must fail.

13. In my view, such an inference should not be drawn in light of the failure of the Assessor, having had regard to all the evidence and material before her, to make a finding to that effect and in the context of a clear acknowledgement by the assessor that the applicant had made such a claim. In such circumstances, I draw the inference that the Assessor was not satisfied that the applicant faced a real chance of detention if returned by force to Sri Lanka.

14. Accordingly, the ground relied upon by the applicant is not made out.

Conclusion

1. A fair reading of the Assessor’s decision record makes clear that the Assessor understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Assessor put to the applicant matters of concern she had about his evidence and noted the applicant’s responses. The Assessor identified independent country information to which it had regard. The Assessor also put to the applicant independent country information to which she had regard and invited the applicant to comment upon it.

2. The Assessor then made findings based on the evidence and material before her. Those findings of fact were open to the Assessor on the evidence and material before her and for the reasons she gave. A fair reading of the Assessor’s decision record makes clear that the Assessor reached conclusions based on the findings made by her and to which she applied the correct law.

3. In the circumstances, the Assessor complied with her obligations under the statutory regime in the making of her decision, including the conduct of her review.

4. The Assessor’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

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

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Emmett J

Associate: 

Date:             11 December 2014