SZUBX v Minister for Immigration & Anor
[2015] FCCA 2822
•9 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUBX v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2822 |
| Catchwords: MIGRATION – International Treaties Obligation Assessment – Protection (Class XA) Visa – procedural fairness – whether the assessor incorrectly focused upon previous adverse findings rather than the underlying reasoning in relation to the applicant’s claims and fears – jurisdictional error – application allowed – declaration that the report of the IMA Protection NSW Case Officer, was procedurally unfair. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 |
| Applicant: | SZUBX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | RICHARD COREY, IMA PROTECTION NSW, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 1487 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 9 October 2015 |
| Date of Last Submission: | 9 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 9 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Michaela Byers Solicitor |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Sparke Helmore |
DECLARATION
The report of the IMA Protection NSW Case Officer, dated 28 May 2015, was procedurally unfair and was not made in accordance with law.
ORDERS
The First Respondent pay the Applicant’s costs fixed in the amount of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1487 of 2015
| SZUBX |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| RICHARD COREY, IMA PROTECTION NSW, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of an ITOA assessment dated 28 May 2015. The applicant arrived in Australia on 10 December 2009 as an irregular maritime arrival and was found to be a citizen of Sri Lanka. On 13 February 2015 the applicant was invited to attend an interview regarding international treaties assessment which provided (CB93):
On 31 October 2014 the Department of Immigration and Border Protection (the department) commenced an International Treaties Obligations Assessment (ITOA) in order to assess whether the circumstances of your case engage Australia's non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights and its Second Optional Protocol
As previously advised this ITOA will assess whether there are any non-refoulement concerns which would prevent the department from progressing removal arrangements in your case
The applicant applied for a refugee status assessment on 28 January 2010, and identified certain fears. The RSA decision made adverse findings in relation to the applicant’s claim to be a refugee. On 29 March 2010 the applicant lodged an application for an independent merits review. Further claims were advanced and the applicant attending an interview in support of that independent merits review and the independent merits review, on 27 August 2010, found the applicant did not have a well-founded fear of persecution on a Convention ground and that he should not be recognised as a refugee.
In October 2010 a Departmental removal assessment found the applicant did not engage Australia’s non-refoulement obligations. The applicant was offered the opportunity of a second independent merits review, and on 19 July 2011 the second independent merits review found the applicant did not have a well-founded fear of persecution on a Convention ground, and that he should not be recognised as a refugee. On 26 April 2012 there was initiated a post-review protection check, in which the applicant’s claims were found not to meet the guidelines.
The applicant appealed to the Federal Magistrates Court on 12 August 2011, and on 12 September 2012 that Court found that none of the claims had been established and the appeal was dismissed. There was an appeal to the Full Federal Court on 3 October 2012, which was dismissed on 18 April 2013. Application for special leave was unsuccessful and dismissed on 12 March 2014. On 31 October 2014, a ministerial intervention request was made, and the outcome of that ministerial intervention request is one that is still pending, dependent on the results of the ITOA assessment the subject of these proceedings.
The grounds of the application are as follows:
1. The Second Respondent misdirected himself and/or asked himself the wrong question.
Particulars
a. At page 21 the Second Respondent wrote:
"The claimant was informed that the ITOA interview was an opportunity for him to explain why he disagreed with the findings of previous officers. It was also put to the claimant that it ·was open to the decision maker to apply the same reasoning in previous assessment if it still applied in his current situation".
b. The Second respondent's task was set out on page 1 of the notification letter:
“Assess whether the circumstances of your case engage Australia's non-refoulement obligations.”
c. Previous decisions were assessed using different criteria and provisions from the non-refoulement obligations and the purpose of the ITOA process was not to refute the findings of the previous officers.
d. The Second Respondent failed in his task to assess whether the applicant's circumstances engaged Australia's non-refoulement obligations and fell into jurisdictional error.
There was a second ground, which counsel for the applicant did not press. Counsel for the applicant was correct not to do so, as the second ground was without substance. In relation to the first ground, counsel for the applicant took the Court to the letter dated 13 February 2015, inviting the applicant to attend an interview for the purpose of assessing whether there are any non-refoulement concerns which would prevent the Department from progressing removal arrangements in the applicant’s case.
That interview that the applicant was invited to attend, by the letter dated 13 February 2015, was held on 13 March 2015. The interview is one that was referred to in the assessor’s reasoning under a heading Procedural Fairness. Relevantly, what was said was (CB140):
Adverse information was put to the claimant for comment during the interview.
It would be entirely appropriate for the assessor to put adverse information to the applicant for comment, and indeed procedural fairness would require the assessor to do so. Adverse information, however, is information referable to the applicant’s claims and fears in respect of being returned to Sri Lanka. Adverse information is not the findings made by earlier officers of the Department. In relation to claims relating to LTTE activity and imputed pro LTTE political opinion, the assessor records (CB141):
Adverse findings on these claims from the claimant’s previous IMR decisions were put to him for comment.
This emphasis on adverse findings is a deflection from the focus that the assessor was required to undertake in assessing the non-refoulement obligations in respect of the claims and fears of the applicant. Whilst the reasoning underlying the findings of previous IMR decisions would have been an entirely appropriate matter to put to the applicant for comment, I accept counsel for the applicant’s submission that to focus the applicant on commenting on adverse findings was not focusing on the correct question to determine whether Australia had a non-refoulement obligation in respect of this applicant in light of the claims and fears of this applicant.
Counsel for the applicant focused on part of the reasons under a heading “Findings of Fact (Credibility)”. That heading was picked up in further parts of the report incorporating the reasoning under that heading. There are four further references by the assessor to the reasoning under that heading. In the reasoning under that heading there is the following paragraph:
During the interview, it was explained to the claimant that while I intended to make a fresh assessment of his protection claims in assessing his current ITOA, I may have regard to assessments made by previous officers. The claimant confirmed he had read those decisions and that the reasons for him not being found to be a refugee were explained to him. The claimant was informed that the ITOA interview was an opportunity for him to explain why he disagreed with the findings of previous officers. It was also put to the claimant that it was open to the decision maker to apply the same reasoning in previous assessments if it still applied in his current situation
(emphasis added)
Mr Bodisco, counsel for the applicant, accepted that the last sentence was not a matter that could give rise to complaint. The kernel of the argument advanced by Mr Bodisco focused on the penultimate sentence, which relevantly identified the process of the interview to which the applicant was invited to attend by a letter of 13 February 2015, to assess whether there are any non-refoulement concerns in relation to the applicant. That penultimate sentence clearly focused upon findings of previous officers.
Whilst I accept the force of the first respondent’s submission, that the assessment report should not be read with a keen eye for error and should be read a whole, the problem is that this second-last sentence focuses upon an important part of the process that was to be undertaken in this case. That ITOA interview process is one in which the second-last sentence reflects the applicant being informed that the interview “was an opportunity for him to explain why he disagreed with the findings of previous officers”.
As a matter of law, that is not a correct focus in relation to whether Australia has any non-refoulement obligation in relation to the applicant. Moreover, to conduct the ITOA interview on the basis that is an opportunity for the applicant to explain why he disagrees with findings of previous officers clearly deflects from assessment of the claims and fears of the applicant in respect of the issue of non-refoulement.
Whilst it was perfectly permissible for the assessor to focus upon the underlying reasoning of earlier findings, or indeed to raise an earlier finding in the process of addressing the underlying reasoning, it was not relevant to the assessment of whether Australia owed the applicant a non-refoulement obligation to ascertain why the applicant disagreed with the findings of previous officers.
I accept Mr Bodisco of counsel’s submission that it was procedurally unfair to conduct the ITOA interview on the basis that it was an opportunity for the applicant to explain why he disagreed with the findings of previous officers when the invitation that had been made was to attend an interview for the purpose of assessing the non-refoulement obligations allegedly owed by Australia to the applicant.
I also accept Mr Bodisco of counsel’s submission that, in substance, the assessor deflected himself from the appropriate task by focusing upon explanations as to disagreement with the findings of previous officers, which anchored the assessor to a focus upon adverse findings rather than the underlying reasoning in relation to the applicant’s claims and fears.
Mr Smith, counsel on behalf of the respondent, put that the assessor had clearly engaged in an independent assessment of the credit of the applicant. Whilst there is a focus in the report upon an independent assessment, and, indeed, the opening sentence of the paragraph referred to above identifies the notion of a fresh assessment, the reasoning of the Assessor does not in fact reflect a fresh assessment being carried out.
Materially, those adverse findings, and purported fresh assessment, were done in circumstances where the interview process was procedurally unfair in the circumstances of this case. In this regard, the focus by the assessor, on what were adverse findings rather than adverse information, becomes clear from the reasoning relevantly as follows (CB141-148):
It was put to the claimant that his first IMR found that carrying goods for the LTTE as a high school student had not given him a profile as an LTTE supporter with the authorities, police or SLA. In response, the claimant stated that the LTTE forced him to carry goods for them. When the question was repeated, the claimant stated that if they did not know, he would not have this problem. It was put to the claimant that the second IMR had made the same finding, to which he responded that he was living in an SLA-controlled area and the SLA knew that he was doing this work for the LTTE. When asked why he was allowed to pass through checkpoints with goods for the LTTE if the SLA knew what he was doing, he stated that he had told the LTTE that the SLA suspected him, and that the LTTE people got angry with him and took him to their area. He said that after this the SLA and CID people came looking for him, that they had his photo, and had a list of people who had worked for the LTTE.
It was put to the claimant that his first IMR found that he may have been briefly detained by the SLA, but he had not been badly beaten. It was put to the claimant that this was because he had not made this claim in his Entry interview or RSA application, and that it was reasonable to expect that such an important claim would have been made earlier if it was truthful. In response, the claimant stated that he told them that he had been beaten when he was a student, and that his mother came to the camp to get him out. He also stated that he had mental problems while he was in Malaysia, and that the journey to Australia was stressful. He said that he did not remember to speak about this at the time because of his mental state, that he could not remember his previous interview. It was put to the claimant that the second IMR had made the same finding, to which he responded that the army assaulted him, that he had a headache, and that he did not have any evidence of having been assaulted. It was put to the claimant that the second IMR also found this claim not to be credible because it had not been mentioned in the Entry interview or RSA application. In response, he stated that he had told the UNHCR about the assault by the SLA and they had given him a card, and he came to Australia with the UNHCR card. He said he thought that the UNHCR card would be accepted, and that he would not have to explain everything that had happened to him.
It was put to the claimant that the first IMR did not accept that the CID took an interest in him, or reported him to the Army, because if the CID was interested in him they would have searched him each time he passed through a checkpoint, and he had made no such claim. In response, the claimant stated that if he did not have a problem with the CID he would not have left the country, he was stopped and searched so he was unable to attend classes, and the SLA had his photograph at a camp. He again stated that his mental state on arrival did not allow him to remember, and he did not talk about everything that had happened to him because he had a UNHCR card and thought the card would be accepted.
It was put to the claimant that the first IMR did not accept that the LTTE would have employed him if they suspected that he supported the EPDP because of his cousin's involvement. In response, the claimant stated that the LTTE forcibly recruited him, did not care about his well-being, and wanted to use him for their purposes. It was put to the claimant that the second IMR found that he had contradicted himself regarding his relationship with the LTTE. It found that he stated in his second IMR interview that he supported the LTTE because his village was under LTTE control and did not want to join the EPDP, and that this contradicted his claim to have been forced to work for the LTTE, and to have resisted attempts to force him to join the LTTE. In response, the claimant stated that this was what he had said, that the LTTE took him by force and threatened him with guns. When the question was repeated with emphasis on the contradiction found in the second IMR, the claimant again stated that he was forced to support the LTTE, was living in an LTTE village and had to support the LTTE.
It was put to the claimant that the second IMR found that LTTE members did not go his family's house after his departure to Malaysia and threaten his family, because it was not plausible that the LTTE considered him to have important knowledge of their activities when he had only carried goods for them as a school student, and trained with the LTTE for 15 days. In response, the claimant stated that he had been told that after he left Sri Lanka LTTE people and came to his home and asked for him, as did the SLA. When the question was repeated, he stated that the LTTE had no law, and that if people ran away from training they came and took them to their camps. He said that because he lived in a Tamil area, the LTTE had all the information, could do anything, and go anywhere.
It was put to the claimant that the second IMR found that he had given a total of five different, and in some cases conflicting, reasons for why he made new claims after his negative RSA outcome, and in his first IMR submission and interview. The second IMR did not accept any of these reasons, because it was reasonable to expect that the claimant would have provided a consistent explanation for why he had made new claims after his RSA assessment. In response, the claimant stated that the reason was that there had been a five-year gap between the incidents and his arrival in Australia. He said that he could not remember what had happened, that because of his state of mind he forgot a few things, and that he did not have medical treatment in Malaysia. When it was put to him that the second IMR did not accept any of these claims, the claimant stated that because of his state of mind he could not give answers in detail, and did not have the capacity to explain the whole thing at one time. He stated that he always lived with memories of the past and fear that he would be killed, and that he was always stressed.
It was put to the claimant that information sourced from DFAT indicated that 'because of the pervasiveness of LTTE control in the north and east during the civil conflict, most Tamils from these areas are likely to have provided a low-level of material support to the LTTE'. It was put to the claimant that DFAT assessed that Tamil civilians who were not members of the LTTE, but who provided low-level support to the LTTE, were at a low risk of being detained or prosecuted. In response, the claimant stated that anyone who helped the LITE at all was treated as an LTTE supporter by the SLA, and always arrested and punished. He said that he trained with the LTTE for 15 days, gave all sorts of help and support to them, and that the SLA knew about it.
…
It was put to the claimant that his RSA found that he would not be of interest to the Karuna group if he returned to Sri Lanka, because he did not have a significant profile in Sri Lanka, and seven years had passed since his departure. …
It was put to the claimant that the first IMR found that his family had not been harassed by the Karuna group, and that the Karuna group had no ongoing interest in his family. …
It was put to the claimant that the second IMR found it implausible that LTTE members who had previously tried to recruit him into the LTTE later wanted to harm him after they joined the Karuna group, because the Karuna group was opposed to the LTTE, and so would have looked positively on the claimant having resisted joining the LTTE. …It was put to the claimant that this was the point of the second IMR finding; that the person who forcibly recruited him into the LTTE would know that he did not want to join the LTTE, and was not actually an LTTE supporter, and consequently would not seek to harm him on that basis. In response, the claimant stated that all of the people who were later sought by the Karuna group were forcibly recruited by those people.
…It was put to the claimant that the second IMR did not accept that the Karuna group told the Army that he had supported the LTTE. …
It was put to the claimant that both IMR reviewers gave little or no weight to the letter provided from the Bishop of [X], the two police reports, the affidavit from his family, or the letter from his mother. It was put to the claimant that both IMR reviewers found that these documents were attempts to bolster his case, because the documents were submitted after the RSA assessment, and because the documents were based on information provided by his family rather than independent corroboration of his claims.
…
It was put to the claimant that the first IMR did not accept that he had been threatened by a Sri Lankan official while detained with other asylum seekers in Malaysia, or that the official took or was given the detainees' personal details. It was put to the claimant that this finding was based on the available country information, and information sourced from the UNHCR. …
It was put to the claimant that the second IMR did not accept that he had been threatened by a Sri Lankan official while detained with other asylum seekers in Malaysia, or that the official took or was given the detainees' personal details. It was put to the claimant that this was because the IMR had doubts about his credibility as a witness, because the UNHCR advised that they were not aware of any threats having been made by the official, and because it was implausible that the official would threaten the detainees if he wanted them to return to Sri Lanka.
(emphasis added)
This is a case where it is clear that the assessor focused on findings, and, consistent with what was said in the second-last sentence, in the paragraph identified above under the heading of ‘Findings of Fact (Credibility)’. It does appear to be the case that the assessor treated that interview as an opportunity to put to the applicant adverse findings of previous officers, and invite the applicant to explain why he disagreed with those adverse findings.
Mr Smith endeavoured to suggest that this was a case of introducing the topics, and that it was clear that the underlying reasoning was also developed. Whilst there is some force in the proposition that some of the underlying reasoning was developed, it is clear that there was a focus in this case upon the findings by the earlier officers rather than on the reasoning process.
In particular, on Court Book p.142, the reference, “When the question was repeated with emphasis on the contradiction found in the second IMR,” reveals the over-focus and anchoring effect in the present case by the assessor to a task of seeking explanation on adverse findings that was not the correct task that the assessor was required to undertake in determining whether Australia owed the applicant non-refoulement obligation.
This is not a case where it can be said there was no practical injustice in the interview conducted in this deflected and anchored way. In these circumstances, the applicant is entitled to declaratory relief that the report was not made in accordance with law and was procedurally unfair. The applicant has also sought injunctive relief.
Consistent with the decision of the Full Federal Court, SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 at [152], if the Court makes a declaration that the report has not been made in accordance with law and is procedurally unfair, no minister could make a valid decision based on that report. In those circumstances, I accept that it is not necessary to grant any injunctive relief.
Accordingly, the applicant is entitled to declaratory relief.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 21 October 2015
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