WZARV v MINISTER FOR IMMIGRATION & ANOR
[2013] FCCA 1556
•14 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZARV v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1556 |
| Catchwords: MIGRATION – Application for judicial review of Independent Merits Reviewer decision – whether matter should be adjourned to make possible pro-bono representation – substantial insufficiently-explained delay by applicant in seeking representation – matter proceeding – Reviewer’s decision open on the materials and not subject to jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.701 Migration Act 1958 (Cth), ss.5(1), 36(2), 36(2A), 91R |
| Applicant: | WZARV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMOGEN SELLEY IN HER CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 266 of 2012 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 25 July 2013 |
| Date of Last Submission: | 25 July 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 14 October 2013 |
REPRESENTATION
| The Applicant: | In Person, assisted by Mr Somarsundrum |
| Counsel for the First Respondent: | Mr Alderton |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Pursuant to r.701 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 266 of 2012
| WZARV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMOGEN SELLEY IN HER CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This matter is an application for judicial review filed 5 November 2012 of a decision of an Independent Merits Reviewer (“the Reviewer”). The Reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations because he did not meet the criteria for a Protection (Class XA) visa set out in s.36(2) of the Migration Act 1958 (Cth) (“the Act”).
When the matter was first called before the Court the applicant, with the assistance of a social worker supporter, made application for an adjournment to attempt to obtain pro bono legal representation. I indicated at the time that I would not grant that application for adjournment and would give my reasons in my decision. Those reasons will follow shortly.
For the reasons that follow thereafter I do not think that the criticisms advanced by the applicant of the Reviewer’s decision are made out, and it follows that the application will be dismissed.
The application for adjournment
The application for the adjournment could only be understood properly in the context of the procedural history of the matter. The application filed on 5 November 2012 is handwritten and in some parts the applicant’s writing is simply indecipherable. The one thing that is clear is that the grounds of application appear to assert jurisdictional error or something to that effect. The two words “jurisdictional error” are the only matters set out under the heading “Grounds of application”.
The affidavit sworn in support of the application, also filed on 5 November 2012, adds nothing in that all that was done was a copy of the Reviewer’s decision was annexed.
The respondent filed a response in due course and on 3 December 2012 Federal Magistrate Lucev made interlocutory orders which inter alia required the applicant to file and serve any affidavit evidence including any transcript on or before 28 January 2013, together with any amended application and in due course written legal submissions. The matter was listed for trial on 25 March 2013.
From correspondence on the Court file, dated 6 March 2013, an officer of the Court wrote to the parties relisting the matter for trial on 25 July 2013, and stating inter alia:
“I refer to the above matter and regret to advise that, due to administrative reasons, the hearing of the above matter cannot proceed on 25 March 2013 in Perth. Accordingly, the hearing date has been vacated. The matter has been re-listed…”
On 18 July 2013, the applicant signed a letter to Federal Magistrate Lucev together with three documents. They appear to have been received on 19 July 2013. Relevantly, the applicant’s letter asserted that he had been unable to obtain the services of a lawyer. He included three documents to which I will return, and continued:
“My submission is that the IMR proceedings did not give me an opportunity to explain my case fully. I submit there was bias, and faults found in my submissions which had not sound basis, I had to flee my country and I was troubled in mind and not in a proper mental condition to understand what was going on.”
A further letter dated 23 July 2013 was provided to the Court together with what would appear to be a statutory declaration. The letter referred to the applicant’s inability to obtain the services of a lawyer, and he asserted that he would be most thankful if his request for a pro bono lawyer was given sympathetic consideration. The statutory declaration relevantly repeated that the applicant had been unable to obtain the services of a lawyer, that he understood there was a scheme for a pro bono lawyer to appear on his behalf provided it was approved, and that he had been informed there were lawyers within Western Australia who would assist if such approval was granted.
The correspondence file suggests that Mr David Blades, a member of counsel, emailed the Registrar of the Court on 24 July 2013. Mr Blades’ email appends another email from himself to the Associate to Federal Magistrate Lucev. The email to the Registrar says in part:
“This is just to let you know that the applicant in PEG 266/2012, whose matter is listed for hearing on Thursday 25 July 2013 at 2.15pm before Judge Burchardt, wants to obtain a further adjournment of the hearing in order to be able to obtain pro bono assistance. (Please see email below and attachments). I believe that Lucev FM adjourned the hearing in March for similar reasons.
I may be willing to assist pro bono if his Honour is minded to adjourn once more and grants the pro bono referral. I appreciate however that in light of the delays in this matter, his Honour may decide to proceed with a substantive hearing on Thursday with the applicant representing himself.”
The email referred to below relevantly reads:
“I was contacted on Monday 22 July 2013 in relation to the possibility of assisting the applicant with his adjournment request, but I have not been formally briefed in this matter, and in any event, have not had sufficient time to prepare for the substantive hearing if it is to proceed on Thursday.
Accordingly, I will not be appearing for the applicant in any capacity.”
It should be noted that the assertion in Mr Blades’ email that the matter had been adjourned on the earlier occasion in effect as a result of the applicant’s application is not one I can sustain in the light of the correspondence to which I have earlier referred.
In oral argument before the Court, Mr Somarsundrum, who was permitted to represent the applicant and address the Court, submitted that the applicant had not had legal advice, that he had approached agencies through the Sri Lankan Tamil Association to get legal aid but had been unsuccessful, and that the applicant had been informed by a lawyer who practices in Perth that he is prepared to appear for him, provided that the Court ordered pro bono representation (see transcript p.3).
It emerged that the barrister concerned was Mr Blades.
I would note that Mr Blades had not, in fact, indicated that he would represent the applicant, but merely that he would consider doing so.
Counsel for the first respondent opposed the adjournment application. He submitted that the applicant had had some eight months in which to arrange legal representation and that this was a perfectly sufficient opportunity. He said that the affidavit and other material filed by the applicant did not set out the steps that the applicant had taken to seek legal advice in the last seven to eight months, and that the explanation offered that he was aware a legal representative might assist him under the pro bono scheme was simply not a satisfactory explanation to adjourn the proceedings. Counsel submitted that he was unaware of any factors in the case that would warrant a pro bono order being made, and pointed to the fact that there was no general entitlement to legal representation before the Court. It was further submitted that there was no utility in adjourning because it was possible that the applicant would be advised that he had no arguable case. Counsel further submitted that the recommendation of the Reviewer did not disclose any apparent error of law in any event.
In response, Mr Somarsundrum asserted that the applicant had suffered from mental trouble, and at p.6:
“…he did send his papers to the eastern states and, in fact, he had not got the papers back because no lawyer – he was not able to get a lawyer to appear for him. He did make efforts. But when he came to ask, we did the same thing. We made verbal inquiries and it was only Mr Blades who agreed to appear for him subject to your Honour’s order that he be a pro bono lawyer.
His appeal to you, your Honour, is that – so that his case could be put in proper legal form and that he feels that the laws of natural justice were not properly rendered to him at the inquiry and that he was in a perplexed state of mind and that his inconsistencies flowed from that fact. His appeal to you is that you grant him that and you give a reasonable time for him to be represented by a responsible lawyer who will professionally place his case before your Honour.”
In my view, the decisive aspect of the matter that militated so strongly against the granting of an adjournment was the very substantial delay between the time the applicant filed his application in November 2012 and the hearing on 25 July 2013, a period of almost eight months. Making every allowance in the applicant’s favour as to his difficulties in communicating in English and the difficulties of obtaining legal representation in a system with which he would necessarily be wholly unfamiliar, the explanations advanced on his behalf are simply not adequate. On one view, the remarks of Mr Somarsundrum about sending the materials to the eastern states and the unproductive results of that endeavour might be said to support the proposition that those to whom the matter was referred refused to act after making some assessment of its merits. Nonetheless any such conclusion would have to be approached with caution and I do not draw any adverse conclusion against the applicant.
Of course, delay of itself is not the only consideration. There is also fairness to the applicant to be considered. Nonetheless, as counsel rightly submitted there is no entitlement to legal representation in the Court.
Counsel’s submission that there was no utility in the referral because it might lead to a conclusion by the pro bono lawyer that the matter had no merits, and that further and in any event the decision of the Reviewer did not disclose any error, likewise needs to be approached with caution. At the time I was entertaining the application for an adjournment. I had read the decision and looked (although not in great detail) at the Court Book materials. Self evidently, I had not formed any final views as to the merits of the matter.
Nonetheless, it must be said that at the stage that I was then at, the application for pro bono relief seemed to me one that faced considerable difficulty, inasmuch as the materials on the reading I had then undertaken of them, did not appear to suggest any significant merit in the applicant’s case however it might be formulated. I noted that in any event Mr Blades had only indicated a preparedness to consider representing the applicant, and not a concluded determination to do so.
The Court also has to consider the orderly administration of justice. The first respondent at one level of analysis is not prejudiced by the delay occasioned by an adjournment although self-evidently the chances of the applicant being able to pay any costs order would be extremely debatable. Nonetheless, an adjournment would disrupt the listings of the Court as the matter would have to be listed again and, presumably, at some reasonably proximate point given the nature of the case. All of these are additional considerations that I took into account.
In all the circumstances it seemed to me, as I indicated at the time, inappropriate to grant the adjournment and for these reasons I did not do so.
Substantive case
As earlier indicated, the applicant’s application indicated nothing meaningful whatever. The applicant’s case was sought, however, to be further articulated both in his letter dated 18 July 2013, to which I have already referred, together with the materials attached to it and the oral submissions of Mr Somarsundrum whom, it should be noted, is in my respectful view a competent representative as an advocate although, of course, I do not understand him to be legally trained.
The letter dated 18 July 2013 to which I have referred relevantly appends a document from the Bishop of Mannar:
“To whom it may concern…”
which, from various date marks on it, would appear to be dated 3 December 2012. This document is highly generalised in its terms and suggests that “Thus, it is my considered opinion that it is highly dangerous for the asylum seekers from the North and East of Sri Lanka in Australia to be sent back to Sri Lanka in the prevailing political situation in our regions.”
The second document is page (iii) from the report of the Secretary Generals Panel of Experts on Accountability in Sri Lanka, asserted by the applicant to have been released by the United Nations on 31 March 2011.
The third is asserted to be page 8 of the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka.
The applicant asserted in his letter that “a study of these documents would point to my fear of being deported to Sri Lanka.”
The letter goes on to say (as already noted above):
“My submission is that the IMR proceedings did not give me an opportunity to explain my case fully. I submit there was bias, and faults found in my submissions which had not sound basis, I had to flee my country and I was troubled in mind and not in a proper mental condition to understand what was going on.”
It should be noted that counsel for the first respondent objected to the receipt of these three documents as they were not before the Reviewer. Plainly, counsel is correct to submit that the Reviewer cannot have fallen into jurisdictional error for not considering documents that were not before her. Nonetheless, plainly these documents must remain on the Court file as they were the subject of submissions made in the hearing.
Mr Somarsundrum submitted that the applicant’s position was exactly that of those referred to by the United Nations expert panel. The applicant had been in the zone referred to and suffered all the trauma that Tamil civilians had to face in the final phase of the end of the civil war. It was submitted that this was not given proper assessment because of the applicant’s mental state and that he was confused and the inquiry had not placed any emphasis on the very important document, namely the United Nations report.
Mr Somarsundrum then referred to the third document from the UNHCR’s report on assessment published in December 2012. It was, Mr Somarsundrum submitted, that the applicant felt there had been bias because the person who assessed his claims had not paid proper regard to page 8 of the report which clearly asserted that some sources have reported recent cases of Tamil asylum seekers being detained and ill-treated after being forcibly returned to Sri Lanka.
The next submission made was that the applicant asserted that some of the documents he presented to the inquiry were not adequately assessed. In particular he referred to a medical certificate certifying that the applicant had been treated for one month beginning from 10 June 2010 for a broken shoulder. The second document was the medical report from a hospital reporting that as far back as 2008 the applicant was subject to injuries due to shelling. It was also submitted that a letter from a Justice of Peace dated 6 June 2011 had not been given a proper consideration.
Mr Somarsundrum also made submissions as to the difficulties the applicant would face as a young Tamil man known to have a knowledge of explosives (the applicant had worked for a de-mining company and this was said to give rise to suspicion).
The submissions continued as set out on transcript p.9 but I do not propose to traverse those as they are, clearly, merits review matters.
Mr Somarsundrum continued, at pp.9-10, to submit that the Reviewer had failed properly to examine the applicant’s claim for complementary protection. It was submitted that the applicant’s mind was now clear and that a new review should be granted.
In reply, following submissions for the first respondent, Mr Somarsundrum once again submitted that the applicant being a person who had lived in LTTE-controlled areas and had military training and knowledge of explosives would be followed and tortured. Mr Somarsundrum also pointed out that the materials suggested there was no systematic monitoring after arrival in Sri Lanka of returned failed asylum seekers. It was further submitted that the manner in which the Reviewer came to her conclusion showed bias.
The first respondent’s outline of submissions traversed the matter in some detail but, obviously, in the context of the then wholly unparticularised application. Put shortly, it was submitted that the Reviewer’s conclusions were wholly open to her and did not disclose jurisdictional error.
In oral submissions counsel pointed to the fact that an allegation of bias is a serious matter which needs to be firmly and distinctly made (which I think it was) and clearly proven, which for reasons to which I will come I do not think has been established. Counsel pointed to the fact that the Reviewer, in fact, accepted many of the claims that the applicant advanced.
Counsel further submitted that there was no evidence before the Court to demonstrate that the applicant was unfit before the Reviewer and, further, that the Reviewer had adequately considered all the documents to which Mr Somarsundrum referred.
When the Court challenged this assertion and pointed to the fact that some of the documentation to which Mr Somarsundrum referred had not been dealt with in terms, counsel submitted that there was no obligation on the Reviewer to refer to every piece of evidence in its decision and even if some aspects of the evidence were overlooked this would not establish jurisdictional error. It was submitted (transcript p.11) that an applicant needs to show that a claim was overlooked and that this had not occurred.
Put shortly, without traversing each matter raised, it was again submitted that the applicant’s claims in substance amounted merely to merits review.
The matters before the Reviewer as set out in the Court Book
I should make it clear that I will not deal with each and every matter set out in the Court Book (“CB”) but only those matters I regard as relevant.
The applicant’s unauthorised arrival interview is at CB1-23. At CB10 in an account of why he left his country he asserted he had been assaulted by the army on one occasion. At CB19 he asserted that in 2008 he had been injured by a bomb blast. At CB21 he asserted that he was depressed and cries every evening and was sleep deprived. At CB51-53 the applicant set out the statutory declaration prepared by Messrs Florin Burhala lawyers. In this he made a number of further assertions.
He said that he undertook compulsory physical training with LTTE in 2008. He asserted he was arrested, beaten and assaulted in June 2010. He asserted that he has worked as a deminer for the Swiss Foundation and that he was being targeted because of his job. The applicant asserted that the army had subsequently sought to find him and that this caused him to make arrangements to leave the country. The applicant asserted that the army or CID would harm or kill him because of his employment and on suspicion of being an LTTE supporter.
At CB76 there is recorded a certificate showing that the applicant passed a basic deminer course run by the Swiss Foundation for Mine Action (and it is clear and not in dispute that he worked as a deminer for that organisation).
A Dr Perera (CB96) asserts that the applicant was admitted to hospital in December 2008 for six days as a result of a shell injury.
At CB99 there is a medical certificate from Anjana Pradeep Rajakaruna that asserts relevantly, that the applicant “got treatment for One Month since 10th June 2009 for his broken shoulders.”
At CB111 there is documentation sent to the officer who conducted the Refugee Status Assessment (“the RSA”) responding to queries about an incident in 2007 when the applicant was briefly arrested.
The decision of the RSA review is set out at CB115-131 but it is not necessary to refer to this in any detail. The RSA reviewer found that the applicant was not a person targeted by the Sri Lankan Army and found that his reason for leaving Sri Lankan was not Convention-related.
The submission by Messrs Florin Burhala in support of the Independent Merits Review (“the IMR”) is set out at CB138-167. The summary of his claims arising from his race and from his assumed political opinion are set out at CB139 and add nothing to the claims already made. I note, however, that the submission asserted at CB139:
“…Our client has submitted further documents to support his claims pertaining to his shoulder injury in which we attach.”
The submission added nothing to the applicant’s claims by way of fact but was predominately (almost entirely) comprised of country information.
The documents just referred to are at CB169-178. They include an employment card for Roxy Agencies Security Services, which the applicant had worked for (CB169), an identification card for the applicant as an employee of the Swiss Foundation for Mine Action (CB170), a document signed by a Justice of the Peace giving hearsay evidence as support for the assertions that the security forces had approached the applicant’s mother trying to find him (CB172) and a similar document from an attorney-at-law, at CB173.
At CB176 there is a further medical certificate from Anjana Pradeep Rajakaruna dated 3 July 2011 which relevantly asserts that the applicant:
“…got treatment for one Month since 10th June 2010 for his broken shoulders. This treatment date is correct.”
I assume that this document was filed to correct the impression that that treatment was given in 2009 as the earlier certificate suggested.
The Supplementary Court Book (“SBC”) records a letter written on behalf of the Reviewer to the applicant’s advisor giving the applicant an invitation to comment and the response from Messrs BMA Lawyers dated 22 June 2012.
While the response does directly reply to the Reviewer’s questions, the bulk of the material constituted further country information.
The Reviewer’s decision
The Reviewer set out an introduction and outlined the relevant law at CB186-189. I note that the Reviewer was clearly aware of the distinction between the test to satisfy the Convention criteria and, in particular, the fact that the person must fear persecution involving serious harm within the meaning of s.91R of the Act. The Reviewer was clearly aware of the distinction with the test as to complementary protection set out in s.36(2)(aa) which involves a test of a risk of significant harm as exhaustively defined in s.36(2A) and s.5(1) of the Act.
The Reviewer traversed the claims and evidence put at the entry interview and Refugee Status Assessment at CB189-193. The Reviewer’s record of those matters seems to me to be entirely consistent with the materials. The Reviewer paraphrased the submissions made prior to the IMR interview on 18 October 2011 at CB 194, and once again, it seems an accurate record. CB194-200 recorded what was said to have transpired at the IMR interview on 7 May 2012. I note that the applicant had the benefit of an interpreter and a representative from Messrs BMA Lawyers who was present throughout. If the matters recorded were inaccurate I would have expected Mr Urdea (the lawyer concerned) to have said so on affidavit in this proceeding. While it is true that the applicant has had difficulty in obtaining legal representation, I find it difficult to believe that a lawyer who had been present during the proceeding and found that the matters recorded were woefully inaccurate would not have come forward at least to provide some assistance and an assertion to that effect.
I note that at paragraph 72 (CB195) the Reviewer recorded:
“The claimant provided the reference from Toowong Hospital to confirm that he was undergoing stress and how he had been affected by problems at home. He had been feeling better since he was released from detention and felt well enough for his interview.”
I note that at paragraphs 79-80 the Reviewer recorded:
“79. Asked how he knew P Thiyagarajie, the claimant said that this was when he lived in Vavuniya for a short period. Asked again, he said she was the JP for the area he lived in.
80. I asked the claimant how he knew M Sittampalam. The claimant said he was the lawyer who his mother consulted for advice when the claimant was tortured and injured by the army. He did not speak to him personally. His mother consulted M Sittampalam after 10 June 2010 but the claimant was still in the country. Asked again if he ever met M Sittampalam, the claimant said that this person came to the house to visit him. He did not go out to seem (sic) him because he was unwell due to his injuries caused by the army.”
It is clear from the account set out by the Reviewer that the Reviewer engaged in an extensive process of dialogue which seems to me to have proceeded in a relatively chronological order through the applicant’s claims. I note that at paragraph 102 (CB199) that the Reviewer recorded:
“I noted with the claimant that the emphasis in his evidence as to why the authorities were really after him had changed at each stage…”
I also note that the Reviewer recorded at paragraph 107 and following:
“107. I discussed with the claimant independent information that I considered could be negative to his case, noting that I had not decided what weight to give it.
108. I noted that the UNHCR’s most recent guidance for assessing asylum claims from people from Sri Lanka is that the threat of generalised violence is at this time in and of itself, not a basis for refugee status. But if someone is suspected of involvement with the LTTE, then that can be a ground for refugee status. I noted that as a matter of fact, he hadn’t had any involvement with the LTTE.
109. On the issue of FSD and demining in general, I told the claimant the information I have is that whilst there were some reports of deminers being targeted during the conflict, since the end of the conflict, there have been no such reports since May 2009. The claimant said that his case does not just rest on one aspect. He summarised his case again. Had he remained in the camp longer, they would not have suspected him. He said he was not a suspect based on the fact that he worked for an NGO. They would not pursue a case against him just because he worked for an NGO.”
I note that at paragraph 112 (CB200) the Reviewer recorded:
“The interview was terminated prior to the scheduled end time at the request of the representative, concerned for his client’s ability to concentrate and to enable the representative to catch a flight.”
At CB200-202 the invitation to comment sent by the Reviewer is set out in full. No doubt this was sent, at least in part, because of the early end of the interview itself to which I have just referred.
The Reviewer traversed the applicant’s response at CB202-204. I note the additional documentation provided (see paragraph 128 (CB204) and the Reviewer’s comments thereon).
The Reviewer then set out extensive country information at CB204-225 to which in my view no objection can be taken. I accept the submissions at paragraphs 33 and 34 of the first respondent’s written submissions to the effect that the natural justice letter sent on 22 May 2012 to the applicant sufficiently and adequately characterised the Independent Country Information that the Reviewer had in mind to rely on, and that the only other independent information relied upon by the Reviewer was that provided by the applicant’s representatives or which was not adverse to his claims.
I note that at paragraph 40 (CB191) the Reviewer recorded all the documents provided by the applicant to the department as part of the Refugee Status Assessment, which included all the documentation referred to in Mr Somarsundrum’s submissions.
Under the heading “Findings and Reasons” the Reviewer went on at CB225-235 to determine the matter.
It should be noted that the Reviewer accepted a considerable number of the applicant’s claims. The Reviewer accepted that the applicant was a Tamil, born in the Kilinochchi area and that he has lived for periods of time in the Vavuniya area, also in the Northern Province of Sri Lanka (paragraph 182, CB225).
The Reviewer also found (paragraph 184):
“I found the claimant to be a polite and cooperative witness. I note that he claims to have had some mental health problems as a result of family opposition to his partnership with his wife approximately eight years ago and more recently during his detention in Australia. I found him to be able to effectively participate in his IMR interview, but nonetheless, a rather fragile character. I am mindful that a claimant may suffer anxiety in an interview as a result of the interview environment, their different social background, their experiences of immigration detention and the significance of the outcome. I am also mindful that undue weight should not be placed on a degree of confusion or omission in accounts at various stages to conclude that a person is not telling the truth and that there are constraints to the interview process. However, I consider the claimant’s evidence about the events that took place in Vavuniya from March 2009 until his departure in July 2010 to be continuously inconsistent, changeable and at times implausible and I discuss this in detail, below.”
It is sufficient to say that the detailed consideration of the applicant’s claim that follows seems to me to be entirely logical and open to the Reviewer on the materials provided. I note that the Reviewer did, in fact, accept that bribery had been used to extricate the applicant from the Vavuniya IDP camp in 2009.
Critically perhaps, the Reviewer did not accept the applicant’s claims that he had been rounded up, detained and assaulted by the army and police in June 2010 on suspicion of being an LTTE member or sympathiser (paragraphs 192-195, CB228-229). This was particularly important because it was this and the alleged aftermath when the authorities were allegedly still after him that was said to have propelled the applicant to leave Sri Lanka. The Reviewer did not accept the evidence as to this latter matter either (see paragraphs 196-199, CB229-230).
Against a finding that the applicant was not beaten in 2010, the Reviewer went on to reject the claims of any follow up by the authorities and found on the basis of country information that the applicant if returned to Sri Lanka would not be the subject of serious harm. The Convention claim was rejected (see paragraphs 200-215, CB230-233).
Against the findings made as to the Convention claim, the Reviewer then continued to consider whether the applicant was a person who would suffer a risk of significant harm (s.36(2)(aa) of the Act).
I can deal with this matter shortly. In my opinion, the Reviewer’s process of reasoning as disclosed by the reasons for decision was entirely open on the facts as found.
A residual matter of concern
One matter that has concerned me during the preparation of this judgment, which I put to counsel for the first respondent at the hearing, is the lack of any mention in terms of the veracity or otherwise of the medical certificates given to the applicant in 2008 and 2010. It is of course the case that the “medical certificate from Anjana Pradeep Rajakaruna” is referred to, and discussed, at paragraph 199 and I accept that the Reviewer was aware that the certificates existed.
Although it is disquieting that medical evidence (unchallenged as this was) may have been not fully dealt with, in the end I do not think that this suggests that the Reviewer fell into jurisdictional error.
The applicant does not appear ever to have claimed that his shell injury in 2008 had caused the authorities to consider him an LTTE supporter. On one view this possibility might have occurred to the Reviewer but it is not of course for the Reviewer to make the applicant’s case for him.
The applicant had of course claimed to have been injured in 2010 and on one view the medical certificate issued asserting injuries to his shoulders might be thought to support that. On the other hand, however, there was material before the Reviewer that indicated that the injury had taken place in 2009 and the applicant himself never proffered any explanation for the discrepancy.
In the end, while it would have clearly been preferable for the Reviewer to have referred in more detail to the medical certification, particularly that ostensibly from 2010 and contemporaneous with the applicant’s assertions of assault, the fact is that the Reviewer’s reasoning process concentrated upon evidence given directly to her by the applicant himself.
Reading the reasons of the review decision as a whole and fairly I do not think that a failure to deal in more detail with the medical certificate can be said to have given rise to jurisdictional error. The Reviewer did not overlook the applicant’s claims. She was well aware that he was claiming to have been assaulted in 2010. For the reasons she gave, which on their face seem to me to be cogent, she did not believe him.
Conclusion
In my view the claim is not made out and the application must be dismissed with costs. I note that it is also appropriate to change the name of the first respondent to the present title of Minister for Immigration and Border Protection.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 14 October 2013
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