Minister for Immigration and Citizenship v MZYLF

REASONS FOR JUDGMENT 1 Before the Court is an appeal by the appellant, Minister for Immigration and Citizenship, from a declaration made by the Federal Magistrates Court on 15 August 2011. The Federal Magistrates Court declared that the second respondent, a merits reviewer, made errors of law in recommending to the appellant that the first respondent is not a refugee within the definition in Art 1A of the Convention relating to the Status of Refugees (the Convention). 2 The first respondent is a national of Sri Lanka. He arrived at Christmas Island on 7 February 2010. An initial assessment of his refugee status made by an officer of the Department of Immigration and Citizenship (the Department) was unfavourable to him. He therefore applied for a merits review of the assessment. On 26 January 2011, the second respondent (the reviewer) produced written reasons for the recommendation to the appellant that the first respondent should not be recognised as a refugee. 3 The first respondent is a Tamil. He follows the Catholic religion. He was born in 1983 and is single. He worked as a fisherman and lived in Jaffna. 4 He claimed that he had been detained and interrogated because he was suspected of being a member of the Liberation Tigers of Tamil Eelam ("LTTE"). The reviewer did not find these claims to be credible. They are not the subject of this appeal. 5 The first respondent also said that he feared that he would be persecuted as a result of his unlawful departure from Sri Lanka. The manner of his departure would give rise to the suspicion in the minds of the authorities in Sri Lanka that he was a member or supporter of the LTTE. 6 In the reasons of the reviewer the claim was dealt with as follows: 141. He claims that if he is forced to return to Sri Lanka, the authorities at the airport will question him because he left illegally and does not have a valid travel document and that because of this, they will accuse him of being a member or supporter of the LTTE. 142. I do not accept this, based on the information provided by the Australian High Commission in Colombo to the effect that there are no procedures in place to identify failed asylum seekers and that the only way that the authorities would be alerted to a failed asylum seeker returning - and I note this would apply to returnees generally - is if the airlines or IOM notified them that a person was a deportee or was being escorted. The report states that a Tamil returned to Colombo after seeking asylum in Australia would therefore be under no more scrutiny than any other Tamil returning to Colombo and would be subject to the same screening procedures. The report further states that there is no hard evidence to prove that this does not apply also to persons who illegally departed from Sri Lanka or who lack an ID card or other documentation. 143. I note the report by the Edmund Rice Centre stating that asylum seekers returned to Sri Lanka in recent months were handed over to the CID and taken into custody, and that some were detained and some assaulted. 144. This is an example of the divergent views in the independent country information about various aspects of the situation in Sri Lanka, including this issue. It presents a significant challenge for assessors. However, it is the assessor's responsibility to come down on one side or the other of this argument and I accept the advice of the Australian High Commission, whose role is to be informed in detail on such matters in order to advise policymakers - that is, ministers and officials - in Australia. I accept that generally speaking, a Tamil returned to Colombo after seeking asylum in Australia would be under no more scrutiny than any other Tamil returning to Colombo and would be subject to the same screening procedures. [emphasis added] 7 In the Federal Magistrates Court this case was heard immediately following MZYLE v Minister for Immigration & Anor [2011] FMCA 589 (MZYLE). The Federal Magistrate said that both cases were argued on almost identical issues. 8 As in MZYLE and for the same reasons, the Federal Magistrate held that the reviewer in the above passage made an error of law by failing to deal with the claim based on the first respondent's illegal departure (the illegal departure issue) and made a further error of law in the assessment of the risk of persecution (the risk of persecution issue). The reasoning for the Federal Magistrate in this case was the same as his reasoning in MZYLE. 9 On the appeal the appellant argued that the Federal Magistrate was wrong to determine that the reviewer had made those two errors of law. It is necessary to deal with the two issues separately. The appeal was heard together with the appeal in Minister for Immigration and Citizenship v MZYLE (No 2) [2011] FCA 1467.