MZYPM v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 22 February 2012. The federal magistrate dismissed an application for review of a recommendation accepted by the first respondent, made by the second respondent (the reviewer) on 30 June 2011, that the appellant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (the Refugees Convention). 2 The appellant arrived in Australia on 7 February 2010. He sought a refugee status assessment which was conducted by a delegate of the first respondent. As that assessment was unfavourable to him, he applied for a review by the reviewer. The applicant is Tamil, Christian from Sri Lanka, born on 23 August 1987. He worked as a fisherman and his parents lived in Jaffna with his three brothers and a sister. He is the eldest.

the review 3 The reviewer set out the essential elements of the appellant's claim by reference to an interview conducted with the appellant on 10 May 2011 and a statutory declaration which the appellant submitted prior to an interview with the original assessor. He stated that his family started moving from their original area of residence in June 2009 when the Sri Lankan army took control of the area. The appellant said that he moved to Vanni in the Kilinochchi district. He said that in May or June of 2009 his family entered a displaced persons camp run by the Sri Lankan army. Prior to that, he said they had moved from place to place to avoid the civil war conflict in Sri Lanka. The appellant said that shortly after entering the displaced persons camp he was separated from his family. He said his family were released after about eight months and moved to Jaffna. The appellant claimed that he was moved into a detention camp and was tortured from time to time by people who asked him to confess to being a member of the Liberation Tigers of Tamil Eelam (LTTE). He said he refused to do so. The appellant claimed that ultimately his father raised funds which were used to have him released from the detention camp. He said that a lot of people escaped from detention in this way. 4 The appellant said that he then lived in hiding in a house belonging to a friend of his father. He claimed that the Sri Lankan army tried to find out from his parents where he had gone, and that the army had abused them in the process. He also stated that he had some extended family who had supported the LTTE in the past. He said that his family was, as a result, always under suspicion of being LTTE supporters. He explained that he had lived in an area controlled by the LTTE, and, as a result, the Sri Lankan army thought that young men like himself were LTTE supporters. He did point out that he had never fought for, or supported the LTTE, but that he was made to attend compulsory self-defence training in 2006. He explained that his involvement with the LTTE was thus very limited. 5 The reviewer, after reciting the claim that the appellant feared persecution for the reason of his imputed political opinion, namely, his support of the LTTE, referred to country information at length. The country information recorded that the hostilities in the Sri Lankan civil war ended on 19 May 2009 after 26 years, and explained the process which had operated thereafter as a result of the reduction or the cessation in fighting, for example, in relation to the return or release of internally displaced persons from displaced persons camps. The country information referred to also examined the treatment of returned failed asylum seekers and set out in detail numerous sources from Sri Lanka itself, Switzerland, Britain and Australia. 6 The reviewer then set out some country information about physical examinations and scarring which seemed to be entirely irrelevant to the case and perhaps was the result of applying some template approach to the production of reasons, a practice which, if followed, should be strongly discouraged. 7 The reviewer then set out his findings and reasons as follows: 38. I accept that the claimant is a citizen of Sri Lanka and is a Tamil Christian. 39. The country information above paints a complex picture. A Persuasive Decision made by the Canadian Immigration Review Board on 13 September 2010 expressed its evaluation in the following manner: [49] Having considered all the evidence filed in this case, I find that there has been a change of circumstances. Although the National Documentary Package has documents that indicate that Tamils from the north are especially targeted, disappeared, arrested and tortured, all those documents reflect the circumstances that had existed during and right after the close of the civil war. [50] The more up-to-date documents and analyses are more compelling as to the present situation in Sri Lanka. They indicate that the civil war is over. There has been no LTTE resurgence since the close of the war in May 2009. With the LTTE's utter defeat and the vast majority of Tamils in the country now screened to determine whether they were LTTE members or close associates of the LTTE, Tamils are no longer subject to the persecutory acts that they habitually had suffered in Sri Lanka. Tamils are no longer routinely or sporadically stopped, arrested, rounded up, beaten up, shelled, and extorted by the SLA and other government and paramilitary forces. Almost all of the 300,000 Tamils have been released from internment camps and the remaining Tamils still interned are to be released shortly. The evidence leads me to conclude that the changes in Sri Lanka are meaningful and durable … 40. I share this evaluation. It was essentially this picture which I put to the claimant at his interview. However, it does not determine the outcome of his claim without further analysis. It leaves to be determined whether or not [there] is a real chance of the claimant being suspected of being an LTTE supporter if he were to return to Sir Lanka. 41. In that regard, I have looked carefully at the history recounted by the claimant. In the broad, I accept the account as stated by the claimant in his various interviews. 42. … 43. As to the possibility of his being regarded as an LTTE supporter or a former supporter, I find that, in present circumstances, that is remote. His family is living in Jaffna. His father is working and his younger brothers are attending school. He has never in fact been a member of the LTTE and his family has never been involved in politics. He lived in LTTE-controlled areas, as did very many Tamils, but country information does not support the proposition that a person is imputed with LTTE past or present allegiances merely for that reason. 44. His adviser, in his latest submission, added imputed political opinion, gender and age to the reasons for the persecution the claimant feared. I do not accept that the claimant would be thought to be associated with the LTTE for any of these reasons or all of them cumulatively. Indeed, it is an association with the LTTE which results in the imputing of a political opinion, rather than the other way around. It is a fact that young male Tamils are prima facie suspected of links with the LTTE, but, according to country information set out above and discussed with the claimant, this results in arrivals from overseas being questioned, not either arrested or otherwise harmed in the absence of other elements. The procedures for screening arrivals in Sri Lanka are clear and detailed above. I accept that the claimant would be questioned, possibly for some hours, but, unless there is a pending charge against him about which he has said nothing, the normal outcome of such questioning would be that he would be released to his family. I have no reason to think that that would not be the outcome in his case. 45. Accordingly, I do not accept that the claimant has a well-founded fear of persecution in Sri Lanka for reason of his race, religion, or for any other Convention reason, should he return there in the foreseeable future. 8 The appellant then applied to the Federal Magistrates Court to review the recommendation of the reviewer. The grounds which were relied upon before the federal magistrate were not relied upon before this Court. The appellant was represented in the Federal Magistrates Court and has been represented in this Court. The appellant sought to raise new grounds in this Court and, therefore, requires leave to do so.