MZZGC v Minister for Immigration and Border Protection

Federal Court of Australia|2015-12-02|Before: Mortimer J, Tracey J

REASONS FOR JUDGMENT 1 This is an appeal from the Federal Circuit Court of Australia ("the FCC") which had dismissed the appellant's application for judicial review of a decision of the second respondent - an Independent Protection Assessor ("the Assessor") - to recommend to the Minister that the appellant not be recognised as a person to whom Australia owed protection obligations: see MZZGC v Minister for Immigration & Anor [2014] FCCA 97. The appeal was brought out of time pursuant to leave granted by Mortimer J on 13 August 2015: see MZZGC v Minister for Immigration and Border Protection [2015] FCA 842. 2 The appellant is a Sri Lankan Tamil. He is a Hindu. He formerly lived in Kilinochchi in the northern part of Sri Lanka. In January 2009 he was displaced by the civil war and between 15 May 2009 and 5 November 2010 he was detained by Sri Lankan authorities in a number of camps guarded by the military. He claimed to have been mistreated in these camps. 3 The appellant asserted that he would face persecution upon return to Sri Lanka by reason of his Tamil race, his Hindu religion, his imputed political opinion as a supporter of or a person with links to the Liberation Tigers of Tamil Eelam ("LTTE") and as a member of one or both of the particular social groups of a "male Tamil" or "a failed asylum seeker from Australia returning to Sri Lanka after a lengthy absence". 4 The Assessor rejected each of these claims and recommended to the Minister that the appellant not be recognised as a person to whom Australia owed protection obligations.

THE FCC'S DECISION 11 The appellant sought judicial review of the Assessor's recommendation in the FCC. He relied on some, but not all, of the allegations of jurisdictional error which were pursued on this appeal. 12 The learned trial judge provided detailed reasons for rejecting each of these allegations. It will be convenient to return to his Honour's reasons when dealing with the grounds advanced by the appellant on this appeal.

GROUNDS 13 In his amended notice of appeal the appellant relied on four grounds. They were that the FCC should have, but did not, find that the Assessor had 'committed jurisdictional error' by failing to: Consider the appellant's claim (or an integer of it) that he feared persecution as a returnee to Sri Lanka with an imputed pro-LTTE profile (Ground 1); Consider the appellant's claim (or an integer of it) that he feared persecution upon return "due to his likely interrogation and the other security processes conducted by Sri Lankan authorities to determine whether he was an LTTE supporter" (Ground 2); Form for herself, on the material before her, the requisite state of satisfaction under s 65 of the Migration Act 1958 (Cth) in respect of the appellant's imputed pro-LTTE profile (Ground 3); and Consider an integer of the appellant's claim that he feared persecution upon return as one who would be imputed with a pro-LTTE profile "because he had been tortured and interrogated during his period of detention by the Sri Lankan [a]rmy." (Ground 4). In fairness to the trial judge, it should be noted that he had not been invited to make some of the findings comprehended by these grounds and, in particular, that sought in Ground 4 which had not been argued at all. These allegations of appellable error are all the more surprising given that the appellant was legally represented in the FCC.

Grounds 1 and 4 14 These grounds, as they appeared in the amended notice of appeal, were framed as follows: "1. The [FCC] erred in not finding that the [Assessor] committed jurisdictional error by failing to consider the appellant's claim, or an integer of that claim, that he feared persecution as a returnee to Sri Lanka who would be imputed with a pro-LTTE profile due to his particular personal profile arising from the cumulative effect of being a returnee from Australia, a Tamil from the north, having previously been suspected of being an LTTE supporter and having been detained and physically mistreated by the Sri Lankan authorities for an extended period. … 4. The [FCC] erred in not finding that the [Assessor] committed jurisdictional error by failing to consider an integer of the appellant's (sic) that he feared persecution as a returnee to Sri Lanka who would be imputed with a pro-LTTE profile because he had been tortured and interrogated during his period of detention by the Sri Lankan Army." 15 It will be convenient to consider them together. Both contain allegations that the Assessor erred by failing to consider particular integers of the appellant's claims. 16 It was common ground that the Assessor was required to construe accurately and consider each claim made by the appellant, including each element or integer of each claim and the cumulative effect of each claim: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 18-20; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 640-1. This required her to deal with each claim expressly raised by the appellant or which clearly arose from the material placed before her: NABE at 19.

The appellant's case in the FCC 17 The allegation of error, contained in Ground 1, was not put in the same terms in the appellant's amended application to the FCC. The equivalent ground in the appellant's amended application to the FCC was, according to his written submissions in this Court, Ground 2. That ground alleged an error of law or a denial of procedural fairness by the Assessor in that she had failed "to consider whether the [appellant] faced a real chance of persecution in the foreseeable future on account of his previous period of detention." One of the particulars sub-joined to the ground was that the Assessor had confined her attention to the past treatment of the appellant and had failed to consider the risks which might confront him in Sri Lanka in the reasonably foreseeable future. 18 The alleged error by the Assessor was, I think, also, if not principally, raised by Ground 3 in the FCC which alleged a failure, by the Assessor, "to consider an integer of the [appellant's] claims, namely whether the [appellant] was at real risk of persecution as a Tamil failed asylum seeker who had previously been held in detention camps on suspicion of being a supporter of the LTTE." 19 No mention was made in either ground of any "profile" of the appellant as someone who supported the LTTE. 20 The trial judge rejected both of these grounds. 21 The trial judge pointed out that the Assessor had clearly understood that she was required to form a judgment as to whether there was a real chance that the appellant would be subject to persecution for a Convention reason should he be returned to Sri Lanka. In dealing with that question the Assessor did not confine herself to consideration of country information. She considered all of the matters which the appellant contended gave rise to his unique profile. The Assessor had also found that the appellant had not been subjected to any restrictions or ongoing reporting requirements after he had been released from detention and that, at that time, he was not suspected by the authorities of having links with the LTTE. The Assessor concluded that the appellant did not face a real chance of persecution in the reasonably foreseeable future either because of any imputed political opinion "arising from any of his circumstances" including any imputed political opinion based on any supposed LTTE links. The trial judge drew attention to the Assessor's findings, at [74] and [78] of her reasons that: "I find there is not a real chance now or in the reasonably foreseeable future [the appellant] will be persecuted because of (imputed) political opinion such as (but not limited to) his having any association with / link to / supporter of the LTTE arising from any of his circumstances. … I have considered [the appellant's] claims cumulatively. That is, whether a male Tamil who is unmarried and from the North, who resided in various Vavuniya District camps between 15 May 2009 and 5 November 2010 and who at the time he left the last of the camps was not under any suspicion by the authorities of having any association with / link to / or that he was a supporter of the LTTE, who departed Sri Lanka in January 2011 and is returning from Australia after having unsuccessfully sought asylum, faces a real chance of persecution on return to Sri Lanka and find that even when the claims are considered cumulatively there is no real chance [the appellant] will be persecuted for a Refugee Convention reason in the reasonably foreseeable future and that his fear of persecution is not well founded." (Emphasis added.) 22 As a result, he concluded that the Assessor had not confined her assessment to the past treatment of the appellant and had not failed to consider the risks he may face in the reasonably foreseeable future. The ground, as it had been argued in the FCC, was, therefore, rejected. 23 The trial judge rejected Ground 3 before him, again referring to paragraphs [74] and [78] of the Assessor's reasons. His Honour also relied on the generality of the findings made by the Assessor relating to whether the appellant's relevant history in Sri Lanka would have given rise to a suspicion of him being an LTTE supporter and to the manner in which failed Tamil asylum seekers were subject to security checks on their return to Sri Lanka. These findings, he held, were such "as to subsume any suggestion that the [appellant] could have a well-founded fear of persecution on the basis put forward in ground 3." 24 The primary judge did not err in rejecting these grounds on the material and argument before him.

The appellant's case in this Court 25 The appellant's case on appeal to this Court was not the same as that advanced in the FCC. Ground 1 differs substantially from the equivalent Grounds 2 and 3 argued in the FCC. Ground 4 was not argued at all. 26 The Minister did not, however, oppose the Court considering grounds 1 and 4 as formulated and I am prepared to do so. 27 Both grounds allege a failure by the Assessor to consider claims made by the appellant or integers of them. The first was that he feared persecution in Sri Lanka because he was known to the Sri Lankan authorities as a Tamil who had been held in detention camps and had an imputed pro-LTTE profile. The second was that he had such a profile because he had been tortured and interrogated during the period in which he was detained in the camps. 28 The appellant argued, in support of his first ground, that he faced a risk of harm, upon return to Sri Lanka, "because of his unique profile." The evidence before the Assessor (which she had accepted) and which, he said, gave rise to his unique profile was that he had previously been suspected of being an LTTE supporter; he had been held in detention camps and physically abused because he was suspected of being an LTTE supporter; he had been detained for 18 months, the last nine of which extended beyond the date by which the government had said it was going to close the detention camps; Sri Lankan authorities had contacted his mother and sister after he had left the country making enquiries about him; the Sri Lankan authorities held records relating to his time in detention; and that he would be required to undergo security checks and questioning at the airport on his return. 29 The appellant complained that the Assessor had failed "to apply these personal features of [his] profile" when assessing the risk of harm which he might face on return to Sri Lanka. Instead the Assessor had applied what was described as "a more generic Tamil profile" when making her assessment. This generic profile had been based on country information which suggested that the mere fact of being a Tamil or failed asylum seeker in another country did not mean that a returnee would face a real risk of serious harm in Sri Lanka. In particular, the country information was to the effect that airport security screening of returning Tamils did not constitute persecution. 30 The appellant's fourth ground was related to the first. He contended that the Assessor had erred by failing to advert to or make findings about his claims that he had been tortured or interrogated whilst in detention. These were said to be integers of his broader claim to fear harm in the future if he returned to Sri Lanka. 31 The Assessor did, in fact, consider all of the appellant's claims. She also had regard to country information that, since May 2009, "the mere facts of being (considered separately and cumulatively) Tamil male, unmarried and resident in / from the north / Vanni, [did not] cause a person to be suspected of (or imputed as) having an association with and / or link to the LTTE or of being an LTTE supporter." She further accepted country information that, since 2009, there had been no need for group based protection or a presumption that Tamils from the north were entitled to refugee protection. 32 It is true that, because of the way the case was argued before the Assessor and in the FCC, the findings, which were said to support the appellant's "unique profile" (including his physical mistreatment and interrogation whilst in detention) were not drawn together by the Assessor as factors which, in combination, set him apart from other Tamil asylum seekers. She did not, however, rely exclusively on general country information. She also had regard to the facts that, following his release from detention in 2010, the appellant had not been subject to any restrictions and that no reporting conditions had been imposed on him. He had not been suspected, at the time of his release, of having links with the LTTE. He had departed Sri Lanka, using a valid passport in his own name. Each of these considerations related to the appellant's peculiar circumstances and tended against any finding that those circumstances might have given rise to an adverse profile. The Assessor had not disregarded the appellant's mistreatment during his time in detention camps. Although she had, at one point in her reasons, said that the appellant had "resided" in such camps, elsewhere she had recorded his claims to have been beaten, tortured, interrogated and forced to work. 33 The findings made by the Assessor at [74] and [78] clearly took into account the appellant's personal circumstances or "profile". 34 Grounds 1 and 4 must fail.

Ground 2 35 In his amended form Ground 2 read: "The [FCC] erred in not finding that the [Assessor] committed jurisdictional error by failing to consider the [appellant's] claim, or an integer of that claim, that he feared persecution as a returnee to Sri Lanka due to his likely interrogation and the other security processes conducted by Sri Lankan authorities to determine if he was an LTTE supporter." 36 This ground was said to correspond with Ground 3 which had been argued in the FCC. This ground has been set out above at [18]. As framed, neither the ground nor the particulars sub-joined to it made any reference to the appellant's apprehension that he might be interrogated and subjected to other processes as part of security checks on his return to Sri Lanka. 37 As a result the trial judge was not called on to deal with the present Ground 2 save to the extent that the appellant had contended that he feared mistreatment on return because of perceived LTTE sympathies. 38 In this Court the appellant was unable to point to any express claim, raised by him, when he had been interviewed by the Assessor, about being fearful of persecutory conduct in the course of security processes at the airport on his return to Sri Lanka. The Assessor had raised with him the prospect of "routine CID interviews" which usually lasted for two or three hours. This process involved an examination of travel documents, finger printing and photographing at the airport. The Assessor had told him that these were standard security measures. 39 The appellant had responded that, "if they [the Australian authorities] gave his name, that will be a problem for him, they [the Sri Lankan authorities] already have his name and fingerprints from the camp." 40 These exchanges occurred in the course of consideration of the appellant's professed concern that he would be mistreated as a perceived LTTE supporter. Such mistreatment would occur because of his identification as a Tamil who had been detained in displaced persons' camps during the civil war. He had not complained about apprehension of mistreatment in the course of the security procedures. In other words his concern was that his war-time history would be discovered in the course of the security procedures at the airport not that those procedures themselves would constitute persecutory conduct. 41 When considering the appellant's broader claim to fear persecution upon his return, the Assessor did have regard to independent information relating to airport screening processes. Having referred to this material she found (at [76]) that "there is not a real chance now or in the reasonably foreseeable future the questioning and security checks [the appellant] may be required to undergo at the airport on his arrival in Sri Lanka will amount to serious harm …". 42 The claim attributed to the appellant in Ground 2 was not made and the Assessor did not err by failing to consider it. The FCC was not called on to consider it. 43 This ground must fail.

Ground 3 44 Ground 3 read: "The [FCC] erred in not finding that [the Assessor] committed jurisdictional error by having miscarried in its (sic) statutory task, namely by failing to form for itself, on the material before it the requisite state of satisfaction under s 65 of the Act in respect of the [appellant's] claim that he would be imputed with a pro-LTTE profile and thereby be at risk of serious harm on his return to Sri Lanka." 45 Some particulars were sub-joined to it. They related to the Assessor's finding that, when he was released from detention, the appellant was not suspected of being an LTTE supporter. The appellant complained that, in reaching this conclusion, the Assessor had not adverted to or dealt with the "established facts" that the appellant had been detained as a suspected LTTE supporter, had been physically mistreated whilst in detention, had not been released until November 2010 despite the announcement that detention camps would close by January 2010 and that Sri Lankan authorities had been enquiring about him since his departure and held records "of his time in detention". 46 This is a thinly veiled attack on the Assessor's factual findings. As I have already pointed out in dealing with Grounds 1 and 4, the Assessor did take into account each of these facts but was not persuaded that, either individually or collectively, they compelled the conclusion that he would be at risk of serious harm in Sri Lanka by reason of his having a pro-LTTE profile. The Assessor had before her contrary indicators such as the unconditional release of the appellant from detention in 2010 and his unimpeded departure from Sri Lanka, using a valid passport. It was a matter for the Assessor to form a judgment, on the whole of the material before her, as to whether or not she was satisfied that the appellant faced persecution for a Convention reason if returned to Sri Lanka. There was information before the Assessor on which it was open to her to conclude that the appellant's claims, insofar as they were based on an imputed profile, were unwarranted. 47 This ground has not been made out.

DISPOSITION 48 The appeal must be dismissed with costs. 49 The Court was greatly assisted by the submissions made by counsel who appeared, pro bono, for the appellant and put the appellant's case in the best possible light. In doing so counsel upheld the best tradition of the Bar. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

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