SZQMA v Minister for Immigration and Citizenship

JUDGE: MCKERRACHER J DATE: 2 MAY 2012 PLACE: PERTH

INTRODUCTION 1 The appellant is a citizen of Sri Lanka and, specifically, a Tamil from Jaffna in Sri Lanka. He arrived at Christmas Island, aged 28, as an unauthorised boat arrival on 22 March 2010. An official of the Department of Immigration and Citizenship (the Department) conducted an Entry Interview with the appellant on 2 April 2010 and on 30 May 2010, the appellant was referred for a Refugee Status Assessment (RSA). Written claims for the appellant were set out in a statutory declaration. He was then interviewed again for the purposes of his RSA on 2 June 2010. In a letter dated 23 December 2010, the appellant was notified by the RSA officer that he was assessed as not meeting the definition of a refugee under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (together, the Convention). The letter included the RSA officer's reasons. 2 On 21 January 2011, the appellant's solicitors requested an independent merits review of the RSA officer's decision. Extensive written submissions were provided to the second respondent (the Reviewer) by the appellant's solicitors on 16 March 2011. The appellant also provided to the reviewer photocopies of newspaper reports and other independent country information in support of his application. He was interviewed by the Reviewer on 26 May 2011. He was assisted by his legal representative throughout the RSA and Reviewer process. 3 The Reviewer accepted that the appellant was compelled to assist the Liberation Tigers of Tamil Eelam (LTTE) in Jaffna in a minor way on three occasions from 2004 over a period of two years. He also accepted that in early 2007, the appellant had been arrested, detained and beaten by the Army in Colombo and charged with being a supporter of the LTTE. In addition, it was accepted that he was detained again in May 2008 and then released. 4 The Reviewer, however, did not accept that the appellant would now be suspected of being a supporter of the LTTE. Part of the reason for that conclusion was that although the appellant had been arrested in May 2008, nothing had happened to him after that date. Additionally, it was noted that the appellant had been able to depart Sri Lanka on three occasions to visit India and once to Malaysia on his own passport. On that basis, the Reviewer concluded that the appellant did not fit the risk profile as set out in the Office of the United Nations High Commissioner for Refugees Guidelines (the UNHCR Guidelines). 5 The appellant appeals from the decision of a Federal Magistrate who dismissed his application for judicial review in respect of a recommendation made by the Reviewer that the appellant not be recognised as a person to whom Australia owes protection obligations under the Convention. 6 The appellant contends that the Federal Magistrate should have concluded that the Reviewer failed to afford procedural fairness to him because he confined his consideration to the profile in the UNHCR Guidelines and did not address the appellant's further claim that he was at risk of persecution by reason of his membership of a particular social group. That social group was young Tamil males from the north of Sri Lanka. The amended grounds of appeal filed on 21 February 2012 reflect this contention.

THE Reviewer'S DECISION 7 The Reviewer found that the appellant was a Sri Lankan national and that he presented as a generally credible witness whose account was generally consistent with the independent country information. Although the Reviewer accepted that young Tamils like the appellant were targeted by the Army during the period, he did not accept the appellant's claims that his friends were specifically targeted given his inability to name them. He accepted that the appellant was detained by the Special Taskforce in May 2008 but in light of inconsistencies between his evidence at the interview and his statutory declaration, did not accept that he was assaulted on this occasion. 8 The Reviewer relied on independent country information that indicated 'a generally improved situation for Tamils since the ending of the war' but also noted that 'there exists substantial mistreatment of Tamils suspected of having links with the LTTE' and reports of continuing disappearances of persons 'having a potential risk profile'. 9 Despite broad acceptance of the appellant's claims, the Reviewer reached the decision that the appellant would not be suspected of being an LTTE supporter on the following factual findings: (a) The independent country information indicated 'a generally improved situation for Tamils' since the war ended and there was no longer a presumption of eligibility for Sri Lankans of Tamil ethnicity from the north of Sri Lanka; (b) The appellant did not claim that his family was harmed in any way when the police visited or that the police and Army had continued to enquire into his whereabouts since their single visit in 2006; (c) The appellant's assistance to the LTTE was of a comparatively minor nature and occurred a substantial time ago; (d) The evidence did not indicate that the appellant's friends or family had been or were perceived to be associated with the LTTE; and (e) The appellant had been able to successfully defend the charge that he was a LTTE suspect through the court system. 10 The Reviewer also noted that while accepting the appellant was detained in May 2008 on the basis of his own evidence he was released on the same day and had not been physically harmed. He noted that nothing happened to the appellant between the time of this incident and his departure to Malaysia in September 2009. The appellant had been able to depart Sri Lanka to visit India on three occasions using his own passport which, in the opinion of the Reviewer, 'strongly supported the fact that the appellant was and is not of continuing interest to the authorities'. 11 The Reviewer considered the appellant's additional claim raised in written submissions that he would be at risk if he were to return to Sri Lanka as a failed asylum seeker from Australia. After noting the appellant would have a profile that would make him of interest to the authorities as a suspected LTTE supporter, the Reviewer referred to advice by the Department of Foreign Affairs and Trade (DFAT) suggesting that the Sri Lankan authorities did not have procedures in place to identify failed asylum seekers and there was no differential treatment of deportees or returnees. 12 I will consider in greater detail below (at [28]-[32]) country information referred to by the Reviewer in his reasons.

THE APPLICATION IN THE FEDERAL MAGISTRATES COURT 13 The appellant applied for judicial review of the Reviewer's decision. 14 The claim related specifically to the risk of persecution by reason of his being a member of a particular social group, namely young Tamil males form the north of Sri Lanka. 15 The appellant (relevantly to this appeal) alleged that the Reviewer had failed to make findings about his claimed fear arising out of membership of a particular social group identified as 'young Tamil males from the north of Sri Lanka'. 16 Before the Federal Magistrate, as before this Court, the appellant submitted that even though the Reviewer had accepted that the appellant was a young Tamil male from the north of Sri Lanka and had specifically referred to independent country information concerning the degree of the risk of harm faced by young Tamil males from that region, he had failed to make any findings concerning the appellant's fear specifically based on his membership of that particular social group. 17 However, his Honour rejected this (at [24]) saying that the appellant's real grievance was that the Reviewer did not find that the appellant's membership of the particular social group gave rise to a well-founded fear of Convention related persecution. The complaint was not that the Reviewer had failed to acknowledge the group or accepted that the appellant was a member of the group. 18 His Honour held that the Reviewer had found that although in early 2007 the appellant was arrested, detained and assaulted and young Tamils like him were targeted by the Sri Lankan Army during that period, the independent country information before the Reviewer indicated a generally improved situation for Tamils since the end of the war. The Federal Magistrate concluded that the Reviewer had accepted that individuals who are suspected of links with the LTTE would be subjected to a risk of harm but impliedly found that those who did not have such links would not be subjected to such treatment. His Honour held that that the Reviewer had found essentially, if obliquely, that the particular social group which the appellant identified was not subject to persecution and, therefore, he did not have a well-founded fear of persecution on account of his membership of it.

ON APPEAL TO THIS COURT 19 The appellant again complains that the Reviewer failed to address a claim of membership of a social group of young Tamil males from the north of Sri Lanka. That failure, it is said, is a legal error, namely, a failure to afford procedural fairness and jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (at [55]-[63]). There is no doubt that the appellant did draw attention to the fact that he was a young man from Jaffna and that he was at risk for that particular reason. The appellant contends that that was a clear statement of a particular fear standing independently of fear generally arising from an imputed political opinion as a supporter of LTTE. 20 The specific social group was also highlighted by the submission to the Reviewer from the appellant's advisor which was based entirely upon the appellant's attributes as a Tamil male from the north of Sri Lanka when the advisor submitted that: The delegate states that our client is of 'no heightened interest [to the authorities] beyond being a Tamil from the north of the country'. It is our submission that, even if you do not accept our submission that our client is at risk due to his imputed political opinions, his identity as a Tamil from northern Sri Lanka will be sufficient to give rise to a well-found fear of persecution, in the light of independent country information and the persuasive authority of past RRT decisions. 21 The appellant submitted that the Reviewer did not make a finding concerning whether or not a social group existed. The Reviewer did refer to the US Department of State 2010 Human Rights Report, Sri Lanka, 8 April 2011 (US Report) under the heading 'National/Racial/Ethnic Minorities'. This stated that 'Tamils throughout the country, but especially in the conflict affected north and east, reported frequent harassment of young and middle aged Tamil men by security forces and paramilitary groups' (emphasis added). The appellant accepts that the Reviewer extracted this passage but contends that the Reviewer failed to treat 'young Tamil males' as a social group identifiable within society with common shared attributes other than the shared fear of persecution, applying the test in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 (at [36] per Gleeson CJ, Gummow and Kirby JJ). 22 The appellant relies on Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 and particularly at [26] where Gummow and Callinan JJ said (footnote omitted): At the outset it should be pointed out that the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason. 23 The appellant also placed reliance on Applicant S (at [36]) where Gleeson CJ, Gummow and Kirby JJ reinforced the repeated emphasis by the High Court that 'identifying accurately the 'particular social group' alleged is vital for the accurate application of the applicable law to the case in hand'. 24 The appellant referred to a number of other decisions in the area of identification of a particular social group. In MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 the applicant claimed to fear harm as a person who was prepared to expose corruption in his country. The Tribunal found that the reason for his fear was entirely personal rather than because of political opinion or membership of a social group. In that case, Finkelstein J held (at [18]) that it was not necessary to go through the Dranichnikov set of steps because whatever the basis of the claim, in terms of the Convention, it had already been rejected. The appellant accepts that that is entirely unexceptional reasoning. 25 In SZJRU v Minister for Immigration and Citizenship (2009) 108 ALD 515, the Tribunal had found that the fear was as a result of a law of general application in relation to the 'one child policy' which excluded it from the Convention, no matter what Convention bases it rested upon. In SZJRU Besanko J took a similar view to Finkelstein J in MZXDQ (at [50]) where his Honour pointed to the fact that the absence of any one of the Convention reasons would be sufficient. (Besanko J found in favour of the appellant for different reasons). A similar approach was taken by Collier J in BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543. 26 In the recent decision of SZNOE v Minister for Immigration and Citizenship [2012] FCA 96, Greenwood J held (at [78]) that as the Federal Magistrate had correctly concluded that unless the Tribunal makes a jurisdictional error, on the question of fact of whether the applicant holds a well-founded fear of persecution for any one of the contended reasons, no jurisdictional error arises by the mere failure to indentify and consider the precise social group to which the applicant claims membership. 27 In the present appeal, the appellant says the Reviewer has not done enough to meet this requirement. At [25] and [32] the Reviewer said: 25. I put to the claimant adverse country information about the improving situation of Tamils in Sri Lanka, that many Tamils from camps were being released and in particular the advice of the UNHCR that there was no need for presumed eligibility of Tamils from the north. The claimant stated that though the Sri Lankan government had released some Tamils they were still killing many. According to the news of his community many are still in detention, that abductions were continuing in Jaffna and that the Prevention of Terrorism Act was still in force. The government had still not lifted the curfew in Jaffna and anti-LTTE groups such as the EPDP were still abducting people identified as helping the LTTE. He stated without an ID card it was not safe to move around and as he had helped the LTTE both he and his family were in danger. In response to my question, he stated he did not fear the LTTE. … 32. The UNHCR guidelines also provide the following relevant comments: The Guidelines contain information on the particular profiles for which international protection needs may arise in the current context. Given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of discriminate harm. In the light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country. … On 19 May 2009, the Government of Sri Lanka formally declared victory over the LTTE after capturing the last LTTE-controlled territories in the north of the country. This marked the end of a 26-year non-international armed conflict. At the time of writing, the security situation in Sri Lanka had significantly stabilized, paving the way for a lasting solution for hundreds of thousands of internally displaced person (IDPs) in the country's north and east. In August 2009, the Sri Lankan Government began to organize the return or release from IDP camps of some 280,000 persons, who were forced to flee their homes during the final phase of the conflict. Many of the initial restrictions on the freedom of movement of IDPs have been lifted, and by mid-June 2010, approximately 246,000 persons had left the displacement camps to return to their places of origin or live with host families, relatives and friends. More returns are expected to take place within the coming weeks or months. A number of hose who left the camps remain, however, in a situation of displacement due to the total or partial destruction of their homes and the ongoing de-mining operations. Furthermore, IDP return has in some cases been hindered by land disputes arising form a number of issues, such as secondary occupation; the occupation of land by the military and LTTE during the conflict, including the arbitrary seizure of land belonging to Muslims by the LTTE in the north and east; the establishment of High Security Zones (HSZ) and Special Economic Zones (SEZ); and the loss of documentation. … All claims by asylum-seekers from Sri Lanka should be considered on their individual merits in fair and efficient refugee status determination procedures and taking into account up-to-date and relevant county of origin information. UNHCR considers that, depending on the particular circumstances of the case, some individuals with profiles similar to those outlined below require a particularly careful examination of possible risks. This listing is not necessarily exhaustive and is based on information available to UNHCR at the time of writing, hence a claim should not automatically be considered as without merit because it does not fall within any of the profiles identified below. Some of the claims lodged by asylum-seekers from Sri Lanka will require examination of possible exclusion from refugee status. (emphasis added) 28 The appellant argues that the general statement appearing at [45] of the Reviewer's decision is not sufficient to deal with the specific social group subset. At [45] the Reviewer said: Taking into account all these factors on an individual and cumulative basis and the country information, I find that the claimant does not face a real chance of serious harm, now or in the reasonably foreseeable future, for reasons of his Tamil race, imputed political opinion as a suspected LTTE supporter or any other Convention reason. (emphasis added) 29 The appellant argues that it is not sufficient for the Reviewer simply to say that there is no risk for Convention reasons to dispose of any claim for any social group however categorised. It is not sufficient simply to recite the Convention formula to dispose of the social group claim. As an alternative, the appellant argues that if his interpretation of the reasoning by Greenwood J in SZNOE is not accepted, then the appellant contends that his Honour was 'clearly wrong' and should not be followed. 30 Mr Godwin stressed that the information in the UNHCR Guidelines is much broader than the particular group to which the ground of appeal is directed. It does not precisely identify young Tamil men from the north of Sri Lanka as no longer needing protection as a specific group. Rather, it treats all Tamils from the north of the country as a group. It was submitted that this was a significant distinction. 31 The second point arising from the UNHCR report was that the Reviewer did not, in terms, make a finding accepting the report but simply referred to it. At [42] of his report the Reviewer said: I am of the view that the claimant will not be suspected of being a LTTE supporter on his return for a number of reasons. The country information set out above indicates the generally improving situation for Tamils since the ending of the war and that there is no longer a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country. 32 In my view, it would be taking an unrealistically pedantic reading of the Reviewer's report to suggest that the Reviewer did not, in the passage just cited, rely amongst other country information and evidence upon the UNHCR report in reaching his conclusion. The report is at least consistent with the conclusion and is referred to contextually with the conclusion. 33 Although the appellant argues there was not an express finding that all Tamils from the north of the country were not suffering indiscriminate harm, I am not satisfied, for the same reasons, that this submission can be accepted. 34 The main point for the appellant on this appeal was that the fact that the security forces are no longer targeting all Tamils from the north of the country does not, it is contended, logically exclude the proposition that they might be targeting a subset of Tamils from the north of the country, namely, young males.

CONSIDERATION 35 The Reviewer found expressly that the appellant did not face a real chance of serious harm 'for reasons of his Tamil race, imputed political opinion as a suspected LTTE supporter or any other Convention reason' (emphasis added) (at [45]). However, this was only a conclusion to his preceding detailed consideration. 36 The Reviewer did not, in his findings, specifically identify or articulate the claim as one involving membership of a particular social group. This, however, does not amount to jurisdictional error in circumstances where the underlying factual claims that gave rise to the appellant's claims were addressed and were the subject of specific findings made by the Reviewer. 37 The Reviewer accepted that the appellant had been detained and assaulted in 2007 and that young Tamils like him had been targeted by the Army during that period but went on to note that although some country information indicated that it was those Tamils in the north and east of Sri Lanka suspected of being sympathetic to the LTTE who were frequently detained and tortured by the authorities (at [41]), the appellant specifically, for reasons personally referable to his own background and experience, would not be suspected of being a supporter of the LTTE if he were to return to Sri Lanka (at [42]). At the same time the Reviewer also noted country information which indicated that there was a generally improved situation for Tamils since the end of the war and there was 'no longer a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north' (at [42]). 38 The question is whether in these circumstances a separate finding of fact in respect of the appellant's 'membership of a social group being [young] Tamil [males] from the north' was necessary. There was detailed analysis of the specific claims raised by the appellant and detailed consideration given to them. It was an obvious fact that the appellant was a young male and it was accepted that he was a Tamil from the north. Such a group was embraced within the US Report (see [21]) above). In my view, against that background, the broader finding that referred to improvement for Tamils since the end of the war, taken with the finding that the appellant would not be suspected of supporting the LTTE if he returned to Sri Lanka, was sufficient to include the particular social group to which attention is directed on this appeal. 39 In my view, this case falls within the category considered by French, Sackville and Hely JJ in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 (at [47]) where their Honours said: The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. (emphasis added) 40 Given the Reviewer's findings concerning the appellant's situation and the finding that the appellant did not face a real chance of serious harm on the basis of his being a Tamil, it was unnecessary for the Reviewer to make a separate finding as to whether the social group described as young male Tamils from the north of Sri Lanka constituted a particular social group to be considered separately for the purposes of the Convention.

CONCLUSION 41 For those reasons, in my opinion, the conclusion reached by the Federal Magistrates Court was correct and the appeal must be dismissed with costs. Notwithstanding the view that I have arrived at in this matter, I acknowledge the generous and capable assistance of Mr Godwin who appeared pro bono and for the appellant. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.