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[2012] FCA 911
Federal Court of Australia
2012-08-29
Clinic J, Robertson J
Original judgment source is linked above.
Introduction 1 This appeal is from orders of the Federal Magistrates Court made on 29 May 2012 at Sydney. 2 Two grounds of appeal are pressed in this Court, as follows: 2. The Federal Magistrates Court erred in failing to find that the Independent Merits Reviewer erred in law and denied the appellant procedural fairness by failing to give consideration to corroborative material put forward by the appellant in support of his claims, namely, the letter from Mr Rifal, the letter from Mr Saleem JP, the letter from the applicant's neighbour and the letter from Mr Rifkhan. 4. The Federal Magistrates Court erred in failing to find that the Independent Merits Reviewer erred in law and denied the appellant procedural fairness by failing to consider Integers of the appellant's claims by assessing his claims by reference to the treatment of young Tamil males generally rather than by reference to the appellant's personal circumstances, namely, that the appellant was at risk of harm on the cumulative basis of being: (a) a young Tamil male who had departed Sri Lanka illegally; (b) a failed asylum seeker; (c) having participated in a roof-top protest at the Villawood Immigration Detention Centre.
The Independent Merits Reviewer 3 The Reviewer found that the claimant (to whom I will refer as the appellant) did not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958 (Cth). He recommended that the appellant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention. 4 In his statement of reasons the Reviewer noted the claims at the entry interview, the statutory declaration for refugee status assessment, the appellant's statement of 6 February 2010 and the appellant's adviser's submissions. The Reviewer then set out in great detail the interview he conducted as part of the second Independent Merits Review. The Reviewer also set out the country information. 5 The Reviewer's findings and reasons run from paragraph 117 to paragraph 173 and I do not set them out in full. 6 In summary, the Reviewer said he did not find the appellant to be a credible witness. His evidence contained contradictions, inconsistencies, implausibilities and new claims emerging at various stages, which the appellant was not able to explain to the Reviewer's satisfaction and which, considered cumulatively, caused the Reviewer to doubt the credibility of his claims. 7 The Reviewer accepted that the appellant was a Tamil and a national of Sri Lanka and of no other country. The Reviewer accepted that the appellant's claims were against Sri Lanka. He accepted that the appellant lived most of his life in Wevuda. 8 The Reviewer said that the appellant's central claims were that he feared persecution if he was returned to Sri Lanka by: • Singhalese taxi drivers who harmed him when he was driving a taxi, and their Army relatives; some of the drivers were also in the Army; • members of the Sri Lankan Freedom Party because of his activities as a supporter of the rival United National Party; • security officials at Colombo airport because he is a young male Tamil who is a failed asylum seeker; he feared that the harm would be compounded by the fact that the Sri Lankan government knew he participated in a protest at Villawood Detention Centre and this would confirm to them that he had sought asylum in a foreign country; • the authorities generally because, as he is a young male Tamil, it would be assumed that he is connected to the LTTE. 9 The Reviewer accepted that as a Tamil, the appellant suffered some discrimination when driving the taxi. However his evidence also contained inconsistencies and elaborations because of which, the Reviewer said, he was unable to accept that, if the appellant suffered discrimination, it was sufficiently harmful to amount to persecution as envisaged under the Convention. The Reviewer based that finding also on the appellant's statement that he continued to drive this taxi and that he was earning enough to make the Singhalese community envious. 10 Having set out the detail, the Reviewer said that in view of the successive expansions of this set of claims, as well as the inconsistencies, implausibilities and contradictions, his findings were: 143. I do not accept that he was beaten or stabbed by other drivers in 2008 or that his taxi was burnt by them. I consider that these are inventions aimed at bolstering his case. I give no weight to the medical certificate which I note is dated some two years after the alleged stabbing and was issued at his mother's request, and in any case refers only to "two wounds in his leg" without further details. I do not accept that Singhalese drivers came to his home and threatened him. I do not accept that in May 2009 a group of 5 drivers and other Singhalese came to his car park stand, gave him a photo of the dead body of the LTTE leader and told him he had to display it in his car, and when he refused, beat him up. I do not accept that he felt obliged not to drive his taxi for periods during 2006 to 2009 because of his fear of harm from the Singhalese taxi drivers. I do not accept that the 5 hostile Singhalese drivers are also Army members. I do not accept that since departure from Sri Lanka any Army members have ever come to his family home. I do not accept that his mother or brother were beaten up by Army people. I give no weight in this respect of the medical certificate about his brother, which states only that he was under treatment and needs further attention. I do not accept that he ever had any sort of "clash" with Army members. I do not accept that Army members ever had or have any adverse interest in the claimant for any reason. 144. Hence I give no weight to the supporting letters from the JP and Mr Saleem as they are undermined by my findings as to the claimant's credibility. 11 The Reviewer said that his problems with the appellant's credibility applied also to, and were compounded by, the set of claims about his association with the UNP and its harmful consequences. Again, the Reviewer said, the appellant expanded these claims as he went along; his evidence also contained inconsistencies and his claims about violence at the time of the Northwest Province elections in February 2009 were contradicted by the independent country reports the Reviewer cited at the interview with the appellant. 12 The Reviewer then said: 152. Hence my findings are as follows. Notwithstanding the absence of any reference in his entry interview to any UNP-related activities after 1998, I am prepared to give him the benefit of the doubt and accept that he carried out some low-level activities for the party in the lead-up to the 2009 provincial election. I do not accept that he was a party member or of any prominence or importance in the party. I do not accept that after he agreed to do some interpreting for the UNP, he was approached by SLFP members to do the same work for them; I consider this implausible. I do not accept that he was ever beaten up by SLFP members. I do not accept that the SLFP and any of its members have any adverse interest in the claimant. 153. Hence I give no weight to the reference, in a letter from Mr Rifal, to the claimant having been "subjected to various intimidations by the ruling party" as this also was undermined by my findings as to the claimant's credibility. 13 The Reviewer then turned to the balance of the appellant's claims if he returned to Sri Lanka being persecution by : • security officials at Colombo airport because he is a young male Tamil who is a failed asylum seeker; he feared that the harm would be compounded by the fact that the Sri Lankan government knew he participated in a protest at Villawood Detention Centre and this would confirm to them that he had sought asylum in a foreign country; • the authorities generally because, as he is a young male Tamil, it would be assumed that he is connected to the LTTE. 14 These claims were considered at [154]-[170] of the Reviewer's reasons, but, of course, these paragraphs of the reasons should not be read in isolation from the Reviewer's consideration of the other aspects of the claims. 15 Because the submissions before me involved a detailed consideration of these reasons it is convenient to set them out in full. 154. I turn now to his claims about his likely treatment at Colombo airport if he returns, connected to which are his claims about his participation in the roof-top protests at Villawood and the potentially adverse consequences for him. 155. To begin with, I do not accept that since the end of the conflict, the mere fact of being a young Tamil male would for that reason alone, without further contributing factors, cause a person to be suspected of having been an LTTE member or supporter. 156. While the country information is divided on this question, I am guided by the fact that no such assertion is made in the following sources cited above, despite the fact that all of them contain criticisms of the human rights situation in Sri Lanka: Amnesty International Report 2010, The State of the World's Human Rights: Sri Lanka, which states that young Tamil males …. who have actual or imputed links to the LTTE (my italics) face risk of arrest; International Crisis Group Report: Sri Lanka, A Bitter Peace, 11 January 2010; US Department of State: 2009 Human Rights Report, Sri Lanka, 11 March 2010. 157. Secondly, I have closely examined the photos of the Villawood roof-top protest that he submitted from the Sri Lankan media. I do not consider that he is identifiable in any of them, as I stated in respect of the pictures he submitted at interview. However, they are copies; perhaps the originals are clearer. I am prepared to accept that he participated in the protest. 158. Having made that finding, I need to make findings regarding the purpose of this participation in the context of Section 91R(3). 159. The protest attracted widespread media coverage which was, I consider, its main purpose. Based on my adverse findings about the claimant's credibility, I do not accept that he was not aware that the protest would result in his image being published in the media, that this had not been his intention. I also base this finding on his statement that when he and the other protesters descended from the roof, he told his story to a reporter from a Singhalese newspaper in Australia. 160. I find that one purpose of his participation was to strengthen his claim to be a refugee. However, I am prepared to accept that there was also another motivation for his participation. According to the Australian media coverage, the protest took place following the suicide of a detainee, apparently in order to avoid deportation. I am prepared to accept that the applicant took part in the protest also due to emotional turmoil and heightened fears about being deported. 161. Hence I am not required to disregard this conduct. 162. Nevertheless, I do not accept that the Sri Lankan government's possible knowledge, from media coverage of the protest, that he had sought asylum in another country would of itself, in the absence of other factors, give rise to a real chance of his suffering Convention-based harm on his return. I do not accept that his having told his story to a reporter from a Singhalese newspaper in Australia after the protest, would give rise to his being persecuted on return, whether the story was published or not. 163. The reasons for this finding are as follows. 164. I have considered the report submitted by the claimant and his advisers about the treatment of returning failed asylum seekers in Sri Lanka, including that by the Edmund Rice Centre. While views on this issue are clearly divided and there have been some reported cases of mistreatment, I do not accept that, in general, returning asylum seekers who are Tamils, including those who have departed Sri Lanka illegally, face a real chance of harm amounting to persecution on return. 165. I base this finding on the report by the Danish Immigration Service (DIS), which cites such reliable sources as the British High Commission in Colombo, the Norwegian Embassy and other diplomatic missions in Colombo, the International Office for Migration and the United Nations High Commission for Refugees. The UNHCR, for example, is quoted as stating that some returned failed asylum seekers were interviewed by the CID, but there had been no incidents of detention. The observations on this issue in the reports by the UK Foreign and Commonwealth Office and the Australian High Commission in Colombo, are consistent with those in the DIS report. 166. In sum, I do not accept that if the claimant returns to Sri Lanka, he will be persecuted for any or all of the following reasons: as he is a young Tamil man the authorities will suspect that he is an LTTE member; he is a Tamil who has sought refugee status abroad; he has been sent back from a foreign country; he departed Sri Lanka illegally. 167. I do not accept that he will be persecuted on return on the basis of an anti-government political opinion imputed to him as a returnee. 168. I do not accept that he will be persecuted on return even if I accept the claims that his family told police 'everything' including that he went to Australia by boat and that his friends have been questioned about his whereabouts. 169. Based on this information and my adverse view about the claimant's credibility, I do not accept that his family were visited by the CID. I do not accept that the CID has any adverse interest in the claimant. 170. On the evidence before me, I find that the claimant does not face a real chance of persecution for reasons of ethnicity, or imputed political opinion in any context, or for any other Convention reason if he were to return to Sri Lanka, now or in the reasonably foreseeable future. In making this finding, I have given consideration as to whether the factors which I accept give rise to a real chance of persecution on a cumulative basis, and I find that they do not.
Ground 2 16 In relation to Ground numbered 2, the appellant submitted that the Federal Magistrate erred in failing to find that the Reviewer fell into jurisdictional error in failing to give consideration to the corroborative material. 17 The submission was put that by giving no weight to the corroborative evidence the Reviewer failed to consider relevant material and failed to address the appellant's claims. It was then submitted that the Reviewer was required to give proper, genuine and realistic consideration to the evidence before him. Two difficulties were identified with the Reviewer's approach. First it was submitted that the Reviewer assessed the appellant's credibility entirely by reference to alleged inconsistencies in accounts given by him without considering the corroborative material. Secondly the corroborative letters constituted independent evidence which, separately from the appellant's own evidence, may have (if properly considered) supported the conclusion that the appellant was at risk of persecution if returned to Sri Lanka. On this basis it was submitted that the Reviewer ignored corroborative material and thereby failed to consider a relevant matter. To this submission was added that a Reviewer will fall into error if, even after making an adverse credibility finding, he simply refused to consider the corroborative evidence and failed to consider that material when making a credibility finding. 18 In my view this ground as framed must fail at the threshold because it is clear that the Reviewer did give consideration to the corroborative material. Whether or not the Reviewer gave weight to the supporting letters was a matter for him as fact-finder. The Reviewer said at [87] he had read the letters and in the paragraphs following, [89]-[91], he set out parts of their contents. 19 In my opinion, contrary to the appellant's submissions, the expression "I do not accept" in [143] of the Reviewer's reasons are findings as to credibility, as the Reviewer himself described them in [144]. 20 The appellant relied on three decisions. 21 The first was WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74 at [27]-[29]. 22 In my view, however, the Reviewer did not state that it was unnecessary for him to consider the material said to be corroborative. The Reviewer had made comprehensive findings which, he said, were not displaced by the letters, the contents of which he had already set out in part; see also WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 at [36] per French J. 23 The next decision relied on was Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 especially at [38], per North and Lander JJ. 24 I do not read the decision of the Reviewer as simply refusing to consider the corroborative evidence or simply disregarding it. In my opinion the Reviewer was explaining in the paragraphs I have set out and referred to why he was giving less weight to the alleged corroborative material than to his assessment of the appellant stemming from his assessment of the other material. What the Reviewer did in the present case falls within the dicta in [37]-[38] of the joint judgment in SZNSP. 25 The third decision referred to was Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33]. 26 On the view I take of the Reviewer's reasons, I construe his reference to "no weight" in the same way, although in slightly different circumstances, to the way in which the High Court approached the issue in SZJSS. 27 I do not accept the submission that because there was no additional reasoning in relation to these letters, beyond saying that they were undermined by his findings as to the appellant's credibility, this established or suggested that the Reviewer did not take them into account. I read the references to the letters at [144] and [153] of the Reviewer's reasons as being references to their contents. It follows that I also do not accept that the letters were disregarded only on the basis of credibility: in my opinion the Reviewer compared their contents with the material to which he had already referred in his reasons. 28 I also think it inherently unlikely that a decision-maker would do as the appellant claims he did, that is, assess part only of the material which is before him or her, arrive at a fixed and concluded view and thus fail to take into account other material. The letters, although dealt with in separate paragraphs, were in no different position to the medical certificates. 29 For these reasons Ground numbered 2 fails.
Ground 4 30 In considering Ground numbered 4 it is important first to understand the level of generality at which it is put. 31 It is submitted on behalf of the appellant that the Federal Magistrate erred in not finding that the Reviewer erred in failing to direct his assessment at the particular risk to the appellant. I have set out the terms of the ground of appeal at [2] above. 32 Correctly, the ground does not raise whether the Reviewer's decision was, as a matter of the merits, right or wrong. Neither does the ground raise whether the Reviewer's decision was or was not badly reasoned or illogical. 33 I accept for present purposes that the appellant's claims could not be addressed solely by reference to evidence relating to returned Tamil asylum seekers generally. The question is whether that was what the Reviewer did in this case or whether the Reviewer was seeking to find facts in relation to the appellant and referring to general facts as part of a process of determining whether the appellant faced a real chance of persecution if he returned to Sri Lanka. 34 In this respect, the context is of great importance, that context being that the Reviewer rejected the appellant's claims based on his particular circumstances, for example the claim that he was or had been of adverse interest to the army for any reason; that he had been a party member of the UNP or of any prominence or importance in the party; that his family were visited by the CID at all or following the publication of his image in the media consequent upon the rooftop protest at Villawood Immigration Detention Centre; and that the CID had any adverse interest in the appellant. 35 In support of this ground reference was made to Minister for Immigration and Citizenship v MZYLE (No. 2) [2011] FCA 1467. 36 In my view that decision provided a substantial distraction. The relevant error identified by the Federal Magistrate in that case and the subject of the appeal concerned the way the reviewer dealt with the claimed risk of persecution, namely that he approached the matter on the basis that a choice had to be made between various items of country information rather than assessing the weight to be attached to the country information in order to assess whether the fear of the first respondent was well-founded (the risk of persecution issue). The paragraphs of the judgment relied on were as follows. 33. The first respondent, however, submitted that the reviewer misunderstood the ultimate questions to be resolved and the full scope of his function. Rather than undertaking an assessment of the risk of persecution to the claimant, the reviewer proceeded as if the fact finding on the issue of the scrutiny of asylum seekers in the past resolved the question whether the claimant fell within the definition of a refugee. The reviewer failed to make an assessment of the risk to the claimant of persecution in the future and thereby asked himself the wrong question. This was confirmed by the conclusion 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". It was said that this conclusion shows that the reviewer failed to address the particular risk to the appellant. The failure of the reviewer thus to ask himself the right question was a jurisdictional error and the Federal Magistrate was correct, so it was argued, to make the declaration in [1(b)] of his orders in relation to the country information concerning the scrutiny of returned asylum seekers. 34. The first respondent's argument should be accepted. There is no indication in [160] that the reviewer was seeking to find facts as part of a process of determining whether the appellant faces a real chance of persecution as a returned asylum seeker. The language of the reasons concerning the scrutiny by government authorities in Sri Lanka of returned asylum seekers suggests that the relevant enquiry was concluded once the reviewer determined whether, as a fact, failed asylum seekers were subject to scrutiny at the airport. The reviewer did not conclude the discussion with any judgment of the future risk of scrutiny to the appellant as a young Tamil male. 37 As may be seen, the basis on which the claimed risk of persecution error was put in that case is substantially different to Ground numbered 4 in the present case. However there was an element in that case of a failure to address the particular risk to the appellant. 38 In my opinion it is incorrect to say, as was submitted on behalf of the appellant, that the Reviewer considered only whether the country information was such as to establish that a young Tamil male or returning asylum seeker "in general" faced harm. 39 Reference was made to the use of the expression "mere fact" and the expression "in general" in the Reviewer's reasons. 40 So to argue impermissibly takes two expressions out of context contrary to the approach required by Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. 41 The first example, from [155] of the Reviewer's statement of reasons, immediately follows a paragraph where the Reviewer turns to the appellant's claims about his likely treatment if he returned to Sri Lanka. The paragraph in which the expression "the mere fact" appears reads in full as follows: 155. To begin with, I do not accept that since the end of the conflict, the mere fact of being a young Tamil male would for that reason alone, without further contributing factors, cause a person to be suspected of having been an LTTE member or supporter. 42 The Reviewer then went on to consider country information, the Villawood rooftop protest, especially at [162] in relation to the appellant himself, and the specific findings about the appellant. 43 The second expression complained of appears in the following paragraph: 164. I have considered the reports submitted by the claimant and his advisers about the treatment of returning failed asylum seekers in Sri Lanka, including that by the Edmund Rice Centre. While views on this issue are clearly divided and there have been some reported cases of mistreatment, I do not accept that, in general, returning asylum seekers who are Tamils, including those who have departed Sri Lanka illegally, face a real chance of harm amounting to persecution on return. 44 Again, in my opinion, there can be no complaint about dealing with general material in a general way. 45 The Reviewer considered the factors particular to the present appellant: see [34] above. In their context, I do not read the findings in [162] by reference only to [164]-[165]: this would be to read the reasons inconsistently with the approach required by Wu Shan Liang (above). But I understand the Reviewer to be saying that he took into account the general considerations in [164]-[165] as part of his assessment of the question of treatment of the appellant if he returned to Sri Lanka. 46 The question is whether the Reviewer considered the appellant's particular claims, albeit by reference to country information, or whether the Reviewer considered only the position of young Tamil males generally. 47 In my opinion, it was not impermissible for the Reviewer, having dealt with the appellant's claimed individual circumstances, to reason by reference to the position of returned asylum seekers who are Tamils, including those who had departed Sri Lanka illegally. 48 It was further submitted that the Reviewer also failed to consider the appellant's claims to be at a heightened risk of suffering serious harm at the hands of the Sri Lankan authorities on a cumulative basis of being a young Tamil male who had departed illegally and being a failed asylum seeker with a raised profile as a consequence of participation in a rooftop protest at the Villawood Immigration Detention Centre (and later being interviewed by a Singhalese newspaper). 49 However in my view this submission runs directly counter to [166] of the Reviewer's statement of reasons where the Reviewer addressed the claim "for any or all of the following reasons": a young Tamil; who departed Sri Lanka illegally; who has sought refugee status abroad. As I read the Reviewer's reasons, the expression "who has sought refugee status abroad" included the preceding discussion of the rooftop protest. That discussion in turn included the Sri Lankan government's possible knowledge from media coverage of that protest, the media coverage including the appellant having told his story to a reporter from a Singhalese newspaper in Australia after the protest: see [162] of the Reviewer's statement of reasons. More generally, I read the summary in [166] of the Reviewer's reasons as encompassing the whole of the preceding discussion in [154]-[165] of the Reviewer's reasons of the appellant's claims in relation to his return to Sri Lanka. 50 In addition at [170] the Reviewer stated that he had given consideration to whether the factors which he accepted gave rise to a real chance of persecution on a cumulative basis. 51 I reject the submission on behalf of the appellant that the Reviewer answered the question as to whether or not there would be a risk to the appellant upon his return to Sri Lanka solely by reference to the circumstances or to evidence relating to asylum seekers generally and not by reference to the specific circumstances of the appellant. 52 In my opinion, Ground numbered 4 fails.
Conclusion 53 I have found no error in the judgment of the Federal Magistrate. With respect to Ground numbered 2 in this Court, his Honour found that the sequential fashion of the Reviewer's record was for ease of presentation and not indicative of a failure to have assessed material: the reasons had to be read holistically: see [110] and [113] of the reasons for judgment of the Federal Magistrate. The material was considered: see [122]-[125] of those reasons. As to Ground numbered 4 in this Court, his Honour found that regard must be had to the entirety of paragraphs [154]-[171] of the Reviewer's reasons and not just to selected phrases. Further, on a fair, if not a plain, reading of the Reviewer's reasons the assessment was not only general but also with reference to the appellant's circumstances and the Reviewer considered each of the elements separately and cumulatively: see [170]-[171] of the reasons for judgment of the Federal Magistrate. I agree. 54 I dismiss the appeal, with costs. I certify that the preceding fifty-four (54) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.
SZQQR
Minister for Immigration and Citizenship
[2012] FMCA 434
(2010) 243 CLR 164
(2010) 184 FCR 485
(1996) 185 CLR 259