SZSQL v Minister for Immigration and Border Protection

Federal Court of Australia|2015-10-22|Before: Mr P, Gleeson J

The appeal be dismissed with costs.
The costs in the appeal be fixed at the amount of $4,750.00.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 728 of 2014

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

J BARTLETT IN THE CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

JUDGE: GLEESON J DATE: 22 October 2015 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Circuit Court of Australia ("FCC") dismissing the appellant's application under s 476 of the Migration Act 1958 (Cth) for judicial review of a recommendation made by the second respondent ("assessor") that the appellant not be recognised as a person in respect of whom Australia has protection obligations or as a member of the same family unit as such a person: SZSQL v Minister for Immigration [2013] FCCA 2158. 2 The appeal follows the appellant's partly successful application for an extension of time within which to file a notice of appeal: SZSQL v Minister for Immigration and Border Protection [2015] FCA 294. The background to the appeal is set out in those reasons.

Grounds of appeal 3 There are three grounds of appeal, concerning the assessor's alleged failure to deal with: (1) Refugee Review Tribunal ("RRT") country advice dated 28 May 2010 ("RRT country advice"), which suggested, according to the appellant, that it was likely that the appellant would be detained and harmed on arrival at the airport in Sri Lanka; (2) a 2012 letter from Amnesty International to the appellant ("Amnesty letter") containing information about the type of people who would be suspected of being Liberation Tigers of Tamil Eelam ("LTTE") supporters, and consequently at risk of harm; (3) a post-interview submission (to which the Amnesty letter was attached) containing information about detention and torture of returned asylum seekers in Sri Lanka. 4 The appellant contends that the FCC judge made errors of law by failing to conclude that the assessor had failed to take into account this information, being information the assessor was bound to consider: cf Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 ("Peko-Wallsend"). Concerning the second and third matters, the appellant also contends that the FCC judge failed to identify the assessor's failure to understand and undertake her task, which task entailed a consciousness and consideration of the submissions, evidence and material advanced by the appellant most likely to give her an accurate picture of the ongoing circumstances on the ground in Sri Lanka, thereby failing lawfully to form the "requisite state of satisfaction". The meaning of "requisite state of satisfaction" in the context of a recommendation that a person not be recognised as a person in respect of whom Australia has protection obligations is considered below.

Failure to take into account a relevant consideration 5 In Peko-Wallsend, Mason J said at 39: The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. 6 Ignoring relevant material in a way that affects the exercise of power involves an error of law: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 ("Yusuf") at [82] (McHugh, Gummow and Hayne JJ). 7 The relevant obligation is to consider matters raised by the applicant or squarely raised on the materials before the decision maker: cf. Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [7], [13], [42] and NABE v Minister of Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [61]. 8 In Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [57], Allsop J said that Yusuf: …does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. "Relevant" for this purpose means that the decision-maker is bound by the statute or by law to take this into account: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 29 at 39-42.; Telstra Corporation Ltd v Seven Cable Television Pty Ltd [2000] FCA 1160; (2000) 178 ALR 707, 739 [131, 132] (special leave refused 20 August 2001); see generally Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 at [79]; Applicant R v Minister for Immigration and Multicultural Affairs [2001] FCA 1304 at [46] to [55]; Awan v Minister for Immigration and Multicultural Affairs [2001] FCA 1036 at [44] to [50]; and Ragunathan v Minister for Immigration and Multicultural Affairs [2001] FCA 1142 at [58] to [65]. In Yusuf McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said this at paragraph [14]: What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts. 9 In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46], the Full Court said: It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Yusuf v Minister for Immigration and Multicultural Affairs (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. 10 Whether a decision maker is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77]. In VAAD, the RRT failed to consider a document which was not only particular to the first appellant but arguably of critical importance to the claims of all the appellants in that case. 11 In SZRKT v Minister for Immigration and Citizenship [2013] FCA 317; (2013) 212 FCR 99 ("SZRKT") at [112], Robertson J said, in considering whether a failure to deal with evidence amounted to jurisdictional error: As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [[2005] FCAFC 117] at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant's claims. 12 In that case, the relevant document was an academic transcript which corroborated the asylum seeker's claim to have studied Persian. 13 This passage was applied by Jagot J in SZSSY v Minister for Immigration and Border Protection [2014] FCA 1144 at [19].

Inferences drawn from decision maker's failure to mention something in reasons 14 In Re the Minister for Immigration and Multicultural Affairs of the Commonwealth of Australia; ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [65], McHugh J said: It is not necessary for the Tribunal to give a line by line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to the findings of material fact made by the Tribunal

Country information 15 In SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478 at [16], Hely J said: The question of the accuracy of country information, and its relevance to a person in the position of the appellant, is one for the RRT, not the Court.

Failure to lawfully form the requisite state of satisfaction 16 In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [38] ("MZYTS"), the Full Court stated that the formation of the requisite state of satisfaction "could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant". At [49] and [50], the Court stated: The court is entitled to take the reasons of the tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the tribunal itself considered important and material, what is present - and what is absent - from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69]. … the Tribunal's reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.

Documents said to contain relevant considerations not taken into account 17 The relevant material did not address the particular position of the appellant. It was material of the kind known as "country information". The appellant did not contend that the material provided the basis for a claim that was not considered. Rather, he contended that the material was corroborative of one or more of his claims and was not considered by the assessor in the context of addressing those claims. 18 The assessor summarised the grounds upon which the appellant claimed to have a well-founded fear of persecution as follows: Race = Tamil Political Opinion = (imputed) LTTE member/supporter and/or anti Sri Lankan Government, arising from his brother's implied affiliation with the LTTE deriving from his brother's workshop employment in a forest area of Killinochchi and his brother's arrest at the Refugee Camp in August 2009. Particular Social Groups = (i) member of his brother Sibaruban/ Sivaroopan's family (ii) young (single) Tamil male from the Vanni/former LTTE controlled area (iii) (young) Tamil male suspected of LLTE [sic] membership/links (iv) Tamil that has lived abroad for an extensive period (v) asylum seeker in/returning from Australia

RRT country advice 19 In the particulars to appeal ground 1, the appellant contends that the RRT country advice "suggested that it was likely that the appellant would be detained and harmed on arrival at the airport in Sri Lanka, in particular with reference to statements attributed to a former Australian diplomat (Bruce Haigh) concerning the Australian government sharing the identity details of Tamil asylum seekers with the Sri Lankan authorities". 20 The appellant's written submissions refer to the advice as information that was "capable" of being information suggesting that "a persecution might arise by virtue only of being a Tamil who has lived abroad and or had sought asylum in Australia". 21 The RRT country advice comprises an extract from a document published on the RRT website, set out in a written submission dated 30 April 2012 and sent to the assessor on behalf of the appellant. In the appellant's written submissions on the appeal, it is noted that the extracted passages "included instances of asylum seekers who were detained and allegedly harmed on their return to Sri Lanka". 22 Reading the RRT country advice as a whole, it does not suggest that failed asylum seekers are likely to be detained and harmed on arrival in Sri Lanka merely because they are failed asylum seekers. The advice is directed to the position of returning asylum seekers "who have been involved with the Tamil Tigers" or who are assumed or perceived to be "LTTE sympathiser[s]" as appears from the following portions of the advice: On 19 May 2010, ABC News reported that according [to] the Edmund Rice Centre, all of the 11 asylum seekers returned to Sri Lanka in the past year have [been] detained by police and some have been assaulted. The Edmund Rice Centre have also claimed that "at least nine asylum seekers returned to Sri Lanka by the Howard government were killed"…. The report contains the following relevant information: Immigration Minister Chris Evans says the Federal Government has a "major problem" returning asylum seekers who have been involved with the Tamil Tigers. Phil Glendenning, the director of the Catholic Church's Edmund Rice Centre…says… "The difficulty here is that there is a view in Sri Lanka that anybody who left the country through an unauthorised manner, of unauthorised means, is an LTTE sympathiser… "I think the position taken by the Minister yesterday in urging caution about returning people who would be seen as being involved with the LTTE is a very wise one"… 23 Accordingly, I do not accept that the advice is capable of suggesting that "a persecution might arise by virtue only of being a Tamil who has lived abroad and/or had sought asylum in Australia". 24 The appellant said that he had not been involved with the Tamil Tigers. Accordingly, the relevance of the advice depends upon whether the appellant would or might be assumed or perceived to be an LTTE sympathiser. 25 There is also a further qualification in the advice: it is directed to the case of "anybody who left the country through an unauthorised manner". 26 This qualification does not apply to the appellant, who left Sri Lanka on his own passport with a one month tourist visa for Malaysia. However, the appellant's counsel noted that the appellant could be perceived (albeit incorrectly) to be a person who left the country through an unauthorised route. 27 The statements attributed to Mr Haigh do not address the question of the risk of harm to failed asylum seekers on arrival at the airport in Sri Lanka. They are directed to Australian government processes in considering whether a person should be granted refugee status. Mr Haigh is said to have expressed the view that, by seeking a security clearance from Sinhalese police, the Australian government's practice "put the family of [the applicant in respect of whom a security clearance was sought] in jeopardy".

Amnesty letter 28 The Amnesty letter includes statements to the following effect: (a) Young Tamil men, particularly those originating from the north and east of Sri Lanka, might be disproportionately affected by the implementation of security and anti-terrorism measures on account of their suspected affiliation with the LTTE; (b) The Sri Lankan government considered that the internment of people in camps was justified because most have been involved in some sort of activity for the LTTE; (c) Most Tamils who lived within LTTE controlled territory would have had some connection with the LTTE and would therefore be at risk of arbitrary detention, and that family members of actual or suspected LTTE members were at risk of being imputed with an LTTE affiliation; (d) Family members of Tamils whom the government suspected may have had contact with the LTTE may be at risk. 29 The assessor relied upon current United Nations High Commissioner for Refugees ("UNCHR") guidelines which stated that in light of the improved human rights and security situation in Sri Lanka, there was 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. 30 A central issue in assessing the appellant's claims was whether he was entitled to protection because he was a young Tamil male who would be suspected of LTTE membership or links. The assessor concluded that the appellant would not be suspected of LTTE membership or links. The appellant's case was that the assessor had failed to take into account the four statements above in considering whether the appellant would be suspected of LTTE affiliation.

Post-interview submission 31 The particulars to appeal ground 3 state that the post-interview submission (together with the attached Amnesty letter) "made submissions and referred to evidence to the effect that returned asylum seekers had been detained and tortured upon their return [to Sri Lanka] (either upon arrival or subsequently)". This summary of the content of the post-interview submission was not disputed.

Failure to find that the assessor had erred by failing to take into account RRT country advice in rejecting the appellant's claim that he should be treated differently from other returnees to Sri Lanka 32 The appellant complains that, in rejecting his claims to being treated any differently to any other returnee, the assessor did not deal with the RRT country advice, which suggested that it was likely that the appellant would be detained and harmed on arrival at the airport in Sri Lanka. 33 The appellant's written submissions do not explain what is meant by "the appellant's claims to being treated any differently to any other returnee". To the contrary, the written submissions seem to imply that the RRT country advice supported the appellant's claim to protection arising from his situation as a failed male Tamil asylum seeker returning to Sri Lanka, without any other differentiating features. 34 In the written submissions lodged on his behalf, the appellant's starting proposition is that the question of how he would be treated upon his return to Sri Lanka was central to the disposition of the review before the assessor. This is undoubtedly correct. It is also the case that the assessor specifically considered this issue. 35 Next, the appellant observed that the RRT country advice was expressly identified in a written submission provided to the assessor. This is also true. It is also true that the passage extracted in the submission included instances of asylum seekers who were detained and allegedly harmed on their return to Sri Lanka. 36 The appellant next submitted that the RRT country advice was plainly "information of a character and importance that the assessor was obliged to take into account". In support of that submission, the appellant pointed to the following matters: (a) The passages were specifically relied upon by the appellant in his written submissions in relation to the issue at hand; (b) The passages addressed the very issue with which the assessor was concerned; (c) The material was on its face cogent and held an important place in the appellant's claims: cf SZRKT at [112]. 37 Even if propositions (a) to (c) are accepted, it does not follow that the assessor was required to give separate consideration to the RRT country advice. The assessor was required to consider the risks facing the appellant if he returned to Sri Lanka. The assessor's reasons show that she gave detailed consideration to that question, addressing the appellant's oral evidence and his written submissions and referring extensively to country information about the risks facing failed asylum seekers on their return to Sri Lanka. I am not persuaded that the RRT country advice was material of the kind that the assessor was obliged to address in order to take into account all relevant considerations, because it did not address the appellant's particular situation and it did not even address the kind of situation that might be relevant to the appellant's particular situation, namely a person who was not involved in the Tamil Tigers and who did not leave Sri Lanka in an unauthorised manner. The advice only had significance if the appellant was found to be a person who would be assumed or perceived to be an LTTE sympathiser, and the assessor found that the appellant was not such a person.

Conclusion 38 For these reasons, I do not accept that the assessor was required to address the RRT country information.

Failure to find that the assessor erred in failing to deal with specific matters raised in the Amnesty letter concerning the type of people who would be suspected of being LTTE supporters 39 The four specific matters that the assessor is said not to have taken into account are the statements to the effect set out at paragraph 28 above. 40 As the appellant acknowledged, the assessor expressly noted the Amnesty letter as a piece of country information submitted by the appellant's advisor. The assessor was also clearly aware of the significance of the question whether the appellant would be suspected of LTTE links because she noted that persons suspected of having links with the LTTE may be at risk on the ground of membership of a particular social group. 41 The appellant's complaint was that the assessor relied on other country information to conclude that the appellant would not be suspected of LTTE affiliation because none of his claimed circumstances fell within the scope of the circumstances identified by that country information as leading the authorities to suspect a person of such affiliation. 42 The appellant also complained that the assessor did not address the apparent inconsistencies between the country information upon which the assessor relied and the Amnesty letter. 43 The appellant relied on the passages in MZYTS set out at paragraph 16 above. In that case, a Full Court found that the Tribunal had failed to consider what might happen to the applicant if he returned to his home country (Zimbabwe): 49. The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present - and what is absent - from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69]. 50. We do not accept the Minister's submission. The Tribunal's reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference. 44 In my view, this case is distinguishable from MZYTS because the assessor addressed the very issue that she was required to address, namely whether the appellant would be suspected of LTTE affiliation. In MZYTS, the Tribunal failed to address the situation in Zimbabwe at the time of its decision, where the claim was about increasing risk of persecution due to the foreshadowing of elections and the breakdown of the transitional government's authority. 45 In MZYTS, the Full Court was not saying that a decision maker is required to address specifically every instance of apparently pertinent but contradictory country evidence. Rather, it was saying that, in the circumstances of that case, the failure to do so contradicted the Minister's submission that the Court could not infer that the Tribunal had ignored the relevant material. 46 As Robertson J stated in SZRKT, it is necessary to consider the circumstances of the case and the nature of the document. On the question of whether the appellant would be suspected of LTTE affiliation, the Amnesty letter was not of such cogency that the assessor was required to give express consideration to whether it should be preferred over the country information upon which the assessor relied. It did not address the appellant's particular situation. Matters (1) and (2) were not directly relevant to the likelihood that the appellant would come under suspicion if he returned to Sri Lanka. Matter (4) and matter (3), insofar as it concerned the risks arising from family members under suspicion, were not relevant because the assessor found that the appellant was not a family member of a Tamil whom the government relevantly suspected. Otherwise, matter (3) is expressed at a high degree of generality and is unsupported by evidence. Having accepted the current UNHCR guidelines which stated that in 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, in my view, that matter did not require separate evaluation. 47 Taking these matters into account, I am not satisfied on the balance of probabilities that the assessor did fail to take into account the contents of the Amnesty letter. I am positively satisfied that she had regard to matter (1), having set it out in full in her report. For matters (2) to (4), I am not persuaded that the assessor's failure to address them in terms is indicative of any legal error because they are not matters of significant cogency in the circumstances. 48 On behalf of the appellant, it was submitted that the Amnesty letter contained material that contradicted the assessor's findings. Counsel for the appellant, Mr Reynolds submitted that the findings as to the limited types of activities that would lead Sri Lankan authorities to impute a person as being an LTTE supporter were contradicted by the Amnesty letter. 49 I do not accept that there is any relevant contradiction. Matter (1) is not inconsistent with the proposition that suspicion of LTTE affiliation is generated by particular types of conduct when regard is had to the fact that its source is the UNHCR guidelines which stated that there was no need for group-based protections. Nor is matter (2): that concerns an historical rather than a current view, and it is concerned with involvement in LTTE activity, which would not necessarily indicate LTTE affiliation.

Conclusion 50 For these reasons, I do not accept that the assessor was required to give consideration to the Amnesty letter.

Failure to find that the assessor erred in failing lawfully to form the requisite state of satisfaction 51 For the same reasons, I am not satisfied that the assessor failed to engage in the requisite evaluative process in deciding that the appellant would not be suspected of LTTE affiliation. 52 Accordingly, appeal ground 2 must fail.

Failure to find that the assessor erred in failing to deal with the risks faced by Tamil returnees 53 In the post-interview submission, the appellant sought to rebut the assessor's suggestion that the situation for returned Tamil asylum seekers was now safe. 54 The assessor specifically referred to that submission at length in paragraph 95 of the assessor's reasons. 55 The appellant's complaint was that the assessor "failed to deal with the specific matters raised in the post interview submission and Amnesty Document regarding the risks faced by Tamil returnees". I do not accept that the assessor's reasons reveal an error of law. The assessor's reasons disclose that she has specifically addressed the post-interview submission and concluded, notwithstanding that submission, that the appellant will not be subject to serious harm because of his race or that, by reason of being young, male, and from the north/the Vanni/a former LTTE controlled area, he would be suspected of having any LTTE links or connections.

Conclusion 56 For these reasons, I do not accept that the assessor failed to give consideration to the post-hearing submission.

Failure to find that the assessor erred in failing lawfully to form the requisite state of satisfaction 57 For the same reasons, I am not satisfied that the assessor failed to engage in the requisite evaluative process in deciding that the appellant would not be at risk of serious harm by reason of his situation as a failed Tamil asylum seeker. 58 Accordingly, appeal ground 3 also fails.

Conclusion 59 The appeal will be dismissed with costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.

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