FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v MZYLF (No 2) [2011] FCA 1468

THE COURT ORDERS THAT:

1.    The appeal is allowed in part.

2.    Paragraph 1(a) of the orders made by the Federal Magistrates Court on 15 August 2011 is set aside.

3.    No orders as to costs.

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

REASONS FOR JUDGMENT

1    Before the Court is an appeal by the appellant, Minister for Immigration and Citizenship, from a declaration made by the Federal Magistrates Court on 15 August 2011. The Federal Magistrates Court declared that the second respondent, a merits reviewer, made errors of law in recommending to the appellant that the first respondent is not a refugee within the definition in Art 1A of the Convention relating to the Status of Refugees (the Convention).

2    The first respondent is a national of Sri Lanka. He arrived at Christmas Island on 7 February 2010. An initial assessment of his refugee status made by an officer of the Department of Immigration and Citizenship (the Department) was unfavourable to him. He therefore applied for a merits review of the assessment. On 26 January 2011, the second respondent (the reviewer) produced written reasons for the recommendation to the appellant that the first respondent should not be recognised as a refugee.

3    The first respondent is a Tamil. He follows the Catholic religion. He was born in 1983 and is single. He worked as a fisherman and lived in Jaffna.

4    He claimed that he had been detained and interrogated because he was suspected of being a member of the Liberation Tigers of Tamil Eelam (“LTTE”). The reviewer did not find these claims to be credible. They are not the subject of this appeal.

5    The first respondent also said that he feared that he would be persecuted as a result of his unlawful departure from Sri Lanka. The manner of his departure would give rise to the suspicion in the minds of the authorities in Sri Lanka that he was a member or supporter of the LTTE.

6    In the reasons of the reviewer the claim was dealt with as follows:

141.    He claims that if he is forced to return to Sri Lanka, the authorities at the airport will question him because he left illegally and does not have a valid travel document and that because of this, they will accuse him of being a member or supporter of the LTTE.

142.    I do not accept this, based on the information provided by the Australian High Commission in Colombo to the effect that there are no procedures in place to identify failed asylum seekers and that the only way that the authorities would be alerted to a failed asylum seeker returning – and I note this would apply to returnees generally – is if the airlines or IOM notified them that a person was a deportee or was being escorted. The report states that a Tamil returned to Colombo after seeking asylum in Australia would therefore be under no more scrutiny than any other Tamil returning to Colombo and would be subject to the same screening procedures. The report further states that there is no hard evidence to prove that this does not apply also to persons who illegally departed from Sri Lanka or who lack an ID card or other documentation.

143.    I note the report by the Edmund Rice Centre stating that asylum seekers returned to Sri Lanka in recent months were handed over to the CID and taken into custody, and that some were detained and some assaulted.

144.    This is an example of the divergent views in the independent country information about various aspects of the situation in Sri Lanka, including this issue. It presents a significant challenge for assessors. However, it is the assessor’s responsibility to come down on one side or the other of this argument and I accept the advice of the Australian High Commission, whose role is to be informed in detail on such matters in order to advise policymakers – that is, ministers and officials – in Australia. I accept 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 and would be subject to the same screening procedures.

    [emphasis added]

7    In the Federal Magistrates Court this case was heard immediately following MZYLE v Minister for Immigration & Anor [2011] FMCA 589 (MZYLE). The Federal Magistrate said that both cases were argued on almost identical issues.

8    As in MZYLE and for the same reasons, the Federal Magistrate held that the reviewer in the above passage made an error of law by failing to deal with the claim based on the first respondent’s illegal departure (the illegal departure issue) and made a further error of law in the assessment of the risk of persecution (the risk of persecution issue). The reasoning for the Federal Magistrate in this case was the same as his reasoning in MZYLE.

9    On the appeal the appellant argued that the Federal Magistrate was wrong to determine that the reviewer had made those two errors of law. It is necessary to deal with the two issues separately. The appeal was heard together with the appeal in Minister for Immigration and Citizenship v MZYLE (No 2) [2011] FCA 1467.

The illegal departure issue

10    The Federal Magistrate accepted that the reviewer identified the first respondent’s claim to fear persecution as a result of his illegal departure from Sri Lanka. However, the Federal Magistrate held that the reviewer failed to give consideration to that claim. At [33] of his reasons, the Federal Magistrate said:

    It was argued by counsel for the Minister that the claim with respect a person who exited Sri Lanka illegally was subsumed in the other claims. As set out in the judgement in MZYLE, it is clear that a person could be one who had legally or illegally left Sri Lanka, and either sought asylum or not sought asylum before return. That is, some of the persons who illegally depart from Sri Lanka may fail in seeking asylum, and some persons who legally depart from Sri Lanka may fail in seeking asylum. Similarly, some persons who illegally depart from Sri Lanka may return without ever having sought asylum. Whilst the two categories, illegal departees and asylum seekers, certainly overlap, not all persons will be within both categories. To say that failed asylum seekers are not identified upon return does not answer the question of what happens to persons who depart illegally from Sri Lanka. In this regard it appears to me that the Independent Merits Reviewer has failed to deal with one of the claims of the applicant and thus an error of law and a breach of procedural fairness are established just as occurred in MZYLE.

11    The appellant contended that [141] – [142] of the reviewer’s reasons expressly addressed the illegal departure claim made by the first respondent. In MZYLE, I rejected the attack made by the appellant on the way the Federal Magistrate dealt with the unlawful departure issue. But in that case [157] – [159] of the reviewer’s reasons made no express reference to the unlawful departure issue. The first respondent argued on this appeal that the express reference to the illegal departure claim did not mean that the reviewer dealt with that claim because he treated the illegal departure claim as if it was the same as the claim based on the first respondent being a failed asylum seeker. It was contended that the reviewer, in drawing that equivalence, effectively ignored the separate claim based on illegal departure.

12    In view of the express reference to illegal departure in [142] of the reviewer’s reasons (extracted at [6] of these reasons) it cannot be said that the reviewer failed to consider that claim. The real complaint of the first respondent is with the reasoning of the reviewer in respect of the claim. That complaint does not amount to the allegation of a jurisdictional error. The appeal in relation to the declaration made by the Federal Magistrate on this issue must be allowed, and the declaration must be set aside.

the risk of persecution issue

13    This ground concerns the approach of the reviewer in [144] of his reasons. This paragraph is in the same terms as [160] of the reviewer’s reasons in MZYLE. The issues arising from this paragraph and [142] – [143] are dealt with in paragraphs [29] – [35] of my reasons in Minister for Immigration and Citizenship v MZYLE (No 2) [2011] FCA 1467. Those reasons apply equally to paragraphs [142] – [144] of the reviewer’s reasons in this case. For those reasons the appeal in relation to the declaration concerning this issue must be dismissed.

costs

14    Both the appellant and the first respondent have been partly successful in the appeal. There should be no order for costs of the appeal.

Associate:

Dated:    19 December 2011