FEDERAL COURT OF AUSTRALIA

SZQII v Minister for Immigration and Citizenship [2012] FCA 402

THE COURT DECLARES THAT:

1.    The second respondent erred in law in recommending that the appellant should not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees, in that he failed to consider a number of the claims made by the appellant.

AND THE COURT ORDERS THAT:

2.    The appeal is allowed.

3.    The first respondent pay the appellant’s costs of the appeal and the costs of the proceeding before the Federal Magistrates Court, the latter fixed at $6240.

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

REASONS FOR JUDGMENT

introduction

1    Before the Court is an appeal against orders made by the Federal Magistrates Court on 7 October 2011. The federal magistrate dismissed an application for review of a recommendation made by the second respondent, the reviewer, to the first respondent that the appellant should not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the Convention).

the appellant’s claims

2    The appellant is a Sri Lankan Tamil born in 1985. He departed Sri Lanka through the airport in October 2009 and arrived on Christmas Island in March 2010. On 5 June 2010, he requested an assessment of his refugee status by an officer of the Department of Immigration and Citizenship. Following an unsuccessful assessment the appellant applied for a merits review which was made by the second respondent.

3     The appellant told both the assessor and the reviewer that in 1998 his brother was killed in the Kilinochchi area from shelling in the course of the civil war in Sri Lanka. He claimed that in 2004 the Sri Lankan Army (SLA) came to his house and asked him whether his brother had been a member of the Liberation Tigers of Tamil Eelam (LTTE). He said that he was taken by the SLA to their local base, kept there for three days and tortured. He claimed that his parents then presented his brother’s death certificate and made representations on his behalf, as a result of which he was released. The appellant then said that in April 2009 he was arrested by the Criminal Investigation Department (CID) in a roundup of Tamils in Colombo where he and his family were then living. He stated that he was kicked and hit and was accused of being a member of the LTTE. He was kept by the police for a week until he was released upon payment of a bribe by his mother.

4    The appellant also claimed that in August 2009 he was kidnapped by Sinhalese gangsters. He said that the gangsters targeted him because he was a young Tamil male. He claimed that they told him that they knew he was a Tamil from the north and a member of the LTTE. He claimed that the gangsters demanded money from him and said that if they were not paid they would pass on information about him to the SLA. As a consequence, a 400,000 rupee bribe was paid by his father and he was released. The appellant said that he could not, as a Tamil, report these incidents to the police.

The reviewer’s reasons

5    The reviewer referred to the appellant’s application and statement dated 5 June 2010 and defined the appellant’s claim as follows:

He fears harm as he is a Tamil male and has been arrested, detained and questioned in the past as a suspected LTTE member.

6    The recommendation of the reviewer was accompanied by a statement of reasons which set out the relevant law very briefly, followed by the claims made and evidence given before the reviewer, and then a lengthy section on the country information relevant to the review. In the last two pages the reviewer expressed his findings and reasons.

7    The reasoning of the reviewer is extremely truncated and it is therefore appropriate to set out the relevant parts in full as follows:

22.    The claimant is well educated and was able to clearly detail his claims and history. His claims were generally consistent and are consistent with general country information. I accept his history that he was detained by the SLA in 2004; in 2009 he was detained by the CID and later in 2009 he was kidnapped by Sinhalese gangsters. Whilst, I accept that in general the history provided by him is true, I do not accept some of the associations or effects of that history. I find the claimant was for most part a credible witness, however I find that he was not a credible witness in relation to some aspects of his claims as detailed below.

…

26.    I accept the claimant is a Tamil male. The claimant fears that he will be harmed and possibly killed in Sri Lanka by the Sri Lankan authorities as he is a Tamil male who is originally from the north near Jaffna. He has lived in Colombo for most of the past thirteen years and has worked there. His parents reside there and his father remains working as a teacher. I accept as detailed above most of his history as being true. I accept that in 2004 he was detained and beaten by the SLA and questioned about his brother. Further, I accept that his mother paid a bribe for his release. I consider that the fact of his being released at that time indicates he was not considered to be LTTE. I also accept that in about April 2009 he was detained in a general roundup by the CID and detained for several days during which time he was beaten. I accept he was released after payment of a bribe by his mother. I do not accept however, that following from each release he was of any adverse interest to either the SLA or the CID. I do not accept that if he was of adverse interest he would have been released. In particular the most recent arrest coincided with the defeat of the LTTE and the mass arrest and detention of many LTTE members, and also of civilians who were screened for LTTE association and involvement and held for months in camps. I do not accept given the heightened awareness at that time that if he was of any adverse interest at all, that he would have been released. I also do not accept as reasonable to believe that following from his release the CID would come several times to the front gate and question him. It is not reasonable to believe as being true and I consider it fanciful. I also consider that as the claimant obtained a passport in his own name in 2007 and then used that passport to pass without incident through the international airport in Colombo in October 2009, again during a period of known heightened security and awareness by the authorities, that this clearly indicates he is not of any adverse interest from the authorities – i.e. the SLA and CID.

27.     I do not accept that the claimant’s overall history gives him a profile such that he would be of adverse interest to the authorities, or to anyone else. It is now nearly 2 years since the end of hostilities. I do not accept that if he returns to Sri Lanka, following from his claim for refugee status in Australia, that this would either be known to, or of any adverse interest to the authorities. I find that the claimant’s fear of harm is not well-founded in that there is a remote chance of his being harmed in Sri Lanka in the reasonably foreseeable future.

28.    I have also considered the claim relating to the claimant being kidnapped by Sinhalese gangsters and a bribe being paid by his parents for his release. I am prepared to accept that this happened. Colombo is known to have had periods of criminality and that this includes kidnapping for ransom by criminal gangs. From the history given, and the behaviour of the gang in negotiating payment, and then releasing the claimant I do not accept that it was for reasons of a Convention ground. The motivation of the gang however, was clearly to obtain money. The chance of this happening again is also I consider remote and insubstantial. It is known that following from the defeat of the LTTE the Sri Lankan authorities turned their attention to combating criminality in Colombo and other parts of the country. There is no evidence to suggest that Tamil residents and citizens have been denied state protection from criminal gangs in Sri Lanka.

29.    Overall, I am not satisfied that the claimant has a well-founded fear of persecution for reasons of a Convention ground.

[Emphasis in original]

8    It is common ground between the parties that following Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41, the recommendation is subject to review for jurisdictional error. On 9 June 2011, the appellant applied to the Federal Magistrates Court for review of the recommendation. The federal magistrate rejected all of the grounds of review argued before him.

the grounds of appeal

9    The following grounds were relied upon in this appeal:

1.    The federal magistrate erred in finding that the reviewer had addressed the appellant’s claims of persecution for reason of his race;

2.    The federal magistrate erred in finding that the reviewer’s findings of fact did not raise distinct claims which required consideration and decision;

3.    The federal magistrate erred in finding that the reviewer lawfully considered appellant’s abduction and mistreatment at the hands of “Singhalese gangsters” was for reason of his race.

4.    The federal magistrate erred in finding that it was open to the IMR to conclude that the chance of a reoccurrence of such an abduction by Singhalese gangsters was “remote and insubstantial”;

5.    The federal magistrate erred in finding that the IMR’s decision was not affected by a breach of procedural fairness.

In view of the overlap in the grounds of appeal before the federal magistrate and this Court on appeal, it is convenient to deal with the federal magistrate’s reasons and the arguments on appeal together.

CONSIDERATION

10    The overwhelming characteristic of the reviewer’s recommendation is that it is extremely brief and largely lacking in any evident process of analysis or reasoning. The Court approaches the recommendation without seeking to pinpoint error in the decision-making process (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6). Nonetheless, judges of this Court regularly make assessments of administrative decisions in the area of refugee law and come to an understanding of a general standard which needs to be met by decision-makers in order to avoid falling into jurisdictional error. It seems in this case that the federal magistrate was unduly generous to the reviewer in accepting very generalised conclusions as reflecting a dealing with claims raised when there was no express reference in the recommendation to those matters having been addressed.

11    Mr Reilly, who appeared on behalf of the first respondent, drew attention to the judgment in Applicant WAEE v Minister for Immigration and Citizenship (2003) 75 ALD 630; [2003] FCAFC 184 (Applicant WAEE) in order to highlight the proper approach to decisions of this type. In particular, he referred the Court to [46] and [47] of that judgment, where French, Sackville and Hely JJ stated:

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 Minister for Immigration and Multicultural Affairs v Yusuf (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.

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.

12    It is evident from the passage above that the Court draws a distinction between decisions in which a Tribunal can be said to have failed to consider an issue and those in which it can be said not to have done so. This Court must determine on which side of the line the reviewer’s decision falls, bearing in mind the guidance given in that case

13    The federal magistrate described the approach which he adopted at [27] as follows:

As a result of the circumstances I have just sketched, it appears to me that a degree of shorthand has crept into reports such as the present one prepared by Mr Keher, when expressing findings and reasons addressing refugee claims such as the applicant has made in this case. Conciseness may at times appear regrettable to a judge on judicial review but, in my opinion, I should be slow to draw inferences that background circumstances or considerations which may have been well known and understood, and even assumed by all parties, were overlooked.

14    I have formed the view that the federal magistrate was in this case too ready to draw generous inferences in favour of the reviewer when the recommendation lacked a genuine attempt to grapple with the claims made by the appellant.

15    A number of the grounds of appeal will now be considered. The first ground was that the federal magistrate erred by failing to conclude that the reviewer failed to consider a claim that the appellant feared persecution by reason of his Tamil ethnicity. The gravamen of this complaint was that, whilst the reviewer dealt with a claim based on the appellant’s specific profile which arose from the incidents in 2004 and 2009, the reviewer failed to deal with the more general claim that the appellant, as a young male Tamil, had a justified fear of persecution in Sri Lanka.

16    The federal magistrate at [35] and [36] said:

In my opinion, a fair reading of Mr Keher’s report in this context should not be quick to infer a failure to be aware of the applicant’s attributes relevant to a generic claim, nor to be unaware of the reasons why these attributes appear to have been almost invariably not found to be supported on background information as in themselves sufficient to establish refugee status, including the UNHCR eligibility guidelines. The conclusion of the RSA assessor in this respect was clear, and it is unlikely that it was overlooked by Mr Keher. I am not persuaded that when addressing the applicant’s personal circumstances in the manner requested by the applicant’s agent and the applicant, Mr Keher overlooked his attributes merely as a Tamil male with origins in the north of Sri Lanka.

I also accept the submission of counsel for the Minister that Mr Keher’s generally expressed adverse findings at paragraphs 27, 29 and 30 were intended to, and do, encompass the generic claim which had been noted by the RSA assessor. I would not conclude from the absence of detailed reasoning on that topic, that it was overlooked.

17    It was common ground on the appeal that the generic claim was made. What was in issue was whether it was dealt with in the reasons of the reviewer. The matter had been dealt with in the refugee status assessment as set out in the federal magistrate’s decision at [11] as follows:

It is submitted the claimant fears being persecuted if he returns to his country of nationality because he is a Tamil who originates from the north of Sri Lanka. In assessing this claim, I note the UNHCR reports that people with certain profiles currently risk being persecuted in Sri Lanka. However, persons of Tamil ethnicity who originate from the north or east of Sri Lanka do not currently risk being persecuted by Sri Lankan authorities or non-State agents solely for racial reasons. (4:31). In recent months the Sri Lankan government and non-government organisations have facilitated the movement of more than 200,000 Tamil people from camps for internally displaced persons to their place of origin in the north and east of Sri Lanka or to the residences of friends or relatives. The UNHCR has been providing cash grants to assist people to rebuild their houses in areas of Sri Lanka where there was been major destruction and there has been a significant reduction in cordon and search operations conducted by the SLAF. Some former LTTE combatants have been released from detention and the number of reported incidents involving pro-government paramilitary groups such as TMVP, PLOTE and the EPDP has reduced since the end of the war. (4:7, 4:25, 4:26 and 4:27). I accept this commentary because it is current and it emanates from independent and credible human rights observers. In my view, the political, strategic and human rights situation in Sri Lanka has changed significantly over the last year and I find it is no longer appropriate to find that all Tamils who originate from the north or the east of Sri Lanka have a well founded fear of racial persecution. Consequently, I am not satisfied the claimant has a well founded fear of being persecuted with the reasonably foreseeable future of his return to Sri Lanka because he is a Tamil who originates from the north of Sri Lanka.

18    The first respondent adopted the federal magistrate’s reasons and, in particular, argued that the focus of the claim by the appellant was on his personal circumstances. Furthermore, the first respondent contended that on the face of the decision of the reviewer the generic claim was determined by the findings made at [27] and [29] of his reasons that the appellant did not have a well-founded fear of persecution for a convention reason.

19    The reasons of the reviewer do not expressly deal with the generic claim. The generalised conclusions in [27] and [29] must be read in the context of the reasons of the reviewer as a whole. That context relates to the claims made concerning the particular events in 2004 and 2009 and does not address the general situation of Tamils in Sri Lanka in any way which the Court can identify as having grappled with a separate and distinct claim. The reviewer therefore fell into jurisdictional error by failing to consider the claim made by the appellant in this respect. It follows that the appeal should be allowed. I will, however, briefly deal with some of the other grounds of appeal.

20    The third ground challenged the reviewer’s conclusion concerning the claim of extortion by Sinhalese thugs. It was said by the appellant that the reviewer failed to consider whether there was a convention reason for the extortion. The reviewer found that:

The motivation of the gang however, was clearly to obtain money.

21    The federal magistrate said at [54] and [55] as follows:

54.    In the present case, in my opinion, Mr Keher’s conclusion, although tersely expressed, should be understood as indicating satisfaction that the motivation of the gangsters was to extort money from the applicant and his parents after recognising them as suitable targets for extortion, and not being satisfied that that targeting occurred for a Convention reason as a relevantly operative single or concurrent reason. As he noted at paragraph 6 of his report, he was required to apply the test of causation provided in s.91R(1)(a) of the Migration Act to that issue, i.e. by considering whether a Convention reason was one of the “essential and significant” reasons for the persecution.

55.    I am, at least, not satisfied on a reasonable reading of his report, and considering how this claim was put forward by the applicant, that Mr Keher failed to be aware of the Sarrazola point when he made the finding which he expressed.

22    The federal magistrate accepted that the reviewer’s conclusion was tersely expressed. The reviewer’s cryptic conclusion does not interrogate the case which was made by the appellant. The appellant relied upon the evidence which was set out by the reviewer that the gangsters had threatened the appellant with exposure as a young Tamil member of the LTTE. In those circumstances, the reviewer’s finding that the motivation of the gang was to obtain money failed to address the appellant’s claim that he was a suitable target for extortion because he was a young Tamil male. It follows that the third ground of appeal should be upheld.

23    In his fourth ground of appeal, the appellant contended that the reviewer also fell into jurisdictional error in concluding that the chance of the appellant being abducted by Sinhalese gangsters in the future was remote and insubstantial. This ground took issue with the passage at [28] where the reviewer concluded:

It is known that following from the defeat of the LTTE the Sri Lankan authorities turned their attention to combating criminality in Colombo and other parts of the country. There is no evidence to suggest that Tamil residents and citizens have been denied state protection from criminal gangs in Sri Lanka.

24    The federal magistrate dealt with this issue at [63]:

63.    In the present case, Mr Keher’s reasons are undoubtedly concise, but, in my opinion, he show that he applied his mind to the prospect of an adequate level of protection to the applicant against extortion from criminal gangs should he return to Sri Lanka. Mr Keher explained his conclusion on state protection, by making a positive finding that “following from the defeat of the LTTE the Sri Lankan authorities turned their attention to combating criminality in Colombo and other parts of the country”. He presented that finding in combination with his identification of the absence of evidence “to suggest that Tamil residents and citizens have been denied state protection from criminal gangs in Sri Lanka”. The first finding, in my opinion, must carry a reasonable implication that he satisfied himself that the authorities both “turned their attention to combating criminality” and were successful in that attempt.

25    The difficulty is that there is a logical gap between the finding that the Sri Lankan authorities turned their attention to combating criminality and the necessary conclusion for the purposes of the reviewer’s decision that this attention had any effect. The federal magistrate concluded that the finding carried a reasonable implication that the authorities had been successful in that attempt. In my view that is to read into the decision a conclusion which is simply not there. Whilst a reviewing court should not seek to scrutinise the reasons of a decision-maker with an eye fine-tuned to error, it should also not fill gaps which are left in those reasons.

26    It follows that I accept the appellant’s argument that the federal magistrate erred in finding that it was open to the reviewer to conclude that the chance of a reoccurrence of such abduction by Singhalese gangsters was remote and insubstantial. Thus, the fourth ground of appeal should be upheld also.

27    The fifth ground of appeal argued on behalf of the appellant was that he had been denied procedural fairness in that the reviewer failed to advise him of the heightened awareness referred to in the following sentence in [26] of his reasons:

I do not accept given the heightened awareness at that time that if he was of any adverse interest at all, that he would have been released.

28    In relation to this ground, the federal magistrate said at [71] – [72]:

Considering all of the submissions that were made to me, it is not at all clear to me that there was anything at all surprising or unknown about Mr Keher’s belief that October 2009 was within a period of “known heightened security”. I am not satisfied that this was not a circumstance of general background in relation to Sri Lanka that was well known to the applicant’s advisers and to the applicant and all the decision-makers in this area, taking into account the huge body of background information that it is reasonable to assume they had all probably read or (in the applicant’s case) experienced. No evidence has been given by the applicant or his agent as to anything surprising in relation to this finding, and in the absence of such evidence I am not prepared in the present case to infer that any ‘practical injustice occurred’ (cf. Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]-[38], [106], [122], [149]). I am not satisfied that the background knowledge which Mr Keher has drawn upon would not have been obviously known to the applicant and his agent, nor that they should not have reasonably assumed that he had that knowledge and might draw upon it.

Moreover, I have above accepted that, in fact, the materially adverse conclusion which was drawn by Mr Keher from the applicant’s departure through Colombo airport was squarely put to the applicant by Mr Keher at the interview. That is, when he put to the applicant that he might conclude that the applicant’s ability to depart Sri Lanka through the airport “indicated he was of no adverse interest to anyone”.

29    I agree with the federal magistrate and would not uphold this ground of appeal.

30    Although there were other arguments raised by the appellant, it is in the circumstances unnecessary to address them as the appeal will be allowed, at least for the reasons that the appellant has succeeded on three of the grounds raised.

Associate:

Dated:    20 April 2012