FEDERAL COURT OF AUSTRALIA

SZQGC v Minister for Immigration and Citizenship [2012] FCA 598

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the respondents’ costs.

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

REASONS FOR JUDGMENT

1    This is an appeal from a decision of Federal Magistrate Cameron delivered on 12 September 2011 dismissing an application for judicial review of a recommendation dated 11 April 2011 of the Independent Merits Reviewer (IMR).

2    The appellant is a citizen of Sri Lanka who arrived in Australia on 6 February 2010. On 4 April 2010 he lodged an application for a refugee status assessment with the Department of Immigration and Citizenship. A delegate of the Minister made an adverse refugee assessment on 20 April 2010, determining that the appellant should not be recognised as a refugee. On 23 April 2010 the appellant applied to the IMR for a review of that primary decision. The IMR held that the appellant did not have a well-founded fear of persecution. The appellant then applied to the Federal Magistrates Court for a review of that decision under s 476 of the Migration Act 1958 (Cth) (the Act).

Background

3    In a statutory declaration dated 4 April 2010, the appellant claimed to be a Tamil from Sri Lanka. He said he was born on 17 March 1970. He stated that he feared persecution because he had been stopped by the Sri Lankan army while travelling from Trincomalee to Mallikaitivu in 2008. He said that the Sri Lankan army stopped him at a checkpoint and detained him for five hours. He said he was questioned about whether he had been to Vanni, lived there or was married there. The appellant informed them he had been married at Vanni on 16 June 1997.

4    The appellant claimed he was further detained and transported to a cashew farm at Vakarai where he was questioned by a group of Senegalese and Tamils, called the Karuna Group. The appellant claimed they asked him to inform on Liberation Tigers of Tamil Eelam (LTTE) locations, and to identify the jungle routes which they used. When he could not provide that information, he said that he was beaten and detained for approximately three months. He said he then paid an amount of 50,000 rupees to secure his release. The appellant had to report monthly, apparently to the Karuna Group, and was told not to speak to anyone in Jaffna or overseas. The appellant said that the situation was complicated by the fact that his wife came from Jaffna and his brother was involved in the LTTE.

5    The appellant claimed his brother had been a propagandist for the LTTE, as well as providing families of dead LTTE fighters with supplies. That brother was killed by a bomb. The appellant said he was afraid he would suffer the same fate as another of his brothers, who disappeared after being suspected of involvement in LTTE bombings. The appellant believed that that brother had been killed by the Sri Lankan Army. He said he was afraid to go back to Sri Lanka because he feared the Karuna Group, whom he said were armed.

6    The delegate concluded that the appellant should not be recognised as a refugee within the meaning of Article 1A of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

Independent merits reviewer’s decision

7    A hearing was conducted by the IMR on Christmas Island on 21 November 2010. It should be noted at the outset that one aspect of that hearing provided the foundation for the appellant’s subsequent judicial review challenge. It relates to the contents of a letter which the appellant had received from his wife, apparently shortly before the IMR hearing, and which had not previously been brought to the IMR’s attention. At page 29 of the Transcript of the hearing (which is towards the end of the 33 page transcript), the following is recorded:

Tribunal Member: Sure. Sir you’ve taken something out of your pocket. What’s that? Is it something for me?

Applicant: It’s a letter from my wife.

Tribunal Member: Right, and I can see that it’s in Tamil. What’s the purpose of getting it out for me?

Applicant: It is said there that they are looking for me and they are harassing my wife. I took it out because you said that I may be able to live in Jaffna.

Tribunal Member: So what does it say?

Applicant: There are many auxiliary groups working with the Government who are coming and they coming to my house and asking for my husband. They are also threatening through the telephone. That’s it.

Tribunal Member: Yes.

Tribunal Member: Does she say who the groups are or what the phone calls say?

Applicant: No, she has only said that these are groups that are working with the Government. It says that there are threats through the telephone.

Tribunal Member: Does she say what they are?

Applicant: if my husband comes here there is danger. If he comes they will kill him.

Tribunal Member: They will what, sorry?

Interpreter: They will kill him.

Applicant: In the past my husband has undergone a lot of unhappiness. Many auxiliary groups are coming to our house and are asking for him. Through the telephone they are threatening. If my husband returns there is danger to his life. If he returns they will kill him. My husband was staying with me, thereafter because of business he went to Trincomalee [sic]. There was danger to his life and he lived, he went overseas in order to save his life. Dear sir I prefer my husband to be alive even more than our living happily here. So please do whatever you can to enable my husband to live safely and to live there. I’m separated from her.

Tribunal Member: Sir, I asked you about why you couldn’t live in Jaffna. Why couldn’t you live in Colombo?

Applicant: I know only one language.

Tribunal Member: Colombo’s Tamil population is huge.

Applicant: Most people have been there for a very long time and they know Singhalese. I have never lived in any place other than the north and east. It was because I couldn’t sleep peacefully and enjoy the traditional lands in which we live that I have to leave that place. Now, because I have been dislocating, my four children were not born in my village, in my own place.

Applicant [sic]: Anything more you’d like to tell me sir, or is that the end of what you’d like to tell me?

Applicant: No

Tribunal Member: That’s all?

Applicant: Yes.

8    It might be noted at this point that one of the appellant’s central contentions is that the IMR failed to consider the letter. That contention was ultimately rejected by Cameron FM. As will be seen below, the appellant now appeals on the ground that Cameron FM erred by misconstruing the meaning of “relevant consideration” in relation to the letter.

9    Returning to the IMR’s decision process, the IMR had regard to independent country information on Sri Lanka and the treatment of Tamils. The IMR was concerned by an additional claim made by the appellant for the first time at the hearing, namely that in December 2009 he was asked to donate 1 million rupees to the Karuna Group. The IMR did not accept this additional claim and noted that it did not reflect well on the appellant’s credibility. Nevertheless, the IMR accepted that the appellant was detained, a bribe paid for his release, conditions placed upon his release and that his family members in Jaffna had also been detained.

10    The IMR’s reasons are set out in the report dated 11 April 2011. In [14] of those reasons, the IMR made the following statement:

The claimant said that he had received a letter from his wife saying that she is being harassed by “auxiliary groups and threatening phone calls” and she has said that if he comes home they will kill him”.

11    Although the IMR made no subsequent direct reference to the letter in his reasons, it seems he had the letter in mind when he recorded the following in [25] of his Statement of Reasons:

He also claims that he may be at risk from auxiliary groups. That is a general fear of harm from unspecified groups for unspecified reasons. There is nothing in his history or profile to suggest that he would be targeted for harm by such groups if he were to return now. While I accept he was detained previously his history of release, reporting, running a business for 15 months in the circumstances described, indicates he was of no adverse interest to anyone in the Trincomalee area …

12    It might also be noted, that [25] of the IMR’s reasons conclude with the following sentence:

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.

13    The IMR concluded that the appellant was of no interest to the Sri Lankan Army. The IMR had regard to the appellant’s history after his three months in detention and concluded that the appellant did not have a profile such that he would be of adverse interest to the authorities. The IMR considered that the fact that the appellant ran a business for 15 months after the detention indicated he was not a person of adverse interest in the Trincomalee area. The IMR concluded the appellant did not have a well-founded fear of persecution for reasons of a Convention ground. Accordingly, he recommended that the appellant should not be recognised as a person to whom Australia has protection obligations under the Convention.

The proceedings before the Federal Magistrate

14    The appellant required an extension of time as he had filed his application to the FMC two days after the necessary time under s 477 of the Act. His Honour granted an extension of time to the appellant.

15    As Cameron FM noted in [15] of his reasons for judgment, the only ground of review raised by the appellant in the proceeding before him was as follows:

That the decision of the second respondent, the Independent Merits Reviewer, was affected by legal error.

16    No particulars were provided to that ground but, in the appellant’s written outline of submissions in the Federal Magistrates Court, the basis for the judicial review challenge was stated to be as follows:

(a)    the Reviewer failed to consider his claims arising out of the letter he received from his wife, and to which reference was made during the Reviewer’s interview, and the Reviewer thereby determined the review by reference to historical events rather than the contemporaneous matters raised in the letter;

(b)    by failing to have regard to the letter the Reviewer failed to take into account a relevant consideration, namely, the chance of immediate and reasonably foreseeable persecution; and

(c)    the Reviewer failed to make a determination “as to the letter”.

17    It is evident from his Honour’s reasons for judgment that Cameron FM dealt with the appellant’s argument on the basis that the essence of his complaint was that the IMR had not considered the letter. Cameron FM observed in [19] of his reasons that, although the IMR did not in his reasons for decision refer in terms to the letter, he did expressly refer to the primary relevant claim arising from the letter, namely the claim that the appellant was at risk from auxiliary groups were he to return to Sri Lanka. That was evident from the IMR’s reasons for decision which, as previously noted, included the following statement:

He also claims that he may be at risk from auxiliary groups. That is a general fear of harm from unspecified groups for unspecified reasons. There is nothing in his history or profile to suggest that he would be targeted for harm by such groups if he were to return now.

18    His Honour then proceeded to deal with the appellant’s argument that the IMR had failed to consider the letter in the context of the risk of persecution in the immediate and reasonably foreseeable future, noting that this was one of the ways in which the appellant had developed his legal argument in his written outline of submissions (as set out in [16] above).

19    Cameron FM also rejected this argument. His Honour found that the IMR had in fact considered the letter in the context of the risk of persecution in the immediate and reasonably foreseeable future, as was reflected in the following IMR finding set out in [25] of his report dated 11 April 2011:

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.

20    I interpolate at this point that this sentence from the IMR’s reasons could perhaps ideally have been better expressed. There can be no doubt that the IMR clearly found that the appellant’s fear of harm was not well-founded. So much is apparent from the first part of the sentence. But the latter part of the sentence appears a little ambiguous because it leaves uncertain whether the reference to the appellant’s fear of harm not being well-founded “in that there is a remote chance of his being harmed in Sri Lanka in the reasonably foreseeable future” relates back to the appellant’s claims or, alternatively, is part of the IMR’s findings that any chance of harm to the appellant in the reasonably foreseeable future if he was to return to Sri Lanka was merely a remote, and not a real, chance. In my view, the latter is the preferred meaning. The appellant’s case was conducted on the basis of an allegation that there was a real chance of his being harmed in the reasonably foreseeable future. The IMR’s finding is therefore to be understood as saying that the IMR concluded that there was only a remote chance of his being harmed in Sri Lanka in the reasonably foreseeable future. That is consistent with the balance of the IMR’s reasons.

21    Cameron FM observed at [20] of his reasons for judgment that it was unnecessary for the IMR to express the temporal aspect of the Convention test in other terms. The IMR’s finding as set out in [25] of his statement of reasons can only reasonably be read as a finding in respect of the risks which the appellant claimed he might face if he returned to Sri Lanka, which necessarily incorporated the reasonably foreseeable future. Cameron FM held at [21] that the IMR had considered the appellant’s claim to fear persecution in Sri Lanka not only by reference to historical or past events, but also by reference to the contemporaneous matters set out in his wife’s letter. Those matters related to his concerns that, if he was returned to Sri Lanka, he was at risk of harm in the immediate and reasonably foreseeable future. The IMR considered that argument and found that there was only a remote (and not a real) chance of the appellant being harmed in Sri Lanka in the reasonably foreseeable future, should he return there.

The appeal

22    On 7 June 2012, the appellant was given leave at the hearing to file and rely on an Amended Notice of Appeal. That Amended Notice identifies the following two grounds of appeal:

1.    The Court below erred in failing to find that the recommendation of the second respondent was affected by legal error by wrongly construing the meaning of “relevant consideration”.

Particulars

(a)    The Court below erred in finding that the second respondent had taken into account a relevant consideration the claim in the letter tendered by the appellant to the second respondent from the appellant’s wife in respect of which the appellant claimed a fear of persecution.

2.    The second respondent was affected by legal error by misstating parts of the claim.

Particulars

(a)    The second respondent had misstated the claim in the letter tendered by the appellant to the second respondent from the appellant’s wife in respect of which the appellant claimed a fear of persecution.

23    It is convenient to deal with each of those grounds of appeal in turn.

Failure to consider a relevant consideration

24    At the hearing, Ms Andelman, who appeared for the appellant, argued that a “failure to consider and misstatement of a claim are examples of a failure to afford procedural fairness and are jurisdictional errors”. Ms Andelman also submitted that the reference in [14] of the IMR’s reasons to the letter and his wife saying that she was being harassed by “auxiliary groups and threatening phone calls” was “clearly erroneous in that the appellant claimed that the auxiliary groups were working with the Government”.

25    Ms Andelman’s further contention was that, while the appellant accepted that the reference to “auxiliary groups” is likely to have been sourced in the letter, “a mere hint or recital in a decision by an administrative decision-maker that a particular claim has been made evinces a dearth of mental synthesis”. Ms Andelman relied upon cases such as Khan v Minister for Immigration and Ethnic Affairs [1987] 14 ALD 291 at 292 per Gummow J for the proposition that a decision-maker must give “proper, genuine and realistic” consideration to the merits of the case. She submitted that the IMR did not give “real or authentic consideration to the claims in the letter”.

26    It is well-established that a primary decision-maker’s failure to take into account a relevant consideration which he or she is bound to take into account may constitute a reviewable error (see, in particular, the leading judgment of Justice Mason in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 at 39-41). Justice Mason made clear at page 39 that, in substance, this ground of review is to be understood as requiring that a person entrusted with a discretion “must call his own attention to the matters which he is bound to consider”. Justice Mason proceeded to find that the factors that a decision-maker is bound to consider in making a decision is determined by construction of the statute conferring the discretion. In circumstances where the relevant factors which a decision-maker is bound to consider are not expressly stated in the relevant empowering legislation, they have to be determined by implication from the subject matter, scope and purpose of the Act.

27    The appellant’s argument seems to be that the letter itself was a “relevant consideration” and that the IMR was obliged to accept and act upon all of its contents. Some support for the view that the well-established relevant considerations ground of judicial review applies not only to “considerations” or “factors”, but also to evidentiary material itself, is to be found in High Court decisions such as Craig v The State of South Australia (1995) 184 CLR 163, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]-[84] and Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [27]. In the context of describing the ambit of review for jurisdictional error in respect of a decision of an administrative tribunal, Justices Brennan, Deane, Toohey, Gaudron and McHugh stated in Craig at 179:

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise opposed is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

(Emphasis added.)

28    It is to be noted that the reference in the passage immediately above to relevant material being ignored occurs in the context of a reference to a tribunal committing an error of law which causes it to engage in specified conduct, such as ignoring relevant material, in which case such an error may be a jurisdictional error.

29    This passage from Craig does not assist the appellant. The letter received by the appellant from his wife and produced by him in the course of his IMR interview could be regarded as “relevant material” to the extent that it contained material bearing upon his claims that he feared persecution if he returned to Sri Lanka. In my view, however, Cameron FM was correct in his approach, which involved dealing with the appellant’s argument on the basis that consideration of the letter in the particular circumstances here required the IMR to consider the contents of that letter insofar as they were relevant to the appellant’s claims that he had a well-founded fear of persecution on various grounds. As set out above, Cameron FM held that the appellant’s claims, including those emanating from the letter, were considered by the IMR and were the subject of express findings which were adverse to the appellant. I agree with Cameron FM’s reasons for concluding that the IMR did consider and reject the appellant’s claims arising as they did in part from the contents of his wife’s letter. The integers of the appellant’s claims, including those raised in that letter, were considered and determined by the IMR. There is no proper factual foundation for the appellant’s argument that the IMR made a decision without considering all his claims or their “component integers” (see HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42] per Allsop J, with whom Spender J agreed).

30    I agree with the following observations of Allsop J in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] (with whom Heerey J agreed at [1]), regarding the central significance of addressing whether an element or integer of a claim has been considered:

Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction … they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed. It may be that if the element of the appellant’s claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed because an element or integer of the claim put forward by her would not have been dealt with. In such circumstances it may be that, in a jurisdictional sense, a relevant consideration had not been addressed. However, it is unnecessary to decide this given that the Tribunal did address the elements or integers of her claim. (Emphasis added.)

31    As noted above, the appellant placed particular reliance on the proposition that the IMR did not give “real or authentic consideration to the claims in the letter”, relying upon cases such as Khan. Two points should be made about Khan and the line of similar cases cited by the appellant. First, Gummow J’s comments in that case were directed not to the head of review concerning the failure to take into account a mandatory relevant consideration, but rather to the separate head of review which permits a decision-maker to take into account a policy, a long as consideration is given to the merits of an individual case.

32    Secondly, it is now well established that the epithet “proper, genuine and realistic consideration” needs to be viewed with considerable caution because it invites the Court to slide into an impermissible merits review (see, for example, Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [65] per Heerey, Goldberg and Weinberg JJ; Reece v Webber (2011) 192 FCR 254 at [68]-[70] per Jacobson, Flick and Reeves JJ; and Anderson v Director-General, Department of Environmental and Climate Change (2008) 251 ALR 633 at [51]-[60] per Tobias JA, with whom Spigelman CJ and Macfarlan JA agreed).

33    Some general guidance as to the meaning of “consider” is to be found in the decision of the Full Court in Tickner v Chapman (1995) 57 FCR 451 in the context of an argument that the Minister had not himself considered representations from interested persons concerning an application seeking protection of a specified area from injury or desecration. Black CJ made the following observations at p 462:

Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.

(Emphasis added.)

34    That approach, although differently expressed, is broadly similar to Justice Mason’s statement in Peko-Wallsend set out in [26] above as requiring the decision-maker to “call his own attention to the matters which he is bound to consider”.

35    Ultimately the question is one of fact as to whether or not a decision-maker has considered a relevant matter, such as the claims advanced by the appellant based on the contents of his wife’s letter, in the sense described by Black CJ in Tickner (see also Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [51] per Stone, Foster and Nicholas JJ).

36    In my view, the Federal Magistrate did not err in rejecting the appellant’s argument that his claims as set out in his wife’s letter were not considered in the relevant sense. Having regard to [14] and [25] of the IMR’s reasons, those particular claims were appropriately addressed, considered and rejected by the IMR.

Alleged misstatement of the appellant’s claims arising from the letter

37    Ms Andelman contended that the IMR had misstated the appellant’s claims with the consequence that there was either a constructive failure to exercise jurisdiction or procedural unfairness, relying on Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [23] ff. The misstatement was said to occur in [25] of the IMR’s reasons (set out in [11] above). In particular, it was said that the appellant’s claims were misstated when the IMR made reference to his claims that he might be at risk from auxiliary groups and then described those claims as “a general fear from unspecified groups for unspecified reasons”.

38    In my view, there was no misstatement of the appellant’s claims arising from his wife’s letter. As is recorded in the extracts from the Transcript of the IMR hearing set out in [7] above, the IMR directly asked the appellant, in the context of the appellant’s reliance on his wife’s letter, as to who were the auxiliary groups working with the Government referred to in her letter and also what were the threats which were being made over the telephone. In direct response to those questions the appellant said that his wife did not say who the groups were or what the phone calls said. He added that “she has only said that these are groups that are working with the Government”. In reply to the IMR’s question as to what threats were being made over the telephone, the appellant said that the threats were that he would be killed by those groups. There was no identification in the letter as to the reasons why the auxiliary groups were threatening to harm the appellant. Having regard to the IMR’s questions and the appellant’s responses regarding the claims arising from the letter, there was no misstatement or misunderstanding by the IMR of those claims. In this context, it is important to note that in the latter part of [25] of his reasons the IMR was dealing specifically with the claims arising from that letter. Earlier in his reasons the IMR had dealt with the appellant’s other claims predating those specifically raised by the appellant at the hearing based upon the contents of his wife’s letter.

39    Finally, there is no substance in the appellant’s contentions that his Honour wrongly construed the meaning of “relevant consideration”. His Honour’s reasons reveal no misunderstanding on his part as to the meaning of the expression “relevant consideration”, which is an established head of judicial review of administrative action. To the contrary, his Honour’s consideration and determination of the appellant’s review application under this head of judicial review was in accordance with well-known relevant legal authorities, including Peko-Wallsend and Craig. Cameron FM’s approach was also consistent with that of Allsop J in Paul.

40    The appeal should be dismissed and the appellant ordered to pay the respondents’ costs.

Associate:

Dated:    7 June 2012