FEDERAL COURT OF AUSTRALIA

MZYPM v Minister for Immigration and Citizenship [2012] FCA 1453

THE COURT ORDERS THAT:

1.     The application for leave to rely on the proposed new grounds of appeal is refused.

2.     The appeal is dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1    Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 22 February 2012. The federal magistrate dismissed an application for review of a recommendation accepted by the first respondent, made by the second respondent (the reviewer) on 30 June 2011, that the appellant 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 (the Refugees Convention).

2    The appellant arrived in Australia on 7 February 2010. He sought a refugee status assessment which was conducted by a delegate of the first respondent. As that assessment was unfavourable to him, he applied for a review by the reviewer. The applicant is Tamil, Christian from Sri Lanka, born on 23 August 1987. He worked as a fisherman and his parents lived in Jaffna with his three brothers and a sister. He is the eldest.

the review

3    The reviewer set out the essential elements of the appellant’s claim by reference to an interview conducted with the appellant on 10 May 2011 and a statutory declaration which the appellant submitted prior to an interview with the original assessor. He stated that his family started moving from their original area of residence in June 2009 when the Sri Lankan army took control of the area. The appellant said that he moved to Vanni in the Kilinochchi district. He said that in May or June of 2009 his family entered a displaced persons camp run by the Sri Lankan army. Prior to that, he said they had moved from place to place to avoid the civil war conflict in Sri Lanka. The appellant said that shortly after entering the displaced persons camp he was separated from his family. He said his family were released after about eight months and moved to Jaffna. The appellant claimed that he was moved into a detention camp and was tortured from time to time by people who asked him to confess to being a member of the Liberation Tigers of Tamil Eelam (LTTE). He said he refused to do so. The appellant claimed that ultimately his father raised funds which were used to have him released from the detention camp. He said that a lot of people escaped from detention in this way.

4    The appellant said that he then lived in hiding in a house belonging to a friend of his father. He claimed that the Sri Lankan army tried to find out from his parents where he had gone, and that the army had abused them in the process. He also stated that he had some extended family who had supported the LTTE in the past. He said that his family was, as a result, always under suspicion of being LTTE supporters. He explained that he had lived in an area controlled by the LTTE, and, as a result, the Sri Lankan army thought that young men like himself were LTTE supporters. He did point out that he had never fought for, or supported the LTTE, but that he was made to attend compulsory self-defence training in 2006. He explained that his involvement with the LTTE was thus very limited.

5    The reviewer, after reciting the claim that the appellant feared persecution for the reason of his imputed political opinion, namely, his support of the LTTE, referred to country information at length. The country information recorded that the hostilities in the Sri Lankan civil war ended on 19 May 2009 after 26 years, and explained the process which had operated thereafter as a result of the reduction or the cessation in fighting, for example, in relation to the return or release of internally displaced persons from displaced persons camps. The country information referred to also examined the treatment of returned failed asylum seekers and set out in detail numerous sources from Sri Lanka itself, Switzerland, Britain and Australia.

6    The reviewer then set out some country information about physical examinations and scarring which seemed to be entirely irrelevant to the case and perhaps was the result of applying some template approach to the production of reasons, a practice which, if followed, should be strongly discouraged.

7    The reviewer then set out his findings and reasons as follows:

38.    I accept that the claimant is a citizen of Sri Lanka and is a Tamil Christian.

39.    The country information above paints a complex picture. A Persuasive Decision made by the Canadian Immigration Review Board on 13 September 2010 expressed its evaluation in the following manner:

[49]    Having considered all the evidence filed in this case, I find that there has been a change of circumstances. Although the National Documentary Package has documents that indicate that Tamils from the north are especially targeted, disappeared, arrested and tortured, all those documents reflect the circumstances that had existed during and right after the close of the civil war.

[50]    The more up-to-date documents and analyses are more compelling as to the present situation in Sri Lanka. They indicate that the civil war is over. There has been no LTTE resurgence since the close of the war in May 2009. With the LTTE’s utter defeat and the vast majority of Tamils in the country now screened to determine whether they were LTTE members or close associates of the LTTE, Tamils are no longer subject to the persecutory acts that they habitually had suffered in Sri Lanka. Tamils are no longer routinely or sporadically stopped, arrested, rounded up, beaten up, shelled, and extorted by the SLA and other government and paramilitary forces. Almost all of the 300,000 Tamils have been released from internment camps and the remaining Tamils still interned are to be released shortly. The evidence leads me to conclude that the changes in Sri Lanka are meaningful and durable …

40.    I share this evaluation. It was essentially this picture which I put to the claimant at his interview. However, it does not determine the outcome of his claim without further analysis. It leaves to be determined whether or not [there] is a real chance of the claimant being suspected of being an LTTE supporter if he were to return to Sir Lanka.

41.    In that regard, I have looked carefully at the history recounted by the claimant. In the broad, I accept the account as stated by the claimant in his various interviews.

42.    …

43.    As to the possibility of his being regarded as an LTTE supporter or a former supporter, I find that, in present circumstances, that is remote. His family is living in Jaffna. His father is working and his younger brothers are attending school. He has never in fact been a member of the LTTE and his family has never been involved in politics. He lived in LTTE-controlled areas, as did very many Tamils, but country information does not support the proposition that a person is imputed with LTTE past or present allegiances merely for that reason.

44.    His adviser, in his latest submission, added imputed political opinion, gender and age to the reasons for the persecution the claimant feared. I do not accept that the claimant would be thought to be associated with the LTTE for any of these reasons or all of them cumulatively. Indeed, it is an association with the LTTE which results in the imputing of a political opinion, rather than the other way around. It is a fact that young male Tamils are prima facie suspected of links with the LTTE, but, according to country information set out above and discussed with the claimant, this results in arrivals from overseas being questioned, not either arrested or otherwise harmed in the absence of other elements. The procedures for screening arrivals in Sri Lanka are clear and detailed above. I accept that the claimant would be questioned, possibly for some hours, but, unless there is a pending charge against him about which he has said nothing, the normal outcome of such questioning would be that he would be released to his family. I have no reason to think that that would not be the outcome in his case.

45.    Accordingly, I do not accept that the claimant has a well-founded fear of persecution in Sri Lanka for reason of his race, religion, or for any other Convention reason, should he return there in the foreseeable future.

8    The appellant then applied to the Federal Magistrates Court to review the recommendation of the reviewer. The grounds which were relied upon before the federal magistrate were not relied upon before this Court. The appellant was represented in the Federal Magistrates Court and has been represented in this Court. The appellant sought to raise new grounds in this Court and, therefore, requires leave to do so.

The appeal

9    The grounds which were ultimately argued orally in this Court are not reflected in the notice of appeal which was filed on 13 March 2012 except in [2] which asserted the following:

The reasons provided by the Second Respondent to the First Respondent in support of the Second Respondent’s recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical nor rational.

10    In the end, the first ground argued was that the reviewer’s decision was irrational, illogical and not based on findings or inferences of facts supported by logical grounds. The argument which was said to support the first ground was also relied upon in support of two further grounds, namely that the reviewer failed to consider the claims made by the appellant, or alternatively, that the reviewer misdirected himself at law as to the matters he was required to consider in discharging his function.

11    Whether the appellant should be granted leave to argue these new grounds on appeal depends on whether the grant of such leave would be expedient in the interests of justice. The grant of such leave is opposed by Mr Mosley, who appeared on behalf of the first respondent.

12    One of the central issues relevant to the grant of leave is whether the arguments on appeal have merit. If the proposed arguments on appeal are found to have no merit, it would be futile to grant leave. As the question of whether the arguments have merit on appeal may be determinative of the argument concerning leave, that question was argued separately and in advance of any of the other factors which might be relevant to the grant of leave. This issue as to the merit of the arguments on appeal will now be considered.

13    There is no contention between the parties as to the appropriate test to be applied in determining whether the reviewer’s consideration of the appellant’s claims was irrational or illogical. The approach is contained in the joint judgment of Crennan and Bell JJ in Minister of Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611 at [130] to [131]. Their Honours explained the approach as follows:

130.    In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

131.    What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

14    The appellant contended that there was illogicality or irrationality, in particular, in two of the findings of the reviewer at [43] and [44]. First, in [43], it was said that it was irrational or illogical for the reviewer to conclude:

As to the possibility of his being regarded as an LTTE supporter or former supporter, I find that, in the present circumstances, that is remote.

15    Then, in [44], it was argued that it was illogical or irrational for the reviewer to conclude:

It is a fact that young male Tamils are prima facie suspected of links with the LTTE, but, according to country information set out above and discussed with the claimant, this results in arrivals from overseas being questioned, not either arrested or otherwise harmed in the absence of other elements. [Emphasis added] The procedures for screening arrivals in Sri Lanka are clear and detailed above. I accept that the claimant would be questioned, possibly for some hours, but, unless there is a pending charge against him about which he has said nothing, the normal outcome of such questioning would be that he would be released to his family. I have no reason to think that that would not be the outcome in this case.

[Emphasis added]

16    The argument commenced by an examination of the facts which the reviewer accepted. In [41], the reviewer accepted the account as stated by the claimant in his various interviews. This, so it was argued, was an acceptance that the appellant was a young Tamil male who had lived in an area over which the Sri Lankan army gained control and that thereafter, he was separately detained from his parents and tortured. In the course of detention, the Sri Lankan army attempted to force him to confess that he was a member of the LTTE. He then obtained release from detention when his father raised funds and the authorities sought to pursue him thereafter. Against that background, it was said that the particular conclusions at [43] and [44] could not be justified because it was completely inconsistent with the history which was accepted.

First allegation

17    In relation to the first conclusion that was challenged, namely that there was only a remote possibility that the appellant would be regarded as an LTTE supporter or former supporter, the reviewer gave certain reasons in [43] for this conclusion. It is not the role of this Court to determine whether the reasons given are persuasive to the Court, but only whether those reasons could not persuade a reasonable reviewer to come to the conclusion which he did. It is clear that the reviewer reasoned first by reference to the country information and then examined the appellant’s own history. This emerges from [40] of the reviewer’s reasons.

18    The history upon which the appellant relied was of a young Tamil male in northern Sri Lanka who was apprehended as Tamil and challenged as being an LTTE supporter. Those circumstances alone do not themselves establish that the appellant was regarded as an LTTE supporter or former supporter. They amount to no more, given the country information to which the reviewer referred, than that he was Tamil in northern Sri Lanka and a young male. There was an inherent question about the allegiance of such people, but not necessarily a conclusion that the authorities had determined them to be a supporter of the LTTE or former supporter. The matters upon which the reviewer relied in [43], namely that the appellant’s family lived or continued to live in Jaffna and that his father worked there and his younger brothers were attending school, together with the fact that he claimed never to have in fact been a member of the LTTE and that his own family, leave aside his extended family, had never been involved in politics, were capable of supporting the conclusion reached by the reviewer.

19    Furthermore, the reviewer relied on an analysis of the country information, which it concluded, as was its function, that mere presence in the areas of northern Sri Lanka did not lead to an imputation of an allegiance to the LTTE for that reason alone. Consequently, it cannot be said that the conclusion in [43] was irrational or illogical even when viewed against the acceptance of the history which the appellant relied upon.

Second allegation

20    The second allegation of irrationality or illogicality involves a much narrower issue.

21    The challenge by the appellant about the finding in the last sentence of [44], that, I have no reason to think that that would not be the outcome in this case, misconceives the meaning of this sentence. This sentence was interpreted by the appellant to conclude that the appellant was generally not in danger of persecution in the future in Sri Lanka. The subject matter of the second part of [44] is much narrower, in that it is concerned with the issue of the way returned, failed, asylum seekers will be treated in Sri Lanka. Further, that paragraph analyses the country information about the outcome at the airport on return. It is accepted by the reviewer that the appellant, as a young male Tamil, he is likely to be of interest to the authorities upon arrival, but that he would not be arrested or otherwise harmed in the absence of other elements.

22    The appellant argued that the reviewer failed, in this instance, to examine the other elements, namely the history which the appellant had given, that is, that he was a person of interest to the authorities and a person who had been detained and been released after payment by his father of a bribe to soldiers. But what the reviewer did was to look at the country information about the procedures for returning failed asylum seekers and made a selection about aspects which it would accept and which it would not, in respect of factors which would likely attract the interest of authorities upon return arrival to Sri Lanka. There was a range of views in the country information, from the view of Sri Lankan authorities that a person in this position would not attract any particular interest, to views that persons could in fact be detained. What the reviewer did was analyse that material and state his conclusion that the claimant would be questioned, possibly for some hours, but that he would ultimately be released to his family. The elements which the reviewer considered relevant that would attract the attention of authorities, from the country information, were stated, namely whether there was a pending charge against a returnee to Sri Lanka.

23    The reviewer looked at the country information which was relevant, came to a conclusion about the elements which would attract attention and dismissed them as not being relevant to the appellant. The essential reasoning of the reviewer, appreciation of which was perhaps deflected by the narrowness of the criticism alleged by the appellant, was to accept the view of the Canadian Immigration Review Board that things had changed in Sri Lanka since the circumstances which the appellant had experienced, and to conclude that Tamil people are no longer subject to the persecutory acts that they habitually have suffered in Sri Lanka. This change, the reviewer found, was fundamental and applicable to the appellant’s situation.

24    To the extent that the appellant challenged the reasoning of the reviewer that circumstances have changed in Sri Lanka, which is fundamental to the more detailed reasoning which he criticised, the appellant contended that the Canadian Immigration Review Board opinion was simply not germane to the circumstances of the appellant. The appellant contended that he had a particular history, including being detained by the Sri Lankan army and having his father pay for a bribe to obtain his release. The appellant argued that the country information relied upon the Canadian Immigration Review Board, did not address a person with that history at all. Consequently, the conclusion that the conditions in Sri Lanka had changed in respect of somebody like the appellant, was untenable.

25    It was open to the reviewer to assimilate the circumstance of the appellant with the opinion of the Canadian Immigration Review Board. Once the reviewer accepted, as he did, that this was a proper evaluation of the situation in Sri Lanka, there was a basis for the conclusion that being Tamil, the appellant, even with his background, would not suffer persecutory treatment and consequently did not have a well founded fear of persecution as a result of his political or imputed political opinion.

26    Of course it is true, as the High Court said in Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559 at 575, that the past is often a good guide to the future. That is why, often, events of past harm are relied upon by applicants to demonstrate the real chance of harm in the future. However, what underlies the decision of the reviewer in this case was an acceptance that the past was not a good guide to the future because things had changed with the end of the war in Sri Lanka and the screening of the vast majority of Tamils for LTTE membership or support.

27    The approach taken by the reviewer was not illogical or irrational on this limited question.

28    Further, it cannot be said that the reviewer failed to consider the claims made by the appellant in reaching the conclusion on this limited question, or alternatively, that the reviewer misdirected himself at law as to the matters he was required to consider in discharging his function.

conclusion

29    For these reasons the appellant is not likely to succeed on any appeal on the proposed new grounds asserted. Consequently it would be futile to grant leave to rely on the new arguments on appeal and leave should be refused. As the proposed new arguments are the only arguments upon which the appellant wanted to rely, it follows that the appeal must be dismissed.

Associate:

Dated:    19 December 2012