MZYLE v Minister for Immigration & Anor [2011] FMCA 589 (15 August 2011)

Last Updated: 17 August 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYLE v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 589

MIGRATION – Review of Independent Merits Review – offshore entry person – procedural fairness – independent country information – relief granted by declaration of legal error.

Federal Magistrates Act 1999 Migration Act 1958 (Cth), ss.46A, 189, 195A, 474, 476 Constitution of Australia, s.75

Kirk v Industrial Relations Commission [2010] HCA 1; (2010) 239 CLR 531; (2010) 262 ALR 569; (2010) 84 ALJR 154; (2010) 190 IR 437; (2010) 113 ALD 1 Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363; 78 ALJR 1031 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1 Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; 195 ALR 24; (2003) 24 Leg Rep 2 Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 2 All ER 712; [1985] 1 WLR 948; [1985] 2 Lloyd's Rep 1

Applicant:

MZYLE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

THE INDEPENDENT MERITS REVIEWER

File Number:

MLG 347 of 2011

Judgment of:

Riethmuller FM

Hearing date:

21 July 2011

Date of Last Submission:

21 July 2011

Delivered at:

Melbourne

Delivered on:

15 August 2011

REPRESENTATION

Counsel for the Applicant:

Mr Niall SC

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Donaghue of Counsel

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

There being no appearance by or on behalf of the Second Respondent.

ORDERS

(1) The Court declares that in recommending to the Minister that the applicant was not a person to whom Australia had protection obligations, the Second Respondent made an error of law in that the Second Respondent:

• (a) failed to determine an integer of the applicant’s claims, namely whether the applicant was at risk of return to Sri Lanka on the basis of being a person who had departed illegally;
• (b) approached the matter on the basis that a choice had to be made between the various items of country information rather than assessing the weight to be attached to the country information in order to assess whether the fear held by the applicant was well-founded in light of the information then available.

(2) The First Respondent pay the Applicant’s costs fixed at $6,240.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 347 of 2011
MZYLE
Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

THE INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. The applicant, born in 1980, is a Tamil and Hindu from Sri Lanka. The applicant stated that his parents and brother have lived as refugees from Sri Lanka in India since 1990, and that he lived with them in India from 1990 to 2004, before returning to Sri Lanka. The applicant subsequently returned to India for most of 2009, describing his status as “registered as a refugee legally”.
2. The applicant came to Christmas Island illegally on a vessel smuggling refugees. The applicant explained that his uncle had put him in touch with a smuggler. His uncle paid the smuggler 100,000 rupees in advance, and a balance of 1.7 million rupees when he reached Australia. This is around AUD$16,000. Whilst the applicant brought his national identity card with him, the applicant said that both his drivers licence and passport were lost in Sri Lanka.
3. On 19 April 2010 he applied for a refugee status assessment. This resulted in an unfavourable assessment on 3 June 2010. On 19 June 2010, he applied for an “independent merits review” of that assessment. The Independent Merits Reviewer undertook a review and issued a report, dated 2 December 2010. In the report the Independent Merits Reviewer concluded that the applicant did not meet the definition of a “refugee” as set out in article 1A of the Convention relating to the Status of Refugees, with a recommendation that the applicant not be recognised as a refugee.
4. The Independent Merits Reviewer is not an employee of the Department of Immigration and Citizenship (‘Department’), or the Commonwealth Executive, but a contractor appointed through an arrangement between the Department and a corporation. He is in the same position as the Independent Merits Reviewer in Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133 (‘M61/2010E’).
5. The result of section 46A of the Migration Act 1958 is to preclude the applicant from making an application for a protection visa as a result of his unlawful entry into Australia. However, the Minister has a discretion to give written notice, with the effect that s.46A would not preclude the applicant from making an application for a protection visa. Importantly, that discretion is unfettered, and the Minister does not have a duty to consider whether or not to exercise that discretion (see ss.46A(2) to (7)). Similarly, s.195A of the Act provides the Minister with a discretion to grant a visa if the Minister concludes that it is in the public interest to do so. Put simply, unlawful entrants are not able to apply for a protection visa unless the Minister exercises a discretion to allow them to do so.
6. As in Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133 the applicant in this proceeding was detained in the territory of Christmas Island, pursuant to the powers given in s.189 of the Migration Act.
7. In Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133 the High Court identified the purpose of the refugee status assessment processes, saying:
   • [41] The purpose of the RSA process was described in the RSA Manual as being "so that the Minister ... can be advised whether Australia's protection obligations under the Refugees Convention are engaged". It was said that "[c]onsideration of the exercise of the Minister's power under s 46A to allow a visa application to be made will occur following assessment of protection obligations as outlined in this manual".
8. Importantly, if the refugee status assessment process was favourable to an applicant, the Department would make a submission to the Minister “advising the Minister that Australia’s protection obligations are engaged and seeking his/her agreement to lift the bar under s.46A of the Act” (see paragraph [44]). The Independent Merits Reviewer process was a review system in place with respect to the refugee status assessment.
9. The fact that the Independent Merits Reviewer is not an officer of the Commonwealth resulted in the conclusion (at paragraph [51]):
   • ...that a claim for mandamus, prohibition or injunction against those persons would not, standing alone, found the original jurisdiction of this Court under s 75(v) of the Constitution.
10. The High Court continued (at paragraph [51]) stating that:
    • The jurisdiction of the court is found in section 75(iii) (as matters in which the Commonwealth, or a person being sued on behalf of the Commonwealth, is a party), section 75(v) (as matters in which mandamus and injunction are sought against the Minister and either a departmental officer or the Secretary of the Department – all officers of the Commonwealth) and even, perhaps, section 75(i) (as matters arising under any treaty – the Refugees Convention and the Refugees Protocol).
11. The Federal Magistrates Court has, with respect to migration decisions, the same original jurisdiction as the High Court has under s.75(v) of the Constitution: see s.476(1) of the Migration Act. This is a case where the applicant seeks not only a declaration, but also an injunction restraining the Minister, by himself or his department, officers, delegates or agents from relying upon the Independent Merits Reviewer’s recommendation, however for the same reasons as set out in M61/2010E it appears that a declaration is sufficient relief. All the parties agreed that this Court had jurisdiction in the matter.
12. Once it is accepted that this Court has jurisdiction as a result of s.476(1) of the Migration Act in like breadth to the original jurisdiction of the High Court under s.75(v), the effect of the provisions of the Federal Magistrates Act 1999 giving accrued and associated jurisdiction would result, in this particular matter, in the court having accrued and associated jurisdiction of like breadth under ss.75(i) and 75(iii) of the Constitution. As a result I conclude that the Federal Magistrates Court has, in this particular matter, the same breadth of jurisdiction that the High Court was able to exercise in M61/2010E.
13. In Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133 (at paragraph [77]) the High Court made clear that:
    • ...it follows from the consequence upon the claimant's liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions.
14. The High Court went on to state:
    • The claimant is detained for the purposes of permitting the Minister to be informed of matters that the Minister has required to be examined as bearing upon whether the power [either under section 46A or section 195A] will be exercised.
15. The consequence is that the independent merits review process was a step taken to inform the Minister’s considerations in determining whether or not to exercise the statutory power (see paragraph [78]).
16. The practical result is that:
    • 78. ... Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.
17. In M61/2010E the High Court noted that there were a number of aspects of the Independent Merits Reviewer’s reasons, in that case, that revealed error:
    1. That the reviewer concluded that he was not bound by Australian law, but simply that it was appropriate to have regard for Australian law (see paragraphs [82] and [87]);
    2. The reviewer failed to consider all of the applicant’s claims (see paragraphs [83] and [84]). However, exercise of the power under s.46A “would be pointless unless that determination was made according to the criteria and principles identified in the Migration Act as construed and applied by the courts of Australia” (see paragraph 88).
18. The High Court concluded (at paragraph [89]) that:
    • ...the fundamental question to which the assessment and review processes were directed had to be understood as whether the criterion stated in section 36(2), as a criterion for grant of a protection visa, was met. Necessarily, that question had to be understood by reference to other relevant provisions of the Migration Act, and the decided cases that bear upon those provisions.
19. At paragraph [90] the High Court pointed out that failing to address one of the claim bases for the plaintiff’s fear of persecution meant that the Minister was not informed about a matter that bore upon the question that the Minister had asked to be considered. The High Court also said that the failure to deal with a claim was a denial of procedural fairness.
20. When considering the question of procedural fairness, the common law rules apply, and not the elaborate statutory scheme that has been developed by the legislature with respect to the Refugee Review Tribunal (‘RRT’). That elaborate scheme was “not engaged in respect of independent merits review” (see paragraph [91]).
21. As a result the High Court concluded not only that Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133 was denied procedural fairness (and that this formed a proper basis for relief) but also that the reviewer “made an error of law by treating the Migration Act and decided cases as no more than guides to decision-making” (see paragraph [97]).
22. As the Minister is not compelled to make a determination under sections 46A or 195A, the Minister cannot be compelled to again consider the exercise of the power, even if the inquiry process with the Independent Merits Reviewer has miscarried (see paragraph [99]). As a result, claims for certiorari and mandamus must be rejected (see paragraph [101]). In many cases this would lead to the conclusion that no declaration of right should be made. In the particular circumstances of the case of Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133 the High Court concluded that that there was utility in granting a declaration, noting that a declaration is a form of relief “that is confined by considerations which mark out the boundaries of judicial power” (see paragraph [102]).
23. Counsel for the Minister sought to limit the operation of the decision in Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133 by relying upon section 474 of the Migration Act, which relevantly provides:
    • 474 [Decisions under Act are final] (1) A privative clause decision:
      • (a) is final and conclusive; and
      • (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
      • (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
24. In developing the argument, Counsel stated that:
    • In relation to each of the ... kinds of “decision” [referred to in section 474] relief is available only if a jurisdictional error can be established, because section 474(1) of the Act will prevent review for non-jurisdictional errors of law.
25. Counsel went on to argue that a specific jurisdiction must be identified before one could identify a jurisdictional error.
26. The difficulties presented by this area of the law are great. A particularly useful summary of the historical development of the law and the current doctrinal challenges appears in Kirk v Industrial Relations Commission [2010] HCA 1; (2010) 239 CLR 531; (2010) 262 ALR 569; (2010) 84 ALJR 154; (2010) 190 IR 437; (2010) 113 ALD 1 at paras [56] to [73]. Importantly, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:
    • [73] ... it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that – examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example.
27. Ultimately it does not appear that a detailed exposition and examination of the interplay between the court’s power to grant declaratory relief, the operation of s.474 of the Migration Act, and the very technical jurisprudence relating to jurisdictional error is called for in this case: the case is put on the same basis as the case in Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133, namely that there are errors of law demonstrated on the face of the Independent Merits Reviewer’s reasons, and that there is a failure to afford procedural fairness. I therefore proceed to determine this matter on that basis.

Failure to consider one of the applicant’s grounds

28. The applicant claimed fear of persecution on the basis of the three grounds, namely that:
    1. He had undertaken work for the Tamil Tigers (although not willingly);
    2. He had departed Sri Lanka illegally; and
    100. If forced to return he would do so as a failed asylum seeker.
29. There is no question that the Independent Merits Reviewer carefully considered and squarely dealt with the applicant’s claims that he had undertaken work for the Tamil Tigers, rejecting that part of the claim on the merits. The Tribunal also identified and addressed the applicant’s claim that he would be at risk of persecution, if he fell within the category of a failed asylum seeker (although there are subsequent arguments with respect to how that aspect of the claim was dealt with). However, the Tribunal does not appear to have squarely dealt with the applicant’s claim to be at risk of persecution as a result of being a person returning to Sri Lanka after departing illegally.
30. The claim that the applicant relied upon his illegal departure from Sri Lanka was identified by the Independent Merits Reviewer when listing a number of bases for the applicant’s claim:
    • [48] The claimant fears that if he returns to Sri Lanka he will suffer persecution by the Sri Lankan authorities or pro-government paramilitary groups on account of some or all of: his imputed political opinion in support of the LTTE and on account of his work for them, and also partly on account of his illegal departure from Sri Lanka and asylum claim in Australia; his Tamil ethnicity; his identity as a young person of Tamil ethnicity; and his membership of particular social groups, namely young Tamil males and/or young Tamil males from the north of Sri Lanka; and persons suspected of having LTTE links. (emphasis added)
31. The Tribunal then dealt with the applicant’s claim with respect to being forced to work for the LTTE, before turning to his risk as a result of being a failed asylum seeker. The Tribunal does not specifically address the applicant’s claim to be at risk as being a person returning to Sri Lanka after an illegal departure.
32. 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. Certainly, this ground was listed with the other bases of the applicant’s claim in the various documents provided to the Tribunal as the applicant relied upon each of the basis of claims both individually and cumulatively. However, 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.

Claims with respect to the Tribunal’s assessment of the applicant’s risk of persecution

33. In considering a person’s entitlement to protection under the Convention, one is required to consider whether or not the person has “a well-founded fear of being persecuted”. A decision of absolute certainty as to whether or not persecution will in fact occur is not required.
34. The applicant relied upon two pieces of contrary information, one from the Edmund Rice Centre relating to the return of asylum seekers to Sri Lanka, and another undertaken by an agency from Denmark. Both these documents are identified in submissions to the Independent Merits Reviewer. The information from the Danish Immigration Service states that all Sri Lankans travelling on an emergency travel document will be subject to extra checks and questioning (see pages 139-140 of the Court book):
    • As regards, the authorities’ entering procedures for returnees, including returned failed asylum seekers in the Colombo Airport, Mr. W. A. Chulananda Perera, Acting Controller General, Department of Immigration and Emigration (DIE) explained that the returnee can enter the Sri Lankan border with either a national passport or an Emergency Travel Document issued by the Sri Lankan embassy. If the returnee enters with a national passport, DIE can check the data in a database. Entry with an Emergency Travel Document does not this possibility. However, an Emergency Travel Document is considered proof of identity established in the country of departure. DIE registers the details of all returnees, including travel documents, flight numbers and country of return in a register that all law enforcement agencies are given access to. Mr. Perera said that if an Emergency Travel Document is issued, Sri Lankan Embassy in the returning country informs DIE about the arrival. DIE questions the returnee about the reason for leaving the country, as well as they clarify citizenship and identity. DIE also checks if the returnee is on a list of wanted persons for court orders, forged documentation etc. If it is the case the deportee is handed over to Criminal Investigation Department (CID). Mr Perera further explained that all returnees who returned with an Emergency Travel Document will also be questioned by the State Intelligence Service (SIS). In case a return is on a list of wanted persons for terrorism then the person is handed over to Terrorist Investigation Department (TID) for further investigation. (emphasis added)
35. At page 142 of the Court book, the Danish Immigration Service information stated:
    • Similarly, the spokesperson from the British High Commission said it is still unclear which situation people with a certain profile (members, ex-fighters, supporters, family members or previous affiliated with the LTTE) would be in today. In this context, the spokesperson mentioned that out of the 300,000 IDPs, approximately 12,000 detainees with suspected LTTE links had been screened out to rehabilitation camps in the North. They are at present detained without legal framework. The spokesperson further mentioned that children with LTTE links were released. (emphasis added)
36. Mr Phil Glendenning, the Director of the Edmund Rice Centre reported (see page 18 of the supplementary court book):
    • On our most recent visit we found that all asylum seekers returned to Sri Lanka in recent months, are handed over to the CID, the Sri Lankan Police, and taken into custody. Some are detained, some have been assaulted. One man who is still in jail has lost the hearing in one ear given the severity of the assault he suffered, and another has received damage to his sight.
    • ...
    • Detention can be infinite and court processes are heard within the prison itself. No legal documents are taken, and most often magistrates just continue to postpone the cases to a later date. (emphasis added)

Mr Glendenning expressed ‘grave concerns’ for all deported asylum seekers to Sri Lanka nothing that:

the absence of war there, does not mean peace.

37. The Independent Merits Reviewer dealt with this issue in paragraphs 158 to 160, saying:
    • 158. The advisers’ first submission cites a 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 had been assaulted.
    • 159. This is not in accord with 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.
    • 160. 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. This presents a significant challenge for decision makers. However, it is the decision maker’s responsibility to come down on one 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 policy-makers – 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 screen procedures. (emphasis added)
38. Whilst the Independent Merits Reviewer did not specifically refer to the Danish material, it is clear that the Reviewer had that material before him. A decision-maker is not required to refer to every single piece of evidence, and in this case it appears likely that the decision-maker has categorised it as being of similar import to the material from the Edmund Rice Centre. Failure to specifically identify it does not appear to be an error or indicate a failure to accord procedural fairness. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1 the Full Federal Court said (at paragraoh [14]):
    • [14] In their original application for a protection visa, the appellants placed before the Minister’s delegate ‘country information’ of their own, from a variety of sources. The Tribunal appears to have had this material before it, by way of the file of the Department of Immigration and Multicultural and Indigenous Affairs. The appellants’ submissions to this Court complained that the Tribunal did not comment on this material. The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item. (emphasis added)
39. The real difficulty that arose is that there was conflict between the Australian High Commission report and the Danish and Edmund Rice Centre material. Importantly, the conflicting material was compiled at different times: The report of the Danish Immigration Service is dated October 2010, the Edmund Rice Centre report is dated 19 May 2010 whereas the Australian High Commission material was compiled in August 2009 and 14 October 2009. This required the Independent Merits Reviewer to make findings. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1 the Full Federal Court said (at paragraoh [11]):
    • [11] ... There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
40. If the circumstances in Sri Lanka were static, it would be right to conclude, as the Independent Merits Reviewer did at paragraph [159], that the country information was inconsistent or divergent. On the facts it could well have been entirely consistent with the circumstances changing over time. This was not referred to by the Independent Merits Reviewer. However, the overall assessment of the weight to be attached to evidence is ultimately a matter for the Independent Merits Reviewer, whether or not the courts may have taken a different view on the particular facts: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1 at paragraph [13]. The Court stated:
    • [13]...Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.
41. This would not have been a basis for a declaration with respect to an error of law on the part of the Independent Merits Reviewer.
42. The real difficulty arises as a result of the Independent Merits Reviewer’s view that “it is the decision-maker’s responsibility to come down on one side or the other”. It is clear that in some cases it is not possible to determine, to an appropriate standard, the facts one way or another. Perhaps the most famous example of this occurred in Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 2 All ER 712; [1985] 1 WLR 948; [1985] 2 Lloyd's Rep 1, where Lord Brandon of Oakbrook (at 718) stated, when allowing the appeal that:
    • The first reason is one which I have already sought to emphasise as being of great importance, namely that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take. (emphasis added)
43. This statement of general principle has been approved in the High Court in Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363; 78 ALJR 1031 at [60].
44. If the evidence is in such conflict that a trial judge simply cannot make a finding to the requisite standard the party requiring the finding then fails in their case.
45. In assessing a claim by an asylum seeker the law is quite different. It is not necessary to establish on the balance of probabilities that a particular asylum seeker will in fact suffer persecution, but rather that there is a well-founded fear of persecution. That is, the law requires an assessment of the risk to the asylum seeker, not a positive finding as to what the future will in fact hold. As the Full Federal Court said in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1 (at paragraph [13]):
    • [13] In performing its function, the Tribunal was obliged to make an assessment of the circumstances in Sri Lanka in the reasonably foreseeable future. See Mok v Minister for Immigration, Local Government & Ethnic Affairs (No 1) [1993] FCA 545; (1993) 47 FCR 1 at 66. It had to assess whether there was a real chance of persecution of the appellants for a Convention reason if they were to return to Sri Lanka...
46. The law in this area does not require a decision-maker to “come down on one side or the other”. Rather the law requires the decision-maker to first make an assessment of the material and identify the facts and circumstances which they are persuaded to accept or reject and assess the weight to place on each item of evidence. Secondly, in cases involving asylum seekers, the legal test is not limited to whether or not they have proven a particular factual element (such as the application of physical force on a specific occasion), but ultimately requires an assessment of risk in determining whether or not the asylum seeker holds a well-founded fear of persecution.
47. To approach the task on the basis that a decision-maker has a responsibility to “come down on one side or the other” can only lead to real concern that rather than assessing and weighing the evidence in order to determine which facts and circumstances the decision-maker is persuaded of, (and the weight to be placed on the material in order to properly assess the risk) the decision maker felt forced to make a binary decision and effectively pick one version or the other, even though the decision maker may not be persuaded to the requisite standard that any particular given state of affairs actually exists: the very error committed by the trial judge in Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 2 All ER 712; [1985] 1 WLR 948; [1985] 2 Lloyd's Rep 1. The assessment of risk is a different finding to a decision as to whether a particular factual element of a cause of action has been established.
48. I therefore find that the Independent Merits Reviewer erred at law in approaching the issues relating to the risk on return to Sri Lanka in the manner in which he did.

Reliance upon statements made by the applicant in earlier interviews

49. In this case the Independent Merits Reviewer was critical of the applicant as a result of information concerning his claim of being forced to work with the LTTE. It was argued that as the initial interview was not a process by which he was required at law to put the full basis of his claim and case, as it would be had he been seeking a protection visa on the basis of being a legal entrant into Australia, therefore no inference could be drawn from his failure to provide full and frank details of the facts and circumstances surrounding his case at the first interview. In substance the decision-maker concluded that:
    • 142. In his post-decision statement the applicant again [made] new or amplified claims.
50. It is clear that the very technical and somewhat artificial rules that have been put in place by the many statutory amendments relating to the RRT’s processes and procedure were not applicable in the inquiry being undertaken by the Independent Merits Reviewer in this context. The usual rules of procedural fairness apply. These rules require a common sense approach in asking the question of whether or not a person was given a reasonable opportunity to be heard and put their case, and whether any inferences were reasonably available as a result of statements or omissions from statements made in the past.
51. I see no error on the part of the Reviewer relying upon what the applicant had said in earlier interviews in considering the matter before him. It was information provided by the applicant, and the inconsistencies were the subject of inquiries by the Independent Merits Reviewer. The fact that there may not have been a specific technical obligation upon the applicant to make full disclosure of all of the details of his claim at earlier interviews (in the way that may have occurred under the highly technical regime of the Migration Act and regulations in matters ultimately leading to the RRT) does not alter the basic proposition that he was provided with an opportunity to set out his circumstances and claim, and he provided a version of events.
52. It was open to the Independent Merits Reviewer to draw such inferences as they thought reasonable if he failed to provide all of the information he later provided in those circumstances. In this case the Independent Merits Reviewer concluded that one would have expected the full details to be provided, and that the applicant did not have a reasonable explanation as to why new claims emerged following initial interviews. These findings were open on the evidence, which was clearly canvassed and assessed by the Independent Merits Reviewer. There were inconsistencies between the statements. There was an explanation by the applicant which the Independent Merits Reviewer considered.
53. I find no error on the part of the Independent Merits Reviewer in the way in which he approached this aspect of the matter.

Conclusion

54. In the circumstances I therefore find that the Independent Merits Reviewer erred at law and failed to accord procedural fairness to the applicant. As a result I make a declaration that in recommending to the Minister that the applicant was not a person to whom Australia had protection obligations, the Second Respondent erred in that he failed to determine an integer of the applicant’s claims, namely that he claimed he was at risk on return to Sri Lanka on the basis of being a person who had departed illegally, and further erred in law in approaching the matter on the basis that a choice had to be made between the various items of country information rather than assessing the country information to determine whether the fear held by the applicant was well-founded in light of the information then available and the level of satisfaction the Reviewer concluded was appropriate when assessing that information.
55. The parties have agreed that the costs will follow the event on the Federal Magistrates Court’s scale. I therefore order that the first respondent pay the applicant’s costs fixed at $6,240.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Date: 15 August 2011