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SZQII v Minister for Immigration & Anor [2011] FMCA 789 (7 October 2011)

Last Updated: 31 October 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQII v MINISTER FOR IMMIGRATION & ANOR
[2011] FMCA 789

MIGRATION – Independent merits review of refugee claims of offshore entry person – Sri Lankan Tamil fearing persecution from security agencies and criminal extortionists – IMR found chance of future persecution remote and insubstantial – no error of law or procedural unfairness established – application dismissed.


A v Minister for Immigration & Multicultural Affairs (1999) 53 ALD 545, [1999] FCA 116
Alami v Minister for Immigration & Anor [2011] FMCA 623
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, [2003] FCAFC 184
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, [2010] FCAFC 108
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222clr1.html" class="autolink_findacts">222 CLR 1
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, [2002] HCA 30
MZXSA v Minister for Immigration & Citizenship (2010) 117 ALD 44, [2010] FCAFC 123
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41
Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73, [2000] FCA 1111
Ramirez v Minister for Immigration & Multicultural Affairs (2000) 176 ALR 514, [2000] FCA 1000
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
SZBBP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 167
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZDWR & Anor v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 149 FCR 550, [2006] FCAFC 36
SZLPP v Minister for Immigration & Citizenship (2009) 177 FCR 1, [2009] FCAFC 51
SZPAC v Minister for Immigration & Anor [2011] FMCA 517
SZPZI v Minister for Immigration & Anor [2011] FMCA 530
SZQEK v Minister for Immigration & Anor [2011] FMCA 628
SZQFX v Minister for Immigration & Anor [2011] FMCA 642
SZQGP v Minister For Immigration & Anor [2011] FMCA 701
SZQJP v Minister for Immigration & Anor [2011] FMCA 759
WALT v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2

Applicant:
SZQII

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
CHRISTOPHER KEHER,
IN HIS CAPACITY AS
INDEPENDENT MERITS REVIEWER

File Number:
SYG 1197 of 2011

Judgment of:
Smith FM

Hearing date:
7 October 2011

Delivered at:
Sydney

Delivered on:
7 October 2011

REPRESENTATION

Counsel for the Applicant:
Mr L Karp

Solicitors for the Applicant:
Allens Arthur Robinson

Counsel for the First Respondent:
Mr T Reilly

Solicitors for the Respondents:
Sparke Helmore

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs in the sum of $6,240.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1197 of 2011

SZQII

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

CHRISTOPHER KEHER, IN HIS CAPACITY AS
INDEPENDENT MERITS REVIEWER

Second Respondent


REASONS FOR JUDGMENT

(revised from transcript)

  1. The applicant arrived in Australia without travel documents by boat, which was intercepted and taken to Christmas Island in March 2010. In his interviews he indicated that he had left Sri Lanka legally by air on his own passport with a Malaysian visa in October 2009.
    On 5 June 2010, he requested an assessment by the Department of Immigration of his refugee status (“RSA”) under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow the applicant to make an application for a protection visa. A negative assessment was notified to the applicant on 16 July 2010 after he was interviewed by the assessing officer, and the applicant then applied for ‘independent merits review’ (“IMR”) under the Minister’s procedures.
  2. The second respondent in the present proceedings, Mr Keher, was appointed as independent merits reviewer, and he interviewed the applicant on 29 November 2010. By letter dated 10 May 2011, the applicant was notified that Mr Keher had made a report dated 3 May 2011. In his report, Mr Keher recommended that the applicant should not be recognised as a person to whom Australia has protection obligations. Throughout the RSA and IMR proceedings the applicant was assisted by migration agents appointed under the IAAAS scheme.
  3. The applicant filed his present application to this Court on 9 June 2011. In his current ‘further amended application’ he seeks relief by way of a declaration, writs of certiorari, mandamus and prohibition, or an injunction. Under the jurisdiction recognised in the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 relief by way of constitutional writs would not be available. However, it would be open to this Court to grant a declaration recording any legal error or material failure of procedural fairness displayed in Mr Keher’s report or procedures. If necessary, the Court could also grant relief by way of injunction. The Minister does not challenge this Court’s jurisdiction under s.476 of the Migration Act based on the High Court’s reliance on s.75(5) of the Constitution in Plaintiff M61 at [51].
  4. No issues as to time limits under s.477 of the Migration Act arise in the present case, since the application was brought within 35 days after the date of the notification letter (see Alami v Minister for Immigration & Anor [2011] FMCA 623 at [48]-[67]).
  5. As I have noted, under the judicial review jurisdiction upheld in Plaintiff M61, it is the function of the Court to consider whether Mr Keher’s report reveals an error of law including a denial of procedural fairness. However, in the absence of a finding of such error, the Court is unable to grant any relief in relation to the applicant’s concerns. It is not the function of the Court to engage in merits review of Mr Keher’s findings on the applicant’s refugee claims, in particular, as to the risks he may face if he returns to his country of nationality, Sri Lanka. It is not the function of the Court to form its own opinions on whether the applicant should be permitted to reside in Australia.

The applicant's refugee claims and the RSA assessment

  1. The applicant’s claims were set out in a statement attached to his RSA application, prepared with the assistance of his migration agent. He said he was a young man, who is a Sri Lankan national born in a village in the Jaffna region of Sri Lanka. He lived in that village until moving to another village in the northern region with his family, and lived there until 1998 when he and his family moved to Colombo. They lived in Colombo until 2002, before returning to the northern region between 2002 and 2005, when the applicant and his family moved back to Colombo. His parents remain there, and the applicant lived with them until he departed Sri Lanka in October 2009. In his statement the applicant said that in Colombo he worked “in a garden restaurant as a bartender”.
  2. As to his fears of returning to Sri Lanka, the applicant referred to the fact that his brother was killed in 1998, while the family were living in the northern region and when “the area was shelled by the Sri Lankan army”. The applicant later confirmed that his brother was killed as a random victim of the shelling, and said that no member of his family, including his brother and himself, had any association with the LTTE insurgents at any time, nor any political involvement of any kind.
  3. The applicant’s RSA statement continued:
  4. The RSA assessor gave detailed reasons for concluding that the applicant did not have a well-founded fear of being persecuted within the reasonably foreseeable future if he returned to Sri Lanka for a Convention ground or for any other reason. The assessor accepted the general framework of the applicant’s refugee claims, although expressing doubt whether the applicant was a “totally reliable witness”. The assessor did not accept some of the details of the applicant’s claims concerning particular incidents.
  5. Relevant to the grounds which I shall set out below, the RSA assessor discussed the applicant’s claims in relation to the 2004 and 2009 incidents of detention, and the 2009 extortion incident as follows:
  6. After addressing other matters, the RSA assessor considered whether the applicant was at risk just as a Tamil who originated from the north of Sri Lanka:
  7. The RSA assessor also considered the risks that might face the applicant if he returned to Sri Lanka as an unsuccessful refugee claimant overseas. The assessor said:

The IMR proceedings

  1. The applicant, aided by his agent, applied for independent merits review. One written submission was made on his behalf by his agent, which is dated 5 August 2010. The 17 page submission cited relevant country information, and analysed the RSA assessor’s reasoning. The applicant’s agent then submitted:
The delegate considered the fact and claims of the Applicant incomplete and in isolation. There was no consideration whether; in the entirety of the circumstances the applicant would face a real chance of serious harm if returned to Sri Lanka.
Even if the delegate found that one of the Convention grounds did not give rise to a real chance considered cumulatively, the applicant’s profile supports his well-founded fear of persecution, namely his claim of suspicion of being affiliated by the LTTE.
This requires consideration of whether the applicant faces real harm because of a combination of circumstances including:
We submit that on a separate and cumulative assessment it is open to you to find that the applicant has a well-founded fear of persecution for a Convention reason in the foreseeable future if returned to Sri Lanka.
  1. A submission was then made over several pages, referring to country information, in support of the applicant’s claim that he had a well-founded fear of persecution as a failed asylum seeker returning from a western country. There were then criticisms of the procedures and reasoning process of the RSA assessor, reference to more recent country information, and a general conclusion which claimed that “Tamils are still the victims of violence” notwithstanding the end of the LTTE insurgency.
  2. Numerous documents were submitted to the IMR reviewer, which appear to have been forwarded in batches under the cover of emails by the applicant’s agent or the applicant himself. 500 pages of these have been reproduced in the Court Book which is before me. They consist of a variety of press clippings, extracts from country information evaluations, opinions by various observers and commentators, and a whole body of other material which might bear on a general assessment of the background situation of Sri Lanka that might be relevant to an assessment of the applicant’s claims. However, much of it, if not most of it, appears to me on a not very thorough examination conducted by myself unaided by counsel, to be only of marginal assistance to the IMR reviewer when coming to grips with the applicant’s personal refugee claims.
  3. No submission was ever made by the applicant or his agent to Mr Keher, drawing attention to any particular of these documents or parts of them, nor focusing their relevance to the applicant’s grounds for claiming to have a well-founded fear of persecution for a Convention reason if he returned to Sri Lanka. Nor at the interview with Mr Keher on 29 November 2010 at Christmas Island, did the applicant’s agent take up an invitation given by Mr Keher to make oral submissions.
  4. Mr Keher’s report contains a brief account of his interview with the applicant and his agent. After referring to some personal circumstances, according to Mr Keher’s summary, the interview continued:
  5. The applicant has in the present proceedings filed an affidavit sworn on 29 August 2011 by a legal secretary, who deposes to transcribing an audio file entitled “Interview with Christopher Keher.MP3”, and attaches her transcription. Comparing this transcript with Mr Keher’s account of his interview, it tends to confirm Mr Keher’s account as being an accurate and sufficient basis for considering the grounds of review which I shall address below. It does not, however, contain the parts of the interview that Mr Keher has described in paragraph 17.
  6. This omission should, in my opinion, have been manifest to anyone who makes a comparison of the report with the mp3 file transcription. However, the submissions of the parties drew no attention to the discrepancy, and neither party presented any evidence seeking to explain it, or to show any investigations performed to explore why it occurred. The Court is left entirely uninformed as to how it might have occurred.
  7. I am ready to accept that in fact the audio file was forwarded to the applicant’s solicitors in good faith by the Minister’s solicitors as a complete recording of the interview, and that the transcription was performed accurately. However, as I have noted, neither party identified and investigated the obvious discrepancy. When I drew attention to it in the course of the hearing, neither party sought an adjournment to allow investigations and further evidence to be tendered, including direct evidence from the three participants in the interview, or any one of them. I was invited to draw whatever inferences I felt were appropriate.
  8. In my opinion, the evidence before me allows a reasonable inference that, in fact, an exchange which Mr Keher has recorded in paragraph 17 did occur. I consider it highly improbable that he has invented such an exchange, and far more likely that he has prepared his report from his own notes of the interview, including notes which he had of the statements which he has included in quotation marks and italics. I find that the interview did include the exchanges which he has narrated in paragraph 17 of his report. The absence of that part of the interview from the recording forwarded to the applicant’s solicitors remains unexplained, but does not cause me to find that this exchange did not take place. I can conceive of many possible explanations for its absence on the mp3 file given to the applicant’s solicitors, most of them innocent.
  9. In his report, Mr Keher narrated the applicant’s claims in a manner showing a close awareness of the evidence which had been given by the applicant and the submissions of his agent. It also contains an account of the interview.
  10. Under the heading “Independent Evidence/Country Information”, Mr Keher referred to the information detailed in the RSA officer’s assessment, and “the information provided by the claimant’s advisor, and in particular I have considered the following material. I have also considered the following credible sources”. There is then identification of some material by way of references, some of which are additional to references identified in the RSA report, and some extracted quotations from some sources, which I take to be additional material, including some extracts from a UK Home Office 2009 Report. Other extracts were apparently compiled by the research directorate of the Canadian Refugee Board in August 2009. These concern the situation in Northern Sri Lanka since the defeat of the LTTE, the situation of civilians in IDP camps and those held in military detention without trial as suspected LTTE supporters, and other relevant information, in particular on Tamils in Colombo and on checks through the international airport. There is also an extract from a cable from the Department of Foreign Affairs and Trade in Colombo dated 14 October 2009 on the latter topic.
  11. Mr Keher’s report then set out his “Findings and Reasons”, starting with the general proposition: “I have carefully considered this application, the claims and evidence presented by the claimant, and the country information”. The subsequent reasoning is concise. Criticisms have been made before me that it is too concise, and that there are omissions of findings that one would have hoped to have found with more detailed reasoning. In this respect, counsel for the applicant referred me to the relevant IMR guidelines dated 1 April 2010. At paragraph 12 they provide:
Independent Reviewers’ reports must:
In order to achieve this, the Independent Reviewer’s report must:

It is suggested that the Independent Reviewers’ reports be in the attached format (Attachment G).

  1. I have in other cases referred to these guidelines. I have concluded that the Minister’s instructions make it appropriate to examine the IMR report on the same principles as would be a statement of reasons given by a migration tribunal (see SZPZI v Minister for Immigration & Anor [2011] FMCA 530 at [12]-[13]). Those principles include the obligation not to read Mr Keher’s statement of reasons “minutely and finely with an eye keenly attuned to the perception of error” but to adopt a benign approach when attempting to understand ambiguous or poorly explained reasoning (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 and 291).
  2. The context in which Mr Keher produced his report should also, in my opinion, be borne in mind. As is apparent from numerous IMR reports which I have reviewed in recent months, a large number of them concern Tamil refugee claimants from Sri Lanka, all of whom have presented claims based on their ethnicity as well as their individual circumstances and histories. All of these matters demonstrate that the IAAAS advisors who have been assisting claimants in the area, and the RSA officers and the IMR reviewers who have been assessing these refugee claims, must by now have developed a close familiarity with much, if not most, of the pertinent background information concerning country circumstances in Sri Lanka. It would be understandable that, by the time the present report was written, Mr Keher and his colleagues would have become familiar with much of the background material.
    I consider that this IMR report should be considered with the same appreciation as would be an RRT decision, that decision-makers are likely and are expected to bring to bear a general level of awareness of background ‘country’ information, including awareness of matters of common and uncontroversial knowledge concerning the situation in Sri Lanka after the defeat of the LTTE (c.f. A v Minister for Immigration & Multicultural Affairs (1999) 53 ALD 545, [1999] FCA 116 at 555, Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [32], Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, [2002] HCA 30 at [263], SZLPP v Minister for Immigration & Citizenship (2009) 177 FCR 1, [2009] FCAFC 51 at [151]- [153], and Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, [2010] FCAFC 108 at [27]).
  3. 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.
  4. With that preamble I shall set out the whole of Mr Keher’s “Findings and Reasons”, and address the grounds of judicial review that were argued before me today:

Grounds of review

  1. Counsel for the applicant relied upon a further amended application which was foreshadowed by way of attachment to his written submissions filed on 21 September 2011. I found it an unsatisfactory pleading since, as I shall indicate below, it contains sub-grounds which need to be rearranged in a manner that I shall perform below. I also found counsel’s written submissions unsatisfactory in their failure clearly to address separately the pleaded grounds of review, which are at times obscure, overlapping, and internally unclear. Counsel’s written submissions consisted of unstructured criticisms of Mr Keher’s report, under one heading, “Jurisdictional error”. However, in the course of oral submissions I attempted to clarify and separate the grounds of review, and to understand the case sought to be presented by counsel.
  2. I shall address what I understand to be the separate grounds raised in the further amended application, under an analysis reflected in the following headings.

Ground 1 – the generic refugee claim

  1. As I understood counsel’s submissions, this ground contended that Mr Keher failed separately, or at all, to address a refugee claim which I might conveniently label as ‘the generic ethnic Tamil claim’. That is, that the applicant faced a real chance of persecution for a Convention reason merely as a result of his ethnicity as a Tamil, and perhaps also with the extra attributes of being male and with a family originating from the north. Counsel referred me to some references in the applicant’s claims and the country information which, he submitted, raised that question for consideration. He also referred me to the passage in the RSA assessment which I have quoted above, where the RSA assessor addressed this issue, and gave a general conclusion that “persons of Tamil ethnicity who originate from the north and east of Sri Lanka do not currently risk being persecuted by Sri Lankan authorities or non-State agents solely for racial reasons”, citing the UNHCR eligibility guidelines for assessing the international protection needs of asylum seekers from Sri Lanka of April 2009.
  2. Manifestly, these UNHCR eligibility guidelines must have been well known to reviewers and IAAAS agents by the time Mr Keher came to address the present applicant’s claims. In the circumstances of the present report, I am not prepared to infer that he overlooked this part of the RSA assessment or the relevant country information cited by the RSA assessor, nor that he was generally unaware of the ‘generic claim’ which has surfaced, for example, in other Sri Lankan Tamil matters coming before me recently (cf. SZQFX v Minister for Immigration & Anor [2011] FMCA 642, SZQGP v Minister For Immigration & Anor [2011] FMCA 701, and SZQJP v Minister for Immigration & Anor [2011] FMCA 759).
  3. I have noted above the submissions of the applicant’s agent to the IMR reviewer. While I accept that these did not disclaim a generic Tamil claim, they put at the centre of the applicant’s case to the IMR that the IMR reviewer should consider whether the applicant faced real harm “because of a combination of circumstances”, including his Tamil ethnicity but also including specific attributes relating to his personal background and claimed history.
  4. It is also pertinent to note how the applicant himself presented his claims at his interview with Mr Keher, in response to the general invitation by Mr Keher of “why would you have any problem if you went back to Sri Lanka?”:

This confirms that the applicant, as well as his advisers, invited Mr Keher to put at the forefront of his consideration not a generic claim, but his individual claimed circumstances and history in combination with his ethnicity.

  1. 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.
  2. 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.
  3. I am therefore not persuaded that any error of law has been established as in submissions of the applicant’s counsel referrable to Ground 1.

Grounds 2 and 3 in relation to the April 2009 incident

  1. It will be recalled that the applicant presented a history that in April 2009 “the police rounded up Tamils in Colombo”, and that in the course of this action he was taken to the nearest police station to his home. There he was kicked by police and hit with a baton. The applicant claimed “they suspected that I was a LTTE member. This happened frequently with other Tamils as well. I was kept in custody for a week. My mother paid 150,000 rupees to the police for my release”. The applicant gave similar evidence at the interview with Mr Keher, and on other occasions.
  2. In paragraph 26 Mr Keher made findings:
  3. Grounds 2 and 3 argue that error of law on the face of the above reasoning appears in that, as I understood it, there was a failure to make findings on an important ‘integer’ in the applicant’s claims referrable to the April 2009 incident. This was that the applicant’s release had been accompanied by, and perhaps was immediately effected by, his mother passing money to the police. I was referred to the evidence in relation to this, and it was submitted that this gave rise to a separate refugee claim requiring separate findings as to whether bribery had occurred and an assessment of its significance, if Mr Keher were to perform his duty under the Minister’s guidelines according to law.
  4. It has been accepted in other cases, and was assumed in the submissions of both counsel in the present case, that the relevant principles are the well-known principles of jurisdictional error discussed in the Full Court decision of NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1.
  5. It is not clear to me, however, that the element in the applicant’s history of the police accepting a bribe at the time of releasing the applicant was ever presented as raising an added component of risk of being persecuted if the applicant returned to Sri Lanka. Some effort to give substance to the existence of such a separate claim was made by the applicant’s counsel taking me to a few references in the 500 pages sent by the applicant’s agents to the IMR reviewer. These reported incidents of extortion, including at times by agents of the Sri Lankan government for motives which might at times have included Convention reasons.
  6. However, I was not persuaded that Mr Keher was obliged to have perceived this significance of these passages when he was attempting to digest those documents. I am not persuaded that the tests in NABE of an ‘articulated’ or ‘clearly raised’ claim as to a risk of extortion by agents of government for a Convention reason are satisfied in this case.
  7. In any event, I accept the Minister’s submissions that it is irrelevant whether such a claim was raised by the applicant’s evidence, and not addressed by Mr Keher with specific findings. The Minister’s counsel submitted that Mr Keher made a clear finding assessing all of the applicant’s evidence as to this detention incident, and it cannot be assumed that anything was overlooked. Mr Keher found that “I do not accept that if he was of adverse interest he would have been released”, and then gave reasons for that finding. In effect, this finding negated the payment of a bribe – if it happened – as itself explaining the applicant’s release. His reasons show that he concluded that the release followed a policy or practice in relation to a “general roundup” by the CID occurring around that time, in which people of possible interest were detained, and were not released, and thousands of them remained in police detention without charge. He concluded that the operative reason for the applicant’s release was that he was not of “adverse interest”.
  8. In my opinion, the reasoning of Mr Keher containing that finding was open to him, and it was open to him to treat it as decisive of whether any of the circumstances recounted by the applicant in relation to his detention and release in April 2009 supported a well-founded fear of persecution on return. It was also open, in my opinion, to Mr Keher to support his adverse conclusion upon the apparent ability of the applicant to pass untouched through Colombo airport on his own passport when leaving Sri Lanka in October 2009.
  9. I therefore accept the Minister’s submission that Mr Keher’s findings in relation to the implications of the April 2009 detention incident negated a well-founded fear of future persecution as claimed by the applicant, and was a finding which ‘subsumed’ all more detailed findings which might have been made as to the 2009 events (cf. Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, [2003] FCAFC 184 at [47], Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [91], WALT v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2 at [41], and MZXSA v Minister for Immigration & Citizenship (2010) 117 ALD 44, [2010] FCAFC 123 at [110]).
  10. Taking into account all the submissions of counsel for the applicant referrable to the contentions in the particulars to Grounds 2 and 3 referrable to the April 2009 detention incident, I am not persuaded that the reasoning presented by Mr Keher manifests any failure to address any element in his refugee claims, the absence of discussion of which would show material error of law.

Grounds 2, 3 and 4 concerning the August 2009 extortion and kidnapping

  1. It will be recalled that the final incident, which the applicant referred to as providing particular foundation for his fears of persecution, was his kidnapping by persons who were not agents of the Sri Lankan Government, who he referred to as “Sinhalese gangsters”. He claimed that they kidnapped him and extorted a sum of money from his parents before he was released. Mr Keher’s findings in this respect are found in paragraph 28 which I have quoted above.
  2. Both counsel accepted that, in effect, Mr Keher provided three separate reasons for not accepting that this incident established a well-founded risk of future persecution of a similar sort occurring for a Convention reason. These were firstly that the extortion as narrated should not be accepted as being “for reasons of a Convention ground” because “the motivation of the gang however, was clearly to obtain money”. Secondly, that the risk of recurrence did not amount to a “real chance” because “the chance of this happening again is also I consider remote and insubstantial”. In this respect, it was accepted by the applicant’s counsel that the description of the risk as being “remote and insubstantial” showed a sufficient understanding of the real chance test (cf. Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572). Thirdly, that, in effect, Mr Keher was not satisfied that there would be an absence of “state protection from criminal gangs in Sri Lanka” against similar incidents in the future.
  3. Counsel for the applicant challenged all three of those separate elements in Mr Keher’s reasoning in paragraph 28, accepting that he must establish error in all three, before these grounds could succeed in establishing material error of law.
  4. In relation to Mr Keher’s first reason, i.e. the absence of a Convention reason for the extortion, I was taken to a well-known passage in Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73, [2000] FCA 1111 at [46] where Finn and Dowsett JJ said:
  5. In that case, their Honours were satisfied that there was error of law made by the refugee decision-maker, because an overly simplistic view had been taken of a claim relating to extortion. Their Honours found support for that conclusion in the language used by the decision-maker, as well as in the absence of more elaborate findings.
  6. As counsel for the Minister pointed out, in other Full Court cases where the Sarrazola principle was considered, Full Courts have not always demanded the extent of elaboration which Finn and Dowsett JJ expected in Rajaratnam. In Ramirez v Minister for Immigration & Multicultural Affairs (2000) 176 ALR 514, [2000] FCA 1000 a Full Court concluded:

Their Honours found no error of law in the conclusion as expressed by the Tribunal, which implicitly excluded a Convention element in the history of extortion in that case.

  1. 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.
  2. 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.
  3. I am therefore not satisfied that error of law affecting the first element and the reasoning in paragraph 28 has been established.
  4. A subordinate submission was that I should infer that Mr Keher overlooked the applicant’s evidence that in the course of the extortion reference had been made to “we know you are from the north and a Tiger and you must do as we say”. However, I would not draw that inference. Manifestly, Mr Keher was aware of that part of the applicant’s evidence when he wrote his report, since he extracted it as a quotation in his summary of the interview at paragraph 16 of his report.
  5. The other two reasons given by Mr Keher in relation to the 2009 extortion attempt were challenged under Ground 4 in particulars (a) and (b), and I shall address them under those headings.

Ground 4(a) – the risk of further extortion

  1. In relation to Mr Keher’s finding as to this element in paragraph 28, it was submitted that it was not open, as a matter of law, for Mr Keher to find that the risk of a recurrence of extortion was “remote and insubstantial”. Counsel for the applicant sought to persuade me as to this both by taking me to the applicant’s evidence about the incident, and to some references to extortion found in the 500 pages sent to Mr Keher by the applicant’s agent, in particular the folios that appear at Court Book 259 and 427.
  2. I shall not extract those folios. In my opinion, it is manifest that none of this evidence is sufficient to persuade a court to make a difficult finding of the complete absence of any evidence capable, as a matter of law, of supporting this finding of fact, which assessed the future risk of a recurrence of an incident such as was described. In my opinion, Mr Keher’s assessment of risk was very much a matter of evaluation of an issue of fact. I have not been persuaded that his finding was not open on the evidence, nor that he made any error of law when making this finding.

Ground 4(b) – the finding as to state protection in relation to extortion

  1. Counsel’s submissions challenging the third element in Mr Keher’s findings in paragraph 28 in relation to the August 2009 extortion attempt, cited the High Court judgment in Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222clr1.html" class="autolink_findacts">222 CLR 1 as follows:
  2. This passage in the judgment of Gleeson CJ and Hayne and Heydon JJ has been identified in the Full Court as providing the principle upon which the adequacy of the ability and willingness of a country of nationality to provide sufficient level of state protection may be assessed (see SZDWR & Anor v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 149 FCR 550, [2006] FCAFC 36 at [18]). Another Full Court has pointed out that the High Court was not proposing a magic formula, the language of which must always be used by decision-makers when assessing the prospect of adequate state protection being available (see SZBBP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 167 at [6]- [16], also WALT v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2 at [41]- [44]).
  3. In the present case, Mr Keher’s reasons are undoubtedly concise, but, in my opinion, he shows 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.
  4. In the light of these findings, I am satisfied that Mr Keher probably turned his mind to necessary considerations as to the prospect of adequate state protection in the future. I am certainly not persuaded to the contrary.
  5. It was not submitted by counsel for the applicant that Mr Keher’s opinion as to the effect of relevant country information was not open, or was attended by any related procedural or substantive error. However, in this respect, counsel for the Minister drew my attention to the likelihood that Mr Keher did have such information in mind arising from the following passage at page 9 of the transcript:
  6. Considering all the submissions which were made to me under grounds 2, 3 and 4 concerning the extortion incident in August 2009, I am not satisfied that any error of law has been made out before me. I am certainly not satisfied that error of law has been made out in relation to all three of the elements of Mr Keher’s reasoning in paragraph 28, so as to show a material error of law vitiating his ultimate conclusion.

Ground 5(a) – natural justice concerning the applicant’s ability to depart Colombo

  1. Counsel’s submissions in relation to this ground addressed Mr Keher’s finding at the bottom of paragraph 26 that:
  2. It was submitted that a failure of procedural fairness occurred, because Mr Keher did not draw to the attention of the applicant and his agent the likelihood of his above reasoning, in particular, when drawing from the circumstance that the applicant’s departure occurred “... during a period of known heightened security and awareness by the authorities”.
  3. I found counsel for the applicant’s submissions in relation to a failure of procedural fairness lacking precision as to the exact nature of the denial of procedural fairness. Ultimately, as I understood him, he submitted that there was an error of the type identified in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. That is, a failure to give warnings of an issue of which the applicant and the agent should not have been reasonably aware. Exactly what the surprising new issue was, is not clear to me. Counsel also appeared to submit that there was an error in relation to reliance on adverse information of the type explained in Kioa v West [1985] HCA 81; (1985) 159 CLR 550. That is, a failure to draw attention to the particular adverse information which Mr Keher drew upon when believing that the departure occurred during such a period.
  4. Recently, the High Court referred to both of these potential species of denial of procedural fairness in Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594:
  5. 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] HCA 6; (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.
  6. 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”.
  7. I therefore do not accept any of the arguments presented under Ground 5(a).

Ground 5(b) – natural justice in relation to country information

  1. The particulars of this ground refer to two extracts quoted by Mr Keher under his heading “Independent Evidence/Country Information”. As I have noted above, he quoted other extracts, and he also cited a list of other sources. He also said that he had also taken into account country information “as detailed in the RSA Officer’s assessment”, and also the body of country information presented by the claimant’s adviser.
  2. Counsel was unable to identify any passage in Mr Keher’s reasoning on any of the applicant’s claims which might appear to have drawn in a significant manner from anything specifically contained in the two passages identified in this ground. It was submitted, however, that a failure of procedural fairness occurred because the applicant was not warned that these extracts might be cited in the report as having general relevance.
  3. Reading Mr Keher’s report, I am left with an impression that he treated these quoted extracts as being no more than additional “other relevant information in relation to Tamils”, which covered the same territory as had been covered in other parts of the general body of country information of which he indicated an awareness. On the submissions and evidence before me, I would not conclude that this material, or the gist of it, or any information particularly contained in it, was not also contained in other material of which the applicant and his advisers would have been fully aware. That other material included the general authoritative reports, particularly the UNHCR eligibility guidelines which, undoubtedly, the applicant and his agents had opportunity to be aware would be relied on, and also the other information specifically cited in the RSA assessor’s advice, including that concerning the situation of returned asylum seekers.
  4. It has been established that a failure to present for comment pieces of country information, of which an applicant is unaware, may give rise to a failure of procedural fairness if the particular piece of new country information can be found to satisfy the test of Brennan J in Kioa v West that it is “credible, relevant and significant” to the decision to be made. However, the application of that principle in relation to country information must proceed with some caution, particularly in the light of how the High Court decided Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. I extracted relevant parts of Miah when applying these principles myself recently to an IMR report in SZQEK v Minister for Immigration & Anor [2011] FMCA 628 at [27]-[31]:
31 As these extracts show, it is necessary to examine the particular circumstances, before concluding that there is an obligation to invite comment on country information identified as relevant by a refugee decision-maker. The factual issues arising in the review, the path of reasoning adopted by the decision-maker, and the novelty, credibility and materiality of the information to the decision, all need to be considered before concluding that there has been a failure of procedural fairness. Underlying the assessment is a basic concern for a fair procedure.
  1. As I observed in that case and as Raphael FM observed when assessing similar arguments in SZPAC v Minister for Immigration & Anor [2011] FMCA 517 at [15] to [27], not every passing citation of country information by a reviewer gives rise to a breach of procedural fairness, even if the Court were satisfied that the applicant and his advisers were unaware of the gist of it. It is necessary to consider fairness in the particular circumstances, and applying the tests suggested by Brennan J. The actual significance given to the identified information in the reasons for decision may often provide decisive evidence of whether a breach of procedural fairness of this type has occurred, even though it is the task of the Court itself to form an objective assessment of the situation (see Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [16] to [17]).
  2. In the present case, counsel was unable to identify any particular piece of information in the extracts identified in the particulars to this ground, which in my opinion satisfies the Kioa test, and which was not similar to information of which the applicant or his agents would have been aware, or which would not also have been contained in the general body of country information cited in the RSA assessment, or otherwise available and known to the applicant and his advisor.
  3. I am not persuaded that any failure of procedural fairness occurred of the sort argued under Ground 5(b).

Conclusion

  1. For all the above reasons I am not satisfied that the applicant has identified any error of law or breach of procedural fairness which is evidenced or occurred in the course of Mr Keher’s report and proceedings. I am not persuaded that any basis for relief of any sort sought in the application has been made out.
  2. In my opinion, the application should be dismissed. It is agreed that costs should follow the event.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Smith FM.


Date: 27 October 2011

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