FEDERAL COURT OF AUSTRALIA SZRFZ v Minister for Immigration and Citizenship [2012] FCA 1450 Citation: SZRFZ v Minister for Immigration and Citizenship [2012] FCA 1450 Appeal from: SZRFZ v Minister for Immigration & Anor [2012] FMCA 632 Parties: SZRFZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and CHRISTINE LONG, in her capacity as INDEPENDENT MERITS REVIEWER File number: NSD 1344 of 2012 Judge: EMMETT J Date of judgment: 12 November 2012 Legislation: Migration Act 1958 (Cth) s 36(2) Date of hearing: 12 November 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 30 Counsel for the appellant: J Bartos with P Afshar Solicitor for the appellant: Allens Counsel for the first respondent: MJ Smith Solicitor for the first respondent: Sparke Helmore IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1344 of 2012 BETWEEN: SZRFZ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent CHRISTINE LONG, in her capacity as INDEPENDENT MERITS REVIEWER Second Respondent JUDGE: EMMETT J DATE OF ORDER: 12 NOVEMBER 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1344 of 2012 BETWEEN: SZRFZ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent CHRISTINE LONG, in her capacity as INDEPENDENT MERITS REVIEWER Second Respondent JUDGE: EMMETT J DATE: 12 NOVEMBER 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This proceeding is an appeal from orders of the Federal Magistrates Court made on 17 August 2012. By those orders, the Federal Magistrates Court dismissed an application by the appellant for judicial review of a decision made in respect of his eligibility to be treated as a refugee under the Refugees Convention. The Federal Magistrates Court also ordered the appellant to pay the costs of the Minister for Immigration and Citizenship, the first respondent in the proceeding and in the appeal (the Minister). 2 The appellant arrived in Australia in November 2010 and was interviewed by departmental officers at Christmas Island on 6 December 2010. A negative assessment was made by a delegate of the Minister on 29 April 2011. A request for refugee status assessment was made on 21 January 2011. On 19 May 2011, the appellant applied for independent merits review of the decision of the delegate. On 10 February 2012, the reviewer found that the appellant does not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958 (Cth). 3 The appellant then sought judicial review of that decision by the Federal Magistrates Court by an application filed on 12 March 2012. In his amended application filed on 15 June 2012 the appellant asserted that there had been jurisdictional error on the part of the reviewer on some 14 different bases. All of those were rejected by the Federal Magistrates Court. By notice of appeal filed on 7 September 2012, the appellant contends that the Federal Magistrates Court erred in finding that the reviewer had sufficiently addressed and considered his claimed fear of persecution for three different reasons. It is desirable to deal with each of those three grounds separately. 4 The first ground is that the reviewer should have found that the appellant feared persecution by reason of his being a member of a particular social group, being young Tamil males from Jaffna, who are thought to be connected with the Liberation Tigers of Tamil Eelam (LTTE). The corresponding ground before the Federal Magistrates Court was that the appellant claimed that, if he was returned to Sri Lanka, he would be regarded as a member of a particular social group, being young Tamil males who are thought to be connected with the LTTE. That is to say, the ground articulated in the appeal to the Federal Court narrows the alleged particular social group by limiting it to young Tamil males from Jaffna who are thought to be connected with the LTTE. 5 The Minister indicated that he would not be prejudiced by an amendment and I gave leave for the amended application to the Federal Magistrates Court to be further amended to assert that there was jurisdictional error on the part of the reviewer in failing to address a claim that the appellant feared harm by reason of his membership of the particular social group consisting of young Tamil males from Jaffna who are thought to be connected with the LTTE. 6 It is desirable to say something about the way in which the appellant formulated his claims. The appellant made a statutory declaration on 21 January 2011 in support of his application. In response to the question why he believed that he would be harmed or mistreated if he went back to Sri Lanka, the appellant asserted that "they will harm, mistreat me [sic] and eventually kill me because I am Tamil and they suspect me of being a member of the LTTE because of the weapons they confiscated near my home". 7 In a submission made on behalf of the appellant in connection with the review, it was stated that the appellant fears persecution from the Sri Lankan army and paramilitary groups, such as the Karuna Group, "due to his Tamil ethnicity and his perceived support of the LTTE". The submission said that the appellant was suspected generally of being an LTTE supporter and that he claimed that the area that his family came from was "a centre of the Tamil Tiger regime", and that that was one of the main reasons why he was suspected by the authorities of being a member of the LTTE. 8 In the reviewer's reasons it was recorded that the appellant said that another reason why he left Sri Lanka was that paramilitary groups told him not to go to school, that they tried to recruit him and that his father was harassed by them. He said that those groups threatened him and beat him several times. The reviewer recorded that the appellant said that he had not been associated with any political groups or organisations and was not involved in any activities or protests against the government in Sri Lanka. He also told the reviewer that no members of his family had been involved with or associated with political groups or their activities or protests. 9 Later, the reviewer recorded that the appellant said that he was tortured by the army and the paramilitary group. He said that he was beaten, that he and his father were arrested and that mostly they tortured him and beat his father. The reviewer noted the submission from the appellant's advisors that he feared persecution by the Sri Lankan Army and paramilitary groups because of his ethnicity and his perceived support for the LTTE. Ultimately, the reviewer concluded that the evidence before her did not enable her to conclude that there was a real chance that the appellant would suffer harm amounting to serious harm from the army or anyone else in Sri Lanka because of his political opinion or imputed political opinion, his race, because he is a Tamil from Jaffna, because of his membership of a particular social group or any other Convention reason if he returns to Sri Lanka. 10 The appellant, in his submissions to the Federal Court on the appeal, asserted that he claimed that he was a member of a particular social group or class, being young Tamil males from Jaffna, who are thought to be connected with the LTTE. He contended that the reviewer erred in the way that she dealt with that claim. Specifically, he asserts that the reviewer did not deal with the alleged situation in the general claim of the appellant, but rather focused on the particular circumstances of the appellant's personal history, as opposed to having imputed to him characteristics of a class, being young Tamils from Jaffna whom the authorities generally suspect as having links with the LTTE. The appellant contended that the reviewer did not address the claim effectively, that it was because he was a young Tamil from Jaffna that the authorities would now or on his return perceive or impute him to be, with or without any basis, an LTTE member. 11 Where a claim to fear persecution relates to membership of a particular social group, it is essential that the particular social group be identified with accuracy. The group must be identifiable by a characteristic or attribute, other than a shared fear of persecution, that is common to all members of the group and distinguishes the group from society at large. Further, a decision-maker is only required to consider the claims made by a claimant that are sufficiently raised on the material before the decision-maker and not those that depend for their exposure upon constructive or creative activity by the decision-maker. A conclusion that a decision-maker has failed to consider a claim not expressly advanced is not to be made lightly. 12 I am not persuaded that the appellant stated at any stage that he was a member of a particular social group consisting of young Tamil males from Jaffna who are thought to be connected with the LTTE or that he feared persecution as a result of such membership. The reviewer, therefore was under no obligation to consider such a discrete claim. In neither of the documents to which I have referred was a discrete claim made that the appellant feared persecution on account of his membership of such a class. The reviewer, in fact, recorded that the appellant claimed to fear harm in Sri Lanka because he is a young Tamil from Jaffna. However, the claim made by the appellant that he could not return to Sri Lanka because he fears harm there, because he is a young Tamil male from Jaffna, is no more than a recitation of the reason why he fears harm based on his race and imputed political opinion. It is not a discrete claim of a fear of persecution based on membership of a particular social group. 13 It is clear, in my view, from a number of findings made by the reviewer, that the factual matters relevant to the claim were properly considered by the reviewer. The reviewer acknowledged that the appellant claimed that he feared that he would be harmed by the authorities upon his return to Sri Lanka given that they would suspect his connections with the LTTE because he is a young Tamil male from Jaffna. The reviewer stated that, although she accepted that the appellant might be questioned upon his return to Sri Lanka, the reviewer did not accept that he would be investigated and suffer harm upon return. 14 Finally, the reviewer concluded that, although she accepted that the appellant would face discrimination and harassment in Sri Lanka because he is a young Tamil male from Jaffna, the evidence did not enable her to conclude that there was a real chance that he would suffer harm amounting to serious harm because of the fact that he is a Tamil from Jaffna. Having regard to the generality of the delegate's finding that the appellant did not have a well-founded fear of persecution for any reason contemplated by the Convention, it was unnecessary for her to consider whether the particular social group constitutes a social group for the purposes of the Refugees Convention. 15 I shall come to the second ground directly, but it is more convenient to deal with the third ground in the present context. The third ground is that the reviewer should have found that the appellant feared serious harm from being targeted by paramilitary groups supporting the government, who attempted to recruit him to their cause and harassed him when he refused. In the course of address, counsel for the appellant in effect formulated an alternative social group of which the appellant claimed to be a member. As I understand the contention, it is that the appellant claimed to fear serious harm by reason of his being a member of a particular social group consisting of Tamils who rejected an invitation to join paramilitary groups supporting the government. 16 In essence, the third ground is that the appellant feared persecution because of the possibility of being imputed with a political opinion in support of the LTTE. The basis for the contention that the appellant made such a claim in the appellant's original interview, he stated that paramilitary groups advised him not to go to school that they tried to recruit him, and that his father was harassed by them. There is no mention there of a particular social group, but simply the source of harassment and persecution. In his statutory declaration, to which I have already referred, the appellant said that the Sri Lankan army and paramilitary groups were working together with the Sri Lankan government to rid Sri Lanka of Tamil people, especially those they suspect are involved with the LTTE. He said that, given their suspicions surrounding the weapons near his home, there was little doubt he would be killed if he returns. He said that the continued mistreatment and mass slaughter of Tamil people in Sri Lanka was a clear example of what his destiny held, should he be forced to return. 17 I have already referred to the observations made by the reviewer in the course of her reasons concerning her findings as to the claims that had been put forward on behalf of the appellant. In addition, the reviewer observed that country information that was referred to supported the appellant's claims that the persecution of Tamils was continuing in Sri Lanka and that third parties such as paramilitary groups were helping the government to carry out their political agenda through violent means. The reviewer referred to country information indicating that Tamil asylum seekers are subjected to torture and cruel and degrading treatment on return to Sri Lanka. 18 In her findings and reasons, the reviewer accepted the appellant's claims that in 2005 weapons were found by the army in a place near his family's house, which is located near an army base, and that he and his father had problems and suffered some ill-treatment from authorities following that incident. The reviewer also accepted that the appellant was suspected with others at that time because he was a young Tamil male. The reviewer also accepted that the appellant was held in custody for one day and claimed that the Criminal Investigation Department of the Sri Lanka Police Service and paramilitaries followed him when he was at school. The reviewer accepted that the appellant was beaten after the weapons incident and was let go and that that happens to all the Tamil youths. The reviewer accepted that the appellant, being a young Tamil male from Jaffna, might be questioned on return to Sri Lanka, but did not accept that he would be investigated and suffer harm because of his father's or his past experiences. 19 The reviewer observed that the appellant had left and returned to Sri Lanka on three occasions. The reviewer did not accept that it would be any different for the appellant if he now returned there after a longer period away from Sri Lanka. The reviewer observed that the appellant's father and other family members remain living in Jaffna. I have already referred to the general conclusion of the reviewer that there is no real chance that the appellant would suffer harm amounting to serious harm for any Convention reason. 20 Where a claim of feared persecution relates to membership of a particular social group, it is essential that the particular social group be identified with accuracy. At no stage did the appellant claim that he had a well-founded fear of persecution on account of his membership of a group consisting of Tamils who were unsuccessfully coerced into joining pro-government paramilitary groups. The claim made by the appellant was that he feared that, if he returned to Sri Lanka, he would face persecution on account of his race or his imputed political opinion. Even if it could be said that the appellant had raised a claim of the kind that is now articulated, it is clear from the reviewer's findings that the factual matters relevant to such a claim were properly considered by her. 21 The reviewer recorded the appellant's evidence that paramilitary groups had told him not to go to school, that they tried to recruit him to their cause and that his father was harassed by such groups. I have already referred to the reviewer's findings about the appellant's evidence that he had been tortured by paramilitary groups. Notwithstanding the reference to that evidence, the reviewer concluded that she was not satisfied that there was a real chance that the appellant would suffer harm amounting to serious harm from anyone in Sri Lanka for any Convention reason. I do not consider that there was any error on the part of the Federal Magistrates Court in rejecting the equivalent of grounds 1 and 3 as articulated in this appeal. Both grounds must fail. 22 That leaves the second ground in the notice of appeal, which is that the Federal Magistrates Court erred in finding that the reviewer sufficiently addressed the appellant's claimed fear of persecution by reason of his being a member of a particular social group, being young Tamil male returning asylum seekers. The appellant contends that the reviewer misconstrued his evidence in arriving at her conclusion that his evidence was that he does not fear harm in his country because he has made a claim for asylum in Australia. 23 The reviewer did not accept that the appellant is of interest to the Sri Lankan authorities for the reasons that he claims. The reviewer referred to the fact that the appellant was able to leave Sri Lanka to go to Malaysia in 2007, using a passport in his own name, issued to him in Sri Lanka in 2007. He was able to re-enter his country using his passport in 2008 and then leave again on his passport to go to India, after staying a few days in Colombo, without difficulties. The reviewer did not accept the appellant's claim that the authorities in Sri Lanka are conducting investigations about him. 24 In his statutory declaration, to which I have referred, the appellant claimed that, if he is forced to return, the authorities will intercept him at the airport, detain him and kill him, especially after they realise he fled seeking protection from another country. In the submission made by his advisors on his behalf, the advisors asserted that the evidence indicated that returned Tamil asylum seekers have been detained or tortured upon their return to Sri Lanka. In the course of the hearing before the reviewer, that matter was raised expressly by the reviewer with the appellant. 25 The reviewer asked the appellant whether he was claiming to fear harm if he returned to Sri Lanka because he had claimed asylum, or claimed refugee status in Australia. The response was, "whatever it might be" if the appellant went back to Sri Lanka, he would be "killed 100 per cent". The reviewer then asked again whether the appellant was claiming that he would be killed because he had made an application for a protection visa, or claimed to be a refugee in Australia. The response was, "not because of that, being a Tamil and also they will suspect me as an LTT [sic] person". The appellant said, "if I return back after … 5 years they will suspect me that I have helped LTT [sic] and in that suspicion they will kill me". 26 The reviewer returned to that matter shortly afterwards, saying that she had asked the appellant before, but wished to ask again, in her words, "just to double check". The reviewer pointed out that, in his original interview, the appellant said that he would be detained and killed, especially after they realised that he fled to seek protection in another country. The reviewer asked the appellant whether that was something he was worried about. The appellant replied that whatever he had said in his earlier interview, he was now telling the reviewer and that everything was true. 27 At that point the appellant's advisor intervened and asked to say something on that particular point, saying that the matter was in the submissions. The reviewer said, in response, that the appellant had told her earlier that he was not afraid of harm because of that, when he was asked before. The advisor simply responded, "Okay". In the light of that evidence, the reviewer found that the appellant did not fear harm in his country because he has made a claim for asylum in Australia, saying that that was his evidence at the interview. 28 The essence of the appellant's second ground is that the reviewer erred by misconstruing the evidence and thereby failing to deal with a claim articulated in clear terms on behalf of the appellant. There may well be something in an argument that, as a result of misconstruing evidence, a decision-maker failed to deal with a claim that was intended to be pressed. That, however, is in my view not the correct characterisation of what occurred in the present instance. This is not a case where the reviewer found the claim had been abandoned. The reviewer was concerned that the evidence given by the appellant was that he had no fear of persecution by reason of being a returned failed asylum seeker. The reviewer did not say that the claim was abandoned. Rather, the reviewer made a finding of fact that the appellant does not fear harm, by reason of his having made a claim for asylum in Australia. It was entirely open to the reviewer to make a finding of fact based on the evidence of the appellant to which I have referred. 29 It is not jurisdictional error to misconstrue evidence in making a finding of fact. That, clearly enough, is all that the reviewer did. That was the conclusion reached by the Federal Magistrates Court. There was no error on the part of the Federal Magistrates Court in concluding that the reviewer simply made a finding of fact that the appellant does not fear harm in Sri Lanka because he has made a claim for asylum in Australia. The second ground must also fail. 30 It follows that the appeal must be dismissed. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 18 December 2012