NAGI v Minister for Immigration - [2003] FMCA 381

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAGI v MINISTER FOR IMMIGRATION

[2003] FMCA 381

MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error – application dismissed.

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24
Re Minister; Ex parte Durairajasingham (2000) 168 ALR 467

Applicant:

NAGI

Respondent:

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ277 of 2003

Delivered on:

3 September 2003

Delivered at:

Sydney

Hearing Date:

3 September 2003

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr D Jordan

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application is dismissed.
That the Applicant pay the Respondent’s costs set in the amount of $3,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ277 of 2003

NAGI

Applicant

And

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Sri Lanka. He came to Australia on 15 February 1997 and applied for a protection visa on 30 May 2000. He claimed to fear persecution arising from his status as a ‘Tamil Muslim’. He claimed that he was approached to give assistance to the LTTE, (the Liberation Tigers of Tamil Elim), and as a result was targeted for persecution by the Sri Lankan authorities. He also claimed to fear LTTE militants, who had threatened him in order to gain his assistance.
On 18 August 2000, a delegate of the respondent refused to grant the applicant a protection visa. He sought review of that decision by the Refugee Review Tribunal, and in a decision handed down on

27 November 2002, the Tribunal affirmed the decision of the delegate of the respondent not to grant a protection visa to the applicant. On

17 December 2002, the applicant filed an application in the Federal Court seeking review of the Tribunal decision.
In the accompanying affidavit, he stated that he sought relief on the grounds that the Tribunal had exceeded its jurisdiction in making the decision to affirm the respondent's decision, and that it constructively failed to exercise its jurisdiction in arriving at the decision.
The matter was transferred to this court on 6 February 2003. The applicant was ordered to file and serve an amended application and any evidence upon which he intended to rely on or before 26 March 2003. He did not do so, nor did he file and serve written submissions as ordered. No grounds then are identified as the basis for his claim. Nonetheless, as the applicant is self-represented, I have considered the Tribunal's reasons for decision and the material before me in order to determine whether a jurisdictional error is apparent.
In oral submissions today the applicant provided no grounds for his claim. He repeated some of the claims that he had made to the Tribunal and his concern at the possibility of being required to return to Sri Lanka.
Following the decision of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24, a Tribunal decision would be reviewable were it to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. However, no reviewable error is apparent on the material before me.
The applicant was unsuccessful, in essence, because the Tribunal did not believe him. It did not find his claims to be credibility, finding them entirely inconsistent with independent evidence, which it referred to at length in its decision, regarding the situation of Muslims in Sri Lanka. Credibility is a matter for the Tribunal par excellence. (Re Minister; Ex parte Durairajasingham (2000) 168 ALR 467)
The Tribunal gave reasons for its findings in relation to each aspect of the applicant’s claims. I am satisfied that the Tribunal's findings in this respect were open to it on the material before it.
Thus, the applicant's central claim that he was a ‘Tamil Muslim’ was found not to be credible and to be contradicted by a substantial body of independent evidence. Based on that evidence and the applicant's own personal details, the Tribunal accepted that, in Sri Lanka, Muslims and Tamils are regarded as entirely distinct ethnic groups and that the applicant was a Muslim.
The Tribunal further found the applicant's claims that he was approached by the LTTE for assistance to be self serving and lacking in credibility. It gave detailed reasons for this conclusion including the junior nature of the applicant's position at Sky Cabs as a student pilot, and the implausibility of his claim that the LTTE would seek out for assistance a non-Tamil and a non-member of the organisation who was, on his claims, already under suspicion by the authorities. The Tribunal referred to independent evidence in relation to the nature of the Tamil Tigers. The Tribunal also referred to the fact that the applicant did not leave Sri Lanka for some months after the LTTE allegedly made its demand and that he continued to go to his employment and yet experienced no consequences from the LTTE in that time. For these reasons the Tribunal found the claims to be far fetched, self serving and completely implausible. The Tribunal was not satisfied the applicant was ever approached by the LTTE or that he was of any interest to them in any manner and gave the claims no weight. Such conclusions were open to the Tribunal on the material before it.
Similarly, the Tribunal rejected the applicant's claim that he feared harm in Sri Lanka because he had been imputed with a political opinion of being a supporter of the LTTE, finding such claims to lack credibility as being inconsistent and undermined by independent evidence which the Tribunal detailed.
Furthermore, there was evidence that the applicant had obtained his passport legally (contrary to independent evidence that the passports of persons known to be supports of the LTTE were subject to confiscation). The Tribunal regarded this, and also his employment and continued employment, as further indications that he was of no adverse interest to the Sri Lankan authorities and had not been detained as claimed. The Tribunal also found the delay in the applicant applying for a protection visa after arriving in Australia cast further doubt on the veracity of his claims.
The Tribunal's conclusion that the applicant's claims lacked credibility was open to it on the material before it. No jurisdictional error is apparent.
The only error that has been identified in the Tribunal's reasons for decision is a misstatement of the applicant’s travel details. However, it is clear from the introductory section of the reasons and from the Tribunal's detailed treatment of the applicant's claims, that it was, in fact, addressing the situation of the applicant as set out in his protection visa application and that it did address those claims and properly considered the applicant's claims as to when he left Sri Lanka and came to Australia and when he made his application for a protection visa. Hence, the error in one part of the reasons of the description of when the applicant travelled to and from Australia is an error but is not an error of any consequence as the Tribunal did, in fact, address the actual claims made by the applicant.
As no jurisdictional error is apparent, I have no alternative but to dismiss the application. I shall hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

I have heard both parties in relation to costs. The applicant has been wholly unsuccessful. It is appropriate that he meet the respondent's costs. Having regard to the nature of this and other similar matters, I consider that an appropriate amount for costs in this matter is in the sum of $3,500 and that I should set the costs in that amount pursuant to the Federal Magistrates Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 3 September 2003