S253 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 458

FEDERAL COURT OF AUSTRALIA

S253 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 458

S253 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1763 of 2004

BRANSON J
8 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1763 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	S253 OF 2003 APPELLANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	8 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The adult appellants pay the respondent’s costs fixed in the sum of $4200.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1763 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	S253 OF 2003 APPELLANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	8 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court dismissing an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 25 January 1999. The decision of the Tribunal affirmed a decision of a delegate of the respondent refusing an application made by the appellants for protection visas. The date of the decision of the Tribunal means that the present Part 8 of the Migration Act 1958 (Cth) (‘the Act’) and in particular s 474 of the Act have no application to the decision of the Tribunal.

2. The appellants are a husband, a wife and a son.  The husband was the primary applicant for a protection visa.  The other two appellants were included in his application as members of his family unit.  The husband is a 48 year old citizen of Sri Lanka of Singhalese ethnicity.  By his application for a protection visa, the husband claimed that he and his family lived for about a month in the village of Aluthwewa in the district of Polonnaruwa where the government allocated crown land to his wife’s family on a lease for 99 years under a colonisation scheme for poor families.  The village was surrounded by thick forest known for LTTE infiltration.

3. In February 1989, the LTTE attacked the Singhalese population of the village and a neighbouring village killing approximately 70 people.  Fortunately, the appellants were not in the village at the time of the attack.  The husband claimed that prior to the attack he had given information to the police about the activities of the LTTE.  He said that the LTTE learned of his involvement with the police, formed the view that he was a spy for the authorities and placed his name on an LTTE hit list.  The husband claimed that, after the attack on his village, he hid himself in friends’ houses and in 1990 left Sri Lanka to get a job in Fiji with the intention of never returning.

4. The husband acknowledged in his application for a protection visa that he had in fact twice returned to Sri Lanka after the 1989 incident; once in 1993 when he travelled from Fiji to Sri Lanka to see his wife and family and again in 1995 when he travelled from Australia to Sri Lanka because of hardship being faced by his wife and children.

5. Before the Tribunal the husband confirmed and clarified the claims made by him in his application for a protection visa.  He said that after the 1989 attack on the village he and his family did not return to that village but stayed with friends in the village from which his wife’s family had originally come.  The husband told the Tribunal that people from the village that had been attacked in 1989 told his wife that the LTTE were searching for him because he had given the police and the army confidential information.  In response to a question from the Tribunal member the husband said that he would see people in vehicles carrying weapons and that they used to hear firing in the night.  He said that on his fortnightly visits into town to go shopping he would go to the police and give information. 

6. The critical factual findings of the Tribunal are set out in the following paragraph of its written reasons for decision:

   ‘I accept that the Applicant was granted land in the village of Aluthwewa in the Polonnaruwa district and that he moved there in January 1989.  I accept that he was forced to leave after the incident in February 1989 when the LTTE massacred 70 villagers in Aluthwewa and the neighbouring village of Borawewa.  I also accept that the Applicant may have provided information to the police and the army while he was in Aluthwewa regarding people whom he saw in vehicles carrying weapons and firing that he heard in the night.  However, having regard to the Applicant’s own evidence, I do not consider that he was privy to any confidential information regarding the activities of the LTTE and I do not accept that the LTTE was looking for him as a result of his role in providing information to the authorities during the period of about a month that he spent in Aluthwewa ten years ago.  I consider that the Applicant’s claims in this regard have been fabricated to provide support for his application for a protection visa.’

7. The Tribunal considered the fact that the husband had returned to Sri Lanka for one month in 1992 and for two months in 1995 to be inconsistent with his claims to have left Sri Lanka in 1990 in fear of his life and with his continuing to fear being killed if he returns to Sri Lanka.  The Tribunal did not accept that the husband’s name is on an LTTE hit list as a result of his activities in 1989. 

8. The Tribunal accepted that it would be unsafe for the appellants to return to the village in which they had lived for about a month in 1989 as that village is in an area where the LTTE has mounted numerous attacks against Singhalese and Muslim farmers settled there by the Government.  However, noting that the husband had lived in Colombo between 1977 and 1984 pursuing his trade as a textile worker, the Tribunal concluded that the appellants could be expected to re-settle there.  It concluded that, even if its finding that the husband’s life had not been threatened by the LTTE was wrong, the LTTE would not now bother to track him down in Colombo.  The Tribunal concluded that the husband was not a person in respect of whom Australia owes protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Convention’).  It affirmed the earlier decision refusing to grant the appellants protection visas. 

9. The Federal Magistrates Court dismissed the appellants’ application for judicial review of the decision of the Tribunal in an ex tempore judgment.  It is convenient to consider the reasons for decision of the learned Federal Magistrate in the light of the grounds of appeal from that judgment which are pressed before this Court.  The appellants’ amended notice of appeal raises three grounds of appeal from the decision of the Federal Magistrates Court.  Only two of those grounds were in fact pressed before this Court.

10. The first ground of appeal upon which the appellants relied before this Court was that the conclusion reached by the learned Federal Magistrate in relation to the Tribunal’s finding recorded in the sentence ‑ ‘I consider that the Applicant’s claims in this regard have been fabricated to provide support for his application for a protection visa.’ was procedurally unfair and amounted to legal error.

11. It was contended by the appellants’ legal representative that the finding of the Tribunal referred to in this ground of appeal is to be understood as a finding that all of the husband’s claims had been fabricated.  The paragraph of the Tribunal’s written reasons for decision in which the sentence of which the appellant complains is found is set out in [6] above.  The reasons for decision of the Tribunal are not sensibly open to be read in the way for which the appellant contends.  The Tribunal’s reasons for decision explicitly state that the Tribunal member accepted that the husband moved to the village of Aluthwewa in January 1989 and was forced to leave that village in February 1989 after an LTTE massacre.  The Tribunal’s reasons for decision also contain the finding that the husband may have provided information to the police and the army while he was living in that village.  It was the husband’s claim that the LTTE was looking for him as a result of his role in providing information to the authorities for a period of about one month 10 years ago that the Tribunal found to be a fabrication.  The learned Federal Magistrate properly found that the argument inherent in this ground of appeal involves a misreading of the Tribunal’s reasons for decision.  This ground of appeal must fail.

12. The second ground of appeal relied upon before this Court is that the learned Federal Magistrate erred by failing to consider the applicant’s argument to the effect that the Tribunal forced a re-location unreasonably and unfairly upon the appellants.  The appellants’ representative contended that the Tribunal had unreasonably forced the appellants to live in Colombo.  The Tribunal, of course, has no power to force the appellants to live anywhere.  However, in considering whether the husband is a person in respect of whom Australia owes protection obligations, the authorities reveal that the Tribunal was required to give consideration to what is known as the internal flight option (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437).

13. There are two relevant elements to the definition of ‘refugee’ contained in article 1A(2) of the Convention.  The first element is that the putative refugee must be outside his or her country of nationality owing to a well‑founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion.  The second element is that the putative refugee must be unable or, owing to such a fear, unwilling to avail himself or herself of the protection of his or her country of nationality.  As the decision of the Full Court in NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 reveals, the internal flight option must be considered by a decision-maker as part of the exercise of determining whether a putative refugee satisfies each of the two elements of the definition of a refugee. In this sense, it is a theoretical exercise. It does not involve forcing the claimants for protection visas to live in one area of their country of nationality rather than another. For this reason, the concession apparently made by the appellants’ legal representative that they could reasonably live in one of the Sri Lankan villages from which the adult appellants’ respective families come might be thought to be fatal to this appeal. However, I put that possibility to one side.

14. I am not satisfied that error attends the conclusion of the Tribunal that the husband, who lived in Colombo for some years in the past, could reasonably be expected to re-locate with his family to Colombo.  The Tribunal found that the appellants would be safe from the LTTE in Colombo.  I reject the submission of the appellants that the husband is a farmer and thus cannot reasonably be expected to relocate to Colombo.  The husband is a textile worker by trade who has apparently only worked as a farmer for approximately a month.  Although it may be, as the appellants suggest, that the cost of living is higher in Colombo than it is in Sri Lankan villages, this is not of itself sufficient to render illegitimate the Tribunal’s conclusion that the appellants could reasonably be expected to relocate to Colombo.  Colombo is a city in which the husband has previously worked and it was not suggested to the Tribunal that he would not be able to work there in the future.  Nor was there anything before the Tribunal to suggest that, as a Singhalese family, the appellants would face discrimination in finding accommodation in Colombo.  This ground of appeal also fails. 

15. The appeal is dismissed.  The adult appellants are to pay the respondent’s costs fixed in the sum of $4200.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             19 April 2005

Solicitor for the Appellants:	C Jayawardena
Counsel for the Respondent:	J Potts
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 April 2005
Date of Judgment:	8 April 2005