Sakoor v MIMA

[2001] FCA 1490

FEDERAL COURT OF AUSTRALIA

Sakoor v MIMA [2001] FCA 1490

MOHAMED NAZER ABDUL SAKOOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 484 OF 2000

NIHLA MOHAMED UWAIS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 485 OF 2000

NORTH J
14 SEPTEMBER 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 484 OF 2000

BETWEEN:	MOHAMED NAZER ABDUL SAKOOR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 485 OF 2000

BETWEEN:	NIHLA MOHAMED UWAIS APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	14 SEPTEMBER 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application, in each matter, is dismissed.

2.The applicant, in each matter, is to pay the respondent’s costs of and incidental to the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 484 OF 2000

BETWEEN:	MOHAMED NAZER ABDUL SAKOOR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 485 OF 2000

BETWEEN:	NIHLA MOHAMED UWAIS APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	14 SEPTEMBER 2001
WHERE MADE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court are two applications for review of decisions made by the Refugee Review Tribunal (the Tribunal) on the same day.  The applicant in one decision is Mohamed Nazer Abdul Sakoor and the applicant in the other application is Nihla Mohamed Uwais.  The Tribunal heard these matters on 14 March 2000.  Following the hearing, the Tribunal was provided with some further documents from the applicants’ adviser.

2. The Tribunal accepted, although with some doubt, that the applicants in both matters were husband and wife.  Mr Sakoor arrived in Australia on 1 January 1996.  He is a citizen of Sri Lanka.  He applied for a protection visa and the application was rejected by a delegate of the Minister for Immigration and Multicultural Affairs (the Minister).  Mrs Uwais arrived in Australia on 30 July 1999.  She also lodged an application for a protection visa and her application was also refused.  The applications before the Court are to review the decisions of the Tribunal affirming the refusal of the protection visas.

3. The applicants were represented pro bono by Mr Gibson of counsel.  When the applications were first instituted, the High Court had not determined the case of in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 (Yusuf).  As a result of that case, the application for review was limited in scope, and Mr Gibson ultimately argued only one alleged error of law.  It was clearly appropriate to abandon the other grounds of the review, which became unsustainable as a result of the decision of the High Court in Yusuf.

4. Because the ground of review is a narrow one, it is not necessary for me to set out in detail the factual background of the claims.  In any event, they can be easily found in the decisions of the Tribunal in each case, under the heading ‘Claims and Evidence’.  For the purposes of this decision, it is sufficient to say that the applicants are Muslim Tamils and the case was based on a fear of persecution by reason of imputed association with the LTTE and ethnicity.

5. Mr Sakoor claimed that he had been involved in, or suspected by the security forces of involvement in, two incidents, one in June 1995 and one in August 1995.  He claimed that as a result he had been detained, interrogated and tortured.  He also claimed that warrants had been issued for his arrest in relation to his suspected LTTE activities.  The Tribunal examined these claims and rejected them.

6. Mrs Uwais’ claim depended in a sense on the establishment of Mr Sakoor’s.  She alleged that following Mr Sakoor’s involvement she was harassed, tortured, raped and detained.  The Tribunal again rejected these claims.  The Tribunal examined country information and came to the conclusion that there was no justified fear of persecution by reason of ethnicity.

7. None of these claims are the subject of this application for review.  Rather, it is said that the Tribunal failed to deal with an additional claim raised by the applicants.  Mr Gibson contended that the claim was raised in the same terms by both applicants.  The claim, it was suggested, was that the applicants would be persecuted in Sri Lanka if they were returned, by reason of the fact that they had made an application in Australia for refugee status.

8. The Tribunal set out the claim of each of the applicants on this subject in the following terms.  I take the text from the decision in relation to Mr Sakoor, there being no relevant difference between this paragraph and the paragraph in the decision relating to Mrs Uwais.  The Tribunal said:

   “The adviser claimed that if the applicant returned to Sri Lanka he would be detained at the airport because of his ethnicity and because of his long stay in Australia on a bridging visa, which would identify him as having been a refugee applicant.”

9. Mr Mosley, who appeared as counsel for the respondent, drew attention to the fact that this claim was made by the applicants’ adviser after the hearing; it was not made in the hearing.  The Tribunal dealt with this argument in its ‘Findings and Reasons’ in the case of Mr Sakoor as follows:

   “As the Tribunal finds that the applicant’s claims that he was suspected of being an LTTE supporter are not true, and that he was not in hiding from the police prior to his departure for Australia, the Tribunal does not accept that the applicant had to bribe immigration officials in order to leave Sri Lanka.  The Tribunal therefore does not accept that the applicant will be arrested at the airport if he returns to Sri Lanka because the authorities believe he is linked to the LTTE and escaped illegally.  In respect of the claim submitted by the applicant’s adviser that he would be detained at the airport because the authorities would realise he had applied for refugee status in Australia, the Tribunal notes the following advice in October 1999 from the Australian High Commission in Colombo:

   ‘The questioning of people by the immigration authorities and then the CID is a routine practice and is usually for the purpose of verifying identity.  The majority of people are released within a couple of hours, though there are cases where people have been held for several weeks.  Previously (before 1998), a number of returnees were being passed onto the magistrate and arbitrarily detained for prolonged periods in prison.  An international organisation raised the matter with the government and the practice now is for the CID only to refer cases where there is some sort of suspicion, for example, of LTTE involvement or illegal departure. 

   Briefly, people are not being mistreated on return, most contacts agree that there is nothing untoward about immigration and CID interrogation on return and most people are only held for a few hours.
   (DIMA cable of 29 October 1999, “Returnees: arrival in Sri Lanka”, CX39479).’” 

10. The Tribunal then concluded:

    “The Tribunal finds that there is not a real chance that the applicant would face persecution on return to Sri Lanka because he applied for refugee status in Australia.”

11. A passage in the decision relating to Mrs Uwais is in substantially the same terms and can be found at pp 19 - 20 of the decision. 

12. The source for the Tribunal’s reference to this issue is a submission made by the applicant’s advisers in writing to the Tribunal following the hearing.  The submission relevant to this issue provided as follows:

    “If and when the applicants forced [sic] to go back to Sri Lanka, when they step down at the Colombo Airport the authorities would take them ,into [sic] custody because of their racial identity and for their long stay in Australia without a valid Visa other than a Bridging Visa.  The security forces knew that the prospective refugee applicants are granted Bridging Visas in Australia.  Their passports are evident [sic] enough to arrest them at the Colombo airport.”

13. It is clear from the submission made by the applicant’s advisers that the claim which was made in relation to return to Sri Lanka was a fear of detention at the airport by reason of the making of the refugee application in Australia.  As I read the submission, there is no claim that there would be any other consequence flowing from the making of the refugee application in Australia.  It is therefore not surprising that the Tribunal, having extracted the argument or the claim from the adviser’s letter, dealt with it precisely in the terms in which it was made.

14. The Tribunal looked at the question whether the application for refugee status in Australia would lead to a danger of arrest at the airport.  It relied on the cable from the Department of Immigration and Multicultural Affairs to come to the conclusion that there would be no such danger.  In those circumstances it is not possible to say that the Tribunal made an error of law.  It dealt with the question which was placed before it.  The question which Mr Gibson now says the Tribunal should have dealt with, is not a question which was put to it.  In my view, the Tribunal committed no error of law and the applications must therefore be rejected.

15. It is important, I think, to acknowledge the service provided by Mr Gibson and other barristers in Victoria who offer their services free to applicants in cases such as this.  The result of such services is at least twofold.  Applicants have the benefit of experienced barristers who are able to weave their way through the intricacies of this now complex area of the law and have the very best case put on their behalf.  The result, of course, to the Court and the administration of justice is that it is made much more efficient and speedy.  I think that the community owes a debt to the legal profession who are prepared to act in such a way.

16. Ordinarily the costs follow the event in legal proceedings.  That means that where an application fails, the applicants are bound to pay the costs of the respondent.  There is no reason shown in this case why that course should not be adopted. 

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             23 October 2001

Counsel for the Applicant:	Mr JA Gibson
Counsel for the Respondent:	Mr W Mosley
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	14 September 2001
Date of Judgment:	14 September 2001