SQDB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1327

FEDERAL COURT OF AUSTRALIA

SQDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1327

SQDB & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 553 OF 2003

MANSFIELD J
14 NOVEMBER 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 553 OF 2003

BETWEEN:	SQDB & ORS APPLICANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	14 NOVEMBER 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicants pay to the respondent costs of 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
SOUTH AUSTRALIA DISTRICT REGISTRY	S 553 OF 2003

BETWEEN:	SQDB & ORS APPLICANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUSAFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	14 NOVEMBER 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for writs of prohibition certiorari and mandamus in relation to a decision of the Refugee Review Tribunal (the Tribunal) made on 23 April 2003.  The Tribunal affirmed decisions of a delegate of the respondent refusing to grant to the applicants protection visas for which they had applied under the Migration Act 1958 (Cth) (the Act) on 8 October 2001, following their arrival in Australia on 28 August 2001. The delegate's decision was given on 26 August 2002.

2. The applicants are a family of husband and wife and two daughters.  As appears from the Tribunal’s decision, the husband and the older daughter were the substantive claimants for a protection visa in the sense that each of them claimed to be persons to whom Australia owed protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention).  The decision of the delegate, affirmed by the Tribunal, was that neither was a person who satisfied that criterion for the grant of a protection visa because neither was a refugee, as defined in Art 1A(2) of the Convention.  The wife and the younger daughter claimed as family members; they did not separately claim to be refugees under the Convention.

3. The present application, as amended on 23 October 2003. relates only to a small part of the Tribunal's reasons concerning the male applicant.  There is no contention that the Tribunal's decision in relation to the female applicant was in any way impaired by jurisdictional error on the part of the Tribunal.  I will therefore restrict my remarks to those concerning the claim of the male applicant.

4. He is a Sri Lankan Tamil of Christian faith.  He lived mainly outside Sri Lanka from about 1980.  He left to work in Oman, and apart from some time in India, including a period when he married, he lived in Oman until he arrived in Australia.  He made extensive claims of having a well-founded fear of persecution both of himself and his family if they were to return to Sri Lanka, due to the ongoing communal violence in Sri Lanka, in particular from the Sri Lankan military authorities, from the LTTE and from Singhalese racists due to his Tamil ethnicity.  He gave a history to the Tribunal of matters said to support his claims, both generally concerning those fears and circumstances in Sri Lanka, and specifically concerning the experiences of other members of his family in Sri Lanka.  In 1983, the male applicant’s sister went missing and another sister and his parents fled to India.

5. Significantly, for present purposes, the male applicant said that he had returned to Sri Lanka on four occasions during the period 1990 to 1993.  He told the Tribunal he made those visits in the hope of getting news about his missing sister, but that he did not stay long in Colombo as he feared, being a Tamil, that he could be arrested and mistreated by the authorities.  He described the occasion of the last visit in June 1993 when at one check point, he was specifically asked whether he had affiliations with the LTTE and, after an ‘exhaustive interrogation’ and body search, he was finally released.  He was not formally arrested on that occasion.

6. The Tribunal accepted that in 1983, whilst the male applicant was in Oman, his sister went missing and his family fled to India.  It accepted that the male applicant may therefore have ‘some understandable concerns’ about the future of race relations and security in Sri Lanka and about difficulty he and his family as ethnic Tamils might experience.  However, it was not satisfied that fear was well-founded.

7. It said:

   ‘However, and importantly, the Tribunal also finds that these events occurred some 20 years ago and since then the first Applicant and his family have visited Sri Lanka on four subsequent occasions – albeit briefly – in 1990, 1991, 1992 and 1993 and is not satisfied that he would have done this and exposed his family to such a risk if he had a well-founded fear of serious harm amounting to persecution for a Convention reason.  Accordingly, the Tribunal is not satisfied that the first Applicant and his family have a well-founded fear of serious harm amounting to persecution for a Convention reason on this basis if they return to Sri Lanka, either now or in the foreseeable future.’

8. It is not suggested that the Tribunal misunderstood the male applicant’s claims or did not deal with them.  Nor is it suggested that the Tribunal misdirected itself as a matter of law in considering his claims.  There is only one respect in which, it is submitted, the Tribunal's consideration of the male applicant's claims involved jurisdictional error on its part.  It is contended that the Tribunal committed a jurisdictional error by taking into account an irrelevant consideration in determining not to accept the male applicant's claim to be a refugee.

9. The irrelevant consideration was identified in submissions as being the fact that the applicant made four short return visits to Sri Lanka in the years 1990 to 1993.  The Tribunal referred to that material and placed some weight upon it.  The contention is that the fact that the applicant visited Sri Lanka briefly between 1990 and 1993 is an irrelevant consideration in determining whether the male applicant's present fear of persecution is well-founded and that therefore the Tribunal made a jurisdictional error.

10. I do not think that, even if it were arguable that the Tribunal ought not to have had regard to that piece of evidence, it would demonstrate jurisdictional error on the part of the Tribunal.  Jurisdictional error is sometimes evidenced by the administrative decision-maker failing to have regard to a relevant consideration or having regard to an irrelevant consideration in the process of decision-making.  That does not mean that jurisdictional error is committed whenever an administrative decision-maker does not have regard to a piece of evidence which might be regarded as relevant to its determination or, on the other hand, has regard to a piece of evidence which might be regarded as irrelevant to its decision.

11. It is plain from the decision of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 that, for the purposes of identifying jurisdictional error, the determination of relevance or irrelevance is by reference to the statutory provisions under consideration. It is not simply a matter of looking to the evidence to see whether the Tribunal has expressly referred to all pieces of arguably relevant evidence in its reasons or has, in its reasons, referred expressly to a piece of evidence which is arguably irrelevant. It is by reference to the statute under consideration that identification of relevant and irrelevant considerations for the purposes of demonstrating jurisdictional error are to be ascertained.

12. I am not persuaded that any provision of the Act makes the information referred to in the submission irrelevant.  In my judgment, the argument at best is that a piece of evidence was taken into account by the Tribunal when it is arguably not of much or any weight.  But the weight to be given to evidence by the Tribunal is a matter for the Tribunal.  I accordingly reject the contention that the Tribunal committed jurisdictional error.

13. In any event, in my view, the material to which the Tribunal referred was not irrelevant to its consideration of the male applicant’s claims.  In addition to the passage from its reasons quoted above, the Tribunal continued:

    ‘However, the first Applicant claims that during his last visits in June 1993 he was stopped at a checkpoint on the way to the airport and was asked whether he had LTTE connections and, after an “exhaustive interrogation”  and a body search, he and his family were finally allowed to go.  While accepting that this was an unpleasant and heavy handed incident by the security forces, and that they most likely amongst others may have received particular scrutiny because they were ethnically Tamil, the Tribunal is not satisfied that that [sic] a time of tension and high security (given the fighting that then had been going on for some 8 years and, for example, as the second Applicant had pointed out, that the Indian Prime Minister Rajiv Gandhi had been killed by a suicide bomber in May 1991 in Tamil Nadu only two years before), the Tribunal has not been able to satisfy itself that the treatment they received was serious harm amounting to persecution for a Convention reason.  For example, the first Applicant does not claim that he or his family were beaten, arrested, detained, robbed or prevent [sic] from proceeding on their way after being questioned and searched).  Moreover, and more widely, the first Applicant does not claim that he had any difficulty in obtaining a Sri Lankan passport or that at any time he has had any difficulty in entering or leaving Sri Lanka (such as being interrogated, harassed, accused of being associated with the LTTE or any other organization, or having to pay a bribe because of any such reason, Convention related or otherwise at the primary line.”

    The Tribunal thereafter proceeded to reaffirm its views by reference to independent country information and other information.

14. As can be seen, the Tribunal accepted the male applicant's claims about having made visits to Sri Lanka between 1990 and 1993.  It accepted in particular his experience during his last visit in June 1993.  In my judgment it was not irrelevant evidence to the Tribunal determining whether the male applicant has a well-founded fear of persecution if he and his family were to return to Sri Lanka at the time of its determination to have regard to what the applicant had done in those years.

15. It is true that they are remote in time by some years from the date at which the Tribunal was addressing the male applicant's claims.  For that reason different persons may have placed different weight upon that information, but simply at an evidentiary level I do not think that it means that information was irrelevant.  It was not inappropriate for the Tribunal to have regard to those visits and to infer, as it did, that notwithstanding the applicant's claims as to the purpose for those visits, he would not have undertaken them had he then had a well-founded fear of persecution for a convention reason at the time.

16. It is a logical step to take, and therefore something which might rationally have been expressed as the Tribunal expressed it, to conclude that if the male applicant did not have those fears at that time in the light of his family’s past experiences, then his approach may inform its judgment as to whether he presently had a well-founded fear of persecution if he were to return to Sri Lanka.  As the evidence demonstrated, the applicant himself had not returned to Sri Lanka after 1993 for a considerable period of time.  If anything, independent country information indicated that the risk to persons such as the applicant due to his Tamil ethnicity have significantly diminished between 1993 and the time of the Tribunal's decision.

17. Accordingly, it was in my judgment open to the Tribunal to use that evidence as relevant evidence.  It took the step of saying that if there was not a significant risk of persecution in 1993, there was unlikely to be a significant risk of persecution at the time of its decision, particularly having regard to the changed circumstances in Sri Lanka since 1993. 

18. For those reasons, in my judgment, neither as a matter of law nor as a matter of reasoning has it been demonstrated that the Tribunal had regard to an irrelevant consideration in determining whether the male applicant had at the time of the Tribunal's decision a well-founded fear of persecution for a Convention reason.  No other reason for attacking the Tribunal's decision was identified by counsel on behalf of the applicants.  In those circumstances the application must be dismissed.  I so order.

19. I order that the applicants pay to the respondent the costs of the application. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             18 November 2004

Counsel for the Applicants:	Mr M Clisby
Solicitor for the Applicants:	M W Clisby
Counsel for the Respondent:	Ms C White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	14 November 2003
Date of Judgment:	14 November 2003