SZAAE v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 368

FEDERAL COURT OF AUSTRALIA

SZAAE v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 368

SZAAE & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 678 of 2003

WHITLAM J
1 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N678 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

SZAAE
FIRST APPELLANT

SZAAF
SECOND APPELLANT

SZAAG
THIRD APPELLANT

SZAAH
FOURTH APPELLANT

SZAAI
FIFTH APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

1 APRIL 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N678 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

SZAAE
FIRST APPELLANT

SZAAF
SECOND APPELLANT

SZAAG
THIRD APPELLANT

SZAAH
FOURTH APPELLANT

SZAAI
FIFTH APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	WHITLAM J
DATE:	1 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an appeal from a judgment of the Federal Magistrates Court dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’):  SZAAE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 176. The decision of the Tribunal, which was handed down on 21 August 2002, affirmed a decision of a delegate of the respondent not to grant protection visas to the appellants.

2. The first appellant lodged an application for a protection visa on 10 October 2000.  The other appellants are the husband and three children of the first appellant.  The other appellants made applications for protection visas as members of the first appellant’s family unit.  I will refer to the first appellant simply as ‘the appellant’ as the claims of the other appellants are parasitic.

3. The appellant, her husband and their eldest child were born in Sri Lanka.  They left Sri Lanka and moved to France in 1991.  The appellant’s two youngest children were born in France.  Before the Tribunal were documents that showed that the appellant and her husband had been granted refugee status in France (valid until 29 June 2004 and 9 December 2003 respectively).  The appellant left France and travelled to Australia on a French travel document known as a titre de voyage, which expired on 19 July 2001.  The travel documents of her husband and their children expired on 24 December 2000 and 25 December 2000 respectively.  The appellant arrived in Australia on 27 August 2000 as the holder of a valid 3-month temporary business visa.

4. On 10 January 2001 a delegate of the Minister refused the appellant’s application for a protection visa.  The appellant lodged an application on 31 January 2001 for review of that decision by the Tribunal.  A hearing before the Tribunal was held on 3 July 2002. 

   The Tribunal’s Decision

5. The appellant claimed that in France she was the victim of threats of physical violence and acts of extortion by members of the LTTE (the Liberation Tigers of Tamil Elam).  She claims that the LTTE frequently demanded money and that she frequently paid money under threats of physical violence, including a threat to kidnap her daughter.  The appellant stated that she did not report the threats to the French police because she feared further violence.

6. The Tribunal based its decision not to grant the appellant a protection visa on the fact that the appellant would be given ‘effective protection’ in France.  The Tribunal’s key conclusion that the appellant would be able to re-enter France was challenged before the federal magistrate and on this appeal. The Tribunal referred to information from the Australian Embassy in Paris (‘the Embassy’) dated 23 April 1997.  That information stated that a person granted refugee status in France is entitled to be granted a carte de resident valid for ten years.  The appellant was the holder of a carte de resident, valid until 10 July 2001.  Accordingly, at the time of the Tribunal’s decision the appellant’s carte de resident and titre de voyage had expired, but she still retained her refugee status in France.

7. The information from the Embassy also stated:

   ‘The Refugee Certificate is the most important document as this determines the status and gives automatic right of stay.

   1.   If the refugee certificate is still valid and the titre de voyage and/or the residence permit has expired, permission to return must be sought from the French authorities and then the documents will be renewed once back in France.

   2.  If the refugee certificate has expired, the French authorities must be consulted about maintaining protection and the right of stay.’

8. After the hearing, the appellant’s migration agent sent the Tribunal a letter which stated:

   ‘The [appellants] have approached the French Embassy in order to determine whether they can return to France.  The French authorities advised the applicants that they could not go to France since their visas and travel documents had expired.

   The [appellant] requested this advice in writing and still [sic] been awaiting the result.’

9. The Tribunal expressed its conclusion in relation to re-entry into France as follows:

   ‘The [appellant] was placed on notice by the primary decision that the central issue in this review would be whether she and her husband and their children had “effective protection” in France.  She has therefore had ample time to make inquiries in relation to their rights to re-enter and reside in France.  Moreover, four weeks have now elapsed since the hearing and I consider that the [appellant] has therefore had adequate time to obtain advice from the French authorities on this issue.  Having regard to the information available to me … I do not accept that the [appellant] and her husband have no right to enter France, as the [appellant’s] representative claims they have been told by the French Embassy.  I find on the basis of the information available to me that, as a matter of practical reality and fact, the [appellant] and her husband and their three children will be permitted to re-enter France and to reside there indefinitely unless they lose their refugee status in accordance with the Refugees Convention’.

10. The Tribunal also concluded that once in France the appellants would not be returned to Sri Lanka ‘unless there has been such a change in the situation in Sri Lanka that the circumstances which led to them being recognised as refugees no longer existed’.  The Tribunal was of the view that the appellants would be afforded the same level of protection available to French nationals facing similar threats and that such a level of protection was ‘sufficient to remove a real chance of persecution in France by the Tamil groups they fear.’  The Tribunal therefore concluded that the appellant would receive effective protection in France and that she was not a person to whom Australia owed protection obligations.  It accordingly decided not to grant the appellant a protection visa.

    The Federal Magistrate’s Decision

11. In the Court below counsel for the appellant submitted that the Tribunal fell into jurisdictional error in reaching the conclusion that the appellant would be able to re-enter France.  It was submitted that on a proper reading of the information before the Tribunal, it was not open to the Tribunal to conclude that the appellant would be permitted to re-enter France.  There was no argument in relation to the conclusion that once in France, the appellant will not be expelled and that she will receive effective protection.

12. After referring to the information provided by the Embassy, which was in the form of answers to specific questions, the federal magistrate expressed his conclusion as follows:

    ‘[12]  It is clear from these questions and responses that the situation of a French resident who holds a valid and subsisting refugee certificate is that if such a person is outside of France when that person’s titre de voyage or carte de sejour expire permission must be sought to return to France.  It is equally clear that those questions and answers do not reveal that a return to France is impossible or even unlikely.  The [appellants] were unable to bring any evidence other than the evidence of their conversations with an officer at the French Consulate to support their claim that they would be refused entry into France.

    [13]  The Tribunal found on the basis of this information that the [appellants] would be permitted to re-enter France.  This is a conclusion which appears to me to be open to the Tribunal on the evidence quoted.  But even if the conclusion was a wrong one, any error by the Tribunal would appear to be an error of fact as opposed to an error of law.’

13. The federal magistrate accordingly dismissed the application for review.

    The Appeal

14. In this appeal the appellant repeats the arguments that were before the federal magistrate in relation to the Tribunal’s conclusion that the appellant is able to re-enter France. 

15. In particular, the appellant submits that the federal magistrate misconceived the question that was before the Tribunal.  This submission is based on the statement by the federal magistrate that the information before the Tribunal ‘[did] not reveal that a return to France is impossible or even unlikely’.  The appellant submitted that the federal magistrate was of the view that the appellant had to show that re-entry was ‘impossible or even unlikely’.  Counsel conceded, however, that the Tribunal itself had asked the right question, that is, whether ‘as a matter of practical reality and fact, the person is likely to be given effective protection in the third country by being permitted to enter and live there and is neither at risk of being returned to his or her original country, nor of his or her life or freedom being threatened on account of race, religion, nationality, membership of particular social group or political opinion’: Kola v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 170 at [63]. In my opinion the federal magistrate did not intend to say any more than that the evidence did not preclude the conclusion reached by the Tribunal. This is demonstrated by the federal magistrate’s subsequent statement that the Tribunal’s conclusion on re-entry was open to it.

16. The appellant further submits that, although it identified the right question and the criteria by which the appellant’s application was to be determined, the Tribunal failed to correctly apply the criteria.  The alleged error is that the Tribunal misconstrued the information that was before it, in particular the information from the Embassy reproduced above.  That information, so it is said, at most states that the appellant needs permission before she can re-enter France.  The information does not state that permission will be granted to the appellant or someone in the appellant’s situation, nor does it state the criteria for the granting of permission.  The appellant submits that such an error is a jurisdictional error since it determined the exercise of the Tribunal’s jurisdiction, that is, it was the basis on which the Tribunal rejected the appellant’s visa application.

17. Even if it were accepted that the Tribunal misconstrued the information provided by the Embassy, that error would not, of itself, constitute a jurisdictional error: VGAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 68 at [54] per Allsop J, Wilcox and Cooper JJ agreeing. The fact that the Tribunal’s exercise of its jurisdiction depended on a conclusion that was predicated on the alleged factual error does not raise that error to being one of jurisdiction as the appellant submitted. If that were the case, any factual error relating to a material fact would be a jurisdictional error.

18. It is conceded that the Tribunal asked itself the right question. It considered the claims of the appellant. The alleged error does not amount to a conclusion that is unsupported by evidence. The conclusion of the Tribunal, reproduced at [9] above, clearly shows that the Tribunal relied on the information from the Embassy combined with the absence of any reliable evidence that the appellant had been denied permission to re-enter France in coming to its conclusion that the appellant, as a matter of practical reality and fact, could re-enter France. In this case there was evidence to support the Tribunal’s conclusion and the fact that it may have been a conclusion that another decision-maker would not have reached is not to the point. Further, it cannot be said that the Tribunal’s reasoning was indicative of a lack of good faith or a failure to exercise its power bona fide. No error on the part of the Tribunal amounting to jurisdictional error has been shown by the appellant.

19. Finally, the appellant submitted that the Tribunal failed to disclose the particular construction it gave to the information from the Embassy and that such failure amounted to a denial of procedural fairness.  This argument cannot succeed because the Tribunal made it clear to the appellant that on the information it had, in particular, the information from the Embassy, it was of the view that the appellant could return to France. 

20. Accordingly the amended grounds of appeal are not made out and the appeal is dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             1 April 2004

Counsel for the Applicant:	J M Patel
Counsel for the Respondent:	M N Allars
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	20 August 2003
Date of Judgment:	1 April 2004