SZABG v Minister for Immigration - [2003] FMCA 242

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZABG & ANOR v MINISTER FOR IMMIGRATION

[2003] FMCA 242

MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – whether RRT proceedings unfair – non disclosure of country information – whether RRT failed to deal with part of the applicant’s claim – no reviewable error found.

Migration Act 1958 (Cth), s.474

Abebe v Commonwealth (1999) 197 CLR 510
Chan v Minister for Immigration (1989) 169 CLR 379
Minister for Immigration v Thiyagarajah (2000) 199 CLR 343
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
NACP v Minister for Immigration [2003] FCA 499

First Applicant:

Second Applicant:

SZABG

SZABH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1112 of 2002

Delivered on:

16 June 2003

Delivered at:

Sydney

Hearing date:

16 June 2003

Judgment of:

Driver FM

REPRESENTATION

Applicant appeared in person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1112 of 2002

SZABG

First Applicant

SZABH

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 22 September 2002 and handed down on 16 October 2002. The decision of the RRT was to affirm a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants, who are husband and wife, from Sri Lanka. Only the husband appeared in the proceedings before me today. I understand that the claims by the wife are dependent upon the claims made by the husband.
The general background facts are set out in paragraphs 1 to 5 of the respondent's written submissions filed on 12 June 2003. I adopt that statement of background facts for the purposes of this judgment as follows:
On 16 October 2002 the RRT handed down a decision affirming a decision of a delegate of the respondent to refuse to grant the applicants protection visas. As only the first applicant made substantive claims to the RRT he will be referred to henceforth as “the Applicant”.
The applicant applied for the visa on 17 September 1999. The applicant was interviewed by a delegate of the respondent on 9 March 2000. The delegate’s decision refusing the visa was made on 20 March 2000. The applicant applied to the RRT for review on 3 April 2000. The RRT held a hearing on 17 July 2002.
The applicant claimed to fear persecution for reason of his race and imputed political opinion in Sri Lanka. He claimed to be a Tamil from Jaffna and to have been detained and mistreated by security forces on suspicion of LTTE involvement in 1990 and 1993. He also claimed to have had to pay bribes on his return visits to Sri Lanka from Brunei in 1995, 1997 and 1999. He claimed to fear further persecution from the security forces if returned to Sri Lanka as a suspected LTTE supporter.
The RRT accepted the applicant’s claims. However the RRT concluded that the applicant’s fears were not well founded. The RRT noted that the applicant had not suffered persecution since 1993, and had departed from and returned to Sri Lanka several times since then without difficulty, other than having to pay bribes which the RRT noted was a common practice in Sri Lanka. The RRT concluded that neither the Sri Lankan police and security forces nor the LTTE had any interest in the applicant.
It is apparent that the applicant was unsuccessful because of the view the RRT took of the facts, in particular its conclusion that the applicant’s fears were not well founded as at the date of the RRT’s decision.
Mr Reilly submits that the RRT was correct to assess whether the applicant’s fears were well founded as at the date of its decision: Minister for Immigration v Thiyagarajah (2000) 199 CLR 343 at [28]. The RRT correctly applied the real chance test from Chan v Minister for Immigration (1989) 169 CLR 379. He submits that its conclusion that the applicant’s fears were not well founded is a finding of fact that was open for the reasons it gives, in particular that the applicant had not suffered harm since 1993 and had voluntarily returned to Sri Lanka on several occasions subsequently. He submits that there is no error of law in making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137], and the Court cannot review the merits of the RRT’s decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272.
The application filed on 7 November 2002 claims jurisdictional error. The application claims that the RRT exceeded its jurisdiction and constructively or legally failed to exercise its jurisdiction. No particulars are set out in the application. The applicants were initially legally represented by lawyers but they have ceased to act for them. The principal applicant sought an adjournment of today's hearing. However, I refused that request because the applicants have had more than one month to arrange alternative representation.
The principal applicant relied upon written submissions which he presented in court today. I granted leave for the applicant to file those submissions in court. In those written submissions the applicant points to two asserted legal errors in the decision of the RRT. The first is that the RRT proceedings are said to have been procedurally unfair. The principal applicant asserts that the RRT caused him and his wife prejudice because he was not given the opportunity to comment upon three BBC articles referred to by the RRT (court book, page 147). The presiding member said this:
The Tribunal notes articles in the BBC of 30 August 2002 and 16 September 2002 and 18 September 2002 regarding the peace talks between the Sri Lankan government and the LTTE in the Thai coastal township of Sattahip. The Tribunal accepts that, notwithstanding some optimism being expressed about the progress with the talks, the situation in Sri Lanka is largely unsettled and volatile and there are many political and social problems that are obstacles in the way of a lasting resolution of the long conflict. However the Tribunal is satisfied that the applicants can safely return to and reasonably re-establish themselves in Sri Lanka.
Mr Reilly submits that there is no evidentiary basis to say that there has been a failure to disclose country information. However, the applicant, being self represented is, in my view, entitled to some latitude in the presentation of his case. The hearing before the RRT took place on 17 July 2002 and the three BBC reports were clearly created after that date. For the purposes of these proceedings, I accept that the applicant was not given an opportunity to comment on those reports.
The principal applicant told me from the bar table that the RRT had referred to some earlier BBC reports at the hearing on 17 July 2002. It does not appear that any other BBC reports referred to by the RRT in its decision were not disclosed to the applicant. In my view there was no procedural unfairness in the failure by the RRT to disclose the three BBC reports referred to. The reasons are twofold: the first is that I do not regard the RRT's treatment of the three reports as adverse to the applicant's claims. The RRT accepted, based on those reports, that the situation in Sri Lanka is unsettled and volatile with many political and social problems. Secondly, the RRT had already concluded that the applicant and his wife were of no interest to the Sri Lankan government or the LTTE. Accordingly, the only apparent impact of the BBC reports was to establish to the RRT’s satisfaction that the conclusion that the RRT had already reached should not be altered based upon the country information.
The second issue raised by the principal applicant is that the RRT failed to deal with an element of his claim. The principal applicant had claimed that he had been made to pay bribes in Sri Lanka and he asserted that this was related to either his race or ethnicity or political opinion. I accept that a failure by the RRT to deal with an element, or incident, of the applicant's claim is a reviewable jurisdictional error. On that issue I am bound by the decision of Hill J in NACP v Minister for Immigration [2003] FCA 499. However, it is apparent from what the RRT says (court book, page 146) that in this case the RRT did consider the applicant's claim. The presiding ember said:
The Tribunal acknowledges that the applicant husband has had to pay bribes at various points but the Tribunal finds that this is a common practice in Sri Lanka.
In my view, it is apparent from this statement by the presiding member, that the RRT did not consider that the acknowledged obligation on the part of the principal applicant to pay bribes at various points was related to his race or ethnicity or political opinion. There was no Convention nexus.
Accordingly, I find that the grounds advanced by the applicant for review of the RRT decision are not established.
I have considered whether there is any basis for review of the RRT decision that has not been advanced by the principal applicant, noting that he was representing himself today. I see that there is an error in the reasons of the RRT at the bottom of page 145 of the court book. The presiding member states, in the last line, on page 145, that:
The Tribunal has concluded in this matter that the applicants do not have a genuine fear of persecution on return to Sri Lanka.
That statement is in obvious conflict with the balance of the findings and reasons of the RRT in the first line of the second full paragraph on page 146 of the court book, where the presiding member says:
The Tribunal accepts that the applicants had a genuine fear of persecution on return to Sri Lanka.
However, the presiding member went on to find that that fear was not well founded. It is clear to me that the first statement which appears on its face to be an adverse finding on credibility is simply a typographical error with no legal significance. These applicants were accepted as genuine in their fears by the RRT. They were, in 1993, victims of the Sri Lankan civil war. They have spent most of their lives, since then, outside of Sri Lanka. They are from the Jaffna peninsular. In the circumstances, they are understandably afraid to return to Sri Lanka on a permanent basis. There are, in this case, humanitarian issues that might properly be considered by the Minister. However, that is beyond the scope of these proceedings.
There is no reviewable legal error in the decision of the RRT. The Hickman provisos in s.474 of the MigrationAct 1958 (Cth) are satisfied. In the circumstances, the decision of the RRT is a privative clause decision. I will dismiss the application.
On the question of costs, Mr Reilly has sought an order for costs on behalf of the Minister fixed in the sum of $4,500. The applicant, in a genuine way, has submitted to me that he would have difficulty paying costs and has sought a lower order and has sought time to pay. When the matter came on for hearing this afternoon, there was no apparent basis for the application for the respondent to respond to. In the circumstances, the respondent's written submissions were brief. The applicant presented written submissions at the hearing today, but Mr Reilly was able to deal with those orally and so no additional cost was involved. In the circumstances of this matter, in my view, an order for costs fixed in the sum of $3,500 would be adequate. I will make an order for costs fixed in that sum.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 27 June 2003