SZABS v Minister for Immigration - [2003] FMCA 189

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZABS & ANOR v MINISTER FOR IMMIGRATION

[2003] FMCA 189

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – actual and imputed bias – whether the presiding member pre‑judged issues based upon opposition to terrorism – no reviewable error found.

Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293
Minister for Immigration v SBAN [2002] FCAFC 431

First Applicant:

Second Applicant:

SZABS

SZABT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1188 of 2002

Delivered on:

19 May 2003

Delivered at:

Sydney

Hearing date:

19 May 2003

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicants:

Mr R Nair

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1188 of 2002

SZABS

First Applicant

SZABT

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This extempore judgment relates to an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 8 October 2002 and handed down on 29 October 2002. The RRT affirmed a decision of a delegate of the respondent Minister not to grant to the applicants a protection visa. The first applicant is a Sri Lankan of Tamil ethnicity and the second applicant is his mother.
The second applicant based her claims to refugee status on the fact that she is a member of the family of the first applicant. The first applicant made the relevant and substantive claims to refugee status. Those claims were essentially that the first applicant, who I will refer to hereafter as the applicant, faced a well founded fear of persecution in Sri Lanka by reason of his support for the Liberation Tigers of Tamil Elam, commonly known as the Tamil Tigers. The proceedings before me today were dealt with on the basis of an amended application filed in this Court on 8 May 2003. In that application, the applicant advances a number of grounds for review.
The first ground is that the RRT decision is null and void because of actual bias. The particulars given are that the RRT's decision was coloured by its view that the Tamil Tigers is a terrorist organisation and that the applicant was a supporter of that organisation; secondly, that the RRT prejudged the issues and made adverse findings on credibility based upon an unwarranted assumption that Tamil men with wives and young children who lived in Colombo would not have assisted and supported the Tamil Tigers; thirdly, that the RRT prejudged the issues and made adverse findings on credibility based upon the RRT's misreading of relevant cables from the Department of Foreign Affairs and Trade, and on the RRT's mistaken pre-judgment that there was evidence before the RRT that Tamils like the applicant whose national identity card show Colombo as their place of birth and residence have few problems.
By reference to the same particulars, the applicant asserts that the decision of the RRT is null and void for apprehended bias, and other procedural unfairness with particular reference to the finding based upon an assumption that Tamil men with wives and young children in Colombo would not support the Tamil Tigers. The same particulars are advanced in support of the contention that the RRT decision is vitiated by jurisdictional error in that it relied upon irrelevant material, made erroneous findings and reached a mistaken conclusion.
The applicant also contends that the RRT committed a jurisdictional error in that it did not consider a relevant matter and relevant material. The applicant makes reference to the RRT’s dealing with the claim that a young female relative of the applicant was released from prison in 2002. The applicant also asserts jurisdictional error on the same basis. The applicant further contends that the RRT committed jurisdictional error in that it misunderstood and misapplied the relevant law. Reference is made here to the RRT's asserted misapplication and misunderstanding of the law relating to persecution, in particular, whether the applicant has a well founded fear of persecution.
These grounds are expanded upon in written submissions by Mr Nair, for the applicant, filed on 12 May 2003. Mr Nair also made oral submissions this afternoon in which he put to me that the core argument is the asserted unwarranted belief held by the presiding member of the RRT that Tamil men in Colombo with wives or children there would not support the Tamil Tigers. Mr Nair submitted to me that this indicates pre-judgment on the part of the presiding member. However, Mr Nair also stressed that all grounds of review in the amended application are pressed.
Mr Smith, for the Minister, filed written submissions on 14 May 2003 and also put oral submissions to me this afternoon. Generally, I accept Mr Smith's written submissions and his oral submissions in expansion of them. The following are my reasons for doing so.
It is apparent from a fair and complete reading of the decision of the RRT (court book, page 185) that the claim for refugee status by the applicant was rejected on the basis of findings by the presiding member that the applicant's claims lacked credibility. The applicant contends that the presiding member took a view that the Tamil Tigers is a terrorist organisation and that the activities of such an organisation are to be deplored. This is said to infect the reasoning of the RRT, and in particular, the opinion expressed by the presiding member (court book, page 202) that it is not credible that the applicant would have provided to the Tamil Tigers assistance in the form of transport, medicines, food and accommodation in Colombo given that the applicant had a wife and family in Colombo.
That expression of view by the presiding member is certainly contestable as a matter of logic. The mere fact that the applicant lived in Colombo with a wife and young children does not necessarily lead to a conclusion that the applicant would be unwilling to provide support to the Tamil Tigers. The situation is that the Tamil Tigers is the pre-eminent Tamil organisation in Sri Lanka involved in the civil war which has been running in that country for approximately 20 years. The Tamil Tigers could not have continued their activities over that period of time without significant support from within the Tamil community. I do not myself subscribe to the view that a Tamil living in Colombo would necessarily be unwilling to provide assistance to the Tamil Tigers, simply because he had a family in Colombo who might be the victim of a terrorist act by the Tamil Tigers. The degree of support that an individual might give depends upon an assessment of the degree of commitment of the individual, and the individual's knowledge of the relevant activities, or indeed the individual's naivety. However, I am not able in these proceedings to review the merits of the decision of the RRT. The issue here is whether the view expressed by the presiding member is indicative of pre-judgment.
Mr Nair has referred to the test for actual and apprehended bias, and I accept the authorities referred to. The question of actual bias was also dealt with recently by the Full Federal Court in Minister for Immigration v SBAN [2002] FCAFC 431. That decision, partly on appeal from decisions of this Court, dealt with actual bias in the context of bad faith, but the observations by the Full Court in that case are nevertheless relevant. At paragraph 8 of the decision, their Honours Heerey and Kiefel JJ said:
“As with other areas of the law where wrongful intent is in issue, reckless indifference may be the equivalent of intent. But this is not to say that the test is objective. The inquiry is directed to the actual state of mind of the decision maker. There is no such thing as deemed or constructive bad faith. It is the ultimate decision - in this case of the RRT affirming the rejection of a protection visa application - which must be shown to have been taken in bad faith. Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith. Such defects can be equally explicable as a result of obtuseness, over-work, forgetfulness, irritability, or other human failings not inconsistent with an honest attempt to discharge the decision maker's duty.”
Their Honours went on to consider the difference between actual bias, bad faith and apprehended bias.
While one may quibble with this aspect of the reasoning of the presiding member, I do not accept Mr Nair's submission that the view expressed by the presiding member is indicative of pre-judgment. It simply formed one element of the reasoning of the RRT in making adverse findings on credibility against the applicant. The particular issue was put to the applicant by the presiding member, and the presiding member noted the applicant's response. The presiding member went on to make a series of findings adverse to the applicant on credibility.
The presiding member found that the applicant had fabricated claims of arrest and torture and had fabricated claims that he assisted the Tamil Tigers in 1999 at the time of a notorious assassination of a prominent political figure. The presiding member had regard to letters presented by the applicant, which appeared to have been prepared on the same typewriter, notwithstanding that one was said to be from a lawyer, and another was said to be from a doctor.
The claims made by the applicant were in part internally inconsistent. For example, the applicant claimed that at the time that he left Sri Lanka his wife and family moved away from Colombo, whereas a document presented by the applicant purporting to come from ICRC indicated that the applicant's wife was resident at the family home in Colombo on 28 September 2002.
The presiding member also placed emphasis on the fact that the applicant delayed his departure from Sri Lanka to Australia on a visitor visa for some weeks after the issue of the visa, which indicated that there was no particular urgency in his departure. It was a combination of factors that led the presiding member to conclude that the applicant had fabricated his claims of involvement in Tamil Tiger activities, and had fabricated his claims of arrest and torture at the hands of the Sri Lankan Government.
The contestable view expressed by the presiding member about what might be assumed Tamils in Colombo with families there may or may not do had no particular hierarchy in the findings on credibility made by the presiding member. Even without that conclusion reached by the presiding member there was ample material before the RRT that entitled the presiding member to conclude that the applicant's claims lacked credibility.
I find that the adverse findings on credibility were reasonably open to the RRT on the material before it and that the claims made by the applicant of actual and imputed bias, as well as the claims of a breach of procedural fairness and a failure to take relevant considerations into account, or any other error of law based upon this particular, fails.
That part of the applicant's claim based upon the presiding member's treatment of a DFAT cable asserts a misreading of the cable. However, I accept Mr Smith's contention that the RRT (court book, page 205) plainly read the cable correctly in concluding that the authorities in Sri Lanka could distinguish between Tamils from Colombo and Tamils outside of Colombo. The presiding member was plainly well aware of that distinction and was not using the cable to assert that Tamils in Colombo faced no risk.
I also reject the applicant's claims based upon the RRT’s examination of the issue of the applicant's relative. This is dealt with in particular by the presiding member at page 206 of the court book. The presiding member did not dispute that this lady, who was apparently a niece of the applicant, was released from detention in 2002 and is apparently a Tamil Tiger member or supporter. However, the presiding member rejected the applicant's claims based upon his association with this lady in relation to events in 1990, noting that at the time the lady would have only been nine years old.
The applicant contends that there was a failure on the part of the RRT to deal with the applicant's claim insofar it was based upon his association with this lady. However, the presiding member stated (court book, page 206) that the applicant's representative did not suggest that the applicant's fears of being persecuted were by reason of his association with that person. Nevertheless, the presiding member did consider whether there was a well founded fear of persecution based upon that association.
Mr Nair submitted to me that there was no consideration of a claim based upon membership of a social group of relatives of Tamil Tiger activists. However, the RRT plainly considered and rejected the claim based upon association, whether that was by reference simply to imputed political opinion or membership of a particular social group. However that claim may have been framed, if it was framed at all, it was, in my view, adequately dealt with by the presiding member.
The final element of the applicant's claim relates to the RRT’s treatment of the test of persecution, with particular reference to the RRT’s decision (court book, pages 203-204). The way the decision of the RRT is set out is not as clear as one might like because, although the decision is primarily based on findings on credibility, the presiding member appeared to consider to some degree what the position would have been if the applicant's claims were credible.
At the top of page 204 of the court book, the presiding member, having referred to the decision of the High Court in Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293 at paragraph 27, stated:
Even if I were to accept the applicant's evidence with regard to his arrest and torture by reason of his having provided accommodation to a Mr Kulendran, therefore I would not accept that this amounted to persecution for the purposes of the Convention by reason of his race or political opinion (real or imputed) or any other Convention reason.
This appears to have been a view expressed by the presiding member that, even if the applicant had been arrested and tortured as he claimed, and even if he had been a person rendering assistance to the Tamil Tigers, thereby leading to his arrest and torture, this would not be persecution for a Convention reason because of the legitimacy of measures taken by the Sri Lankan Government to deal with a terrorist emergency.
In my view, nothing much turns on this expression of view by the presiding member, which one can certainly debate about, because the findings of the RRT were based upon an assessment of credibility and not upon a determination of claims made by the applicant taken at face value. Further, to the extent that the claims made by the applicant were accepted by the presiding member, the presiding member was not satisfied that there was an objective basis for the applicant's expressed fear of persecution.
It seems that the only claim of any significance made by the applicant that was accepted by the RRT was a claim based upon the impact of ethnic riots in 1983. The presiding member found that the country information available indicated that those ethnic riots were unlikely to recur, and that circumstances had improved somewhat in Sri Lanka in recent times because of peace negotiations between the Government and the Tamil Tigers.
Mr Nair submitted to me that there was a failure on the part of the RRT to consider the subjective element of the applicant's claim, and that only the objective element was considered. However, I accept Mr Smith's submission in reply that in order to establish a well founded fear of persecution, both the subjective and objective elements must be established. Having rejected the objective element, it was unnecessary for the presiding member to pay specific regard to whether the applicant had a subjective fear.
Overall, I find that the decision of the RRT is not infected with jurisdictional error. In addition, to the extent that claim of bias was intended to support a claim of bad faith, I find that the claim fails. The other Hickman provisos are plainly satisfied.
Accordingly, I will dismiss the application.
The applicant being wholly unsuccessful, I will, in the light of an application for costs on behalf of the Minister by Mr Smith, make an award of costs in favour of the Minister. Mr Smith has indicated that an order for costs in the sum of $4,500 would be appropriate. In this matter, a wide range of legal arguments were advanced on behalf of the applicant, all of which needed to be responded to. The preparation of legal argument was somewhat more substantial than usual in the circumstances of this matter. The amount of preparation was otherwise no more than average, in terms of the preparation of the court book.
I am persuaded that an order for costs in the sum of $4,500 would be appropriate, and I will so order.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 11 June 2003