SZADI v Minister for Immigration - [2003] FMCA 331

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZADI v MINISTER FOR IMMIGRATION

[2003] FMCA 331

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Sri Lanka – whether the RRT applied the correct test of who is a refugee – whether the RRT improperly limited its consideration to circumstances in Sri Lanka at the time the applicant came to Australia – whether the RRT considered all relevant considerations – no reviewable error found.

Migration Act 1958 (Cth), s.474

Chan v Minister for Immigration (1989) 169 CLR 379
Minister for Immigration v Guo (1997) 191 CLR 559
SDAQ v Minister for Immigration [2003] FCAFC 120

Applicant:

SZADI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ28 of 2003

Delivered on:

24 July 2003

Delivered at:

Sydney

Hearing date:

24 July 2003

Judgment of:

Driver FM

REPRESENTATION

Solicitors for the Applicant:

Mr J Patel

Counsel for the Respondent:

Mr J Smith

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

SZ28 of 2003

SZADI

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 Refuge Review Tribunal (“the RRT”) made on 27 November 2002 and handed down on 19 December 2002. The RRT affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa. The applicant is from Sri Lanka and arrived in Australia on 15 June 2000 on a visitor visa. After that visa had expired and an application for an extension of the visa had been refused, the applicant lodged an application for a protection visa on 25 January 2001.
A delegate of the respondent made a decision on 28 April 2001 to refuse to grant the applicant the protection visa. The applicant applied to the RRT for review of that decision. The applicant based her application for a protection visa on the claims that harm had previously come to her and her family in Sri Lanka, and that after arriving in Australia she had discovered from her landlady in Columbo, Sri Lanka that the army were looking for her.
She claimed that the army was looking for her because she was a Tamil and had come to Columbo from the Jaffna Peninsula, and apparently also because she had given money to the Liberation Tigers of Tamil Eelam (the Tamil Tigers). At the hearing before the RRT the applicant told the presiding member that when she arrived in Australia she did not have any claims to be a refugee and did not intend to lodge an application for a protection visa but, rather, intended to visit her daughter who, at the time, was unwell. However, the applicant said that when her landlady told her that the army was looking for her she then feared persecution because of her imputed political opinion, namely, that she was a supporter of the Tamil Tigers.
The applicant filed her own application on 14 January 2003 which sought prerogative relief but did not provide any grounds for the application. However, the applicant was represented before me today by Mr Patel, who I permitted to orally amend the application to identify the grounds of review relied upon.
The ground of review relied upon is that the RRT committed jurisdictional error in failing to apply the law as required by its mandate. The particulars are, first, that the RRT applied the wrong test of a well founded fear of persecution; secondly, that the RRT erred in failing to consider all claims and issues put forward by the applicant; and thirdly, that the RRT failed to assess relevant facts and circumstances at the time of its consideration of the protection visa application but rather, relied upon its own assessment of those facts and circumstances as at the time the applicant left Sri Lanka. The applicant was ably represented in court this morning by Mr Patel who filed in court detailed written submissions. Those written submissions elaborate on the grounds of review identified in the amended application.
The RRT accepted a number of claims made by the applicant concerning her experiences prior to leaving Sri Lanka. (court book, page 94). The presiding member said:
I accept the applicant's claims that in 1986 her husband's home near Palaly Airport was damaged, rebuilt and bombed again in 1990; that her two sons are now citizens of the United Kingdom; and that none of her relatives have obtained citizenship in their various adopted countries by claiming refuge status. I also accept that she and her husband moved to Colombo from Jaffna in 1995 after her husband had retired from government service as an veterinarian (in 1990). They lived in rental accommodation in Colombo; were registered with the authorities as required; had ID cards showing their place of residence to be Colombo and that a new ID card was issued to the applicant in Colombo on 6 March 2000, just prior to her departure to Australia in June 2000.
I also accept the applicant's evidence to the Tribunal that neither she nor her husband had ever encountered any problems with the authorities during the time they lived in Colombo (that is, between 1995 and 2000) despite the fact that the Tigers in Colombo often asked them for money which her husband sometimes gave them and after his death from an heart attack in 1998, she also gave them. I also accept the applicant's evidence that when she left Sri Lanka in June 2000 she did not leave because she had encountered any problems with the authorities in Sri Lanka or because she believed she was a refugee, but that she came to Australia on a six month visa to visit her daughter who had health problems. I also accept her evidence that as she came to Australia with the intention of returning after her six month visa had expired, she had paid six months rent in advance to her landlady in Colombo in order that she would have her same place of residence on her return from her visit to Australia. I also accept her evidence to the Tribunal that when she left Sri Lanka in June 2000, she had no claims to be a refugee and no intention of applying for refugee status.
The presiding member went on to identify the critical claim as the presiding member saw it, which was not accepted. The presiding member said:
However, as I advised the applicant at the Tribunal hearing, in the light of the foregoing, I do not accept as plausible her claim that while she was in Australia she had heard that the Army were looking for her.
The presiding member went on to conclude that:
The applicant does not have a genuine fear of persecution in Sri Lanka for a Convention related reason.
Mr Patel submits that the RRT erred in the approach it took in that the decision turned entirely on the credibility finding relating to the applicant's claim that after arriving in Australia she had heard that the army was looking for her. Mr Patel submits that the RRT should have considered whether the facts and circumstances which had been accepted by the RRT themselves gave rise to a well founded fear of persecution.
In addition, Mr Patel submits that the RRT erred in basing its decision upon the applicant's state of mind when she left Sri Lanka, rather than a proper assessment of the circumstances as they existed at the time of the RRT decision. Mr Patel's oral submissions were reinforced by his detailed written submissions. Mr Patel did his best for his client and his submissions point to authority which, in other circumstances, might well establish jurisdictional error on the part of the RRT. However, in the circumstances of this matter, in my view, Mr Patel's submissions do not establish jurisdictional error by the RRT in this case.
As was noted by Mr Smith in his written and oral submissions, the RRT accepted the applicant's background claims including the claims that she and her husband had lived in a house in Jafna which had been destroyed and eventually taken by the Sri Lankan army. The RRT accepted other claims relating to the applicant’s experiences in Sri Lanka. However, the RRT did not accept that the applicant's landlady had told her that the army was looking for her nor, indeed, that the army was in fact looking for her. It found that the applicant had fabricated that story for the sole purpose of enhancing her claim for a protection visa and that it had no basis in fact.
The presiding member dealt with this aspect of the applicant's claims in a number of ways. The presiding member noted that the applicant's claim was implausible in as much as the applicant could not satisfactorily explain why she had waited until after her visitor visa had expired to make contact with her landlady to advise of her impending return to Sir Lanka from Australia. Further, the presiding member noted that the applicant had been inconsistent in first stating that the information about the army searching for her came from her landlady and later saying that the information came from a distant relative.
Thirdly, the presiding member considered that the claim was inherently implausible in that there was no logical reason why the army would have been looking for the applicant. Putting these considerations together, the presiding member rejected the applicant's claim. It is clear that in making that finding the presiding member concluded that the applicant did not have a genuine fear of persecution in Sri Lanka for a Convention reason.
In making that finding, it is clear that the protection visa application fell at the second of the four hurdles it must pass in order for the applicant to establish protection obligations. The test of the Convention definition of a refugee is set out at pages 83–85 of the court book. That test was the correct test which was applied by the RRT. The RRT's approach has recently been reaffirmed as correct in SDAQ v Minister for Immigration [2003] FCAFC 120, in particular, by His Honour Cooper J at paragraphs 10-14. I adopt in this regard Mr Smith's written submissions at paragraphs 7 and 8:
The RRT dealt with each of the applicant’s claims and made finding in respect of them. Critical to its decision was the finding that the applicant did not have a genuine fear of persecution. The definition of “refugee” in Article 1A(2) of the Convention Relating to the Status of Refugees contains both a subjective and objective element in that there must be both a subjective fear held by the applicant as well as an objective basis for that fear: Chan v Minister for Immigration (1989) 169 CLR 379; Minister for Immigration v Guo (1997) 191 CLR 559. Accordingly, where a person does not have any subjective fear that person will not meet the definition of a refugee within the meaning of Article 1A(2) of the Convention. If a person is not a refugee within the meaning of Article 1A(2) of the Convention then he or she is not a person to whom Australia owes protection obligations. In light of this, the RRT’s factual finding that the applicant did not have subjective fear of persecution was determinative of the application for review.
The finding by the RRT in respect of the applicant’s fear was based on an examination by the RRT of her evidence in relation to how she came to develop the fear of persecution as well as her evidence that she had not had any difficulties with the army or other authorities prior to her departure from Sri Lanka in 2000. The finding was open to the RRT on the material before it and involved no error of law.
Contrary to Mr Patel's submissions, I do not accept that there was any misapplication of the test of a well-founded fear of persecution by the RRT. The RRT concluded, properly, in my view, that the applicant did not have a genuine fear of persecution. That did not depend entirely upon the rejection of the claim that the applicant had heard that the army was looking for her. It rested also on the applicant's own evidence that she did not have a fear of persecution when she left Sri Lanka.
Mr Patel submits that it is not sufficient for the RRT simply to base its decision on the applicant's own statement. He submits that it is necessary for the RRT to consider whether those facts and circumstances could give rise to a well founded fear of persecution. However, as was submitted by Mr Smith, the test of whether a person is a refugee is a cumulative test. If an applicant does not have a fear of persecution the RRT does not need to go on and consider whether a fear might be well founded.
The applicant, by her own evidence, did not have a fear of persecution when she left Sri Lanka. She may have had a fear of harm, as she and her family had been caught up in the Sri Lankan civil war. She had lost property and had given money, apparently under some duress, from time to time to the Tamil Tigers. However, the experiences that the applicant had encountered could not on any reasonable view be distinguished from the experiences that any Tamil from the Jaffna area would have had over the same period. There was nothing in those experiences that pointed to a fear of persecution.
In the circumstances, not only was it reasonable and proper for the applicant to say that she did not fear persecution as a result of those experiences, there was objectively no basis on which the RRT could, in my view, have concluded that those experiences pointed to persecution. In addition, while the decision and reasons of the presiding member did not expressly have resort to country information, the presiding member did have before her country information, including that contained in the submissions from the applicant's representative (court book, pages 92‑93). That country information made clear that circumstances in Sri Lanka had changed since the applicant had left Sri Lanka.
In general terms, the situation had improved. If there was no basis for the applicant to fear persecution when she left Sri Lanka, there was no basis for the applicant to fear persecution at the time the RRT made its decision. That is made clear by the presiding member at page 96 of the court book. Contrary to Mr Patel's submissions, the RRT did not restrict itself to consideration of facts and circumstances as at the time the applicant left Sri Lanka. On a fair reading of the RRT's decision as a whole, the presiding member found that the applicant had no fear of persecution when she left Sri Lanka that the events claimed to have given rise to a fear of persecution since she left Sri Lanka were a fabrication, and that the applicant did not have a genuine fear of persecution as at the time the RRT made its decision.
I find no legal error in that approach taken by the RRT. No jurisdictional error in the decision of the RRT has been established. It is not suggested that the Hickman provisos to the privative clause in s.474 of the Migration Act 1958 (Cth) have not been satisfied. In the circumstances, I will dismiss the application.
On the question of costs, the applicant being wholly unsuccessful and the Minister being wholly successful, an order for costs is sought on behalf of the Minister by Mr Smith. Mr Patel asks that I take into account that there was an arguable case to be dealt with and that the applicant is in difficult financial circumstances. In my view, in accordance with the general principle ordinarily applied in this Court, costs should follow the event and accordingly a costs order is called for. There is ample authority both in this Court and in the Federal Court that impecuniosity is not a reason for the court to refrain from making a costs order.
The appropriate order is one which properly recognises the work undertaken on behalf of the Minister for the purposes of the proceedings, while noting that such work follows a pattern in migration proceedings and that in the circumstances a costs order is usually more modest than might be the case in other jurisdictions. Mr Smith has sought an order for costs in the sum of $4,000 in this matter. In terms of the amount of preparation required prior to the trial of the matter, in my view that amount is slightly excessive. The issues which Mr Smith was required to respond to were only identified today at the hearing and Mr Smith has been able to deal with those issues in the course of oral argument.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 7 August 2003