SZAFK v Minister for Immigration - [2003] FMCA 316

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAFK & ORS v MINISTER FOR IMMIGRATION

[2003] FMCA 316

MIGRATION – Review of RRT decision – application for protection visas – whether the applicants had a well founded fear of persecution for reasons of political association – credibility – effective protection – whether there is any jurisdictional error in the RRT’s decision.

Prathapan v Minister for Immigration [1998] 86 FCR 95
Minister for Immigration v Tas [2000] FCA 1657
Minister for Immigration v Yasouie 116 FCR 7

Applicants:

SZAFK, SZAFL, SZAFM & SZAFN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 253 of 2003

Delivered on:

23 July 2003

Delivered at:

Sydney

Hearing date:

23 July 2003

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
First and second applicants to pay respondent’s costs in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 253 of 2003

SZAFK SZAFL, SZAFM & SZAFN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicants in this matter are a Sri Lankan family which travelled to Australia on 10 March 2001. On 9 April 2001 they lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs.
On 7 May 2001 a delegate of the Minister declined to grant a protection visa and on 29 May 2001 the applicants applied for review of that decision from the Refugee Review Tribunal. The first named applicant was the person whose claims were considered by the Tribunal as the other applicants sought protection as members of his family unit. That applicant gave oral evidence before the Tribunal on 19 December 2002. The Tribunal came to its conclusions on 13 January 2003 and handed them down on 6 February 2003. The Tribunal affirmed the original decision of the delegate.
The applicant is approximately 36 years of age. All of his family have left Sri Lanka. He has relations in Australia and in the United Kingdom. His ground for asserting that he had a well founded fear of persecution for the Convention reason of political opinion arose out of his opposition to the LTTE and his part in a campaign to have that organisation proscribed in the United Kingdom. As part of that campaign he travelled to the United Kingdom where he remained from August 1998 to August 1999, presumably staying with his sisters. Whilst in the United Kingdom he had attended at the LTTE offices and he believed that his appearance had become known to that organisation.
When he returned from the United Kingdom to Colombo in August 1999 and until March 2001 when he left for Australia, he took the opportunity to draw attention in Sri Lanka to what he had seen in England of the activities of the LTTE and called for action against them. He told the Tribunal [CB 71]:
"By then, the LTTE was widely perceived as a terrorist organisation and it had not been necessary for him to take a leadership role on this issue."
The applicant gave further evidence to the Tribunal of his activities which seem to involve organising meetings and visiting poor Tamil areas of Colombo seeking support. He had kept in touch with his sisters in England and provided them with information which had assisted in a major anti LTTE rally in Trafalgar Square in London.
In his application for a protection visa the applicant stated that he as a prominent figure in the campaign against the LTTE, was given high publicity. He also stated:
"I was particularly targeted due to my involvement and co-ordination with UK and since I was given a very substantive publicity they started threatening me to kidnap my two children and to kill my wife. They threatened me several times over the telephone and started following me when I go out. Due to this reason I was unable to move out and to send my son to school."
At [CB 74] the Tribunal comes to certain findings on the basis of its acceptance of the applicant as a frank and credible witness. It stated:
“The applicant claims to have received intermittent threats of violence by phone and mail from what he believed were LTTE activists during a period of a year and a half before leaving Sri Lanka but has not claimed he suffered serious harm or provided any evidence to that effect. The Tribunal finds that nothing of these events as described in his documents and oral evidence amount to persecution in Convention terms.
The applicant claimed in his protection visa application that the LTTE had threatened to kidnap his children and kill his wife, and that this had prevented him from taking his children to school but he made no reference to these claims in his oral evidence. When asked at hearing what he feared would happen on return he responded with expressions of scepticism about the peace process and the current government's motives. The Tribunal is not satisfied that the applicant faces a real chance of the previous threats from what the applicant believes to have been LTTE activists being carried out on the return of the applicant and his family to Sri Lanka.
The Tribunal accepts that the applicant is concerned about the longer term prospects for negotiations between the LTTE and the government and the risk that there may be a return to LTTE violence, but is unable to be satisfied on the basis of the applicant's claims or the country information cited above that he faces a real chance of persecution even in those circumstances.”
The Tribunal also considered whether or not the applicant would receive effective protection from the Sri Lankan authorities if indeed the LTTE attacks eventuated. At [CB 76], having considered the country evidence, it states:
“The applicant claims that the Sri Lankan authorities have in the past not taken seriously his request for protection from the threat of LTTE attacks but the Tribunal finds that attacks of the kind feared by the applicant would, if they occurred, constitute criminal acts to which the Sri Lankan authorities would respond effectively.”
At the hearing the applicant produced a document entitled "Some Arguments for Applicant". He stated that this had been prepared for him by a lawyer who he had consulted and it would certainly appear that this might be the case. The document is unsigned. The court considers it improper for legal advisers to produce documentation which they know will be used by a person such as the applicant in court proceedings and not take responsibility for it by placing their signature upon it. Notwithstanding this, the document was accepted and addressed by Mr Smith on behalf of the respondent. It forms the basis of the applicant's contentions in this court because the oral submissions otherwise made by the applicant were concentrated on his failure to understand why the Tribunal accepted some of his evidence and rejected other parts of it. That is not my reading of the reasons for decision. The Tribunal appeared to me to have accepted all of the applicant's evidence but it did not accept all of his submissions as to the effect of what he claimed to have taken place.
The applicant also addressed me on two additional matters; the first related to the lack of documentation. He told me that this was because his house was locked up in Sri Lanka and he did not have access to it but if he was given more time he could produce documentation.

I assume he is referring to documentation supporting his allegation that he was a leader of the anti LTTE movement because he refers to publicity about himself in his statements to the Tribunal. This evidence was not before the Tribunal and I can therefore not take its possible existence into account.
The applicant also says that he did tell the Tribunal about the threat of kidnapping of his child and killing of his wife. He has not brought with him the transcript of evidence or the tape recording which might have proved this contention. I would not propose to delay making a decision in this matter whilst the tape is produced because my reading of the Tribunal's findings are that it took the possibility of these threats into account as appears from the lengthy extract from the Tribunal's reasoning that I have previously quoted.
The first error which is claimed to be a jurisdictional error in the written submissions relates to this matter. It states that the Tribunal made an implicit finding that the applicant abandoned his claim that the threats included threats to kidnap his children and kill his wife because he did not repeat them orally to the Tribunal. It is suggested that if that occurred the Tribunal had committed a jurisdictional error.
I accept Mr Smith's submissions that even if this had occurred it was based upon a finding that was open to it from the non-reference by the applicant to the threats in the oral hearing. Such a finding may have been wrong but it is not wrong in the jurisdictional sense. However, as I have previously found, I do not believe that the Tribunal did do this.
The second error alleged in the written document concerns the limited nature of the applicant's political activity. It states that the applicant did not tell the Tribunal that it had not been necessary for him to take a leadership role in the issue. But the document refers to the extract from [CB 71] that specifically says that. Even if the Tribunal did indeed misunderstand the evidence, which I do not believe it did, that misunderstanding would not amount to a jurisdictional error.
The applicant does not seriously challenge the other findings of the Tribunal relating to the lack of effective protection. It is quite clear from cases such as Prathapan v Minister for Immigration [1998] 86 FCR 95, Minister for Immigration v Tas [2000] FCA 1657, and the Minister for Immigration v Yasouie 116 FCR 7, that a state is not required to guarantee protection to an individual as Hill J said in Yasouie at [35]:
“It is clear enough from Prathapan that the concept of “effective protection” does not involve a guarantee of protection. No country in the world could probably guarantee 100 percent protection to its nationals, let alone to those who might admit to permanent residence because they are within the definition of “refugee” in the Convention. Given what is said to have happened at Cabramatta, an outer Western Sydney suburb, over the past few years it is likely, at least in that area, that Australia could not in the recent past have guaranteed protection, either to Australian citizens, or to those who are merely refugees given asylum.”
I am satisfied that the Tribunal fell into no error in coming to the conclusion which it did that the applicant would not have any real chance of being persecuted in the manner about which he complained if he was required to return to Sri Lanka nor that he would be denied effective protection as such is understood from the recent cases if his return was required. In the circumstances I must dismiss this application, which I do. I order that the first and second applicants pay the respondent's costs which I assess in the sum of $4,250.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: