SZAGQ v Minister for Immigration
[2004] FMCA 300
•11 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAGQ & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 300 |
| MIGRATION – Review of Refugee Review Tribunal decisions – refusal of protection visas – applicants claiming political persecution in Sri Lanka – no reviewable error found – applications dismissed. |
Migration Act 1958 (Cth), s.36
Minister for Immigration v SBAN [2002] FCAFC 431
SBBS v Minister for Immigration [2002] FCAFC 361
| Applicants: | SZAGQ SZAGR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Nos: | SZ370 of 2003 SZ371 of 2003 |
| Delivered on: | 11 May 2004 |
| Delivered at: | Sydney |
| Hearing date: | 11 May 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
SZAGR appeared in person and on behalf of SZAGQ
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The applications are dismissed.
SZAGR is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
SZAGR is to pay the hearing fee of $327 or obtain a waiver within 14 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ370 of 2003
SZ371 of 2003
| SZAGQ, SZAGR |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
These are two applications to review decisions of the Refugee Review Tribunal (“the RRT”). The first decision was made on 28 January 2003 and handed down on 19 February 2003. The second decision was made on the same day in respect of applicant SZAGQ who is the child of the first applicant, SZAGR. I have previously appointed applicant SZAGR litigation guardian of SZAGQ. The applicant's wife was also a party to the first RRT decision. However, she is not a party to these legal proceedings.
The applicants are from Sri Lanka. They made claims of persecution based on imputed association with the Liberation Tigers of Tamil Elan, also known as the Tamil Tigers. The relevant claims were made by the principal applicant SZAGR. Applicant SZAGQ is an infant born in Australia and made no claims independent of those of his father. The applicants proceed on the basis of applications filed on 18 March 2003. The applications although filed separately were heard concurrently. The applicant also filed written submissions in support of his application on 1 December 2003. Those submissions go to the applicant's personal history, the political situation in Sri Lanka and the elements of his claim to a protection visa that he considers were not thoroughly dealt with by the RRT. Those submissions are essentially a contest over the merits of the RRT decision. As I informed the principal applicant, I cannot review the decision of the RRT on its merits.
The relevant background facts relating to this matter are set out in Mr Kennett's written submissions. I adopt paragraphs 1 through to 8 of those written submissions:
On 19 February 2003 the RRT handed down two decisions which affirmed earlier decision by delegates of the respondent not to grant a protection visa to the applicants (SZAGQ court book, page 55; SZAGR court book, page 114).
Applicant SZAGR is a national of Sri Lanka. His wife, who is also named as an applicant in the application (but who apparently does not have a s.91X pseudonym is a national of the Philippines. They were married in the Philippines in May 1999 (SZAGR court book, page 52).
The wife arrived in Australia in June 1999 and the husband arrived on 30 September 2000. They applied for protection visas on 27 October 2000, with the husband claiming to be a refugee (SZAGR court book, page 1) and the wife applying as a member of the family unit (SZAGR court book, page 24). That application was rejected by a delegate of the Minister on 27 November 2000. They applied for review of that decision by the RRT on 21 December 2000 (SZAGR court book, page 115).
Applicant SZAGQ is their son, born in Australia on 22 August 2001. His father made an application for a protection visa on his behalf of 2 December 2002 and it was rejected by a delegate on 7 December 2002 (SZAGQ court book, page 56). He applied for review by the RRT on 7 January 2003.
The son’s initial application and his application to the RRT both relied solely on material advanced by his parents[1] (SZAGQ court book, pages 4, 16, 47). No claim appears to have been advanced that the son feared persecution, either for a Convention reason or because of his association with either parent. He applied for a visa, in substance, as a member of the “family unit” of his father.[2]
The husband submitted two detailed statements setting out his claims (SZAGR court book, pages 119-120, 120-122).[3] In short, he claimed that he feared harm at the hands of the Sri Lankan authorities because of suspected connections with the LTTE. He claimed that on his last visit to Sri Lanka (just before he came to Australia) he had been arrested, assaulted and detained for seven days. in the second statement he claimed that he and his wife could not safely return to the Philippines because her brother, who had some political influence, disapproved of their marriage and sought revenge against him.
The RRT accepted some basic details about the husband’s background (SZAGR court book, page 127) but, for reasons which it set out (SZAGR court book, pages 127-128), did not accept his claims of having been persecuted because of suspected LTTE involvement. It regarded these claims as “a complete fabrication” and accordingly was not satisfied that the husband had a genuine fear of persecution in Sri Lanka (SZAGR court book, page 128). It accepted that the husband and the wife may have had some difficulties in the Philippines, but regarded these as arising from personal issues rather than any Convention reason (SZAGR court book, pages 128-129). The RRT therefore was not satisfied that the husband was a person to whom Australia owed protection obligations under the Refugees Convention (SZAGR court book, page 129).
Since the wife had not advanced any independent claims, it followed that her application must also fail (SZAGR court book, page 1290). In a separate decision, the RRT applied the same reasoning to the son (SZAGQ court book, pages 58-59).
[1] The RRT held a hearing on 17 January 2003 which appears to have been regarded as dealing with both applications: see SZAGR court book, pages 106, 120, 121 (the references to 18 January on those pages appear to be in error – that day was a Saturday); SZAGQ court book, page 58.
[2] See s.36(2) of the Migration Act 1958 (Cth). (The current version of s.36(2), including amendments which commenced on 1 October 2001, applies to the son’s application. The previous text of s.36(2) governed his parents’ applications – as noted by the RRT at SZAGR court book, page 115 – but nothing of substance turns on this difference).
[3] There is an unnumbered page between pp 119 and 120.
The two applications assert bad faith on the part of the RRT. Mr Kennett deals with that allegation in paragraphs 9 through to 14 of his written submissions. I agree with those submissions and adopt them for the purposes of this judgment:
SZAGQ
The application of the son alleges that the RRT acted in bad faith in concluding that he had made no independent claims (and hence, it would seem, in regarding the fate of his application as depending on that of his father).
As outlined above, the approach which the RRT took properly reflected the claims advanced before it. There is no foundation for any suggestion of bad faith.
The son is an infant (about 18 months old at the time of the RRT hearing) and his application was advanced on his behalf by his father. No suggestions was made to the RRT that the son had any fear, or basis for a fear, of persecution in his own right. Nor, even taking both cases together, does the material disclose any basis for such a fear which the RRT should or might have considered for itself.
SZAGR
The application in SZAGR asserts that the RRT acted in bad faith when it concluded that the husband’s claims were “a complete fabrication”.
This contention correctly recognises that the RRT’s decision turned on its rejection of the substance of the husband’s claims in relation to Sri Lanka. Such conclusions of fact cannot be re-opened on judicial review.
The RRT’s reasons indicate that it listened to the husband’s claims and considered them carefully. It set out its reasons for disbelieving the important aspects of his story. There is no basis for an allegation of bad faith.[4]
[4] SBBS v Minister for Immigration [2002] FCAFC 361 at [43]-[47]; Minister for Immigration v SBAN [2002] FCAFC 431 at [7]-[11].
An allegation of bad faith is a very serious matter and needs to be clearly proved. The applicants were ordered on 16 April 2003 to file and serve any evidence that they wished to rely on by 30 May 2003. No evidence was filed. However, noting that the applicant was formerly represented by a legal practitioner and that the practitioner has withdrawn from the record, I gave the applicant the opportunity today to give oral evidence. He told me that he was concerned about what happened at the hearing before the RRT. First, he was concerned about questions asked of his wife regarding where she went in March 1999. He told me that his wife was confused by these questions. In particular, there was confusion about the different way months are recorded in Sri Lanka and in Australia. In the absence of a transcript of the RRT hearing it is difficult to weigh this evidence. However, if indeed there was confusion on the part of the applicant's wife I do not think that it matters. The presiding member did not make any adverse credibility findings based upon the wife's evidence. The presiding member did make adverse credibility findings based upon the principal applicant's evidence.
The principal applicant gave evidence that the presiding member misunderstood what he told the RRT about a national identity card. He says that only one national identity card is required which enables the holder to live anywhere in the country. He says that the presiding member appeared to think that more than one identity card was required for various local areas. I see nothing in the decision and reasons of the RRT to throw any light on that issue. If, indeed, it was a matter that was dealt with at the hearing, it does not appear to have had any bearing upon the presiding member's decision. In the circumstances, I do not regard the issue as one of significance.
The principal applicant also gave evidence that the presiding member expressed the view that the applicants just wanted to come to Australia for a better life. That is corroborated by the decision of the presiding member on page 125 of the court book. The presiding member says the RRT put it to the applicant that the basis of claims for refugee status were without substance and that understandably he wanted to stay in Australia because he wanted a better life for himself and his family. This is not indicative of any jurisdictional error. It is indicative that the presiding member was affording procedural fairness to the applicants by putting to the principal applicant her concerns about his claims.
The principal applicant also told me that the presiding member accepted that he would have some problems in Sri Lanka but, nevertheless, rejected his visa claims. This is also corroborated by the decision record. The presiding member says on page 129 of the court book (SZAGR):
Whilst I accept that both the Applicant and his wife may have had personal difficulties with their respective families, as I advised the Applicant at the hearing, such family problems have no Convention nexus.
Once again, I see no jurisdictional error arising from this part of the RRTs reasons.
The principal applicant also gave evidence that the presiding member felt that he could return to Dubai. That is not consistent with what appears in the RRT decision record. The RRT found that the principal applicant did not have a well founded fear of persecution in Sri Lanka. The only significance of the principal applicant's various trips between Sri Lanka and Dubai was that it indicated to the presiding member that his freedom of movement showed that he was of no interest to the Sri Lankan authorities. Again, that finding is not indicative of jurisdictional error.
The findings of the RRT were reasonably open to it on the material before it. There is no substance to the allegation of bad faith. The RRT proceedings appear to have been fair.
I find that the decision of the RRT is not infected with any jurisdictional error. It follows that the decisions are privative clause decisions. The applications must be dismissed.
On the question of costs, the applicant having been wholly unsuccessful, costs should follow the event. Mr Kennett seeks an order for costs fixed in the sum of $4,000 on a party/party basis. The applicant did not make any submissions of substance on the issue of costs. I am satisfied that the sum of $4,000 would be an appropriate costs orders taking into account the several hearings that have occurred in this matter and the previous costs order made in the Minister's favour.
I will order that the applications be dismissed and that applicant SZAGR pay the Minister's costs and disbursements of and incidental to the applications, which I fix in the sum of $4000. The Court's setting down fee of $327 has also not been paid. I will, in addition, order that applicant SZAGR pay the setting down fee of $327 payable in this matter within 14 days or obtain a waiver.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 May 2004
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