SZAIB v Minister for Immigration - [2003] FMCA 522

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAIB v MINISTER FOR IMMIGRATION

[2003] FMCA 522

MIGRATION – Review of RRT decision – application for protection visa – where applicant claims Tribunal’s decision was based on a hypothesis on which he was not able to comment – whether specific details in independent country information relied on by RRT should have been disclosed to the applicant – whether Tribunal failed to give applicant procedural fairness – whether s.424A Migration Act complied with.

Migration Act 1958 (Cth), ss.48B, 424A(1)

SAAP v Minister for Immigration [2002] FCA 577
VDAU v Minister for Immigration [2003] FCA 363
Applicant NAHV of 2002 v Minister for Immigration [2003] FCAFC 102
Baig v Minister for Immigration [2002] FCA 380
Singh v Minister for Immigration [2001] FCA 857
Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539
Minister for Immigration & Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489

Applicant:

SZAIB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 465 of 2003

Delivered on:

21 November 2003

Delivered at:

Sydney

Hearing date:

31 October 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr I Archibald

Solicitors for the Applicant:

Kessels Goddard

Counsel for the Respondent:

Mr S Lloyd

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 465 of 2003

SZAIB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Sri Lanka. He arrived in Australia on 12 May 1995. He applied for a protection visa on 22 April 1996.

A delegate of the Minister refused the application on 22 March 1997. On 9 July 1997 the applicant applied for review of that decision. On 19 March 1998 the Tribunal differently constituted (File N97/81066) determined that it did not have jurisdiction to review the decision as the review application was lodged outside the prescribed period. On 9 March 2001 the Minister exercising his discretion under s 48B of the Migration Act 1958 (Cth) (the “Act”) allowed the applicant to lodge another protection visa application. On 21 March 2001 the applicant lodged an application for a protection (Class XA) visa. On 13 June 2001 a delegate of the Minister refused to grant a protection visa and on 20 June 2001 the applicant applied for review of that decision.
The applicant was represented by Messrs Kessels Goddard. A hearing was arranged on 7 January 2003 which was attended by the applicant and his solicitor. The Tribunal came to its decision on 13 February 2003 and handed it down on 6 March 2003. The Tribunal determined to uphold the original decision of the delegate.
The applicant’s claim to have a well-founded fear of persecution for the convention reason of political opinion arises in the following circumstances. He is a Sinhalese from Sri Lanka. Between 1989 and 1995 he served in the Sri Lankan Air Force (“SLAF”). He reached the rank of flying officer. In May 1995 he deserted his post and fled to Australia. He claimed that he deserted from his post because he feared harm by reason of a pro LTTE political opinion imputed to him by other airforce officers [CB 218]. He submitted that he had been imputed with this opinion because it was known that he associated with Tamils primarily through his religion of Sai Baba and that two military aircraft were destroyed in circumstances where it was thought that he had provided information to the LTTE. The fear which the applicant claimed to have was not a fear of arrest or punishment for being a deserter. He accepted that this was an event brought on by him breaking a law of general application to all persons in the armed forces. What he feared was extra judicial harm by way of physical assault and possibly death because of his imputed LTTE sympathies once he had been arrested and was held in custody.
The applicant gave the Tribunal, and before it the delegate, a considerable body of evidence. Some of that evidence revealed that the applicant’s religious affiliation and his ability to speak Tamil was known to the airforce authorities at the time of his induction. The applicant accepted that Sinhalese Tamil speakers were very useful to the armed services for their ability to interrogate Tamil prisoners or to comprehend written documents in the Tamil language. He had been given authority by the SLAF to travel to India to carry out religious instruction.
The applicant also gave evidence that during the course of his military service he had fallen foul of two senior officers. These officers were involved in the purchasing area of the SLAF and the applicant had come across unlawful activities by the more senior of the two with whom the more junior was friendly. The applicant had reported these activities. This gave rise to some problems including an allegation by the applicant that he was moved into areas of considerable danger and sent out on patrol which was unusual for an officer in the SLAF. The applicant claimed that this was in order that he be killed. The applicant informed the Tribunal that up until 1994 he had received the protection of the head of the SLAF who was an uncle of his. However, his uncle had retired in 1994 and thereafter he was “on his own”. The two officers concerned had accused him of connections with the Tamils and the LTTE.
The applicant claimed that on 28 and 29 April 1995 two planes each carrying senior officers were shot down by the LTTE. At that time he had been posted to SLAF Anuradhapura Airforce Base as air movements officer. On that base he reported to Squadron Leader I, a friend of CPOP who had complained about him. Everyone was interviewed about their knowledge of the missions. The applicant was interrogated twice by S/LI and others during which time he was punched in the face and told he had not taken proper safety precautions. He was accused of passing on the name of officers on board the flights to the LTTE.
On 4 May 1995 he was sent to SLAF headquarters in Colombo. He was ordered on patrol roadblocks around the city where he claimed he was more likely to be killed. He told the Tribunal that a friend at headquarters told him that he was suspected of being an LTTE sympathiser and passing on information and that he should leave Sri Lanka. This he did on 11 May 1995. He has not returned since.
The essence of the Tribunal’s decision is contained at [CB 243-244] as follows:
“As indicated to the Applicant in the hearing the Tribunal has difficulty accepting that he went AWOL on 11 May as claimed as the SLAF letters he submitted to support this claim state that he has not reported for duty since 25 April 1995 not 11 May 1995 which is when left the base and did not return, and the letters themselves are not on letterhead and do not refer to such basic matter as the Applicant’s unit etc. The Applicant claimed that he was sent to Anuradhapura from Hingurakgoda on about 24 or 25 April and that the date in the letters refers to that transfer, but it was also his evidence that he was transferred to headquarters in Colombo on 4 May, which would certainly have been known and recorded by the Orderly Room, if that is the central clearing house for paperwork, and it could be readily ascertained that he was physically on duty and at the base in Colombo until 11 May 1995.
Having considered the evidence on this point the Tribunal is of the view that if the Applicant went AWOL, that it was from the base at Hingurakgoda on 25 April 1995 as stated in the letters, and that he was not present at Anuradhapura when the two planes were lost on 28 and 29 April, or subsequently transferred to Colombo on 4 May, and therefore he was not involved in any way in the loss of the planes or suspected of being involved in passing information to the LTTE so that the planes could be destroyed. The Tribunal is satisfied that this was an attempt to update and generalise the suspicion held by a couple of particular senior officers that the Applicant had links with or supported or was sympathetic to the LTTE. It is apparent from the Applicant’s evidence that he was anxious to leave the SLAF and Sri Lanka since at least late 1994 when he was helped by the Australian academic at an Education fair in Colombo, which was some months before the loss of the two aircraft.
Even if the Tribunal is wrong about this and he did go AWOL from Colombo on 11 May and the events of the previous few weeks did occur as claimed, the Tribunal is not satisfied that the Applicant went AWOL because he feared being harmed by these officers because they suspect him of LTTE links rather than as other elements of his evidence suggests, because they don’t like him and want revenge on him because he gave or was forced to give evidence in apparently one of many inquiries into the Purchasing Unit in 1993-1994.
In any case, the Tribunal is not satisfied that the Applicant is still regarded as being AWOL or a deserter or more generally that his desertion or any official suspicion of his friendships with Tamils or links with the LTTE, is still an issue of concern to the particular officers he fears, or to the SLAF, or to the authorities more generally. The Tribunal notes that the Applicant accepts that prosecution for being AWOL or a deserter does not bring him within the Convention. However, the Tribunal cannot be satisfied on the evidence before it that the Applicant’s fear of extra-judicial mistreatment by those senior officers because he is suspected of being an LTTE supporter, its well-founded. This is because independent country information does not support the suggestion that Sinhalese are seriously suspected of supporting the LTTE, especially someone such as the Applicant, related to a former head of the SLAF and whose own and family background was thoroughly checked (at which time he was already a Sai Baba devotee) prior to being accepted into the security forces.
Also, it has been almost eight years now since the Applicant went AWOL, and more years since these officers came to dislike him and suspect him of LTTE links yet there was no serious inquiry into such suspicions, and there is no evidence of any further interest in him since the letters of 1995 and the interview of his father sometime before he died in August 1997. In addition the 50,000 “surety bond” was repaid in November 1999 which suggests that this was part of the closure of his file as it seems odd that the SLAF would keep the case open for so many years after they apparently knew that he went to Australia years earlier. Relevantly, there is nothing to suggest that these letters or the interview was in relation to anything other than official inquiries related to the Applicant being AWOL or a deserter, and there is no evidence to suggest that these inquiries were because the SLAF or particular officers suspect the Applicant of supporting the LTTE. The Tribunal does not accept that the vague claim of unknown telephone callers to his mothers’ home indicates an ongoing interest in him by the SLAF or by the authorities or by the particular officers. The Applicant claimed that after he left officers came to his home to arrest him however, even if this occurred, there is nothing to suggest that it was because he was suspected of assisting the LTTE and as noted above, there has been no interest in him from any source for any reason since sometime in 1997, well over five years ago now.
In addition, the validity of the Applicant’s passport was extended by the Sri Lankan authorities in 1999 without incident and the relaxation of security and the ongoing peace negotiations over the past year or so also leads the Tribunal to conclude that his fear of extrajudicial harm now as a suspected supporter of the LTTE is not well-founded. The Tribunal is not satisfied that the Applicant’s fear of persecution is well-founded fear of persecution within the meaning of the Convention if he returns to Sri Lanka now.”
There are two bases upon which the applicant seeks review of this decision. He states firstly that in regard to the date upon which he went AWOL the Tribunal has come to a decision on an erroneous finding of fact based upon a hypothesis of its own. This hypothesis is that his transfer to Anuradhapura from Hingurakgoda on about 24 or 25 April and his subsequent transfer to headquarters at Colombo on 4 May “would certainly have been known and recorded by the Orderly Room, if that is the central clearing house for paperwork, and it could be readily ascertained that he was physically on duty at the base in Colombo until 11 May 1995.” The applicant states that this hypothesis was not put to the applicant and is not supported by any evidence. It may have arisen from the Tribunal’s own knowledge of military matters in Australia or some other information which is presently unknown. The applicant argues that it was wrong for the Tribunal to have evidence on the matter without providing the evidence so that the applicant could respond to it or to call its own opinion evidence.
There are two difficulties with this submission. The first is that it is not at all clear that the Tribunal considered as evidence anything other than the dates on the letters which are found at [CB 36, 38 and 40]. The letters were produced by the applicant and he was questioned about the date problem [CB 239]. It could also be argued in the Tribunal’s favour that it was in this paragraph that reference to the Orderly Room was first made. It was made by the applicant. I believe that when the paragraph under criticism is read together with that paragraph the reason for the Tribunal’s decision becomes clear and does not indicate capriciousness.
The second problem faced by the applicant in respect of this submission is that the Tribunal appears to be covering itself in the event that it is wrong on its finding of fact in relation to the date upon which he went AWOL by its finding that his real reason for fear of the two officers which caused him to do this was because they did not like him and sought revenge upon him.
The second ground put forward for review related to the independent country information which the Tribunal indicated did not support the suggestion that Sinhalese are not seriously suspected of supporting the LTTE. The applicant argued that this was information which was required to be given to the applicant pursuant to s.424A(1) of the Act or alternatively pursuant to a common law duty to provide him with procedural fairness. There was considerable argument in the written submissions concerning the codification of the fair hearing rule in s.424A as a result of the amendments to the Act pursuant to which s.422B was inserted. It transpires, however, that the respondent maintains that s.422B is not a relevant section in relation to these proceedings as the application was made long before that section was imposed into the Act. I am therefore able to look at the position on the basis of the common law rules and the existing authorities in respect of s.424A, in particular those relating to s.424A(3). The Tribunal had reference to three documents which are found respectively at [CB 251, 260, 262]. They are all cables passing between an inquirer and officers at DFAT and the comments made which are used by the Tribunal, in particular the one in the second document at [CB 260] that “It is almost unheard of that a Sinhalese person would assist the LTTE or be approached to assist” are just part of the information provided. The applicant argues that the whole of the documentation should have been pointed out to him and he be asked to comment. At the hearing the applicant gave evidence that had this occurred he would have pointed out instances where he knew that Sinhalese members of the armed forces had been sympathetic to the LTTE.
Even if it is accepted that the fair hearing rule in this case is not confined to s.424A the exception set out in s.424A(3) must be taken into consideration. I am satisfied that if there were situations in which country information that would otherwise be exempt under s.424A(3) from being required to be made known to the applicant in the manner prescribed by ss.424A(1) and (2) were, because of some interpretation of the fair hearing rule, required to be made known to an applicant, the obligations would be sufficiently complied with if the nature of the information contained in those documents was made known to him. Authorities such as SAAP v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCA 577; VDAU v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 363 and Applicant NAHV of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 102 make it clear the failure to comply strictly with the provision of s 424A does not automatically create a jurisdictional error. In this particular case the Tribunal indicates at [CB 239] that it told the applicant that it had difficulty accepting his claim that “He a Sinhalese and related to the former head of SLAF, was of serious adverse interest as a suspected LTTE supporter.”
As to the applicant’s submission that in any event these documents were not documents about a class of persons but became “about him” once they were being used to cloak him with a particular quality, this argument reached its apogee in Baig v Minister for Immigration [2002] FCA 380. The matter was recently considered by Weinberg J in VDAU v Minister for Immigration [2003] FCA 363 where at [69] His Honour said:
“The true position seems to me to be that the meaning of the expression lies somewhere between the competing contentions of the parties. The “other person” to which reference is made is a person whose position “might be of relevance”, in a direct sense, to the applicant’s claims. There is some support for this interpretation of the expression in the approach taken by von Doussa J in Singh (Singh v Minister for Immigration [2001] FCA 857) to which I have earlier referred.”
The respondent also submits that the general law of procedural fairness does not create an obligation to put the minutiae of each report or copy of each cable to the applicant. The respondent says that it is always “Sufficient that the gravamen or substance of the issue or factor is brought to the applicant’s attention, or that the applicant is on notice of its essential features” see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 per Merkel J at [70]. I accept this submission.
I am satisfied that the information utilised by the Tribunal was not novel information, it had been used in a very large number of Tribunal decisions which were readily accessible to the applicant or his advisors. He could reasonably have expected that a Tribunal properly informed about the situation in Sri Lanka might have questioned, as it did if only obliquely, the fact that a Sinhalese, particularly one in the armed forces whose uncle was the head of the SLAF, was ever likely to be suspected of having LTTE sympathies. See Minister for Immigration & Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489 Kirby J at [52].
I am satisfied that in all the circumstances that there has been no breach of s.424A or of the natural justice hearing rule in respect of these documents. No other claims were put forward that would impugn the decision of the Tribunal. I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: