SZAJM v Minister for Immigration - [2004] FMCA 87

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAJM & ORS v MINISTER FOR IMMIGRATION

[2004] FMCA 87

MIGRATION – Review of RRT decision – where parent appointed litigation guardian for child applicants – where applicant claimed persecution as a result of her mixed Sinhalese/Tamil marriage – whether Tribunal had regard to all aspects of applicant’s claims – where applicant found not to be a credible witness by the Tribunal – where Tribunal based its findings on country information – where Tribunal was inflexible in not giving the applicant the benefit of the doubt regarding certain parts of her evidence – where applicant essentially seeking merits review.

W148/00A v MIMA [2001] FCA 679
Kamal v MIMIA [2002] FCA 818

First Applicant:

SZAJM

Second Applicant:

SZAJN

Third Applicant:

SZAJO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 580 of 2003

Delivered on:

19 February 2004

Delivered at:

Sydney

Hearing date:

19 February 2004

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

The first applicant is appointed litigation guardian for the second and third applicants.
Application dismissed.
The first applicant to pay the respondent's costs assessed in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 580 of 2003

SZAJM & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

There are three applicants in this matter. They are all citizens of Sri Lanka. They are a mother and her two daughters. At the commencement of the proceedings, I ordered that the first applicant be appointed litigation guardian for the second and third applicants and I note the Minister's advice that costs will not be sought against the second and third applicants.
The applicants arrived in Australia in August 2000 and applied for protection (class XA) visas on 20 September 2000. On 17 May 2001, a delegate of the Minister refused their application and on 7 June 2001, an application was made to the Refugee Review Tribunal. The Tribunal arranged a hearing into the matter and came to its decision on 27 February 2003, handing it down on 20 March 2003.
The applicant is a woman in her mid 40’s of Indian Tamil descent married to a Sinhalese in 1984. She told the Tribunal that her husband's family had opposed the marriage and that she had suffered in the hands of his relatives and neighbours. She complained of discriminatory treatment against parties to mixed marriages and in particular to persons like herself of Tamil background.
The applicant describes a number of occasions upon which she had been detained by the security forces in the Colombo area where she had been living prior to coming to Australia. She had been arrested as a result of association with some Tamil women with whom she was studying for a course in beauty culture. She had been arrested following a bomb attack and she had, most seriously, been arrested following an incident which she described as a sale of motor parts (which was her husband's business) to a Tamil cousin of her. This cousin had been arrested, she said, and identified as an LTTE supporter. She had identified him and found him soaked in blood having been severely tortured.
During the period which she spent in detention for this incident, she was beaten and indecently assaulted. She says that she left Sri Lanka upon the advice of her husband's Muslim friends because, "it was well known that those who are already targeted by the police would eventually be taken to prison".
The applicant also produced to the Tribunal a letter from a counsellor at STARTTS stating that clinical investigations in relation to her in 2001 had revealed a significant degree of depression associated with post traumatic stress disorder due to her abusive detention experiences by the Sri Lanka security forces.
The Tribunal acknowledges that most of the evidence given by the applicant before it was a repeat of evidence given in her initial application and in the hearing before the delegate. However, there was one additional matter and that was the existence of some relatives in Jaffna whose existence she believed might cause her problems if she returned.
The Tribunal was sceptical of the applicant's claims. The following extract from [CB 159] indicates the flavour of the Tribunal's views:
"The applicant said that she and her husband had been arrested at their home in Kandana and taken to the head office of the CID in a suburb called Fort in the centre of Colombo. She said that she had been asked what relationship she had with the LTTE and whether she was selling weapons to the LTTE. She said that her husband had been released after a week but she herself had been detained for three weeks and interrogated again and again. She said that they had kept asking her what connection she had with the LTTE. I indicated to the applicant that it was difficult for me to accept that she had been arrested in 1993 on suspicion of involvement in the LTTE. She was of Indian Tamil parentage and she came from the hill country. She had lived there or in or around Colombo all her life. Her husband was Sinhalese and he had an automotive spare parts business. It was a little difficult to accept that the CID would have arrested them both and detained her for three weeks on suspicion of supplying weapons to the LTTE. The applicant said that many such incidents had happened. She said that because hers was a mixed marriage the CID had concluded that it was possible that the LTTE might do such things through them."
In its findings and reasons the Tribunal says this about that matter:
"The applicant is married to a Sinhalese man and as I have found above I do not accept that she would have been regarded with suspicion by reason of her marriage. I do not consider that it is credible that the applicant and her husband would have been taken for questioning by CID officers with regard to LTTE involvement in Colombo in May 1993, that they would have been accused of having arms dealings with the LTTE, (apparently solely because the applicant's husband had a business dealing in automotive spare parts) or that, because the applicant is Tamil, she would have been beaten and detained for nearly three weeks."
The Tribunal took the same view about all of the applicant's allegations of persecution for Convention reasons. In particular it did not accept the very serious complaint which she made about her treatment in prison on the final arrest. That is dealt with at [CB 176 ] where the Tribunal says:
"I likewise do not accept that the applicant and her husband were arrested again in June 2000 because her cousin, who had brought some spare parts from her husband, was arrested along with other Tamil youths following a suicide attack on an air force van....
Since I do not accept the applicant's account of her arrest in June 2000 it follows that I do not accept that she was detained for eight days and beaten and sexually assaulted, nor that she was paraded in front of hooded persons identified as an LTTE suspect and accused of involvement with the LTTE in Colombo. I do not accept that the applicant's cousin was involved with the LTTE as she claimed."
It is interesting to note that the Tribunal bases its findings (with the exception of the claims concerning her cousins from Jaffna) not on the applicant's demeanour or the manner in which she gave her evidence, not upon inconsistencies between statements made in a number of interviews, but upon the existence of country information suggesting that in general people in mixed race marriages in Colombo are not targeted by the government. In fairness to the Tribunal it should be said that in regard to the applicant's claim of arrest following the bomb incident there is a detailed discussion on the geography of Colombo, but the applicant is given no benefit of the doubt in relation to the name of the building that was bombed, and it would appear from that, that if it was one building rather than another, her story of being arrested because she was working nearby may well have become more credible.
It will be apparent from what I have just said that I take the view that another Tribunal may well have come to completely different conclusions about the credibility of the applicant and her claims, however, that is not a matter for my decision. As the Full Court said in W148/00A v MIMA [2001] FCA 679:
"A finding as to credibility is a finding of fact and as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks the probabilities of a case are against, or even strongly against, the finding."
In regard to the inconsistencies concerning the explosion, Mansfield J in Kamal v MIMIA [2002] FCA 818 said:
"It is not for the court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal or upon any such view to conclude that the Tribunal's assessment of the applicant's claims should not have been made. Those evaluative processes are for the Tribunal."
When the matter came before me the applicant produced a written submission. Unlike many written submissions which are given to this court this one had quite obviously been prepared by a person whose interests were clearly at one with those of the applicant. It is an articulate document which deals with her case. Unfortunately, as Mr Smith submitted, it contains two main arguments, both of which are really that the Tribunal should have made a different finding of fact.
The first claim is that the Tribunal did not have regard to information that there had been continued political turmoil in Sri Lanka for 20 years. The Tribunal made much of the fact that there had not been inter racial violence since riots in 1983 and that this was backed up by country information concerning the ability of people within mixed marriages to live safely in Colombo. There was clearly evidence from which the Tribunal could have come to the views which it gave concerning these matters, although, as I have said, others may have accepted the applicant’s evidence to the contrary.
The second submission was that the Tribunal did not specifically address claims relating to familial resentment leading to harassment and detention, but at [CB 173] the Tribunal does say:
"I consider that the weight of the independent evidence available to me clearly suggests that ethnically mixed couples do not face problems in Sri Lanka, particularly not in Colombo. I do not accept, therefore, that, as the applicant claimed, she had continual problems because she is a Tamil and her husband is Sinhalese."
As I explained to the applicant before I commenced giving these reasons for judgment, the court's powers in relation to these cases are very limited. In her case the Tribunal has come to certain views based upon information which was before it and which it was entitled to take into account. The expression of opinion by the Tribunal may appear harsh but it is not one that grounds review by this court.
I must dismiss the application. I order that the first applicant pay the respondent's costs which are assessable in the sum of $4500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate’s Court Rules.

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

Associate:

Date: