SZAPS v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1326

FEDERAL COURT OF AUSTRALIA

SZAPS v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1326

SZAPS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD824 OF 2004

BENNETT J
13 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD824 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZAPS
FIRST APPELLANT

X
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

BENNETT J

DATE OF ORDER:

13 OCTOBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD824 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZAPS
FIRST APPELLANT

X
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	BENNETT J
DATE:	13 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants’ appeal from a decision of Federal Magistrate Driver given on 6 May 2004 dismissing their application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 26 March 2003 and handed down on 16 April 2003.  The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) made on 28 February 2002 refusing an application by the appellants for protection visas.

2. The appellants are a mother and son.  The first appellant is 36 years old and her son, the second appellant, is eight years old.  Both are Sri Lankan nationals from Gonapola Maharagana, apparently part of Colombo in Sri Lanka.  They arrived in Australia on 29 September 2001 travelling on visitors (Class TR) visas.  On 28 December 2001, they applied for protection (Class XA) visas.  The first appellant is the primary applicant with the second appellant applying as a member of the first appellant’s family unit.

3. The first appellant claimed that she was a person to whom Australia had protection obligations because she feared persecution by reason of her imputed political opinion and association with Tamils.  The Minister’s delegate refused the application for protection visas on 28 February 2002.  On 27 March 2002, the appellants applied to the Tribunal for a review of the delegate’s decision.  On 26 March 2003, the Tribunal made its decision, which was handed down on 16 April 2003, affirming a decision of the delegate to refuse the grant of protection visas.

4. The first appellant claimed that she feared persecution because of an imputed association with Tamils and the Liberation Tigers of Tamil Eelam, (‘the LTTE’).  She claimed that she and various family members had a long association with various Tamils and a history of persecution by police and others due to their imputed association with Tamils.

5. The amended notice of appeal refers to the decision of the Tribunal. Accordingly, the basis of the Tribunal’s findings are worth noting.  The Tribunal found the appellant’s responses to its questions were weak and unconvincing.  It was not satisfied that she left Sri Lanka because of the circumstances she described. 

6. The Tribunal accepted that she is Sinhalese and accepted country information on ethnic differences in Sri Lanka.  The Tribunal accepted DFAT information on the plausibility of Sinhalese persons being attributed with LTTE association by the authorities. The Tribunal noted that the applicant did not claim that her Tamil relatives do have an association with the LTTE.  The Tribunal did not accept that the applicant was imputed with an LTTE association because she and members of her family associated with Tamils or because her family had Tamil boarders.  Nor did the Tribunal accept that she was arrested and mistreated by the police because of this.

7. The Tribunal did not accept that the first appellant would face harm or harassment from the police if she returned to Sri Lanka because of an imputed association with the LTTE or her association with Tamils.  It did not accept that the first appellant came to the attention of the police prior her to departure from Sri Lanka and did not accept that, because of her association with Tamils, four policemen would take revenge upon her if she were to return to Sri Lanka.

8. As such, the Tribunal was not satisfied that the first appellant had a well-founded fear of persecution within the meaning of the Refugees Convention or that she faced a real chance of persecution if she were to return to Sri Lanka. 

9. By their amended application dated 27 August 2003, the appellants raised two grounds of review before Driver FM:

   (a)That the Tribunal exceeded jurisdiction, and

   (b)That the Tribunal erred in law and constructively failed to exercise jurisdiction. 

   These grounds were particularised and the particulars were considered under four broad headings:

   (a)Failing to consider certain matters;

   (b)Failing to consider the individual circumstances of the first appellant;

   (c)Failing to accord natural justice to the first appellant;

   (d) Failing to take into account relevant considerations, (which in substance was no different from (a)).

10. The learned Federal Magistrate considered each of these grounds and rejected them.  His Honour concluded that there was no error in the Tribunal’s decision and dismissed the application with costs.  Driver FM set out in some detail the background of the first appellant’s claim, the finding of the Tribunal and the grounds of appeal. 

11. Federal Magistrate Driver held that the first issue, failing to consider certain matters, was essentially a complaint about the Tribunal’s conclusions of fact and that in any event, the particularised matters were taken into account as were all of the elements or integers of the appellant’s claims.

12. In relation to the second issue of failure to consider the individual circumstances of the first appellant, his Honour rejected any assertion of a failure to consider relevant considerations and that the Tribunal asked itself the wrong question. 

13. In relation to the third issue, his Honour held that the appellants failed to prove any denial of natural justice or any resulting practical injustice.

14. Federal Magistrate Driver held that the fourth issue raised, the alleged failure to take into account relevant considerations, had no substance because the appellant’s claims were considered by the Tribunal and the Tribunal did not believe them.  His Honour carefully considered the grounds of review raised before him and rejected them.

15. The appellants, by their amended notice of appeal filed on 23 August 2004 raised the following grounds of appeal:

    ‘His Hono[u]r erred in holding that the Refugee Review Tribunal has not exceeded its jurisdiction or constructively failed to exercise it, by failing to have regard to a following consideration.

    (1)     That the Applicant being a Sinhalese woman, the Sinhalese community and the Sinhalese authorities suspected her considered her to have accommodated LTTE members in her residence.

    (2)     Failed to see the possibility and the probability of the cessation of the peace process between the LTTE and the Sri Lankan government and thereby the Applicant facing persecution on her return back to Sri Lanka in the future.

    (3)     The Tribunal’s failure to accept that the persecution the Applicant faced in Sri Lanka, involved serious harm including threat to her life and significant physical harassment as she had accommodated LTTE members being a Sinhalese woman.

    (4)     That the serious harm including rape the Applicant would face after being abducted by the authorities as threatened when she returns back to Sri Lanka.

    (5)     That the Applicant’s Tamil relatives are Jaffna Tamils or Batticaloa or Trincomalee Tamils or Upcountry Indian Tamils is not an issue that the authorities are concerned but whether they are Tamil speaking residents and citizens of Sri Lanka of Colombo and have dealings with the LTTE.  The simple reason that the Applicant did not mention that her Tamil relatives have no association with the LTTE doesn’t necessarily mean that they are not members of the LTTE.’

16. The first appellant swore an affidavit on 18 August 2004 in support of the appeal, but this affidavit does not advance matters.  The appellants have not served any written submissions in support of their appeal and, at the hearing, the first appellant has said that she does not wish to add anything to what is written in the amended notice of appeal.  The appellants appeared before me in person assisted by an interpreter.

17. The amended notice of appeal does not expressly deal with any error based upon the findings of the learned Federal Magistrate.  Indeed, a number of the matters do not seem to have been raised before his Honour.  I will turn to deal with the particulars in the amended notice of appeal even though these were not issues that were raised in the Court below.

18. As to the first particular, the suspicion of harbouring LTTE members, counsel for the respondent, Mr Potts, submitted that this particular is plainly without substance.  Mr Potts submitted that the Tribunal clearly considered the first appellant’s claim that because of the prior association between her and her family and certain Tamils, she would be imputed with an association with the LTTE.  The Tribunal stated expressly:

    ‘The Tribunal does not accept the Applicant’s claim that she was imputed with an LTTE association because she and members of her family associated with Tamils and that she was arrested and mistreated by the police because of this.’

    The respondent submitted that the Tribunal considered this claim but did not accept it, and that it was open to the Tribunal not to accept the first appellant’s claim.  I agree.  This is a complaint about a finding of fact by the Tribunal.  Errors of fact as to the merits of the appellant’s case do not amount to jurisdictional error.

19. In relation to the second particular, failing to foresee a breakdown in the peace process, the Tribunal did not make a finding that, because of the peace negotiations between the government and the LTTE, there was no risk to a person in the appellant’s position.  The Tribunal did refer to country information relating to peace talks, but that information did not form the basis of any finding on the part of the Tribunal.  There was no error of the kind alleged and this ground of appeal should also be rejected.

20. In respect of the third particular, failing to accept that the first appellant’s persecution involves serious harm, the respondent submitted that the Tribunal did not make findings against the first appellant on the basis that the harm that she claimed to be at risk of suffering was not sufficiently serious to constitute persecution.  Mr Potts pointed out that the Tribunal did not accept that the first appellant faced a risk of harm as it did not accept, on the claims put forward, that she would be imputed with any association with the Tamils or the LTTE.  Further, contrary to the assertion made in this particular, the first appellant never claimed that she had in fact accommodated LTTE members but rather that her father had done so.  This ground of appeal should be rejected.

21. In relation to the fourth particular, failing to consider the serious harm the first appellant would face after being abducted, the respondent submitted that the Tribunal did not accept that the first appellant faced a risk of abduction, and for that reason did not accept that she would face any harm as a consequence of being abducted, because it did not accept her threshold claim that she had been imputed with some association with Tamils or the LTTE.  The respondent pointed to the fact that the Tribunal expressly stated that it did not accept that policemen would wish to take revenge upon her if she returned to Sri Lanka because of any perceived association with Tamils.  The first appellant’s claim was that she feared abduction by the police.  The Tribunal considered this claim and rejected it.

22. These are findings of fact by the Tribunal and are not open to challenge in this court.  They were findings open to the Tribunal on the evidence before it and no jurisdictional error is made out.

23. The fifth particular refers to the alleged failure by the Tribunal to consider the geographic origin of the first appellant’s Tamil relatives was irrelevant and, simply because the first appellant did not mention that her Tamil relatives had no association with the LTTE, it did not necessarily mean that they were not members of the LTTE.  From the Tribunal’s decision, it would seem that at no time did the first appellant suggest or present evidence that suggested that her Tamil relatives were members of the LTTE or otherwise associated with the LTTE.  So much was noted by the Tribunal and seems to be conceded by the terms of this ground of appeal. Nonetheless, it seems to be submitted by the appellants that the Tribunal erred by failing to consider that her Tamil relatives were members of the LTTE.  The Tribunal was obliged to consider the claims that the first appellant put forward and the evidence before it.  This is what it did.  The first appellant presented no claim that her Tamil relatives were members of the LTTE.  Accordingly, the Tribunal did not err in this regard.  This ground of appeal should also be rejected.

24. Federal Magistrate Driver was correct in holding that the Tribunal’s decision did not otherwise disclose any reviewable error.  None is apparent to me.  The appellants have not demonstrated any error in the decision of the Court below, nor any error in the decision of the Tribunal.  It follows that the appeal should be dismissed with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:            8 November 2004

The First and Second Appellant appeared in person

Counsel for the Respondent:	JAC Potts
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	13 October 2004
Date of Judgment:	13 October 2004