SZATB v Minister for Immigration
[2004] FMCA 512
•19 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZATB v MINISTER FOR IMMIGRATION | [2004] FMCA 512 |
| MIGRATION – Review of RRT decision – where applicant claimed to have a well-founded fear of persecution on grounds of race and imputed political opinion – where Tribunal not satisfied that applicant had a subjective fear of persecution as he had visited India and New Zealand and not sought asylum – whether the Tribunal erred in finding that there was no convention nexus to applicant’s claims – whether Tribunal sufficiently raised the issue regarding convention nexus with the applicant – whether Tribunal should have considered whether the acts of violence complained of were inflicted because the applicant was of Tamil ethnicity – whether Tribunal should have considered the possibility that the peace talks may breakdown – whether country information ought to have been disclosed to the applicant. |
Migration Act 1958 (Cth), ss.91R, 422B, 424A(3)(a)
Federal Magistrates Court Rules 2001, P 21 r 21.02(2)(a)
WACO v Minister for Immigration (2003) 77 ALD 1
WAJR v Minister for Immigration (2004) 204 ALR 624
Re Minister for Immigration; Ex parte S154/2002 (2003) 210 ALR 437
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1993) 49 FCR 576
Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57
Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration v Yusuf (2001) 206 CLR 323
Minister for Immigration v Rajalingam [1999] 93 FCR 220
NARV v Minister for Immigration (2003) 203 ALR 494
NAAK v Minister for Immigration [2004] FCA 113
WAEJ v MIMIA [2003] FCAFC 188
NARU v MIMIA [2004] FCA 864
WAGU v MIMIA [2003] FCA 912
VNAA v MIMIA [2004] FCAFC 134
| Applicant: | SZATB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1045 of 2003 |
| Delivered on: | 19 August 2004 |
| Delivered at: | Sydney |
| Hearing date: | 5 August 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondent: | Mr M Wigney |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the 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 1045 of 2003
| SZATB |
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 16 January 2002. On 13 February 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 10 September 2002 a delegate of the Minister refused to grant a protection visa and on 30 September 2002 the applicant applied for review of that decision. On 25 March 2003 the Tribunal wrote to the applicant advising him that it had considered the material before it in relation to this application but was unable to make a decision in his favour on that information alone. The Tribunal invited the applicant to a hearing which he agreed to attend with his migration agent on 29 April 2003. The Tribunal made its decision on 30 April 2003 and handed it down on 23 May 2003. The Tribunal affirmed the decision not to grant a protection visa.
The applicant is a Sri Lankan Tamil and Roman Catholic. Until September 1995 he lived in Jaffna with his parents. He claims that on 10 July 1995 he was captured by the LTTE along with other students and young boys and made to dig bunkers at the LTTE camp in Vaddukoddai. Whilst undertaking this work the group was attacked by a Sri Lankan helicopter, they were only fed once a day and only allowed to sleep for four to five hours. He was badly affected by this incident and decided that he did not wish to remain in Jaffna. He decided to do a degree at the Open University of Sri Lanka at Nawala which enabled him to get a conditional pass to leave the LTTE dominated area. His father took him to Colombo but when going through a military checkpoint on the way there on 3 September 1995 he was thought to be an LTTE militant and taken to a PLOTE camp and interrogated together with his father. They were released on 6 September 1995 after the payment of a bribe. The applicant was again interrogated by the Sri Lankan authorities on 27 October 1995 during which he was roughly treated, was not allowed to sleep and given no food. He was released on 30 October after a bribe was paid. On 9 February 1997 the applicant was stopped during a routine check by military airforce officers and taken to a police station where he was tied up and interrogated about the LTTE. Again he was badly treated but an aunt paid a large bribe and he was released on 12 February 1997 following which he moved in with his aunt in Colombo.
On 5 March 1998 on his way to University there was a bomb blast in the front of his bus which injured him. He required twelve stitches to his head. The applicant claims that on 6 March 1998 he was repeatedly questioned about his possible involvement in the blast whilst still in hospital. He was discharged on 8 March although he claims he was suspected of being an injured LTTE militant. The applicant gave further evidence of being questioned concerning his political activities and suspected of being an LTTE supporter in August 1998 and November 1998. In early 1999 the applicant was discriminated against in his training program because he was a Tamil but he continued his studies until March 2001. He then travelled to New Zealand to study at Massey University where he spent ten months until he came to Australia on 16 January 2002.
At the hearing before the Tribunal the applicant added an additional claim that he had been forcibly recruited into the LTTE whilst at school between 1991 and 1993. He claimed that if he returned to Sri Lanka he would be affected by the LTTE or other militant groups and he might be arrested and tortured because of his association with one Thivaharan who had assassinated a Sinhalese Army Captain. He was also frightened of the LTTE who might inflict serious punishment upon him if he returned. The applicant had his doubts as to the likely success of the peace talks between the LTTE and the government. He feared that a war could erupt at any time.
Apart from his travel to New Zealand the applicant had also travelled into India in 1999 for a family wedding.
The Tribunal accepted most of the applicant’s claims and in particular those claims of his being recruited into the LTTE and undertaking bunker digging work for them. It accepted the incident on 3 September 1995 and the incident on 27 October 1995. The Tribunal accepted the incident on 9 February 1997 and that the applicant was involved in a bomb blast on 5 March 1998 on the way to the University which injured him and that he was questioned and suspected of being a militant. The Tribunal accepted that one of his friends shot a Sri Lankan army captain, that the authorities had found a photograph of him with his friend and that they continued to check and investigate him further. In regard to these matters the Tribunal said at [CB 173]:
“However, while accepting these claims, the Tribunal has not been able to satisfy itself that the essential and significant reason for these actions against the applicant was for a Convention related reason. For example, the Tribunal finds that the checking of the papers of one of its nationals at check points in a time of crisis and violent internal conflict, the questioning of the applicant about the suicide bombing of the bus on which he was travelling and the investigation of his involvement with his close friend Thivaharan who, the applicant himself claims, was guilty of assassinating an army captain are by the applicant’s own account, all quite reasonable police and security force actions in the circumstances (but not the violent treatment and abuse he claims he received on several occasions). The Tribunal also finds that, while he claims he was under suspicion because of his Tamil ethnicity and imputed political opinion (being an LTTE sympathiser), he was nevertheless issued with a legitimate Sri Lankan passport by the Sri Lankan authorities on 1 June 1999 … without being questioned or detained at the departure point and then again be able to return from India later that month without any claimed difficulty whatsoever, not withstanding the heightened security arrangements (such as the checkpoints) the applicant often refers to.”
At [CB 174] after giving the applicant the benefit of the doubt in regard to his failure to seek asylum in India 1999 which gave the Tribunal concern as to his subjective fear. The Tribunal said:
“Accordingly, while accepting that while the applicant may have experienced some low level of discrimination and harassment while in Sri Lanka, the Tribunal finds that this was not serious harm amounting to persecution.”
The Tribunal also considered the applicant’s concerns about returning to Sri Lanka and said at [CB 175]:
“It follows that in view of the continuing (albeit slow) progress being made to achieve a lasting resolution of the conflict, the Tribunal is satisfied that notwithstanding the claims made by the applicant that there is not a real chance that he would experience serious harm amounting to persecution for a Convention reason (such as being a member of a social group of young Tamil males from Jaffna, his Tamil ethnicity or race, or any imputed political association with the LTTE or any other group) if he returned to Sri Lanka, either now or in the foreseeable future.”
Finally the Tribunal make a third and very important finding at [CB 175] concerning the ten months which the applicant spent in New Zealand:
“However, the Tribunal is satisfied that if the applicant had a well-founded fear of persecution for a Convention reason, he would have applied for refugee status on, or soon after, his arrival in New Zealand on 2 March 2001 (by which time both his cousin’s sister and aunt were in the UK and France respectively, and therefore were not at risk).”
The Tribunal did not accept the applicant’s excuse for not making this application, being his concern for his health and the cold climate in New Zealand, and stated at [176]:
“Moreover, the Tribunal is satisfied that if the applicant had a well founded fear of serious harm amounting to persecution in Sri Lanka, with all that that implies, then he would have applied for refugee status in New Zealand in spite of his claimed asthma and aversion to the cold – but finds that he did not. Accordingly, the Tribunal is not satisfied that the Applicant has a well-founded fear of serious harm amounting to persecution for a Convention reason, either now or in the foreseeable future, and finds that he is not a refugee.”
In seeking review from this court the applicant has divided his claims into three issues with two parts to each issue. It was agreed by Mr Zipser, who appeared for the applicant, that he would have to succeed on all three issues in order to be successful in the review. This was because the issues were not interdependent and if the court did not hold that any one of those issues involved a jurisdictional error on the part of the Tribunal then the decision would have to stand. I will deal with each of the three issues in turn.
The convention nexus issue
The applicant says that the Tribunal, while accepting most of the applicant’s claims, found that it was not “able to satisfy itself that the essential and significant reason for these actions against the applicant was for a convention related reason.” The applicant claims that the Tribunal fell into jurisdictional error in making this finding. The applicant says that the error arises because the Tribunal never put the issue of Convention relation to the applicant for comment. The applicant supports this argument by reference to WACO v Minister for Immigration (2003) 77 ALD 1 where the court said:
“There can be a denial of natural justice where a decision maker makes a finding on an important issue in a case without notice that the issue is the subject of any dispute and where the party adversely affected by that finding is not given an opportunity to be heard.”
The applicant notes that his case is subject to s.422B of the Migration Act 1958 (Cth) (the “Act”) and the limitations on the natural justice hearing rule contained therein but suggests that this section be read narrowly as suggested by French J sitting as a Full Court in WAJR v Minister for Immigration (2004) 204 ALR 624 at [57-59]. I am afraid that I cannot accept this submission. The finding which the Tribunal made here is not so much a finding on an issue (such as the genuineness of a document) which would lead to a decision but the very decision itself. The Tribunal is charged with determining whether or not it reaches a state of satisfaction as to a claim that an applicant has a well founded fear of persecution for a Convention reason. In determining that actions which might have given him that fear were not motivated by Convention reasons the Tribunal is providing an explanation for why it does not reach the state of satisfaction. The Tribunal is not obliged to expose his or her reasoning process or subjective determinations for comment to the person affected Re Minister for Immigration; Ex parte S154/2002 (2003) 210 ALR 437 at [54]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1993) 49 FCR 576 at [591]. Neither is the Tribunal required by the rules of procedural fairness to give the applicant a running commentary on his prospects of success so that there is a full warning of all possible reasons for failure Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57 at [31]. The issue which the Tribunal determined was quite clearly a matter in dispute because it was the essence of what the Tribunal had to decide. The Tribunal had already indicated in its pre-hearing letter that it was not satisfied that the applicant was a person to whom the Convention applied.
The applicant’s second ground in relation to this issue is that in making a finding at [CB 173.3] that the applicant had been subject to violent treatment and abuse it had failed to consider whether this befell him because he was a Tamil. The Tribunal did not ask itself whether this type of treatment was universal or confined to a particular group of which the applicant was a member. The applicant relies on a decision of the High Court in Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293 where at [26] the majority stated:
“If persons of a particular race, religion or nationality are treated differently from other members of society, that if itself may justify the conclusion that they are treated differently by reason of their race, religion or nationality.”
I am sympathetic to the applicant’s arguments in this regard. I accept that the Tribunal could quite reasonably have come to the view that checking of papers, questioning about a suicide bombing on a bus on which the applicant was a passenger, investigating the applicant’s involvement with a person who was wanted for the assassination of a serving army officer are all reasonable police and security police force actions. But the Tribunal accepts the violent treatment and abuse which the applicant claims he suffered. It is at this point that the Tribunal must take a further step and ask itself the relevant question as to whether or not those things occurred because the applicant was a Tamil or alternatively whether those things would have occurred if the applicant had been Sinhalese. This question would not have needed to be asked if the Tribunal had made a finding that whatever harm the applicant suffered did not come within the definition of serious harm in order to qualify his persecution for the purposes of s.91R of the Act. But the Tribunal made no finding in that regard and I am satisfied that in this respect the Tribunal did fall into jurisdictional error of the type described in Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration v Yusuf (2001) 206 CLR 323.
The peace talks issue
The applicant refers to the finding by the Tribunal at [CB 175] that the situation in Sri Lanka has improved and that:
“In view of continuing (albeit slow) progress being made to achieve a lasting resolution of the conflict, the Tribunal is satisfied that notwithstanding the claims made by the applicant that there is not a real chance that he would experience serious harm amounting to persecution for a Convention reason if he returned to Sri Lanka, either now or in the foreseeable future.”
and argues that it was a finding which was subject to the “what if I am wrong” set out by Sackville J in Minister for Immigration v Rajalingam [1999] 93 FCR 220. The applicant argues that the Tribunal should have taken into account the possibility that the peace talks might break down.
I am unable to accept this argument because I believe that it is implicit in the wording of the Tribunal’s decision that it felt firmly that the peace talks were not going to break down. Events in Sri Lanka would tend to suggest that the Tribunal may have been wrong in coming to such a view, but that does not infect the Tribunal’s conclusion with jurisdictional error.
The second limb to this issue raised by the applicant is that the Tribunal failed to give the applicant particulars of country information on the basis of which it rejected statements by the applicant’s migration agent that the peace talks might break down as they did in 1995 and that the Tamil tigers were still recruiting people, extorting money and establishing new camps. The applicant relies on the decisions of the Federal Court in NARV v Minister for Immigration (2003) 203 ALR 494 at [30-32] and NAAK v Minister for Immigration [2004] FCA 113 to argue that the country information which the Tribunal utilised to refute these arguments by the applicant and to conclude that the peace process would be successful was specific information and not information just about a class of persons of which the applicant was a member and thus excluded by s.424A(3)(a). My interpretation of the authorities is that information ceases to be “just about a class of persons to which the applicant belongs” when it can be used to indicate the applicant did or did not do something of relevance to his claim. The most common examples relate to document fraud. It is now accepted that the existence of document fraud must be put to an applicant if it is intended to find that he (or she) was utilising forged documents: WACO v MIMIA [2003] FCAFC 171; WAEJ v MIMIA [2003] FCAFC 188; WAJR v MIMIA [2004] FCA 106; NARU v MIMIA [2004] FCA 864; WAGU v MIMIA [2003] FCA 912. In NAAK of 2002 v MIMIA [2004] FCA 113 after discussing the judgment of the full court in WACO Bennett J notes at [31]:
“If the Tribunal makes a finding that documents have been concocted by an applicant to advance his case, or if the Tribunal concludes that the documents are not genuine, fairness requires that the person be given the opportunity of answering the alleged allegation.”
But what was being put here was not a piece of information that might reflect on the credibility of the applicant or whether or not the applicant did or did not do something, but a piece of information entirely independent of the applicant which refuted one of the pillars of his claim to need protection, the dispute between the Tamils and Sinhalese government. As Gyles J commented in VNAA v MIMIA [2004] FCAFC 134:
“[31] … Information can relate to an applicant in various ways. Most directly, information will relate to an applicant where he or she is expressed to be the subject of the information. Information adverse to an applicant can indirectly relate to an applicant because it expressly concerns an identified person with a relevant relationship with the applicant’s case for a visa. In either of those cases, the information relates to a specific person (or persons). Information adverse to an applicant may also indirectly relate to an applicant because it relates to a class (or classes) of which the applicant is a member. Such adverse information is general in nature rather than particular. Information can not relate to the applicant in any other manner. If such information does not relate to the applicant it is not adverse to an applicant and does not come within the purview of s.424A at all.
[32] Understood in this way, the scope of the exception to the Tribunal’s duty to notify provided by s.424A(3)(a) becomes clear. It is an exception for that information which is only indirectly adverse to the applicant and general in nature in the sense that I have indicated. That which is adverse and specific to an identified person is not excepted. To put the foregoing in positive terms, the applicant must be provided with particulars of information that is adverse to the applicant’s case for a visa and specifically relates to an identified person.
Genuine fear of persecution issue
The Tribunal came to a finding that it could not be satisfied that the applicant had what it described as a “well founded fear of serious harm” because of his failure to seek asylum in New Zealand. It was accepted at the hearing that the Tribunal’s reference was a reference to a subjective fear being a constituent of the total well founded fear. The applicant makes two complaints about the Tribunal’s finding in this regard. The first is that the Tribunal found that the applicant could relocate within New Zealand and his failure to do so meant that he did not have a genuine fear of persecution but did not put to him that he could relocate. The applicant argues that the Tribunal did not give him an opportunity to explain why he could not relocate to a warmer part of New Zealand because, for example, he would have been unable to continue his studies there. There are two points to make about this argument. The first is that I do not believe that what the Tribunal said at [CB 176] does constitute a finding that he could have relocated. It was a finding that he did not seek to relocate and that he would have done this if he had a serious medical condition exacerbated by the cold of Wellington. This is a conclusion reached by the Tribunal upon the evidence given to it by the applicant. It is part of the Tribunal’s reasoning process but is not a matter that has to be put to the applicant for the reasons which were discussed earlier in this judgment. The second point is that the finding about relocation is just one of the factors which convinced the Tribunal that the applicant was not so concerned with his safety should he return to Sri Lanka. It is implicit in the Tribunal’s reasoning processes that it regarded a ten month stay in a country, which was clearly sympathetic to the situation of refugees, without making an application to remain for whatever reason as indicative of a lack of genuine fear to return.
Finally, the applicant seeks to connect the Tribunal’s finding that the applicant did not have a genuine fear of persecution to its earlier finding that the current peace process was likely to continue towards a resolution of the conflict in Sri Lanka. He argues that if the Tribunal had accepted the applicant’s view about the Sri Lankan peace process (that it was bound to fail) it would not have so quickly come to the conclusion that he had no genuine fear of returning because he remained in New Zealand for ten months. But this is speculation on the part of the applicant. The Tribunal came to a clear view about the peace process and a clear view about the applicant’s subjective fear. What the Tribunal might have done if the circumstances were different does not seem to me to be relevant.
The applicant has not been able to demonstrate that the Tribunal fell into jurisdictional error in all of the issues which he raised. That being the case his application must fail because, to cite only one example, the Tribunal was justified in coming to an opinion that he lacked the requisite well founded fear of persecution and this itself is fatal to his cause.
The application is dismissed. The applicant must 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 twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 19 August 2004
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