SZAVP & Ors v Minister for Immigration
[2004] FMCA 677
•6 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAVP & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 677 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming persecution in Sri Lanka and also fearing harm in Germany – applicants having no right of return to Germany – whether RRT required to accept refugee status claimed to have been granted in Germany considered – RRT finding no well founded fear of persecution in Sri Lanka – no reviewable error found – application dismissed. |
Migration Act 1958 (Cth), ss.36, 48B, 417
| First Applicant: Second Applicant: | SZAVP SZAVQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1157 of 2003 |
| Delivered on: | 6 October 2004 |
| Delivered at: | Sydney |
| Hearing date: | 6 October 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr J M Patel |
| Counsel for the Respondent: | Ms K C Morgan |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The first applicant is to pay the respondent’s costs and orders of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1157 of 2003
| SZAVP, SZAVQ, SZAVR, SZAVS, SZAVT |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) which was made on 14 May 2003 and handed down 16 June 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are five applicants, a mother and four children, the last of whom I understand was born in Australia. The other applicants are from Sri Lanka and the mother made claims of persecution there by reason of imputed political opinion. In addition, the applicant mother had lived for approximately 10 years in Germany and had also raised issues concerning her fear of harm in Germany for various reasons. The general background facts and circumstances are set out in written submissions prepared on behalf of the Minister by Ms Morgan. I adopt paragraphs 2-13 of those written submissions for the purposes of this judgment:
The applicant, a citizen of Sri Lanka, arrived in Australia from Germany on 6 October 1998 with her three eldest children.
The relevant application for a protection visa was received on 14 June 2002 by the Department of Immigration and Multicultural Affairs (the Department).[1] On 30 September 2002 a delegate of the Minister refused the protection visa application.[2]
[1] court book, pages 38-87.
[2] court book, pages 115-141.
On 25 October 2003 the RRT received an application for review from the applicant[3]. On 6 February 2003 the RRT invited the applicant to attend a hearing[4] on 5 March 2003; on 19 February 2003 the applicant confirmed she would be attending the hearing[5].
[3] court book, page 151.
[4] court book, page 149.
[5] court book, page 151.
On 5 March 2003, the applicant attended a hearing before the RRT and gave oral evidence and her advisor provided the RRT with written submissions on 4 April 2003[6] and 9 May 2003[7].
[6] court book, pages 154-157.
[7] court book, pages 167-206
On 10 June 2003 the RRT handed down its decision affirming the delegate’s decision[8].
[8] court book, pages 222-247.
Applicant’s claims
The applicant claims to fear persecution in Sri Lanka from:
a)The Sri Lankan government for her links to the Liberation Tigers of Tamil Ealam (LTTE); and
b)The LTTE in terms of her own safety and also for her children.
The RRT’s decision
After outlining the relevant provisions of the Migration Act 1958 (Cth) (“the Migration Act”) and the Refugees Convention and Protocol[9], the RRT considered the applicant’s claims as outlined in her application and her oral evidence at the 5 March 2003 hearing and the 7 July 1999 earlier hearing before the RRT, differently constituted, in relation to an earlier application[10].
[9] court book, pages 223-226.
[10] court book, pages 226-236.
The RRT asked the applicant questions in relation to her evidence[11] and then put to her that[12]:
[11] court book, pages 232-233.
[12] court book, pages 234-236
a)The Sri Lankan government had signed a cease-fire with the LTTE;
b)the peace talks were continuing;
c)although there were reports of human rights abuses none included reports of the LTTE recruiting or abducting children in Colombo;
d)her brother’s membership of the LTTE would no longer be an issue because of the terms of the ceasefire; and
e)that there was nothing in the information to suggest that the applicant would be singled out or targeted for a Convention reason if she was to return to Sri Lanka now.
The RRT found that the applicant no longer has a right to return to Germany[13] and did not accept that it was possible to say in the current context that the Sri Lankan authorities are still singling out Tamils for persecution by reason of their race. Therefore it did not accept that there is a real chance that the applicant would be singled out or targeted by the authorities for a Convention reason.
The RRT referred specifically to LTTE’s suspension of its participation in the peace talks but noted that that had not affected the ceasefire, concluding that “the chance of a resumption of hostilities between the LTTE and the Sri Lankan Government at any time in the reasonably foreseeable future is remote”[14].
In relation to the applicant’s fear of persecution from the LTTE, the RRT did not accept that there was a real chance that the applicant’s children would be abducted by the LTTE or that the applicant would be chased by the LTTE[15]. Therefore the RRT did not accept that there is a real chance that the applicant would be persecuted by the LTTE if she returned to Sri Lanka now or in the reasonably foreseeable future.[16]
The RRT concluded that the applicant did not have a well-founded fear of persecution and therefore she is not a person to whom Australia has protection obligations. [17]
[13] court book, page 241.
[14] court book, page 246.
[15] court book, page 246.
[16] court book, page 246.
[17] court book, page 247.
It is relevant to point out that this is, as I understand it, the third decision that has been made by the RRT concerning some or all of these applicants. The first decision was set aside on appeal to the Federal Court. The second decision was the subject of an application to the Minister under s.417 of the Migration Act. I am told that although that application was refused, the Minister permitted a fresh protection visa application to be made pursuant to s.48B of the Migration Act. It is that fresh application that led to a decision of a delegate and, secondly, to the decision of the RRT which is the subject of the proceedings before me.
The application for judicial review was filed on 25 June 2003 but set out no grounds. The applicants, however, rely upon an affidavit filed on 13 January 2004 which lists eight grounds of review. These are:
(1)The RRT fell into jurisdictional error in failing to consider whether as matter of practical reality and fact and by reference to s.36(2) of the Migration Act and the Australian common law the applicant can be returned to a third country in circumstances which do not breach Article 33(1) of the Refugees Convention relating to effective protection.
(2)The RRT fell into jurisdictional error in failing to hold that the applicant was granted refugee status in Germany and lived there for more than 10 years. Although the applicant did not hold valid travelling documents to re-enter Germany she had not lost her refugee status.
(3)The RRT fell into jurisdictional error in holding that the applicant voluntarily re-availed herself of the protection of her country of nationality when she returned to Sri Lanka in 1998.
(4)The RRT fell into jurisdictional error in failing to consider and apply cessation and exclusion clause (1C, 1D, 1E, 1F of Article 1 of the Refugees Convention.
(5)The RRT fell into jurisdictional error in failing to hold that the applicant had suffered persecution and there were compelling reasons arising from previous persecution to justify the applicant's refusal to avail [herself of] the protection of the country of her nationality.
(6)The RRT fell into jurisdictional error in as much as its determination for all practical purposes purports to sanction and authorise refoulement of the applicant to the country of her nationality.
(7)The RRT fell into jurisdictional error in that it misconstrued the meaning of well founded fear for the purposes of the Convention definition and failed to determine the refugee status of the applicant in accordance with law and in accordance with its mandate.
(8)The RRT for the reasons herein earlier stated failed to determine the applicant's application in accordance with the applicable law and the decision reached by it has been reached in excess of its jurisdiction.
All parties were represented in the proceedings before me and the representatives prepared written submissions. In addition, both Mr Patel, for the applicants, and Ms Morgan, for the respondent, spoke to their written submissions. It was apparent from Mr Patel's oral submissions that the challenge to the RRT decision is essentially on two fronts. The first relates to the RRT’s treatment of the applicant's claims in relation to Germany and her loss of the protection of that country. The second relates to the RRT’s conclusion that the applicant did not have a well founded fear of persecution in Sri Lanka.
Ms Morgan has divided up the grounds of review identified in the application in a similar way. She submits that grounds one, two, four and six relate to the applicant's status as a refugee in relation to Germany. It is clear that the RRT concluded the applicant had no right of return to Germany. Indeed, that is what the first applicant had herself submitted to the RRT. The presiding member stated on page 20 of his reasons for decision[18]:
I accept that the Applicant no longer has a right to return to Germany. As referred to above, in the context of her current application the Applicant produced a letter dated 6 June 2000 from the Consulate-General of the Federal Republic of Germany in Sydney stating that the residence permits held by her and her children were invalid and did not entitle her or her children to enter Germany. The question for this Tribunal, therefore, is whether the Applicant has a well-founded fear of being persecuted for a Convention reason if she returns to Sri Lanka, her country of nationality, now or in the reasonably foreseeable future.
[18] court book, page 241
In my view, this approach by the presiding member was correct. It was open to the presiding member to accept the first applicant's claim that she no longer was able to return to Germany. Indeed, confronted with the evidence before him he could do little else. It necessarily followed from that that there was no need to consider claims made by the first applicant in relation to harm that she feared in Germany. The relevant issue was whether the first applicant and her children had a well founded fear of perseuction in Sri Lanka.
Ground four of the application relates to provisions of the Refugees Convention concerning cessation and exclusion of protection. The first applicant had asserted that she had been granted refugee status in Germany. It is not clear to me from the material in the court book whether that claim has a basis in fact although it is clear that the first applicant had been granted a residence permit in Germany on some basis or other.
The issue had been considered by the delegate. The delegate's decision on that issue is set out on page 119 of the court book. The delegate stated relevantly that the first applicant claims, and her documents show, that she was granted a form of protection, perhaps as a refugee, in Germany. She and her children left Germany in 1998 and had remained outside Germany for more than six months. She and her children therefore lost the right to re-enter Germany using the visas in her Sri Lankan passport. The delegate went on:
The applicant was not granted refugee status in Australia but was apparently granted some sort of refugee protection in Germany. The cessation clause may not need to be considered in this case because the Australian government has not determined that the applicant is a refugee and it is unclear whether the applicant was determined to be a refugee under the Refugees Convention by the German authorities.
The applicant believes she has lost her refugee status in Germany. However, if the applicant was determined by the German authorities to be a refugee, and if a determination of refugee status by the German authorities is binding on all Refugee Convention signatory countries, I find that the cessation clauses are relevant to this case.
The reasons for that conclusion as is apparent from the rest of the delegate's decision were that circumstances have changed significantly in Sri Lanka since the first applicant had gone to Germany and since her last visit to Sri Lanka in 1998. Although the issue is not as explicitly addressed in the decision of the RRT it appears that the presiding member adopted the same reasoning. In addition, the presiding member appeared to place some significance on the facts that the first applicant had returned voluntarily to Sri Lanka in 1998 and that she had voluntarily remained in Australia for a period that led to the result that she lost her right to return to Germany.
Although it is not entirely clear, it may have been that the presiding member considered that these were additional factors warranting a reconsideration of the first applicant's claims to be a refugee. Whatever may be the case I find that, on the basis of the material before the presiding member, the presiding member was not bound to accept any refugee status that might have been granted to the first applicant in Germany. It was open to the presiding member to consider the issues afresh and that is what the presiding member did.
The findings that the first applicant returned to Sri Lanka voluntarily in 1998[19] and the finding that she lost her right to return to Germany because of her decision to stay in Australia[20] might also be considered to be credibility findings. However, while those findings by the presiding member appeared in his view to cast some doubt on the first applicant's claims, it is clear that the decision of the presiding member turned not on those credibility doubts but upon the presiding member's assessment of the situation in Sri Lanka at the time of the RRT’s decision in 2003. Whether or not the claims of the first applicant were genuine the presiding member considered that any fear that she held was not well-founded in relation to Sri Lanka.
[19] court book, page 242
[20] court book, page 243
Mr Patel submits that the RRT fell into error in applying the well‑founded fear test in respect of the first applicant's fears of persecution in Sri Lanka. In my view, there is no doubt that the presiding member applied the correct test from a simple reading of the reasons for decision. The presiding member said[21]:
If LTTE members themselves are not being arrested I do not accept that there is a real chance that the Applicant will be arrested because of her brother's involvement with the LTTE or her own imputed connection with the LTTE if she returns to Sri Lanka now or in the reasonably foreseeable future.
[21] court book, page 244
On page 245 the presiding member said:
…I do not accept that it is possible to say in the current context that the Sri Lankan authorities are still singling out Tamils for persecution by reason of their race.
Later in the same page the presiding member said:
I do not accept that there is a real chance that the Applicant will be singled out or targeted by the authorities for a Convention reason if she returns to Sri Lanka now.
On page 246 of the court book the presiding member said:
I consider that the chance of a resumption of hostilities between the LTTE and the Sri Lankan Government at any time in the reasonably foreseeable future is remote.
Finally, the presiding member concluded:
I do not accept that there is a real chance that the Applicant will be persecuted by the LTTE if she returns to Sri Lanka now or in the reasonably foreseeable future.
It is clear in my view that, notwithstanding the applicant's claims, the presiding member concluded that there was no real chance that the applicant would be persecuted if she returned to Sri Lanka now or in the reasonably foreseeable future.
Mr Patel takes issue with the presiding member's reliance upon country information to reach these conclusions. He also submits that the presiding member did not properly approach the issue from the stand point of a reasonable person. To put it another way, this is a submission that the conclusions reached by the presiding member were not reasonably open to him on the material before him. I reject that submission.
The process of reasoning adopted by the presiding member is both thorough and detailed. The presiding member dealt at length with the claims made by the applicant and weighed those claims against the independent country information available to him at the time of the RRT decision. It is clear that the relevant country information was discussed with the first applicant at the hearing conducted by the RRT and that she had an opportunity to comment upon it.
One may agree or disagree with the conclusions reached by the presiding member but the contentions advanced by Mr Patel failed to rise above a dispute with the merits of the decision. I find that the conclusions reached by the presiding member were reasonably open to him on the material before him. The presiding member clearly understood the task that he had to perform. The conclusions reached were neither absurd nor irrational. There was nothing unreasonable in the approach adopted by him. It follows that I reject the claim of jurisdictional error in the assessment of the applicant's claims of persecution in Sri Lanka.
I conclude that there is no jurisdictional error in the decision of the RRT. It follows that the decision is a privative clause decision.
The application must be dismissed.
On the question of costs, Ms Morgan seeks an order for costs, the application having been dismissed. She tells me that some $6,500 in legal expenses have been incurred on behalf of the Minister and on a party-party basis, she seeks an order fixed in the sum of $4,500. Mr Patel submits that there is nothing so special about this case that would call for a costs order above the average or ordinary level at which costs were awarded.
The matter was one of some complexity. The parties were required to prepare written submissions traversing eight grounds of review and given the complex procedural history of the case, considerable care needed to be taken.
In a matter of this complexity, I have commonly awarded costs in the range of $4,000 - $5,000 to the successful party. This matter falls within that range. I am therefore satisfied that the claim on a party‑party basis of $4,500 is appropriate. I will order that the application be dismissed, and that the first applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,500.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 October 2004
0
0
0