SZAVP v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1000
•25 JULY 2005
FEDERAL COURT OF AUSTRALIA
SZAVP v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1000MIGRATION – estranged wife and her four children in lengthy period of residence in Australia – children living and educated for many years in Australia – appellant now married to Australian citizen – appeal dismissed – recommendation for Ministerial reconsideration on humanitarian grounds
SZAVP AND SZAVQ AND SZAVR AND SZAVS AND SZAVT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1546 OF 2004
CONTI J
25 JULY 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1546 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZAVP
FIRST APPELLANTSZAVQ
SECOND APPELLANTSZAVR
THIRD APPELLANTSZAVS
FOURTH APPELLANTSZAVT
FIFTH APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
CONTI J
DATE OF ORDER:
25 JULY 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. First appellant to pay the respondent’s costs of the appeal.
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
NSD 1546 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZAVP
FIRST APPELLANTSZAVQ
SECOND APPELLANTSZAVR
THIRD APPELLANTSZAVS
FOURTH APPELLANTSZAVT
FIFTH APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
CONTI J
DATE:
25 JULY 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appeal and reasons for its dismissal
This is an appeal from the decision of the Federal Magistrates Court constituted by Driver FM given on 6 October 2004 whereby his Honour dismissed an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) made on 14 May 2003, which decision affirmed the earlier decision of a delegate of the Minister made on 30 September 2002 to refuse the application for a protection visa of the first appellant (‘the appellant mother’) for herself and for each of her four children (daughters) comprising the second, third, fourth and fifth appellants (‘the appellant children’).
The unusual circumstances of this case attracted the following significant observations of the Minister’s delegate (Mr K Watson), under the heading ‘Humanitarian considerations’, in his reasons for decision of 30 September 2002 (the emphasised words below in non-italics at the beginning and at the culmination thereof are mine):
‘Humanitarian considerations
This case involves [and] has strong humanitarian issues which cannot be considered at this stage of proceeding. However if they are to be considered later the following matters should be taken into account.
The applicant and her Australian citizen friend in Australia, Paul Franckom, expressed their intentions to marry when the applicant is divorced from her German husband. (See letter from Mr Franckom in June 2001, folio 200 of file N98/005648).
The applicant presented papers which showed that divorce proceedings were commenced by her husband in 2000, and the papers show that the issues involved had been mostly resolved. At interview the applicant was asked whether there is any property to be divided, and she replied that there was not. Her concern was that she should be allowed custody of her children.
At interview on 17/9/02 the applicant was asked what has happened with the divorce. She said that her husband was granted German citizenship in January 2002, and that he came to visit the children and left last week. She said that she thinks that her husband stopped the divorce proceedings, and that he intends to start them again when he goes back to Germany. When asked about this the applicant said that she thinks that her husband stopped the divorce proceedings because he had broken up with his girlfriend, and she also said that her husband does not want her to marry Paul Franckom. Her husband came to visit the children in Australia and left this month.
The applicant was asked whether she had made enquiries about obtaining a divorce in Australia. She replied that she and Mr Franckom went to see someone about an Australian divorce the night before the interview (ie 16/9/2002), and that Mr Franckom was planning to go to see the person again on the night of the 17/9/2002.
At present her husband is a German citizen, and as such he would be able to sponsor the applicant and her children to join him in Germany. The applicant has been separated from her husband since August 1998 (see folio 165 of file N98/005648) and the German divorce was commenced in February 2001 (see folio 166 of the same file). There is no indication of when the divorce proceedings were stopped.
The applicant has strong community support in Australia.
The applicant has four children who have spent a number of years in Australia, one of whom was born in Australia.’
The abovementioned Mr Franckom accompanied the appellant at the hearing of the appeal. The four daughters initially remained outside the Court during the hearing, but I later invited them to sit inside the Court room. I also observe that since the Federal Magistrate’s decision, Mr Frankcom, who I am informed is an Australian citizen, had married the appellant mother.
In its decision dated 14 May 2003, the Tribunal affirmed the delegate’s decision not to grant protection visas. It recorded the following earlier history of applications for refugee status:
(i)the first appellant (‘the mother’) and the second, third and fourth appellants (being her three eldest daughters) arrived in Australia as visitors from Sri Lanka in October 1998; the fifth appellant (being her youngest daughter) was born in Australia in February 1999. The mother’s application for refugee status (which had been filed in November 1998) was refused and she was subsequently unsuccessful in seeking a review of that decision by the Tribunal (when differently constituted), that first decision of the Tribunal having been made on 3 May 2000; judicial review of that first decision of the Tribunal on the part of Emmett J was dismissed on 3 May 2000;
(ii)subsequently however in May 2002, the Minister permitted the mother and the three eldest daughters to make further application on 14 June 2002 to a delegate of the Minister for protection (Class XA) visas in exercise of his discretion pursuant to s 48B of the Migration Act 1958 (Cth), and her youngest (and thus fourth) daughter to join in that renewed application; that application was however rejected on 30 September 2002;
(iii)the mother and all four daughters (being the present appellants) sought statutory review by the Tribunal of the delegate’s decision, and that review was (as above stated) declined on 14 May 2003, as was the further review by the Federal Magistrate’s Court; hence the appeal now brought by all five family members from the decision of the Federal Magistrates Court to this Court, in relation to which I have presided as a single justice on appeal with the authority of the Chief Justice.
The case presented below by the appellants to the Federal Magistrate was carefully and precisely summarised below by Driver FM. Counsel for the appellants has been unable in my opinion to demonstrate the existence of any appealable error therein. The claims as to any likely persecution of the appellants generally, and the first appellant mother (in particular) on return to Sri Lanka were based on the mother’s apprehensions arising from her links to the Liberation Tigers of Tamil Ealam (LTTE) prior to coming to Australia, albeit so many years ago, and hence her concern for her own safety and for that of her children. However the Tribunal found that there was nothing in the information and material to which it had regard to suggest that the appellant mother would be singled out or targeted by the authorities for a Convention reason, if she was to be returned to Sri Lanka. Accordingly the Tribunal concluded that the appellant mother did not have a well-founded fear of persecution and therefore she is not a person to whom Australia owes protection obligations. That decision applied in relation to her four daughters as well.
The reasoning of Driver FM below canvassed all grounds for review put forward by Mr Patel of Counsel for the appellants, and found that the same had to be wholly rejected as not exposing any basis for judicial review or otherwise for interference with the Tribunal’s decision. Those purported grounds for review were described in [3] of his Honour’s reasons for judgment and need therefore not be repeated. His Honour addressed what he described as essentially the ‘two fronts’ of counsel’s submissions advanced on behalf of the appellants, the first relating to the Tribunal’s treatment of the mother’s claims in relation to Germany and her loss of any protection of that country, if she was to be returned there from Australia. His Honour further found in any event that ‘[i]t is clear that the RRT concluded the applicant had no right of return to Germany’ (at [5]), and recorded that ‘[i]ndeed that is what the first applicant had herself submitted to the RRT’ (also at [5]), and moreover that ‘… it is clear that the decision of the [RRT] 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’ (at [11] of his Honour’s reasons for judgment).
I have considered Mr Patel’s submissions to this Court, both written and oral. His industry and effort in formulating those submissions is fully acknowledged. It is nevertheless readily apparent to me that no legal error is thereby exposed in the reasoning of Driver FM, directly or indirectly that his Honour set out in support of his finding in favour of an absence of jurisdictional error in the decision of the Tribunal. By way of summary, his Honour concluded as follows:
‘19.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.
20.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.’
The reality is that Mr Patel’s submissions amount in substance and reality to merely merits review, and do not expose any jurisdictional error in the Tribunal’s decision. In so finding, I acknowledge the thought and industry he has sought to apply in formulating the same, but clearly in my view they fall short of demonstrating a viable basis for any case for jurisdictional error. That however in my opinion should not be the end of the matter for this unfortunate mother and her children.
That is because I am firmly of the view that I should take the opportunity, I hope not to be thought as presumptuous on my part, of strongly recommending to the Minister, in line with the delegate’s original plea as to the existence of ‘strong humanitarian issues’, made back on 30 September 2002 (as I have extracted earlier in these reasons), that favourable consideration be given to permitting the mother and her four daughters to remain in Australia, upon the basis of whatever conditions the Minister may think fit to formulate and impose. I foreshadowed this view to counsel for the Minister at the close of her helpful submissions on the appeal, which I think it is appropriate to observe tended at least indirectly to reflect the spirit of what I have sought to recommend above.
I was provided with a considerable bundle of documentation, mainly consisting of letters of support for the appellant mother and her daughters from members of the community, including from members of Mr Franckom’s family, their church and from the appellant children’s teachers at Narwee Public School and Beverly Hills Girls High School in Sydney. The bundle also includes a letter from the appellant mother’s now husband, Mr Franckom, explaining the hardship that the family would endure were they separated from one another. This material suggests to me that the delegate’s original comments on the appellants’ humanitarian issues are still current and of considerable relevance.
The appeal must be formally dismissed with costs, but as I have inferred already, the present appeal inherently involves one of those cases where I think judicial observations and recommendations may well appear to the Minister to be of assistance in determining whether the case merits a sympathetic intervention.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate:
Dated: 25 July 2005
Counsel for the Applicant: J M Patel Counsel for the Respondent: K Morgan Solicitor for the Respondent: Sparke Helmore Date of Hearing: 18 April 2005 Date of Judgment: 25 July 2005
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