SZBCO v Minister for Immigration

[2004] FMCA 1026

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCO v MINISTER FOR IMMIGRATION [2004] FMCA 1026

MIGRATION – Application to review a decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), ss.424, 427, 427A(1)(d), 430
Federal Magistrates Court Rules 2001

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
SZATG v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 1595

Applicant: SZBCO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1523 of 2003

Delivered on: 16 December 2004

Delivered at: Sydney

Hearing date: 16 December 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr J. Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed.

2. That the applicant pay the respondent's costs set in the amount of $4250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1523 of 2003

SZBCO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 11 July 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.

2. The applicant, a citizen of Sri Lanka, arrived in Australia on 20 September 2001. His application for a protection visa dated 9 November 2001 was refused and he sought review by the Tribunal.  The applicant claimed that he feared harm because he was a young Tamil male from Jaffna living in Colombo.  His claims to the Tribunal were put on the basis of his race and imputed political opinion.  The Tribunal found, however, that the applicant was not a credible witness.  It was satisfied that he had deliberately set out to mislead the Department as to his identity and the circumstances of leaving Sri Lanka and arriving in Australia and that he had lied about being arrested and tortured in Sri Lanka in July 2001.

3. Investigations by Departmental officers had revealed that contrary to the applicant's original claims, he had entered the United Kingdom in February 2000 and had leave to return to the United Kingdom until February 2002.  The applicant admitted to the Tribunal that he had lied directly to the Department when asked his identity and whether he had been in the United Kingdom at a time when he had claimed to be detained and mistreated in Sri Lanka.  The Tribunal found that, even when his true identity and arrival date in Australia were put to him, the applicant persisted with his attempt to mislead and had made only limited admissions when there was photographic proof of his untruthfulness.  The Tribunal found the applicant’s evidence generally to be evasive and inconsistent and that he seemed prepared to alter it to take account of new information put to him.

4. The Tribunal accepted, however, that the applicant was a Sri Lankan national being a Tamil who was born in Jaffna in 1978 and that he had a national identity card which identified him as having been born in Jaffna but resident in Colombo.  The Tribunal also found that the applicant entered the United Kingdom in February 2000 on a student visa; had leave to enter until February 2002, and did not apply for asylum while in the United Kingdom; that he visited Australia in late 2000 then returned to the United Kingdom and came to Australia again on 16 September 2001.

5. The Tribunal found the applicant’s evidence in relation to why he had not applied for asylum in the UK or in Australia on his first visit to be inconsistent and unconvincing.  It did not accept that he had left Sri Lanka to avoid persecution.  It was satisfied that he had lived in Colombo for some time, at least since January 1998, which was, as set out in the reasons, consistent with the date on the national identity card of 8 January 1998 which stated that the applicant was born in Jaffna but resident in Colombo.  The Tribunal noted a medical records card from Jaffna on which the last entry was made after the applicant had moved to Colombo. It found his explanation for the discrepancy unconvincing and improbable and that the evidence was produced to support the application.

6. The Tribunal did not accept that the applicant had been arrested, detained or otherwise persecuted in Sri Lanka for any relevant reason in the past.  It accepted that there was evidence of some past mistreatment of young Sri Lankan Tamils, particularly Jaffna Tamils, in Colombo but also that since the recent ceasefire the position of such persons had seemingly improved.  It considered the submission on behalf of the applicant that the ceasefire may not last and that there could or would be a renewed outbreak of communal hostilities putting young Jaffna Tamils in Colombo at risk.  It accepted that there was some risk that in the foreseeable future the ceasefire may breakdown and there could be renewed communal violence, including the resumption of arrests, detentions and mistreatments that had occurred in the past.  However, it did not accept that the applicant would be treated as a Jaffna Tamil in Colombo.  He had had a national identity card with a Colombo address for some time.

7. The Tribunal did not accept the applicant’s submission that he fitted the profile of a suspected LTTE activist in Colombo.  The Tribunal did not accept that he would be at risk of being arrested and detained as a suspected LTTE activist even if the ceasefire broke down in the future, nor that the absence of family from Colombo would prevent him from obtaining employment or accommodation in future or that there was a real chance he would be of interest to the Sri Lankan authorities or the LTTE or that either would seek to harm him.  Not being satisfied that there was a real chance that the applicant would suffer such serious harm as to amount to persecution should he return to Sri Lanka, the Tribunal was not satisfied that he had a well-founded fear of persecution. 

8. The applicant filed an application in this Court on 5 August 2003.  He relies on the grounds identified in an amended application and affidavit filed on 2 February, 2004.  He also filed written submissions and made oral submissions to the Court, all of which I have considered.  The first ground relied upon in the amended application is a statement that the applicant has a Sri Lankan national identity card which indicates that he was born in Jaffna.  This is a statement of fact.  It was accepted by the Tribunal and does not raise any jurisdictional error in the Tribunal's decision. 

9. The second ground is that the Tribunal member accepted that young Jaffna Tamils had been at risk of persecution in the past and will be in the future if the ceasefire breaks down.  The respondent conceded in written submissions that the Tribunal had implicitly accepted that this was so and the Tribunal did state that it accepted that there was some risk that in the foreseeable future the ceasefire may break down and that there could be renewed communal violence, including a resumption of the arrests, detentions and mistreatments that had occurred before.  However, the fact that the Tribunal made this finding does not give rise to a jurisdictional error.  It went on to provide an explanation for its finding that the applicant was not at risk of persecution.  It did not accept that he would be treated as a Jaffna Tamil in Colombo having regard to his long-term residence and that he did not fit the profile of suspected LTTE activists in Colombo.  Nor did it accept that he was at risk of being arrested and detained as such, even if the ceasefire broke down.  No jurisdictional error is established by this ground. 

10. The third ground relied on by the applicant was that the Tribunal did not accept that he would “be treated as a Jaffna Tamil in Colombo.  I rely on the ground that the Tribunal ignored relevant material which was before it.  I provided a number of documents to prove that I am a Jaffna Tamil which the Tribunal has ignored it.  Its failure to do so constitutes an error by the Tribunal.”  The respondent submitted that as the applicant had not specified what material was ignored, it was impossible to understand the ground or to determine whether it gave rise to an arguable error in the decision.

11. The applicant referred, however, to his national identification card. The material before the Court makes it clear that he provided to the Tribunal documents such as that card, a birth certificate and some medical records.  On the material before the Court it is apparent that the documents which are described as having been provided by the applicant were, in fact, not ignored by the Tribunal.  In particular the Tribunal accepted, consistent with the birth certificate, that the applicant was born in Jaffna in 1978 and consistent with the national identity card to which it referred in the findings and reasons part of its decision, that he was born in Jaffna but resident in Colombo and that that card was dated 8 January 1998.

12. It also had regard to the document purporting to be a copy of treatment records from a medical clinic in Jaffna and to the applicant's claim that the last listed treatment was supposed to take place on a particular date, and that he had the treatment in Colombo.  The other document described in the Tribunal's reasons for decision as having been submitted by the applicant was a student card dated November 1989 which gave a Jaffna address for a student who appeared to be the applicant.  The Tribunal accepted that the applicant had at least some schooling in Jaffna.  It has not been established that the Tribunal failed to take into account relevant material in the sense of integers of the applicant's claims or, indeed, the particular identifying documents provided by the applicant.

13. The fourth ground in the amended application is as follows: “I have newspapers and other documents which were publicly available before the date the RRT handed down the decision which indicate that I will be treated as a Jaffna Tamil on my arrival. The Tribunal should have located and considered these documents and its failure to do so constitutes an error by the Tribunal.” The applicant made an associated oral submission that the Tribunal did not carefully examine and did not sufficiently research country information in Sri Lanka. The applicant does not suggest that there was information put to the Tribunal other than the submissions of his representative and the evidence at the hearing. As to the applicant’s claim that the Tribunal should have made inquiries to search out and obtain information to support the applicant's case, I am not satisfied that such a claim establishes any jurisdictional error. While the Tribunal has the power to make inquiries, particularly under sections 424 and 427 of the Migration Act 1958, it has no general obligation to do so in the manner contended by the applicant. Section 427 confers a power on the Tribunal, it does not impose any duty or obligation on it to exercise that power: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [43] per Gummow and Hayne JJ. As was stated by Hely J sitting as the Full Court in SZATG at [27]:

    The authorities establish that an applicant cannot succeed on the basis of an asserted breach of a free standing legal obligation to inquire pursuant to section 427A(1)(d). 

14. Similarly, while there is a power under section 424 of the Act, that power is expressed in permissive terms: that the Tribunal ‘may’ get any information that it considers relevant. The obligation to consider such information arises only if the Tribunal gets such information. There are authorities which suggest that in exceptional cases the Tribunal may be under an obligation to make inquiries. In Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170 Wilcox J reiterated that while it is not part of the duty of the decision-maker to make the applicant's case for him but stated that in a case where it was obvious that material was readily available which is centrally relevant to the decision to be made, to proceed to a decision without making any attempt to obtain that information may be so unreasonable as to vitiate the exercise of the decision-making power (see also SZATG v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 1595 at [22]-[28]). However there is nothing in the material before the Tribunal, or indeed before the Court, which would bring the present case within what was said by Wilcox J in Prasad. 

15. While the failure to make inquiries may sometimes be a breach of the rules of natural justice or render a decision unreasonable, as in SZATG, there is no evidentiary foundation for a duty of inquiry in the particular circumstances of this case and there is nothing to support any claim based on the principles of natural justice. It has not been established that the Tribunal made a jurisdictional error in the manner contended.

16. In oral submissions the applicant contended that the Tribunal failed to take into account material referred to in the submissions of his solicitor.  His legal representatives made written submissions to the Tribunal both before and after the Tribunal hearing.  The first of these submissions addressed issues in relation to the credibility of the applicant and referred to country information on Sri Lanka in the context of submitting that the applicant feared persecution on the Convention grounds of race and imputed political opinion. Subsequent written submissions of 10 April 2003 addressed the underlying claims which the applicant made notwithstanding the acknowledgment that he had in fact been to the United Kingdom, in particular his claim to fear persecution as a young Jaffna Tamil male on the basis of country information about whether or not the ceasefire would last.

17. The Tribunal referred to the submissions made by the applicant's adviser including the submissions made in the course of the hearing and the report submitted by the adviser that the LTTE had called off the peace talks.  It also had regard to an extensive body of independent country information as set out in the reasons for decision including, in particular, information suggesting that in more recent times there had been a cessation of large scale arbitrary arrests of Tamils. 

18. The Tribunal addressed the applicant's claims which arose on the accepted facts and made findings on the material before it including on the basis that the ceasefire might break down in the future. It has not been established that the Tribunal failed to have regard to any relevant considerations or aspects of the material before it in a sense of integers of the applicant's claims. The Tribunal is not required to address and make findings as to each piece of evidence put forward by the applicant in support of his claims in the matter contended. It referred to evidence on which it based its material findings of fact consistent with the obligations in section 430 of the Act.

19. Insofar as the applicant takes issue with the weight given by the Tribunal to particular items of independent evidence, be those submitted by his adviser or those set out by the Tribunal, weight is a question for the Tribunal and the findings that it made were open to it on the material before it.  No jurisdictional error is demonstrated.

20. Finally the applicant took issue with the merits of the Tribunal decision and claimed that it would not be safe for him to return and that he could not live in Colombo.  However this is not a re-hearing.  Merits review is not available in this Court. The applicant's contentions seeking merits review do not establish a jurisdictional error.

21. I have already indicated that the Tribunal's treatment of documents and independent evidence does not reveal jurisdictional error. Such treatment and the applicant's disagreement with the Tribunal's decision does not, as he contends, establish that the Tribunal did not approach its task in good faith or that it denied him a fair hearing.  On the contrary, it is apparent that the applicant had the opportunity to attend a Tribunal hearing and that the Tribunal took into account the claims that he made as reported in the Tribunal decision and also the claims made by his advisers on his behalf.

22. As no jurisdictional error is established the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful. The respondent seeks that he meet the costs of these proceedings. The applicant claims that he has no right to work and that this is an excessive burden on him. However there is nothing in the material before the Court to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. His lack of funds is not a reason for not awarding costs. In light of the nature of this and other similar matters I consider that the amount of $4250 is appropriate and should be fixed under the Federal Magistrates Court Rules.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:  Peter Smith

Date:  19 January 2005