SZBCO v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 271
•14 MARCH 2005
FEDERAL COURT OF AUSTRALIA
SZBCO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 271
SZBCO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD1949 OF 2004TAMBERLIN J
SYDNEY
14 MARCH 2005
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1949 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT
BETWEEN:
SZBCO
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
TAMBERLIN J
DATE OF ORDER:
14 MARCH 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. The appellant is to pay the costs of the respondent.
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 1949 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT
BETWEEN:
SZBCO
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
TAMBERLIN J
DATE:
14 MARCH 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from a decision of Federal Magistrate Barnes dismissing an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 11 July 2003.
The Tribunal accepted that the appellant is a Sri Lankan national. It also accepted that he is a Tamil who was born in Jaffna in 1978 and that he had some schooling in Jaffna. The Tribunal found, however, that the appellant had deliberately set out to mislead the Department of Immigration and Multicultural and Indigenous Affairs as to his identity and to the circumstances of his leaving Sri Lanka and found that he had lied about being arrested and tortured in July 2001.
The Tribunal referred to a national identity card that identified the appellant as having been born in Jaffna but listed his address as a location in Colombo. The appellant took issue with this. The appellant said that he is not a Colombo resident, although the Tribunal accepted that he had lived in Colombo since at least January 1998. At the hearing before me, the appellant indicated that he had been a resident of Columbo for approximately two years.
The Tribunal also noted that the last entry in the appellant’s medical record card from Jaffna was made after the appellant had moved to Colombo and the appellant’s explanation for the discrepancy in his account was unconvincing. The Tribunal made strong findings against the appellant's credibility in this matter and, since the issues before the Tribunal were principally questions of fact, these findings present a very substantial difficulty for the appellant in the present appeal.
The Tribunal concluded that it did not accept that the appellant would be treated as a Jaffna Tamil in Colombo.
The Tribunal referred to the national identity card with a Colombo address and the appellant’s residence in Colombo. It noted that a submission was made on behalf of the appellant that, as a young Jaffna Tamil, he fits the profile of suspected activists in Colombo who would attract persecution. However, the Tribunal did not accept this and also did not accept that the appellant would be at risk of being arrested and detained as an activist, even if the cease-fire then in force broke down in the future.
In addition to these findings, the Tribunal did not accept that the appellant would be unable to find employment or accommodation in Colombo. In making this finding, the Tribunal member referred to the fact that the appellant was able to obtain employment and accommodation in the past and did not accept that the absence of the appellant’s family would prevent him from doing so in the future.
In accordance with these conclusions, the Tribunal decided not to grant a protection visa.
The application for review was considered by the Federal Magistrate and, after considering the grounds raised by the appellant, the Tribunal member decided to refuse the application for review.
In written submissions before me today, which elaborate upon a general Notice of Appeal and which the appellant relied upon, the appellant contended that when he sought review with the Tribunal he provided a number of documents to prove that he was a Jaffna Tamil and these were ignored by the Tribunal.. In particular, he said that he provided his Sri Lankan identity card, which identified that he was born in Jaffna and that he was a Jaffna Tamil. However, an examination of the appellant’s national identity card indicates that he had a residential address in Colombo at that time and, in view of this, I do not think that the finding made by the Tribunal member was one that was unavailable on the evidence.
While the Tribunal member accepted that young Jaffna Tamils had been at risk of persecution in the past and that there might be future persecution if the current cease-fire broke down, it found that the appellant was not, in his particular circumstances, liable to exposure to a real chance of persecution particularly having regard, no doubt, to his residence for some time in Colombo.
On the hearing before me today, the appellant has referred to the differential treatment as between Jaffna Tamils and Singhalese in Sri Lanka. However, nothing has been put before me that would persuade me that there has been a reviewable error of principle or law in the determination of the Tribunal or the Court. Accordingly, as I am unable to find any error of law made by the Tribunal, and in view of the fact that the findings of the Tribunal are basically questions of fact within the province solely of the Tribunal, I dismiss the appeal with costs.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate:
Dated: 24 March 2005
The Appellant appeared in person with the assistance of an interpreter. Counsel for the Respondent: G. Kennett Solicitor for the Respondent: Sparke Helmore Date of Hearing: 14 March 2005 Date of Judgment: 14 March 2005
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