SZBGL v Minister for Immigration - [2005] FMCA 110

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBGL & ANOR v MINISTER FOR IMMIGRATION

[2005] FMCA 110

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to take into account relevant considerations in failing to deal with an integer of the claim to fear persecution.

SZAYS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 797
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244
SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80
NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 263
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Minister for Immigration & Ethnic Affairs v Guo (1997) 1191 CLR 559

Applicant:

SZBGL & SZBGM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1661 of 2003

Delivered on:

23 February 2005.

Delivered at:

Sydney

Hearing date:

20 January 2005

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Mr C. Colborne

Solicitors for the Applicant:

Siva Logan Solicitors

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That a writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 27 June 2003.
That a writ of mandamus issue requiring the Refugee Review Tribunal to re-determine the applicant’s application according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1661 of 2003

SZBGL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision made by the Refugee Review Tribunal (the Tribunal) made on 27 June 2003 and handed down on 24 July 2003 affirming a decision of a delegate of the respondent not to grant the applicants protection visas. The applicant wife is a Tamil who was born in Jaffna, Sri Lanka in 1954. She and her husband are citizens of Sri Lanka. They have two children who remain in Sri Lanka. The applicant wife arrived in Australia on

3 September 2001. The applicant husband arrived in October 2001. They applied for protection visas on 16 October 2001. After their applications were refused they applied to the Tribunal for review of the refusal.
Only the applicant wife made specific claims under the Refugees Convention as amended by the Refugees Protocol and she is referred to hereafter as the applicant.
The applicant claimed that in about 1979 (prior to her marriage) her elder brother joined the Liberation Tigers of Tamil Eelam (the LTTE) against their parents’ wishes. The LTTE later announced that he had been killed during combat. The applicant claimed that she was encouraged to marry in order to avoid being forced by the LTTE to work for them. She married in 1980. Her husband is an electrical technician who was working in Dubai. She joined him there after they married. She returned to Sri Lanka in 1984 to have her first child (their son who was born in June 1984). She was still in Sri Lanka (living in Jaffna) when combat broke out between the Indian peacekeeping force and the LTTE. She claimed that her husband was unable to get her out of Jaffna from 1987 to 1990. In 1990 her husband paid the LTTE an amount demanded for permission for the applicant to leave Jaffna with her son. The applicant then lived in Dubai with her son and husband from 1991 to 1995. Her second child was born in 1992.
The applicant claimed that in 1995, at the request of her siblings living outside Sri Lanka, she returned to Sri Lanka for two months to make arrangements to send money provided by them from Colombo to Jaffna via known Tamil agents so that other family members could leave Jaffna. She claimed that the money was to be given to her mother so that family members could be helped to be released from the grip of the LTTE.
In October 1995 the Sri Lankan Army captured Jaffna from the LTTE. The applicant’s mother and siblings surrendered to the army. She claimed that the family was happy as they owned many properties and jewellery shops which had been taken over by the LTTE during their rule.
In 1996 new regulations were introduced in Dubai which meant that the children of foreigners who earned less than a particular amount were not permitted to live there. The applicant travelled to Sri Lanka in 1996. The children went to live with the applicant’s mother in Jaffna. Her mother and elder brother came down to Colombo to take the children with them to Jaffna. The applicant returned to Dubai.
In the statement accompanying her protection visa application the applicant claimed that in the armed conflict in Jaffna between the LTTE and the Sri Lankan authorities the LTTE recruited young Tamils while the Sri Lankan authorities rounded up, tortured and killed Tamils and stopped Tamils from travelling out of Jaffna. She claimed that in 1997 her sister’s and brother’s children were abducted by the LTTE. She claimed that her son (who was 13 in 1997) had been arrested by the army in Jaffna and tortured. She travelled from Dubai to Colombo (apparently in early 1998) and then with the help of a friend of the family travelled to Mannar in Sri Lanka in an attempt to get her children out of Jaffna with the assistance of an agent who was a member of the Eelam People’s Revolutionary Liberation Front (EPRLF) who had influence in the army and was to pay money to get the children to safety. She intended to live with them in Colombo. She paid the agent some money, promising him more when he brought the children out of Jaffna. He suggested that she stay in Colombo until he brought the children. After three months (in May 1998) the agent then returned with other members of the EPRLF and said that the army officers wanted more money to release her son. She refused to give the men any more money until they brought her children from Jaffna.
The applicant claimed that within an hour of the men leaving the house she was taken to the police station for interrogation by the Wellawatte police and questioned about her travel to Mannar (Wellawatte is in Colombo). She told them about her children and was held while the police made inquiries. She was detained overnight and questioned the following morning by police who told her that her son was suspected by the army in Jaffna of being involved with the LTTE as all her nephews were LTTE collaborators and that he would not be permitted to come to Colombo for security reasons. She claimed that the officers wanted her to leave the country after paying the additional amount that she had agreed to pay the agent. They threatened that if she failed to pay the amount she would be taken into custody on the grounds that her son was an LTTE collaborator. The applicant paid the money and returned to Dubai.
Subsequently the applicant and her husband met an agent who claimed to have influence with the Sri Lankan army. They agreed to pay him to bribe army officers and for his services to get the children out of Jaffna. At his request they travelled to Colombo in April 1999 to make the necessary arrangements. While passing through immigration clearance they were asked to go into rooms for a search. The female officers who searched the applicant wanted her to give them her gold jewellery. She refused to give them a particular gold chain known as a ‘thali’ which had significance to her and which, as a Tamil, which she would not remove whilst her husband was alive. She claimed that the lady officer started to beat her and that three officers then took her to the Negombo police station where she was beaten. She was detained. She was told that the Wellawatte police had confirmed that she had been collecting money from abroad for the LTTE and that her son in Jaffna was suspected of having LTTE involvement. She claimed that she was kept in detention for nearly two weeks during which time she was harassed and humiliated by officers who were intoxicated and behaved in a degrading manner. After two weeks her husband obtained her release with the help of the agent. The agent told her that it was dangerous for her to stay in Colombo as the police had information that her son was a suspected LTTE collaborator. He could not get her children out of Jaffna because of her son’s reputation. The police had ordered them to leave the country. The agent said that the police feared that she might file a case against them. In May 1999 she returned to Dubai without her children.
The applicant husband’s work in Dubai was to be terminated and the applicant decided to come to Australia and apply for a protection visa. She left Dubai on 2 September 2001. Her husband subsequently joined her after realising he would not be able to obtain another job in Dubai. She claimed to fear for the safety of her children. She referred to arrests of all the youths by security officers. She also claimed to fear that LTTE militants would abduct her children. In addition she claimed to fear that she could not return to Sri Lanka after experiencing the degrading harassment and witnessing events in police detention.
In further submissions the applicant claimed that she could not return to Sri Lanka because she had been sexually abused and harassed while detained in 1999 and her reputation had suffered because of this; that she feared the ceasefire was temporary and if she returned before peace was permanent she could be killed. She referred to her son’s involvement with the LTTE being well-known to the authorities; she feared she would be targeted by the officers who had sexually abused her because they feared she might file charges against them and they could bring false charges against her; and she had to save herself from persecution from both the security officers and the LTTE.
After her application was refused by a delegate of the respondent she sought review by the Tribunal. She claimed in written submissions to the Tribunal from her adviser to fear that if she returned to Sri Lanka, she would lose her children permanently to the LTTE and she and her husband would be taken away by the Sri Lankan security officers for their and their siblings’ involvement in the LTTE. She also claimed that the LTTE would force her to work for them. She would not be permitted to move among the locals once her reputation was tarnished by the LTTE. She claimed that she would be forced to take up arms by the LTTE because she was a known victim of sexual assault and that the delegate had failed to take these facts into consideration. She feared that she and her husband would be ‘killed by the Sri Lankan security officers and would end up serving the LTTE on their return’ (sic).
The Tribunal held two hearings. The applicant became distressed while giving evidence in the first hearing. It was adjourned. Her husband gave evidence at the second hearing. The applicant’s husband told the Tribunal that they could not live safely in Colombo because the applicant had been disgraced by the 1999 incident and they would not be respected in their community and that this would cause problems for them in Colombo. It was also claimed that there were problems for the applicant because of their son’s alleged connections to the LTTE.
The Tribunal set out the applicant’s claims about events from 1990 to 1998 that it accepted. In relation to the events of 1998 it found:
“I also accept that in 1998, the Applicant paid a large sum of money to an agent who was paid to arrange for her son to leave Jaffna and meet her in Mannar, where she had travelled to meet him, and from where she had planned to return to Colombo to live with her children. I also accept that when she refused to pay additional money to the agent, her son did not meet her, and she returned to Colombo, and then to Dubai, without him.”
It was satisfied that up until April 1999 she and her husband believed they would be able to live safely in Colombo. The Tribunal noted the applicant’s claims that their son was not a member of the LTTE and her tentative claim that her son had been forced to train with the LTTE. It did not believe that the applicant’s son was ever forced to train with the LTTE or was or is a member of the LTTE. Nor did it believe that the applicant genuinely believed that the army in Colombo seriously suspected either her or her 15 year old son of having LTTE connections because if she genuinely held such a belief she would not have planned to bring her children from Jaffna to live with her in Colombo as she planned in April 1999.
The Tribunal accepted that in April 1999 the applicant was sexually harassed by drunken police officers whilst she was detained at a police station following an altercation about her jewellery with customs officials at the Colombo airport. It accepted that her husband paid an agent a large amount of money to obtain her release. However while acknowledging that the episode was extremely distressing and humiliating for the applicant, the Tribunal believed that the applicant had elaborated upon and exaggerated the incident. As the applicant had ‘never before during her numerous visits to Colombo experienced any problems’ the Tribunal was satisfied that the incident of April 1999 was an isolated incident and that the chance of it recurring or of the applicant suffering any adverse consequences from the authorities was remote. Moreover as the Tribunal was not satisfied that either the applicant or her son was suspected by the authorities of having LTTE connections it was unable to be satisfied that there was any Convention nexus to the incident. In summary the Tribunal found that on all the evidence before it, it was not satisfied that the applicant had ever suffered persecution in Sri Lanka for a Convention-related reason or that she had a well-founded fear of so suffering in the reasonably foreseeable future.
The applicants sought review of the Tribunal decision by application filed in this court on 19 August 2003. An amended application was filed on 5 January 2005. The grounds in the amended application are as follows:
5. The Tribunal exceeding its jurisdiction and constructively failed to exercise its jurisdiction by –
(1)Failing to make any finding on the first applicant’s claim to have been detained and interrogated at Wellawatte Police Station in 1998 and of being told on that occasion that the police suspected her son of being involved with the LTTE.
(2)Failing to deal with the first applicant’s claim that she feared persecution by the LTTE.

Claim to fear persecution by the LTTE (the LTTE claim)

Dealing first with the second ground relied on by the applicant, it was contended that the Tribunal erred in failing to make a finding on the claim that the applicant feared persecution by the LTTE and that, consistent with what was said by the Full Court of the Federal Court in NABE v Minister for Immigration & Multicultural & IndigenousAffairs (No. 2) [2004] FCAFC 263 and WAEE v MIMIA [2003] FCAFC 184, this amounted to jurisdictional error.
In NABE the Full Court held:
63. It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):
“If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.”
In that case the appellant, who was an Iranian citizen, put to the Tribunal that the marriage of his son to a Muslim woman in Iran had ramifications for him and his family. The Tribunal made no express reference in its discussion and findings to the claimed fears of persecution which arose out of the marriage by the appellant’s son to a Muslim woman although it made reference to the claim in its overview of the appellant’s case. The court held that the Tribunal had failed to consider an issue going directly to the question whether the criterion under s36 of the Act was satisfied. The court held that the Tribunal had therefore failed to discharge its duty of review and had made a jurisdictional error.
It was contended that the Tribunal’s failure to make findings on this issue constituted a jurisdictional error in accordance with the principles considered in Htun v MIMIA (2001) 194 ALR 244 and SCAT v MIMIA [2003] FCAFC 80 as the Tribunal simply did not deal with the claims in respect of the LTTE at all.
In response the respondent contended that while there were references to the applicants asserting that they feared the LTTE (although no elaborated reasons were said to be given) most of the claims they put related to fear for their children in Jaffna from the LTTE. It was contended that the applicant was not in Jaffna (an LTTE area) but rather in Colombo and that her claim that the LTTE made use of people who had been sexually harassed and recruited them only made sense if the applicant was in an area where the LTTE were in control. It was contended that the Tribunal did deal with any possible claim by the applicant or her husband to fear harm from the LTTE because it found that they would be able to live safely in Colombo (that being an area not controlled by the LTTE). Given that the Tribunal’s reasoning was that the applicant would be able to live safely in Colombo and that no-one in Colombo seriously suspected her or her son of having LTTE connections, it followed that the Tribunal had not overlooked whatever claim there was to fear harm from the LTTE but regarded it as answered by its finding that the applicant was able to live safely in Colombo.
The applicant’s adviser had made a general claim that the applicant and her husband fled from Sri Lanka ‘to save themselves from persecution from both the Sri Lankan security officers and the LTTE’ in submissions in response to a Departmental request for comment on changes in the situation in Sri Lanka. This claim followed a description of LTTE atrocities against ‘innocent Tamils’ and a claim that Tamils flee Sri Lanka, not only because of LTTE recruitment of Tamil youths but also due to continuous demand of money by the LTTE. This claim was not addressed by the delegate. It was repeated in written submissions sent to the Tribunal on 14 March 2003 by the applicants’ adviser. In the course of that submission it was contended that the delegate had failed to see that the applicant husband’s family ‘has been affected due to LTTE harassment.’ It is later claimed specifically that:
‘The applicants fear that if they return back to Sri Lanka the LTTE would force them to work for them and they would lose the children permanently to the LTTE. Further [the applicant] would not be permitted to move among the locals once her reputation is already tarnished by the LTTE. The LTTE recruits and forces the victims of sexual harassment by the army to take up arms and in the applicant’s case the LTTE members who were detained with her would identify her as a victim of sexual harassment if she returns back to Sri Lanka …[the applicants] fear they would be killed by the Sri Lankan security officers and would end up serving the LTTE on their return.’

The submission also addressed news reports of LTTE demands of money from Tamils and repeated the claims made to the delegate including the general claim that it is not safe for Tamils to return to Sri Lanka.
It is the case that the initial claims made at the time of the protection visa application were on the basis that the applicant was suspected to be an LTTE supporter (as well as in relation to fears for their children). However the written submissions raise a clearly articulated claim to fear the LTTE which the Tribunal did not address in the findings and reasons part of its decision, albeit that it did extract the relevant part of the written submission of 14 March 2003 in its overview of the applicant’s case.
The applicant’s claim to fear the LTTE was not simply a claim about fears for her children. She gave reasons for her fear. It was a claim that she would be forced to work for the LTTE or to take up arms by the LTTE because she was a known victim of sexual assault. Her claim was not expressed as a fear about living in an LTTE controlled area. Nor must it necessarily be inferred that that was the extent of her fear (particularly given that her children lived in such an area).
Reading the Tribunal decision fairly and as whole I am not satisfied that the Tribunal concluded that the applicant was able to live safely in Colombo and that this addressed the LTTE claims. The discussion of the applicant’s ability to live in Colombo was in the context of a consideration of the events prior to and during 1999. In that context the Tribunal indicated that it was satisfied that ‘up until April 1999’ when the parents returned to Sri Lanka from Dubai with the ‘expressly stated’ purpose of bringing their children from Jaffna to live with the applicant in Colombo they believed that they would be able to live safely in Colombo. There are no express findings by the Tribunal in relation to the applicant’s ability to live in Colombo at the time of the decision or should she return to Sri Lanka in the future. There is no discussion by the Tribunal of principles such as those considered relevant in relation to whether it is reasonable for an applicant to relocate within his or her country of nationality. Rather the Tribunal proceeded from its findings in relation to the applicant’s beliefs up to 1999 about living safely in Colombo to assess the credibility of her claims about her son’s involvement with the LTTE and also her claims that she was suspected of involvement with the LTTE or otherwise feared harm from the Sri Lankan authorities. It concluded that if she genuinely believed the army in Colombo seriously suspected her or her then 15 year old son of having LTTE connections she ‘would not have planned to bring her children from Jaffna to live with her in Colombo’ as she planned in April 1999. These findings relate to her state of mind in 1999. They address her fears of persecution by the Sri Lankan authorities. This is made clear by the subsequent conclusion (after a discussion of the events of April 1999) that the chance of the applicant suffering ‘any adverse consequence from the authorities is extremely remote.’ Thus the Tribunal considered she would be safe from the Sri Lankan authorities if she returned to Sri Lanka. However this does not address her claim to fear the LTTE. There is nothing in the findings and reasons part of the Tribunal reasons for decision addressing the applicant’s claim to fear the LTTE should she return to Sri Lanka.
This is not a case in which a claim is subsumed in findings of greater generality. Nor did the Tribunal reject a factual premise on which her claimed fear of the LTTE rested (as distinct from the basis for the claimed fear of the Sri Lankan authorities). (See WAEE at [45] – [47]).
The failure to consider the applicant’s claimed fear of the LTTE is a failure to have regard to an integer of her claims – a relevant consideration in the sense considered in MIMA v Yusuf (2001) 206 CLR 323 and Htun v MIMA (2001) 194 ALR 244. Such a failure amounts to jurisdictional error. It is such that the Tribunal decision should be set aside and the matter remitted for re-hearing. In these circumstances it is not necessary to determine whether the Tribunal also erred in the manner contended in paragraph 5(1) of the amended application.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 23 February 2005