SZBIK v Minister for Immigration
[2005] FMCA 396
•31 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBIK & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 396 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming political persecution in Sri Lanka – “well founded fear” test and “effective state protection” test – whether the RRT correctly applied the tests considered – no reviewable error found when the RRT decision examined by reference to the applicant’s claims – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 91R |
| Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379 Minister for Immigration v Guo (1997) 191 CLR 559 Nagaratnam v Minister for Immigration [1999] FCA 176 Paramananthan v Minister for Immigration [1998] FCA 1693 |
First Applicant: Second Applicant: | SZBIK SZBIL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INIDIGENOUS AFFAIRS |
| File Number: | SYG1738 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 31 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Burwood |
| Solicitors for the Applicant: | Mark Clisby |
| Counsel for the Respondent: | Mr C Mantziaris |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1738 of 2003
| SZBIK |
First Applicant
SZBIL
Second Applicant
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”) made on 30 June 2003 and handed down on 25 July 2003. The RRT affirmed a decision of a delegate of the respondent Minister not to grant the applicants protection visas. There are two applicants, a husband and wife from Sri Lanka. Relevant background facts and circumstances are set out in written submissions prepared on behalf of the Minister by Mr Mantziaris. I adopt by way of background paragraphs 2-7 and also paragraphs 9-15 of those written submissions:
The applicants are citizens of Sri Lanka who arrived in Australia on 20 November 2000: court book, page 1.2. They lodged an application for a protection visa (class XA) on 27 November 2000: court book, page 1.2
The male applicant claims that he fears persecution on the basis of an imputed political opinion (sympathising with the Liberation Tigers of Tamil Elam – “the LTTE”) and by reason of his efforts to combat the illicit drug trade: court book, pages 39, 58.2–60.9, 170.9.
The female applicant claims that she fears persecution by reason of her membership of a social group, namely as a lawyer who had a Tamil clientele: court book, pages 19.5, 62.5.
The Minister’s delegate refused the application for a protection visa on 31 October 2000: court book, page 94. The RRT affirmed the decision of the Minister’s delegate on 25 July 2003: court book, page 156.
the application
The fifth paragraph of the application for judicial review states the following grounds:
a)breach of natural justice (par 5.1);
b)error of law (par 5.3);
c)jurisdictional error, in that the RRT “identified the wrong issues/applied the wrong test” (par 5.4);
d)“[O]therwise contrary to law” (par 5.5);
Only the “error of law” ground is particularised in an addendum to the application. The same particular is repeated several times over. In essence –
(a)The well–founded fear of persecution test
The applicants say that the RRT erred in law by misapplying the test in Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379 and Minister for Immigration v Guo (1997) 191 CLR 559. The RRT should have asked “whether the applicant had a well–founded fear of persecution for a Convention reason, which would have involved an assessment of whether there was a ‘real chance’ of persecution. The applicants did not need to demonstrate to the RRT that they would be subjected to any discriminatory treatment. In additional to this and alternatively, the finding by the RRT that it was implausible that these applicants, as highly educated professionals from the Sinhalese community, faced the risks they fear in this regard is capable of demonstrating an error of law because the ‘real chance’ test was not applied”.
(b)The effective state protection test
The applicants say that the RRT “did not address the issue of whether the state protection was effective or not and whether the state of Sri Lanka had the capacity to provide effective protection. Instead the RRT approached this issue on the basis of whether citizens in Sri Lanka have equal access to police protection and law enforcement agencies. The question that the RRT posed to itself was whether citizens in Sri Lanka had equal access but the question the RRT should have asked was whether the state of Sri Lanka could effectively protect the applicants”. There is a reference to the alleged misapplication of the test as occurring at page 175 of the court book.
The RRT’s findings
The RRT had before it the Department’s file and written submissions made by the applicants: court book, page 160.1. The applicants appeared before the RRT at the hearing and gave oral evidence. The RRT also considered material sent to it by the applicants on 21 February 2003: court book, page 166.8.
In respect of the male applicant, the RRT accepted that –
a)He fears that, on returning to Sri Lanka, he will be at risk of persecutory actions by the Sri Lankan authorities associated with his efforts to combat the illicit trade in drugs in which he believes government members are involved: court book, page 186.3.
b)He fears that he will be sought out by the Sri Lankan authorities as a suspected LTTE sympathiser or supporter because of his association with a Tamil named Ravi: court book, page 186.4;
c)He was arrested and questioned about his perceived association with a Tamil named Ravi: court book, page 168.6.
d)It is possible that corrupt individuals holding office in the Sri Lankan government or in government agencies might seek to combat anti–drug activities if the applicant were again to engage in publicity designed to expose these individuals or agencies [a paraphrasis of a difficult sentence in the RRT’s reasons]: court book, page 168.10.
e)The applicant’s concerns about the drug trade, and the alleged involvement of government members in it, constitutes political activity and an implied political opinion: court book, pages 170.10–171.1.
However, as against the male applicant, the RRT found that -
a)The police arrest formed part of the government’s actions against LTTE terrorism in accordance with a law of general application not applied in any discriminatory way; the incident as described by him did not constitute systematic and discriminatory conduct (under Migration Act 1958 (Cth) (“the Migration Act”) s.91R(1)) or meet the description of "serious harm" under Migration Act, s.91R(2): court book, page 168.7.
b)If a police investigation were to be mounted on his return, the applicant would not have any difficulty in convincing the authorities that he was in no way associated with the LTTE: court book, page 168.9.
c)It was implausible that the Sri Lankan government would arrest, imprison or otherwise mistreat the applicant over his anti-drug activities: court book, page 168.9, 171.1.
d)Should the applicant return to Sri Lanka and resume his activities, his professional expertise and experience will assist him to be alert to the risks and be equipped to seek the protection of the authorities in averting them: court book, page 169.1.
e)Even having considered cases of Sinhalese applicants suspected of LTTE associations, there is not a real chance that the applicant, as a Sinhalese Sri Lankan, would be subjected to Convention-related persecution arising from an imputed pro‑LTTE opinion: court book, page 169.4.
f)It is not plausible that the applicant is genuinely suspected by the Sri Lankan authorities of pro–LTTE activities and a pro–LTTE political opinion: court book, page 169.5.
g)The applicant himself stated that he held no pro–LTTE opinion and that the police investigation of him occurred "under pressure from the politicians he had accused, rather than in any real belief that he was an LTTE activist or supporter". The police were not, in fact, concerned about such allegations and did not take the matter further: court book, page 169.6.
h)Investigative action being taken against a Sinhalese such as the applicant was increasingly implausible given the continuing peace process (ceasefire and negotiations) between the Sri Lankan government and the Tamil separatists. It would be an “aberrant step” in the peace process if two professional Sinhalese were pursued as suspected Tamil rebels: court book, pages 169.8–170.6.
i)The relaxation of security following the change of government in Sri Lanka, the post –February 2002 ceasefire, and the lapsing of the Emergency Regulations in July 2001, has reduced the likelihood of police harassment in Colombo: court book, page 170.7.
j)The RRT did not accept that, in the current circumstances in Sri Lanka, and in the reasonably foreseeable future, the Sri Lankan authorities would allow corrupt politicians engaged in the drug trade to take continuing steps to victimise the applicants through misapplication of laws intended to combat LTTE terrorism: court book, pages 171.10–172.1.
The RRT was unable to be satisfied from the evidence before it that the male applicant has a well–founded fear of persecution. The RRT found that the applicant is not a person who satisfies the criterion set out in the Migration Act, s.36(2): court book, page 175.9. Specifically, the RRT found that –
a)The applicant’s fears of persecution by the police are not well founded: court book, page 168.5.
b)The RRT was satisfied that there is no real chance the applicant would face serious harm amounting to persecution on the basis of an imputed political opinion should he be returned to Sri Lanka: court book, pages 171.1–2.
c)Having regard to country information, the RRT was not satisfied from anything in the applicant's claims that he would be subjected to any discriminatory treatment arising from a Convention ground: court book, page 174.5.
d)The RRT did not accept that, as a Sinhalese Sri Lankan with professional training and contacts, the applicant would not be able to obtain the protection of the State from any violence or illegal activities that might be directed towards him. The police force was in an adequate position to provide protection: court book, page 175.5.
In respect of the female applicant, the RRT accepted –
a)That she would wish to resume her legal activities on return to Sri Lanka, including advocacy on behalf of Tamil clients: court book, page 172.6.
b)That the applicant feared that she will suffer persecution because she (i) had some involvement with her husband's anti–drug activities and (ii) because she might be perceived as an LTTE sympathiser or supporter due to having acted as the legal advocate of Tamils: court book, page 172.2.
c)That the applicant's claims that she had been briefly interrogated over the her husband's suspected activities was plausible: court book, page 172.4.
However, as against the female applicant, the RRT found –
a)That the applicant's fears are not well founded – (i) “In relation to her involvement with her husband in anti–drug activities, the RRT finds that the same considerations apply as in her husband's case [ref: court book, pages 168–9 par 46], and accordingly that she would not suffer persecution by the Sri Lankan authorities arising from these activities”: court book, page 172.2 (ii) “In relation to her claim that the authorities would perceive her as having pro-LTTE views because she has represented Tamil clients the RRT is satisfied that it is not credible that a Sinhalese person would sympathise with or support the methods or activities of the LTTE [ref to court book, page 169 par 47]: court book, page 172.3.
b)The applicant's resumption of advocacy work in Sri Lanka would not lead to a real chance of Convention-related persecution.
c)Having regard to country information, it was not satisfied from anything in the applicant's claims that she would be subjected to any discriminatory treatment arising from a Convention ground: court book, page 174.5.
d)The RRT did not accept that, as a Sinhalese Sri Lankan with professional training and contacts, the applicant would not be able to obtain the protection of the State from any violence or illegal activities that might be directed towards her. The police force was in an adequate position to provide protection: court book, pages 175.5, 172.8.
e)The incidents of abusive conduct towards the applicant fell short of the definition of “serious harm” in the Migration Act, s.91R(2). Even if this were wrong, the RRT found that the conduct was not systematic or discriminatory in the sense of Migration Act, s. 91R(1)(c): court book, page 172.5.
f)The applicant is not a person who satisfies the criterion set out in the Migration Act, s.36(2): court book, page 175.9.
Use of country information: In reaching its conclusions with respect to both applicants, the RRT had regard to country information which addressed:
a)the status of the political conflict and the peace negotiations in Sri Lanka (court book, pages 165.6–166.4; 169.8–170.8);
b)human rights abuses and use of torture in Sri Lanka (court book, pages 172.8–174.5); and
c)political violence in Sri Lanka and citizen access to police protection (court book, pages 174.5–175.3).
In respect of the male applicant, the RRT also had regard to information regarding:
(d)Sri Lanka's record in narcotics law enforcement: court book, page 171.2–9.
The matter proceeded today on the basis of an amended application filed on 18 March 2004. However, the grounds relied upon were significantly narrowed within that application. The only ground pressed by the applicants is the ground set out at paragraph 5.4 of the amended application, which is that the decision of the RRT involved the making of a jurisdictional error in that the RRT identified the wrong issues and applied the wrong test. Particulars are provided in the application. In addition, Mr Burwood, for the applicants, provided written submissions and elaborated upon those orally.
The case as presented is directed at the circumstances of the first applicant, the applicant husband. The outcome of the application by the second applicant, the applicant wife, depends upon the outcome of his application given the limited nature of the grounds advanced. Mr Burwood took me to the protection visa claims made by the first applicant, in particular, those set out in paragraphs 27 and 28 of his statement[1]:
On the 30th September 2000 I was arrested by a group of police officers who came to my house around 11 pm. I was staying with my parents and they were terrified about the police coming to my home. They were told that I would be sent back after taking a statement from me.
I was taken to the CID Head Quarters on the fourth Floor. I was severely interrogated. I was asked questions about our organisation and its activities and about Ravi's involvement with the organisation. I explained every thing to them. They asked me whether I knew about his involvement with the LTTE. When I was asked this question I got really angry and I told him that I was certain that he had no connection whatsoever with the LTTE. They asked me how I could be so sure about that? I said that I have worked together with him for years. I blamed them for accusing him wrongfully and I refused to discuss about Ravi personal details with them. When I refused I was assaulted severely. They assaulted me with sand filled es-lon tube[2] and it was so painful. I kept asking them what did I do wrong to suffer like this? They accused me of supporting the LTTE with the help of Ravi and I totally denied this. They kept asking me about all my involvement with these other volunteer groups and Tamil participants who attended our programs and I refused to give them their personal details. They wanted their addresses and family details and I was not prepared to place their lives in danger because I knew why they were trying so hard to get information about them.
[1] court book, pages 59-60.
[2] this is said to be a rather thick flexible hose filled with sand
In paragraph 29 of his statement the applicant goes on:
I was detained until 9th October 2000 when I was produced before the Magistrate in Colombo. During this period my family was allowed to see me. My family retained a lawyer and I was bailed out and I was ordered to appear before the Magistrate in two months, the date was 12th of December 2000.
I note that before that date the applicant and his wife travelled to Australia. The presiding member drew the following conclusion on this aspect of the first applicant's claims. In paragraph 45 of his decision[3] the presiding member said:
The Tribunal accepts as plausible the first‑named applicant's testimony that he was arrested and questioned about his perceived association with a Tamil, Ravi. The Tribunal is satisfied that this formed part of the government's actions against LTTE terrorism in accordance with a law of general application not applied in any discriminatory way in the case of the first‑named applicant, and finds that this incident as described by him does not constitute systematic and discriminatory conduct (s.91R[1] of the Act) or meet the descriptions in s.91R(2) of the Act as examples of “serious harm”. The Tribunal does not consider that he would have any difficulty in convincing the authorities, if some further such investigation were to be mounted on his return, that he was in no way associated with the LTTE.
[3] court book, page 168
Mr Burwood said that this conclusion demonstrates a misunderstanding or misapplication of the test for determining persecution. He took me to two decisions of the Federal Court to illustrate the argument. The first is the decision of Paramananthan v Minister for Immigration [1998] FCA 1693, in particular at pages 15 and 16. There, His Honour, Lindgren J, stated:
The tribunal was bound to scrutinise the nature of the treatment in detention to which the authorities committed the refugee-claimants, and might again commit them if they were to return to Sri Lanka. It did not do so. This obligation of the tribunal is not shown to have been discharged by its statements that according to the Amnesty International Country Report: Sri Lanka, 1996, there had been “recent improvement in human rights” and that abuses of human rights in detention “are no longer so widespread as before”.
Secondly, Mr Burwood took me to the decision of the Full Federal Court in Nagaratnam v Minister for Immigration [1999] FCA 176, in particular at paragraphs 14 and 25. At paragraph 25, the Court stated:
When, in accordance with some law or government policy, persons are selected for detention upon a ground which equates to one of the Convention reasons, the act of detaining such persons may or may not amount to persecution for a Convention reason, depending upon the circumstances in which the law or government policy is being implemented. It may be implemented, for instance, in circumstances of war, whether foreign or domestic. If so and the criterion of selection of persons for detention is seen as appropriate and adapted to the successful prosecution of that war, then the act of detention will not be persecution for a Convention reason. However, when those who detain such persons in accordance with such law or government policy are aware that the probable consequence of such detention will be the physical mistreatment of those detained, even though those detained will not be selected for such physical mistreatment by those who administer that physical mistreatment upon a ground which equates to one of the Convention reasons and even though those selecting the detainees are unwilling that such physical mistreatment should occur, then those who detain such persons will be taken to have caused such physical mistreatment. As such persons have been selected for detention upon a ground which equates to one of the Convention reasons, the act of detaining such persons will amount to persecution for a Convention reason.
The significance of this, in Mr Burwood's submission, is that it was not open to the RRT, having accepted this aspect of the applicant's claims, to find that the applicant had not suffered persecution at the hands of the Sri Lankan authorities when he was detained for a period of some nine days and severely physically mistreated. A difficulty here is that the presiding member's findings are relatively cryptic. The presiding member has not stated precisely whether he accepts the whole of this aspect of the applicant's claims.
The applicant's claims were germane to the outcome in his application. It was not open to the presiding member to simply ignore any element or integer of those claims. The statement that the RRT accepts as plausible, the first‑named applicant's testimony, that he was arrested and questioned suggests, in my view, that the presiding member was accepting the totality of that aspect of his claims. It follows that the presiding member accepted not only that the applicant had been detained and questioned, but also that he had been physically mistreated by beating in the course of that questioning.
It follows, in Mr Burwood's submission, in particular from the decision in Nagaratnam, that if the detention and questioning was for a Convention reason, the applicant must have been persecuted and the finding by the presiding member must be erroneous. The two decisions of the Federal Court to which I was taken were both made prior to the insertion of s.91R of the Migration Act which became operative on 1 October 2001. The presiding member specifically referred to s.91R in this part of his reasons.
Mr Burwood submits that the presiding member misunderstood or misapplied the section. He submits that the applicant clearly satisfied paragraphs (a) and (b) of subsection (1) of 91R and further, that the applicant also satisfied paragraph (c) of subsection (1). He submits that the conduct to which the first applicant was subjected was for a Convention reason, namely imputed political opinion and that the conduct was systematic and discriminatory by reference to country information - for example, that appearing on pages 213 and 218 of the court book. That country information discloses that at the relevant time there were reasonably numerous examples of the physical mistreatment of persons in detention by reason of actions taken by the Sri Lankan authorities against the Tamil Tigers.
Mr Mantziaris submits, first, that there was no error made by the RRT. He submits that the statement by the presiding member must be read in the light of the claim that was being made by the first applicant. That claim was not that the applicant was a Tamil (indeed he was a Singhalese) or a Tamil Tiger member or supporter, but that he was being targeted because of his anti‑drug activities which had upset corrupt politicians in Sri Lanka. In other words, the applicant asserted that he was being set up by a false imputation of association with the Tamil Tigers.
Mr Mantziaris submits that seen in its proper light, the presiding member's statement was that the harm suffered by the first applicant was not discriminatory and systematic because the Sri Lankan authorities were not targeting anti‑drug campaigners on the basis of any false imputation of association with Tamil Tigers. Even though it was accepted that the applicant had been detained and questioned and probably mistreated on one occasion, the situation was unlikely to recur.
It is unfortunate that the presiding member did not explain what he meant in finding that the applicant had not suffered systematic or discriminatory harm. The presiding member was almost certainly wrong in finding that the applicant had not suffered serious harm in the meaning of s.91R(2) of the Act. That subsection sets out a non‑exhaustive list of circumstances that constitute serious harm. Paragraph (c) identifies significant physical ill‑treatment to a person as an example of serious harm. On any view, what had happened to the applicant and what the RRT apparently accepted was significant physical ill‑treatment. It follows, in my view, that it was not open to the presiding member to find that the applicant had not suffered serious harm within the meaning of s.91R(2).
However, it was, in my view, open to the presiding member on the evidence before him to find that the harm suffered by the applicant was not systematic or discriminatory. I accept Mr Mantziaris' submission that the determination of that question must be reached by reference to the claim advanced by the applicant. That claim was one of an attempted false attribution of political opinion in order to terminate anti‑drug activities. It was reasonably open to the presiding member on the material before him to find that the conduct of the Sri Lankan authorities, while it may well be systematic and discriminatory by reference to other factors, was not systematic and discriminatory by reference to that claim of the applicant.
I find, therefore, that there was, overall, no error in the conclusion reached by the presiding member, at paragraph 45, that the harm suffered by the applicant was not persecution within the meaning of s.91R(1) of the Migration Act. Even if I were wrong in that finding and even if the RRT should have found that the applicant had been persecuted in the past on the basis of his testimony which was accepted, it was reasonably open to the presiding member, on the material before him, to conclude that there was no real likelihood that the applicant would suffer similar harm in the future should he return to Sri Lanka. This was based, in part, on the applicant's own testimony that he had assured the police that he was not associated with the Tamil Tigers, and that neither to his knowledge was his colleague, Ravi. Secondly, the presiding member reasonably and properly had regard to country information pointing to the decline in tension in Sri Lanka and the winding back or termination of anti‑terrorism measures which had been employed against the applicant in one instance. This all pointed to the unlikelihood of the harm experienced by the applicant recurring.
I find, therefore, that overall 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, the application having been dismissed, costs should follow the event. Mr Mantziaris sought an order for costs fixed in the sum of $5,000 on a party and party basis, making that costs of not less than $7,000 have been incurred on behalf of the Minister. Mr Burwood did not wish to be heard on costs. I accept that costs of $5,000 have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 8 April 2005
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