SZBIS v Minister for Immigration - [2005] FMCA 480

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBIS v MINISTER FOR IMMIGRATION

[2005] FMCA 480

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Sri Lanka – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.91R, 424A, 474, 477

Applicant S v Minister for Immigration (2004) 206 ALR 242
NABE v Minister for Immigration (No 2) [2004] FCAFC 263
SZBIK v Minister for Immigration [2005] FMCA 396

Applicant:

SZBIS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1743 of 2003

Judgment of:

Driver FM

Hearing date:

14 April 2005

Delivered at:

Sydney

Delivered on:

14 April 2005

REPRESENTATION

Counsel for the Applicant:

Mr B Batchelor

Solicitors for the Applicant:

Mark Clisby

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
The time for an appeal against this judgment be extended to 42 days from the date of these orders, pursuant to Order 52 rule 15 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1743 of 2003

SZBIS

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”) completed on 30 June 2003 and handed down on 25 July 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Sri Lanka and had made claims of political persecution. It was also asserted in these proceedings on behalf of the applicant that the facts disclosed a claim of persecution as a member of a particular social group. The applicant did not expressly make such a claim in his proceeding before the RRT.
The relevant background facts are adequately set out in the Minister's written submissions prepared by Mr Reilly. I adopt paragraphs 2-4 of those submissions for the purposes of this judgment by way of background:
The applicant applied for the visa on 5 September 2000: court book, pages 1-42. The applicant was interviewed by the delegate on 30 November 2000: court book, page 44. The delegate’s decision refusing the visa was made on 12 December May 2000: court book, pages 45-53. The applicant applied to the RRT for review on 5 January 2001: court book, pages 54-57. The RRT held a hearing on 29 November 2002: court book, page 72. On 17 June 2003 the RRT wrote to the applicant pursuant to ss.424 and 424A of the Migration Act 1958 (Cth) (“the Migration Act”): court book, pages 161-166.
The applicant claimed to fear persecution for reason of his imputed political opinion in Sri Lanka. He claimed that, despite being Sinhalese, he was imputed with a pro-LTTE political opinion due to his work in photographing and filming various events in Sri Lanka. He claimed to have been detained in December 1999 and June and July 2000, and warned that the police could not guarantee his safety, before departing for Australia in August 2000. He claimed that he was at risk of arrest for suspicion of LTTE involvement if he returned to Sri Lanka. See generally court book, pages 24-30, 64-74, 183-191.
While the RRT appears to have accepted the applicant’s account of his past experiences, it did not find his claims to fear harm credible or plausible, noting independent country information that it was not plausible that a Sinhalese person would support or be suspected of supporting the LTTE (on which the applicant’s comment was invited after the hearing: court book, pages 161-166). See generally court book, pages 191-196. The RRT concluded that there was not a real chance that the applicant would be arrested or sought out by the Sri Lankan authorities on suspicion of supporting or assisting the LTTE: court book, page 192.7.
The applicant relies upon an amended application filed on 8 January 2004. The applicant has also presented written submissions prepared by Mr Burwood. Mr Batchelor took the opportunity to make oral submissions today on behalf of the applicant. Only grounds 5.2 and 5.3 in the amended application are relied on. The applicant contends that the RRT made jurisdictional errors in its decision. In particular, the applicant asserts that the RRT failed to apply the correct test of persecution to the facts. Mr Batchelor submits that the applicant's imputed political opinion formed the basis for his adverse treatment at the hands of the police in Sri Lanka or alternatively his membership of a particular social group did so. He further submits that, on the basis of the facts apparently accepted by the RRT, the applicant had suffered persecution as that term is illuminated by s.91R of the Migration Act. Because of the alleged misconstruction of the test of persecution in s.91R, the RRT is said to have committed a jurisdictional error.
Mr Reilly concedes that there are some difficulties in the RRT decision because of the terms in which the presiding member has expressed himself, but submits that it is open to construe the decision on the basis that not all facts necessary to establish serious harm for the purposes of s.91R(2) of the Migration Act were accepted or alternatively, and possibly, that the RRT did not accept that the harm apparently suffered by the applicant was discriminatory by reference to his claims.
In any event, Mr Reilly submits that the decision of the RRT can be sustained on the basis of the presiding member's examination of the risk of future harm to which the applicant might be subject by reference to country information. Mr Reilly submits that that element of the RRT decision is unimpeachable and that accordingly, there was no basis to set the decision aside.
The facts in this case and the issues arising from them are somewhat similar to those in the case of SZBIK & Anor v Minister for Immigration [2005] FMCA 396. In that case, as in this, the applicant asserted a well founded fear of harm from the Sri Lankan authorities on the basis of a false attribution of LTTE activity. In that case, as in this, the applicant had presented evidence of significant physical mistreatment at the hands of the Sri Lankan police. That was apparently accepted by the presiding member. In SZBIK, I found that while the decision of the presiding member was almost certainly wrong on the question of whether the applicant had suffered serious harm for the purposes of s.91R(2) of the Migration Act, the harm suffered by the applicant was not discriminatory by reference to his claims of false attribution of LTTE activities. Accordingly, the presiding member had been correct in finding that the applicant had not suffered persecution as defined in s.91R. I also took the view that, in any event, the RRT had been correct in its assessment of the future risk of harm and that accordingly, there was no jurisdictional error vitiating the RRT decision. I take the same view in this case.
The decision of the RRT unfortunately does not make clear to what extent the factual claims of the applicant were accepted. At page 191 of the court book, the presiding member says:
The Tribunal found the applicant's oral evidence to be consistent with his written claims in applying for protection, in his interview with the Department and in his statutory declarations. His witness' oral evidence and statutory declaration were consistent with his claims.
It would have been helpful if the presiding member had stated expressly what factual claims the applicant had made were accepted and whether any were not accepted. That was not done and the presiding member appears to have proceeded on the basis that the applicant's factual claims should be treated as if they were true, whether or not they were true. On that basis, it is hard to understand the presiding member's statement, on page 196 of the court book, that the incidents described by the applicant in which he was arrested and investigated for possible LTTE associations, while disagreeable, were not of sufficient severity to amount to serious harm or mistreatment as described earlier in the decision.
The applicant's factual claims set out on page 65 of the court book refer to him being arrested, beaten and detained for five days in December 1999, to having been detained again in June 2000, to having had property seized, and having been arrested and assaulted again in July 2000. If those factual claims were accepted, then I cannot see how the presiding member could fail to determine that the applicant had suffered serious harm as defined in s.91R(2) of the Migration Act. It did, however, remain open to the presiding member to find that the applicant had not suffered serious harm for a Convention reason.
In terms of s.91R(1) of the Migration Act, the applicant must have suffered harm for a Convention reason that was the essential and significant reason for the harm suffered. The harm must be serious and to be persecution the harm must be systematic and discriminatory. The presiding member took the view that what happened to the applicant was a consequence of investigations carried out by the Sri Lankan authorities in relation to LTTE activities and that the applicant was not targeted for any reason other than that he appeared to be able to assist the police with their inquiries.
That is a debatable proposition but one which, in my view, was open to the presiding member on the material before him. Even if I were wrong in that view, no serious attack has been mounted against the reasoning of the presiding member in terms of the risk of future harm. It is true that the applicant, on his account, left Sri Lanka shortly after the last asserted detention in July 2000, which would be consistent with a genuine fear of harm. However, the presiding member reasonably and properly had regard to country information pointing to the improving political situation in Sri Lanka which significantly lessened the risk of harm to LTTE members and supporters and which must necessarily reduce the risk of harm of anybody who might incorrectly be associated with the Tamil Tigers.
The applicant also asserts that the RRT was bound to investigate his claims on the basis of a particular social group, being Sinhalese citizens whose work brings them into close contact with non-Sinhalese who are of interest to the police. No such claim was made expressly by the applicant to the RRT but Mr Batchelor submits that the facts as presented to the RRT squarely raised the issue and the RRT should have considered it. There are, in my view, insuperable difficulties to this ground of challenge. I agree with and adopt paragraph 7 of Mr Reilly's written submissions in relation to it:
The applicant’s submissions also appears to claim that the RRT should have considered the applicant as a member of a particular social group, “being Sinhalese citizens whose work brings them into close contact with non-Sinhalese who are of interest to the police” (para 17). There are a number of difficulties with this claim. First, no such claim was asserted before the RRT, and nor did it so obviously arise on the material before the RRT as to require consideration within the principles in NABE v Minister for Immigration (No 2) [2004] FCAFC 263. Secondly, the posited group would not appear to satisfy the requirement from Applicant S v Minister for Immigration (2004) 206 ALR 242 (HCA) at [36] that a particular social group must be (1) identifiable by a characteristic or attribute common to all members; (2) which cannot be the shared fear of persecution and (3) possession of which must distinguish the group from society at large. Thirdly there is no basis to suggest that the applicant would have any additional fear of harm as a result of membership of such a group beyond the claims which were rejected by the RRT.
There was in my view no jurisdictional error committed by the RRT in its decision notwithstanding the possible mis-interpretation of s.91R(2) of the Migration Act. It follows that the decision of the RRT is a privative clause decision. On the basis of that finding I am invited to uphold an objection to the competency of the application relied upon by the Minister. That in turn is objected to by the applicant on the basis that the objection to competency was not filed within the period prescribed by the Federal Court Rules (“the Federal Court Rules”). In my view, this is an unnecessary distraction. Issues of jurisdiction are matters for the Court, not the parties. The issue of jurisdiction does not disappear simply because the Minister is late in filing a notice of objection to competency. There is no particular significance in that failure to comply with the Federal Court Rules.
Secondly, the question of whether the decision of the RRT is a privative clause decision has been determined by me in a final hearing. As a result of my finding that the RRT decision is a privative clause decision, the Court has no further jurisdiction by reason of the operation of s.474 of the Migration Act. In the circumstances, the issue of whether the Court is deprived of jurisdiction under s.477(1A) of the Migration Act is of no real consequence. The decision is not, in my view, rendered interlocutory by reason of that want of jurisdiction, if indeed, there is a want of jurisdiction. In this case the issue concerning the application of s.477(1A) is clouded by doubt. If time runs from the date of the letter of notification at page 179 of the court book, the application to the Court was filed in time. If, on the other hand, time runs from the date on which the applicant attended the RRT to receive the decision, then he is apparently two days out of time. In my view, it is unnecessary to decide that issue, given that s.474 of the Migration Act operates.
In any event, I will dismiss the application.
The application having been dismissed, costs should follow the event. Mr Reilly seeks an order for costs fixed in the sum of $5,000. Mr Batchelor did not wish to be heard on costs. I am satisfied that the amount of preparation required of the Minister in this case, coupled with the appearance of Mr Reilly today with an instructing solicitor and the representation of the Minister at an earlier directions hearing, properly calls for a costs order in that sum.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, fixed in the sum of $5000. I will extend the appeal period for 42 days from today, noting that I will be on leave for three weeks from Monday next, and unable to settle the transcript of these reasons until I return.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 10 May 2005