SZBIS v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1056

FEDERAL COURT OF AUSTRALIA

SZBIS v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1056

SZBIS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 788 OF 2005

STONE J
12 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 788 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBIS APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	12 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

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 788 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBIS APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	12 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BACKGROUND

1. The appellant is a citizen of Sri Lanka who arrived in Australia on 2 August 2000.  On 5 September 2000, he lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural Affairs.  His application was rejected first by a delegate of the respondent Minister and then by the Refugee Review Tribunal (‘Tribunal’).  His application to the Federal Magistrates Court for review of the Tribunal’s decision was dismissed on 14 April 2005.

2. The appellant was born in Colombo, however, at all relevant times he lived in Kelaniya.  In a statement accompanying his visa application, the appellant set out his claim for refugee status.  He stated that he feared persecution on account of his race, religion, nationality, membership of a particular social group or political opinion, although it is tolerably clear that his claim was based on imputed political opinion.

   THE APPELLANT’S CLAIMS

3. In brief, the appellant’s account of the circumstances that led to his application for a protection visa are as follows.  In Kelaniya the appellant was involved in his family’s video and photographic business. The business had many Tamil customers.  The appellant and his brother worked as political photographers for some time and in the course of their work they attended many political gatherings.  Because of this the police suspected that they were supporters of the Tamil Tigers (the ‘LTTE’). 

4. On 18 December 1999 President Kumaratunghe was injured by a bomb blast in which his brother’s friend, Indika, was killed.  The appellant and his brother were arrested for questioning and held in detention for five days.  The appellant was questioned about his alleged association with the LTTE and subjected to beatings and other mistreatment.  After this, surveillance of their possible association with the LTTE continued for some time.  The appellant and his brother were again arrested in June 2000 after a bomb attack killed two politicians.  In July 2000 the appellant was again arrested, accused of being an LTTE supporter and severely assaulted.  The appellant’s father arranged their release by bribery but was warned that the police could not guarantee the appellant’s safety if he remained in the country.  The appellant left Sri Lanka travelling on a valid passport in his own name.

   THE TRIBUNAL’S DECISION

5. At the invitation of the Tribunal the appellant attended a hearing on 29 November 2002 at which he was able to give oral evidence and present arguments.  After the hearing the Tribunal sent a letter, dated 17 June 2003, to the appellant stating that in addition to the country information cited at the hearing, Department of Foreign Affairs and Trade assessments may be used by the Tribunal to decide the appellant’s case.  The Tribunal sought further comment from the appellant in relation to the relevant assessments, which, inter alia, contained the following advice:

   ‘it is not credible that a Sinhalese would ‘sympathise’ with the LTTE. …it is not credible that a Sinhalese would ‘sympathise’ with or support the methods/activities of the LTTE’

   The Tribunal attached copies of the independent country reports from which these assessments were drawn.  In response the appellant sent a statutory declaration reiterating the position he had put to the Tribunal and providing some additional documents.

6. The Tribunal accepted that the appellant’s evidence, written and oral, was consistent both internally and with that of a witness who gave a statutory declaration and appeared at the hearing.  The Tribunal did not expressly state that it accepted the appellant’s account of his experiences or which, if any, aspects of his account it did not accept.  By implication, however, it appears to have accepted the appellant’s factual account, at least for the purposes of assessing his claim to be suspected of Tamil sympathies and involvement.

7. In considering this issue the Tribunal placed great weight on the independent country evidence that it had drawn to the appellant’s attention, including evidence as to peace negotiations between the Sri Lankan government and the LTTE.  The Tribunal said that it was ‘more plausible’ that the appellant had been questioned by the authorities in a fact-finding exercise about Tamils that the appellant and his brother knew as clients of their business.  It summarised its findings on this issue as follows:

   ‘•it is implausible that the Sri Lankan authorities would have imputed any pro-LTTE political opinion to the applicant, an ethnic Sinhalese, and there is not plausible reason for the applicant to believe the authorities will impute an LTTE opinion to him on return;

   •the incidents described by the applicant in which he was arrested and investigated over possible LTTE associations, while disagreeable, were not of sufficient severity to amount to serious harm or mistreatment …

   •the applicant is not in fact of pro-LTTE opinion and has provided the authorities when asked with information about his Tamil contacts;

   •there is no reason to believe that the authorities will consider him to be pro-LTTE or to be in any way unhelpful to the authorities in seeking to combat illegal LTTE activity;

   •the applicant is in any case unlikely to be of further interest to the authorities in the light of their July 2000 investigation, following which he was not prosecuted or in any other way further pursued by the authorities;

   •the continuing peace process creates a context in which the difficulties feared by the applicant are even less likely to arise than if the civil war were continuing.’

8. The Tribunal therefore concluded that the appellant did not have a well-founded fear of persecution for a Convention reason and dismissed his application.

   THE FEDERAL MAGISTRATES COURT

9. The appellant sought review of the Tribunal’s decision in the Federal Magistrates Court.  The Federal Magistrate, appropriately in my view, was critical of the way in which the Tribunal expressed its views under the heading, ‘Findings and Reasons’ and in particular, that the Tribunal did not make clear the extent to which it accepted the appellant’s claims.  His Honour commented at [8]:

   ‘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  … 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 …’

10. His Honour noted that the appellant’s factual claims included claims to have been arrested, beaten and detained on several occasions and to have had property seized and commented:

    ‘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.’ 

11. His Honour pointed out, however, that it did remain open for the presiding member to determine that the harm suffered by appellant was not attributable to a Convention reason and continued:

    ‘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.

    This is a debatable proposition but one which, in my view, was open to the presiding member on the material before him.’

    THIS APPEAL

12. The appellant appeals from the whole of the judgment of the Federal Magistrate.  In one way or another all the grounds listed in the notice of appeal go to the Tribunal’s assessment of the merits of the appellant’s claims and, in particular, to the weight that the Tribunal gave to the independent country information.  At the hearing of this appeal the appellant appeared for himself, assisted by an interpreter.  Not surprisingly he was not able to assist the Court in the analysis of the Tribunal’s decision or that of the Federal Magistrate.

13. I agree with the concerns expressed by the Federal Magistrate for the reasons articulated by his Honour.  However, I also agree with his Honour that it was open to the Tribunal to decide on the basis of its assessment of the appellant’s claims and the independent country information that the appellant’s experiences were not attributable to a Convention reason.  On that basis the Tribunal was entitled to come to the conclusion that the appellant did not have a well-founded fear of persecution for a Convention reason and therefore that he was not a person to whom Australia owed protection obligations. 

14. In his oral submissions at the hearing of the appeal, the appellant took issue with the accuracy of the country information on which the Tribunal relied.  However, as the Full Court observed in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13], it is for the Tribunal, not for the Court, to assess the accuracy of such country information and in doing so to make its assessment of the situation in Sri Lanka in the reasonably foreseeable future. The Court is not entitled to substitute its own view of the material.

15. For these reasons the appeal must be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             12 August 2005

The Appellant appeared in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	2 August 2005
Date of Judgment:	12 August 2005