SZDNB v Minister for Immigration - [2004] FMCA 897

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDNB & Ors v MINISTER FOR IMMIGRATION

[2004] FMCA 897

MIGRATION – RRT decision – Tamil family from Sri Lanka – no error in Tribunal’s assessment of claims.

Migration Act1958 (Cth), ss.474(1), 477(1A), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Abebe v The Commonwealth (1999) 197 CLR 510
Dranichnikov v Minister for Immigration (2003) 197 ALR 389
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs: Ex parte Applicants S154/2003 (2003) 77 ALJR 1909
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82

Applicant:

SZDNB & SZDNC & SZDND

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1341 of 2004

Delivered on:

17 November 2004

Delivered at:

Sydney

Hearing date:

17 November 2004

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

Mr B. Zipser

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
The applicant to pay the respondent's costs in the sum of $4800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1341 of 2004

SZDNB & SZDNC & SZDND

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act1958 (Cth) challenging a decision of the Refugee Review Tribunal dated 6 June 2000 and posted to the applicant on 27 June 2000. The application in this Court was filed on 7 May 2004.
The applicant has sworn an affidavit which explains some of the events that have occurred in that long delay. However, I do not need to address whether he has a satisfactory explanation for the delay, first, because it was not submitted by the Minister that relief should be refused on that ground and, secondly, because I have reached a conclusion adverse to the merits of the judicial review application.
The Court's jurisdiction under s.483A is "the same jurisdiction as the Federal Court in relation to a matter arising out of this Act", which in relation to a matter such as the present is conferred by s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Part 8 of the Migration Act. The limitations in s.474(1) and 477(1A) would preclude this Court from giving relief unless I am satisfied that the Tribunal's decision was vitiated by jurisdictional error, within Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76] and subsequent authorities. Both counsel presented their submissions on that basis.
The claim for refugee status by the applicant attached a lengthy statement setting out circumstances which were said to prevail generally in Sri Lanka for people of Tamil ethnicity with connections to the Jaffna Peninsula. It then narrated various incidents that had occurred to him and his family while living in Jaffna and subsequently in Colombo during visits back to Sri Lanka in a lengthy period of employment overseas.
I need not summarise the whole of his narrative. It included four episodes where the applicant claimed to have received persecutory treatment by state authorities on suspicion of connections with Tamil separatists, the LTTE:
i)When he was arrested and mistreated at a time which the Tribunal understood to be 1985.
ii)When the applicant claimed to have been arrested and detained after the arrival of an Indian peacekeeping force in July 1987. The Tribunal dealt with this under the heading: "The claimed arrest and detention in November 1989" and the applicant's contentions adopted that heading, although the applicant's narrative in relation to the dating of this detention is by no means clear.
iii)When the applicant returned from working outside Sri Lanka in December 1997. During this visit he claimed to have been harassed by the police.
iv)When the applicant was arrested and detained in August 1998 just before he left for Australia. He arrived in Australia on 22 August 1998 on a visitor's visa which had been granted in Brunei in May of 1998. The Tribunal dealt with the last two episodes under the one heading: "The arrest and detention in August 1998."
The two grounds for review argued before me focussed on the second and third of these episodes, and I shall below refer more fully to the evidence concerning them. However, they should be understood in the context of the Tribunal’s over-all reasoning.
At the start of its reasoning under the heading: "Findings and Reasons" it indicated a general conclusion as follows:
The applicant’s claims and evidence are to the effect that he fears harm by the Sri Lankan Security Forces for reason of his [imputed] political opinion because he is suspected of being an LTTE supporter.
The Tribunal accepts that the applicant was detained briefly in 1985. The Tribunal does not accept as credible the applicant’s claim to have been detained in November 1989 by the IPKF, and the Tribunal has no doubt that the applicant has been untruthful about his claimed detention in August 1998.
The Tribunal is not satisfied that the applicant is of any on-going interest to the Sri Lankan authorities or that he has a well-founded fear of persecution by the Sri Lankan authorities.
The Tribunal then dealt with the arrest and detention in 1985, the claimed arrest and detention in November 1989, and the arrest and detention in August 1998. In relation to the last of these, it said:
The Tribunal referred the applicant to his return to Sri Lanka on 10 August 1998 and his claimed arrest on 10 August 1998. Apart from the extraordinary coincidence of the applicant’s home being raided immediately after he returned to Sri Lanka because of a relative of the applicant’s wife – who had been living there, without problems for over a year – there are a number of inconsistencies in the applicant’s claims and evidence that lead the Tribunal to the conclusion that the applicant has fabricated this claim for the purposes of enhancing his application for refugee status.
The Tribunal then gives several reasons for concluding that this claim was fabricated. Nothing in this part of its reasoning has been challenged in the present application. It then stated its final conclusions on all his claims:
Given the adverse findings on credibility in regard to the above-mentioned claims and evidence [the claimed arrest in 1989 and 1998], it follows that the Tribunal cannot be satisfied that there was any on-going antipathetic interest in the applicant, by the Sri Lankan authorities either at the time he departed Sri Lanka in 1998 or that there is any adverse interest by the Sri Lankan authorities in the applicant in the reasonably foreseeable future. The Tribunal cannot be satisfied that either the EPRLF or TELO have any on-going adverse interest in the applicant either. At the conclusion of the hearing (25 May 2000) the Tribunal pointed out to the applicant that there were contradictions in his claims at various stages in the refugee process, and noted its concerns to the applicant. The applicant responded by saying that he was telling the truth.
Considering the applicant’s mendacity on the essential elements of his claim, as well as the inconsistencies between his claims and evidence the Tribunal finds that the claims of harm, and threats of harm, by the Sri Lankan authorities to be a fabrication. The Tribunal cannot be satisfied that the applicant has a real chance of being persecuted for a convention reason in Sri Lanka in the foreseeable future, and is therefore not satisfied that the applicant’s fear of persecution for a Convention reason is well founded.
Before turning to the “November 1989” and “December 1997” episodes which were focused upon in the applicant’s argument, I should note a general submission by counsel for the Minister. This was that, even if the Tribunal made significant factual errors in the course of dealing with these episodes, any error could not amount to jurisdictional error. It was submitted that the applicant made only one claim to satisfy the definition of “refugee”, which was that he feared harm for reason of imputed political opinion because of being suspected of being an LTTE supporter. The jurisdictional requirement on the Tribunal was to identify and address that claim. On any view of the Tribunal's reasons, it had done so in the conclusions which I have set out above. Consequently, no jurisdictional error could arise from factual errors made in the course of its reasoning about particular parts of the narrative in which the claim was put forward.
I need not explore this submission further, because I have reached a conclusion that the factual arguments on which the applicant's grounds are founded must fail.

First ground of review

The applicant's first ground of review concerns how the Tribunal dealt with the following passage in the applicant's original statement in support of his protection visa:
In 1984 the situation around the workplace became dangerous and I had to do another job to earn more money so I started to give private tuition to the students at my house. I attended the workplace whenever it was functioning and during the rest of the time I gave private tuition. I was busy teaching the students and I could earn and help my parents to look after the family. Unfortunately the LTTE militants started to visit me in order to get the students recruited to their force. I had to cancel the classes due to LTTE continuos interference. After the Indian Peace Keeping Force (“IPKF”) landed in Jaffna I started to face severe harassment and torture in the hand of the LTTE and IPKF soldiers. I was taken to custody by the IPKF in suspicion of LTTE involvement. As I was giving private tuition I was suspected of knowing students who joined the LTTE. In fact all my college friends who couldn’t complete their studies held senior positions in the LTTE force and I could escape from the LTTE atrocities because of their help. The IPKF was assisted by the EPRLF and the TELO groups who were assisting the army to arrest the LTTE. These boys from the above group passed false information to the army against me stating that I recruit youths for the LTTE force.
I had been arrested many a times by the IPKF and was subjected to torture. In November 1989, I was arrested by the IPKF and was handed over to the Sri Lankan army in Palaly from where I was transferred to Boosa camp. I was harassed and tortured to a very bad extent. The prison officers murdered innocent Tamil youths mercilessly in front of my eyes. My wife came down to Colombo and made arrangements to bribe the police to release me. Because of the Peace Talk that was in existence, my wife could get me out of the Boosa camp by paying few thousand rupees. I immediately contacted an agent and applied to get a job overseas to flee the country under any cost. I couldn’t stomach the atrocities any further. I left to Dubai in March 1990 with my family.
In its reasons the Tribunal summarises its questioning of the applicant concerning this part of his claim as follows:
The Tribunal referred the applicant to his statement to the Department of Immigration that he started giving tuition classes in 1984. He also claimed that because of LTTE interference he stopped his classes. The tribunal pointed out to the applicant that his statement is chronological, and suggests that he stopped giving these classes before the arrival of the IPKF and yet he claimed that he was taken into custody because of the tuition classes? The Tribunal asked the applicant to comment. The applicant stated that what he meant was that because of the LTTE interference he was forced to cancel some classes of particular days.
The Tribunal referred the applicant to his claim that members of the EPRLF and TELO passed false information to the army against him that the applicant recruited youths for the LTTE force. The Tribunal pointed out that according to his statement he had no problems with the EPRLF or the TELO, and the Tribunal asked the applicant why they implicate him as having been involved with the LTTE? The applicant claimed that some of the boys he taught joined the LTTE and that some of his students were in “high posts” with the LTTE. The applicant claimed that if the LTTE needed manpower they would recruit students from his class. The applicant claimed that the EPRLF and TELO thought he was recruiting for the LTTE.
The Tribunal referred the applicant to his claim that he was sent to Boosa Army Camp. The Tribunal asked the applicant when he was sent there. The applicant replied that he was sent there in November 1989 for three months and was released in about February or March 1990. He stated that he was released because there were peace talks between the LTTE and the government.
The Tribunal referred the applicant to his statement that he was subject to “many detentions” and yet he only mentioned one in 1985 and the detention in Boosa in late 1989. The tribunal pointed out to the applicant that he has provided no information about these claimed “many detentions” and asked if he had been detained on any occasion other than 1985. The applicant responded that he was detained and sent to Boosa.
The transcript of the hearing which this passage purports to summarise is not before me and I am unable to make any findings which would challenge the accuracy of this summary.
The Tribunal's reasoning on this part of the claim was:
The claimed arrest and detention in November 1989
The applicant claimed and gave oral evidence at his hearing that he was detained in November 1989 by the IPKF [on information provided by the EPRLF and TELO] and handed over to the Sri Lankan authorities because of tuition classes he was giving to Tamil youths which led the IPKF to suspect he was recruiting for the LTTE.
However, according to another of the applicant’s claims [in his written statement], he stated that he stopped these classes in 1985 because of interference by the LTTE. When asked to explain this discrepancy at hearing the applicant claimed that he did not mean that he stopped classes but rather that particular classes had to be cancelled.
The applicant also gave a different account of how he was released from Boosa Army Camp. On the one hand, in his written statement to the Department of Immigration he claimed that he was able to be released from Boosa as a result of his wife paying bribes [at the time of the peace talks] while at hearing the applicant stated that it was only because of the Peace Talks that he was able to be released.
Given that the applicant has claimed that the sole reason for his arrest in 1989 was because of his conducting Tuition classes, and in light of the significant inconsistency regarding the claimed dates that the applicant stopped conducting tuition classes, the Tribunal cannot be satisfied that the applicant has been truthful about this claim, it cannot be satisfied that he was conducting tuition classes after 1985, and it cannot be satisfied therefore that he was arrested for this reason in 1989. The Tribunal therefore cannot give weight to this claim.
Counsel for the applicant submitted that the Tribunal erred in making the finding that there was a "discrepancy" and "significant discrepancy" in the applicant's claims and evidence concerning the date when he stopped his private tuition classes. However, in my view no such error of fact should be found by the Court.
I consider that the statement of the applicant was unclear as to the chronology of events, but that it was open to a Tribunal of fact to form a view that there were inconsistencies between the account in the written statement and what the Tribunal has recorded the applicant as saying at the hearing. I also consider that it would have been open to a Tribunal of fact to have felt confirmed in a conclusion that there were inconsistencies when at the hearing the applicant responded unsatisfactorily to the suggestion that there were inconsistencies.
I reject the submission that in this part of the Tribunal's reasons it failed to deal with a "substantial, clearly articulated argument relying on established facts” within Dranichnikov v Minister for Immigration (2003) 197 ALR 389 as discussed in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [55]. I also reject the contention that the Tribunal made "an error of fact in misunderstanding or misconstruing a claim advanced by the applicant" and "based its conclusion in whole or in part upon the claims so misunderstood or misconstrued" within the Full Court's discussion in that case at [63].
The second element which counsel for the applicant challenged in the above reasoning of the Tribunal was its statement that the applicant gave different accounts of how he was released from Boosa Army Camp. Counsel conceded that due to the last paragraph in the passage extracted above at [15], it was unclear whether the Tribunal in fact relied on this inconsistency when rejecting this part of the applicant's claim. He also accepted that I could only find error of law if I were persuaded that, in his oral evidence to the Tribunal, the applicant had given ambiguous responses as to the reasons for his release, such that there was a duty on the Tribunal to seek clarification as to whether he was in fact putting forward only one reason or whether there were other reasons also.
I am not satisfied that it was not open to the Tribunal to find that there were different accounts given by the applicant concerning the reasons for his release from Boosa, if only because the Court does not have the transcript of the actual exchange between the Tribunal and the applicant concerning his release. As recorded by the Tribunal, the applicant has indeed at the hearing given only one reason as the reason for his release - the existence of peace talks, whereas in his earlier statement he had put forward two reasons - peace talks plus bribes. I consider that it was open to the Tribunal to find that different accounts were given.
I am also not persuaded, as was contended by counsel for the applicant, that a failure of procedural fairness occurred on the part of the Tribunal when reaching this conclusion. As counsel for the respondent points out, the Tribunal was not obliged to draw attention to perceived inconsistencies in the versions of events given by the applicant at various times to the Tribunal (see Abebe v The Commonwealth (1999) 197 CLR 510 at [187]; Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [76], [208]; and Re Minister for Immigration and Multicultural Affairs: Ex parte Applicants S154/2003 (2003) 77 ALJR 1909 at [56-58].
The applicant's first ground of review therefore fails.

Second ground of review

The second ground of review attacked the Tribunal's findings on events which the applicant claimed had occurred to him in December 1997. In his original statement he said:
We had to return back to Colombo in February 1996 till my elder brother got me the appointment letter. In Colombo the situation was different and everyone had to register at the nearby police station for security reasons. When I approached to register the police officers demanded money. I was afraid to talk back to them in case they would investigate into my earlier arrests. I paid them money and promised that I would leave the country soon. My brother arranged a job for me and leaving my wife and child in Colombo I left to Brunei immediately. My wife stayed with her relatives at Rajasinghe Road, Wellwatte and was harassed by the security officers who were visiting the house to extract money. I couldn’t see my wife suffering and I had to get them down immediately. The LTTE demanded money from my parents in Vanni and due to the continuos bombing and shelling and the health conditions in Vanni my mother started to suffer from a broken arm. I had to pay the LTTE for them to release my parents to travel to Colombo. As my parents had never been to Colombo I had to immediately travel to Colombo to look after my mother’s health. As I was the favourite son my mother pleaded with me to save here from the sufferance of a broken arm. I got my mother admitted at the surgery and Dr Sritharan from Colombo operated her right hand and a metal plate was implanted to straighten her arm. I couldn’t stay in Colombo due to the continuous police visits to obtain money. Every time the security officers came home I though about the torture and sufferance I underwent in Boosa camp and in Jaffna. (my emphasis)

The Tribunal records the applicant as saying at the hearing:
The applicant stated that he returned to Sri Lanka in December 1997. He stated that he took leave of about three weeks from his employment to visit his mother who was sick. The Tribunal referred the applicant to his claim to the Department of Immigration that he could not stay in Sri Lanka because of the “continuous” visits by the police demanding money and noted that according to his evidence at this hearing, he had no intention of staying in Sri Lanka because he had ongoing employment in Brunei. The Tribunal noted therefore, that his statement that the reason he left Sri Lanka was because of his “continuous visits by the police” is a misrepresentation – because he left Sri Lanka not because of police harassment but because he had a job in Brunei to which he had to return. The Tribunal asked the applicant to comment. The applicant responded that he took leave and travelled to Sri Lanka where he intended to stay “for a while" but the police came to his home and suspected that he was sending money to the LTTE from abroad. The applicant claimed that he was not arrested because he paid bribes
In its findings in relation to this part of the claims, the Tribunal said:
The Arrest and Detention in August 1998
The applicant gave evidence that from 1990-1998 he was working outside Sri Lanka in the Middle East and Brunei. He returned to Sri Lanka in February 1996, again in December 1997 and a third time in August 1998.
According to his evidence, in February 1996 he encountered “no problems”. The applicant claimed in his written statement that in December 1997 when he was returned to Sri Lanka he could not stay in Sri Lanka because of the “continuous” visits by the police demanding money. However at the hearing the applicant gave evidence the he took leave from work [in Brunei] to visit his mother suggesting that the applicant had no intention of staying in Sri Lanka because he had no on-going employment in Brunei. The applicant responded that he took leave and travelled to Sri Lanka where he intended to stay “for a while” but the police came to his home and suspected that he was sending money to the LTTE from abroad. The applicant claimed that he was not arrested because he paid bribes. The Tribunal finds the applicant’s explanation to be self-serving and unconvincing, and the Tribunal finds that the applicant’s written claim that the reason be left Sri Lanka was because of the “continuous visits by the police” is a misrepresentation of the real situation. The Tribunal is satisfied from the applicant’s evidence, that the reason he left Sri Lanka in December 1997 was not because of police harassment but because he had a job in Brunei to which he had to return.
Counsel for the applicant submitted that in the course of the above reasoning, the Tribunal failed to make findings which dealt with a component of the applicant's claims. This was that in December 1997 he had incurred police harassment requiring him to pay bribes under threat of arrest. It was submitted that the Tribunal had not expressly rejected this aspect of the claim, and therefore should be taken to have accepted it as having occurred. It then failed to address whether, by reason of its acceptance of that part of his claims, he had a well-founded fear of persecution if returned to Sri Lanka.
I consider that this argument lacks a proper basis on a reasonable reading of the Tribunal's reasons set out above. I accept the submission of the counsel for the respondent that the Tribunal has dealt with the applicant's narration as to what happened in December 1997. It rejected his claim to have avoided arrest by paying bribes, in its finding that “the applicant's explanation (is) self-serving and unconvincing". It also rejected this claim when it found that that harassment by the police was not the reason for his leaving Sri Lanka in December 1997. The Tribunal did not accept that something had occurred in Sri Lanka to cause him to leave, but found that he left because he had a job in Brunei to which he had to return. I therefore do not consider that this ground of review achieves its first base.

Ground not pursued

The applicant's original application to this Court contended that the Tribunal had erred by not addressing a separate claim by the applicant's son, who was born in 1987. It was alleged that: "The applicant's only son fled from Sri Lanka with their parents to save their life and future. The Tribunal failed to consider the young boy's chance of persecution. The applicant's child was not interviewed at the time of hearing."
However, I note that the Tribunal expressly adverted to the situation of the applicant's son at the end of its statement of reasons:
The applicant claimed that if his son was arrested upon his return to Sri Lanka he would be tortured. To date, the applicant son has made no refugee related claims, and this is the first time that the applicant has raised such a concern. The applicant’s son is 13 years old and there is no evidence to suggest that he has ever had any difficulties with the Sri Lankan authorities in the past. There is no evidence to suggest there would be any interest in him by the Sri Lankan authorities in the reasonably foreseeable future or he would face any harm in the foreseeable future in Sri Lanka. The Tribunal gives no weight to this unsupported allegation.
Perhaps in view of that finding, counsel for the applicant did not in the amended application or in his submissions seek to pursue the contentions made in the original application.
For the above reasons I shall dismiss the application.

RECORDED : NOT TRANSCRIBED

I shall order the applicant to pay the respondent's costs in the sum of $4800.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 30 November 2004