SZDQU v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 605

FEDERAL COURT OF AUSTRALIA

SZDQU v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 605

MIGRATION – no issue of principle.

SZDQU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 6 OF 2005

CONTI J
12 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 6 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDQU APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	12 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2         The appellant to pay the costs of the respondent assessed at $1,500.00.

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 6 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDQU APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	12 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against the reasons for judgment of a Federal Magistrate delivered on 17 December 2004, whereby the Federal Magistrate dismissed the appellant’s application for review of a decision of the Refugee Review Tribunal handed down on 11 May 2004, which in turn had affirmed a decision of the Minister’s delegate made on 9 December 2003 not to grant the appellant a protection (Class XA) visa. 

2. The appellant is a national of Sri Lanka and claimed to fear persecution from the LTTE (commonly referred to as the ‘Tamil Tigers’) because of his work as a technologist in a medical laboratory, which was said to have undertaken work for a prominent policeman Inspector Thabiew, who was later murdered by the LTTE.  The Tribunal’s decision was addressed at length in the reasons for decision of the Federal Magistrate, and has been usefully summarised by the solicitor for the Minister in her written submissions which I reproduce for ease of reference:

   (a)‘in relation to the relationship with Inspector Thabiew, the appellant’s claims were not credible and that the appellant had embellished and inflated any professional contact they may have had;

   (b)it was implausible that the LTTE would seek to harm the appellant for any professional relationship he may have had with Inspector Thabiew;

   (c)the appellant did not go into hiding because of his fear of the LTTE as he continued to attend work every day;

   (d)the written complaint of threats against him were provided to the police in Sri Lanka to have “‘evidence’ for the Tribunal as a means of enhancing his claim to be a refugee”; and

   (e)the Tribunal found that the claims and threats of harm were a fabrication and decided it was not satisfied that the appellant’s fear of persecution for a Convention reason was well-founded.’

3. In his appeal to this Court, the appellant articulated the following purported grounds of appeal (read literally): 

   ‘(1)The Tribunal relied on country information in its decision.  The country information is set out at page 11 to 12.  The Tribunal did not put country information to the applicant and give him an opportunity to comment.  In the circumstances of the case, this constituted a denial of procedural fairness and jurisdictional error.  This argument has not been considered in the appeal to the Federal Magistrate Court.  It is an error in Law; 

   (2)The Tribunal found that the applicant’s claim that the LTTE were seeking to harm him not to be credible.  The Tribunal fell into jurisdictional error in making this finding.  Even though it was a jurisdictional, it was not considered at the Federal Magistrate Court hearing.’ 

   Apart from some minor flourishes, those are precisely the same grounds that the appellant put unsuccessfully to the Federal Magistrate. 

4. The Federal Magistrate dealt with both of those grounds of appeal in great detail in the reasons for judgment.  In relation to the second ground – that the Tribunal fell into jurisdictional error in finding that the appellant’s claims that he feared harm from the LTTE lacked credibility – the Federal Magistrate referred to the decision of the High Court in Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 where at [67], McHugh J stated:

   ‘In addition, the prosecutor alleges that the tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were “utterly implausible”. However, this was essentially a finding as to whether the prosecutor should be believed in his claim — a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.’

   Similarly, the Tribunal concluded in respect of the appellant’s claims:

   ‘The Tribunal does not find the applicant’s claim that the LTTE were seeking to harm him because of any professional contact he may have had with [the police officer] Thabriw to be credible, and it finds his claim that he was only able to avoid harm by being “in hiding” to be lacking in credibility.  The Tribunal gives these claims no weight’

   His Honour the Federal Magistrate considered the evidence upon which the credibility findings made by the Tribunal were based and concluded that they were reasonably open to it, and that no jurisdictional error was therefore disclosed.  To all that I need add nothing further in relation to the Tribunal decision. 

5. In relation to the first ground that the appellant was not afforded procedural fairness because numerous pieces of independent country information were not put to him, the Federal Magistrate held that none of the four segments of information involved fell within the scope of s 424A of the Migration Act 1958 (Cth). In the case of three of those four segments, that was because the information was not about the appellant specifically, or another person or a specific group. In the case of the information about the murder of Inspector Thabiew, the information was not relied upon by the Tribunal in reaching its decision, as sub-section (1)(a) requires. In any event all four segments of information were said by the Federal Magistrate to have supported the appellant’s case, hinging as it did on the violence of the LTTE and the murder of the police inspector. Again, I need add nothing further to the reasons of the Federal Magistrate in respect of this ground of appeal.

6. The appellant filed written submissions in accordance with my orders to do so.  Those written submissions do not however articulate any error of law or source of jurisdictional error in the reasons of the Tribunal or the Federal Magistrate.  The information contained therein, put at its highest, constitutes an attempt to persuade me of the merits of the appellant’s claims which, as the Federal Magistrate explained to the appellant, the Court is precluded from entering upon according to legal principle.  The same can be said about the series of newspaper reports attached to the submissions by the appellant detailing violence committed by the LTTE in Sri Lanka.  I understand the appellant’s difficulty in not being qualified to strictly distinguish points of law from those of fact.  However in the circumstances as they have been articulated by the appellant, it is clear that there exists no basis for challenge of the Tribunal’s conclusions within the curtailed scope of jurisdiction that I am authorised to exercise. 

7. I therefore dismiss the appeal, and I order the appellant to pay the Minister's costs assessed at $1500.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             13 May 2005

The appellant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12 May 2005
Date of Judgment:	12 May 2005