SZDTF v Minister for Immigration
[2005] FMCA 645
•27 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDTF v MINISTER FOR IMMIGRATION | [2005] FMCA 645 |
| MIGRATION – Refugee – definition of persecution and well-founded fear – claims of specific fear of harm – fear of security forces – correct subjective and objective test of well-founded fear – “What if I am wrong?” |
| Migration Act 1958 |
| Applicant A and Anor v Minister for Immigration and Ethnic Affairs andAnor [1997] HCA 4 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388 Minister for Immigration and Multi‑Cultural Affairs v Rajalingam & Ors [1999] FCR 719 NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZDTF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1697 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 27 April 2005 |
| Date of Last Submission: | 27 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr. J. M. Patel |
| Solicitors for the Applicant: | Harpers Solicitors |
| Counsel for the Respondent: | Mr. T. Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the second respondent's costs set in the amount of $4,300 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1697 of 2004
| SZDTF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This judgment arises from an application filed in this Court by the applicant on 3 June 2004 seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 10 December 1998, to affirm the decision of a delegate of the respondent Minister made on 21 May 1997 to refuse a protection visa to the applicant. The applicant was notified of the decision of the Tribunal by letter dated
10 December 1998.
The applicant is a citizen of Sri Lanka who arrived in Australia on
13 July 1996 with his wife and two children. They lodged an application for protection visas with the second respondent’s Department on 22 July 1996. On 21 May 1997, a delegate of the second respondent Minister refused to grant a protection visa, and on
5 June 1997, the family applied to the Tribunal for review of that decision. Only the applicant husband has sought review by this Court.
I note that the respondent Minister has filed a Notice of Objection to Competency on 30 June 2004 objecting to the jurisdiction of this Court but that was not pressed at the hearing before me by the Ministers counsel, Mr. Reilly. I also have before me the affidavit of Hervee Dejean sworn on 26 April 2005, and read in Court by the respondent’s Counsel at the hearing today.
By way of amended application filed on 27 October 2004 on behalf of the applicant by his solicitors, he claims two grounds:
1.“The Tribunal failed to determine the application in accordance with correct law and in accordance with its mandate in as much as the RRT misconstrued and misapplied the definition and notion of “persecution” and “well founded fear” for the purpose of article 1A(2) of the 1951 Convention Relating to the Status of Refugees.
Particulars:
(1)The Tribunal erred in failing to deal with and address all of the specific fears claimed by the applicant. The Tribunal only dealt with his general fear of being a Tamil in Colombo but failed to address and consider the other claims namely (1) A specific fear of being harmed by the LTTE for not co-operating with them, which the LTTE would see as having an adverse political opinion and (2) Fear of arrest and torture by the security forces by reason of association or suspected association with the LTTE.
(2)The Tribunal erred in dismissing the claim of fear of harm by LTTE by drawing an incorrect conclusion that it did not qualify for the purpose of the convention because it was not inflicted by the authorities with their approval and because there was no evidence that the government would condone LTTE.
(3)The Tribunal erred in failing to apply the correct subjective and objective test of well founded fear. The Tribunal accepted the claims of the applicant of the specific harm suffered by the applicant and did not completely reject the country information provided by the applicant. The Tribunal erred in failing to find that the harm suffered by the applicant was persecution for the purpose of the Convention.
(4)The Tribunal considered the applicants chances of persecution if he were to return to Sri Lanka on the on the balance of probability and should have found that there was at least more than 10 percent chance that the applicant would suffer persecution if he were to return to Sri Lanka.
(5)The Tribunal erred in failing to ask and consider the question what if I am wrong? When considering whether there was a real chance that the applicant would suffer persecution if were to return to Sri Lanka.
(5) The Tribunal misinterpreted and misapplied the country information cited by it in its decision and in utilising that information as the sole and only criterion in its evaluation of the chances of persecution feared by the applicant.
2.The Tribunal committed a jurisdictional error in failing to deal with all claims made by the applicant as required by law.
Particulars:
The Tribunal did not address and deal with the applicant’s claims of specific fear of harm (1) by LTTE and (2) by the security forces by reason of the LTTE’s moves to recruit his services for their cause and by the security forces by reason of his suspected involvement with LTTE.”
The applicant's claims were set out in the application to the second respondent's Department at CB 1 to 55, and in particular in the statement at CB 54 to 55, the application to the Tribunal at CB 83 to CB 85 and in written submissions to the Tribunal made by solicitors on his behalf, CB 97 to CB 111. The applicant, with his wife, attended an oral hearing before the Tribunal on 3 December 1998, and was assisted by an advisor who in the Tribunal's record of decision is reported as having made submissions on behalf of the applicant.
The applicant's first complaint is that the Tribunal dealt with the applicant's general fears of being a Tamil and did not deal with all of the specific fears claimed by the applicant, and in particular:
a)a specific fear of being harmed by the LTTE for not cooperating with them, and
b)fear of the security forces by reason of his suspected association with the LTTE.
It is clear that the Tribunal did relevantly look at the general situation relating to Tamils in Sri Lanka, and in particular Colombo, preceding the applicant's departure. But it is also clear from the Tribunal's record, that it did this to better understand the applicant's claims, and at Court Book 125.3, the Tribunal said:
“The claims of the applicant must be viewed against the background of political developments and changes of government in Sri Lanka.”
The Tribunal's analysis with reference to the applicant in the context of riots and security concerns continues until about CB 127.8 where the Tribunal then says:
“Of course, the Tribunal must have regard to the circumstances of this particular case and consider whether the applicants are simply Tamil affected by the prevailing situation of security and identity checks or whether they face more specific and significant attention and risk as LTTE suspects.”
In subsequent passages of the Tribunal's decision record up to and including CB 131, the Tribunal did look at the applicant's specific claims. In relation to the LTTE, the Tribunal said at CB 129.2-129.3:
“Accepting that the approach took place, a number of issues have to be considered.
It was stated that the requests to assist were accompanied by implicit (and later, more direct) threats. This is consistent with many accounts of the LLTE’s methods, including in the areas it long controlled in the north. The LTTE obtains services or resources it requires from the Tamils in whose interests it claims to fight by demands enforced by the implied or stated threat of harm for non-compliance. In these circumstances, the Tribunal does not accept that the accompanying threats will necessarily amount to harm for a Convention reason (including imputed political opinion). The Tribunal is satisfied that in this particular instance any threats were simply a sanction to ensure that the requests or demands were met and do not amount to persecution for a Convention reason.”
At CB 129.4, the Tribunal further says:
“It was suggested at hearing that they did not receive any more threats because the Applicant was now varying how he got to work and was refusing to meet with any visitors to his office whose names he did not know. However, this would not have prevented the LTTE from delivering further requests or threats by telephone calls or note or in person to their home as they had done before, had they wished to do so. It is an obvious inference that the LTTE had given up on the exercise.”
The Tribunal further at CB 129.7:
“The Applicant stated that he believes that the LTTE would bear a grudge against Tamils who fail to assist it. The adviser suggested at hearing that evidence of LTTE fund-raising and extortion in Colombo in 1995 implied a willingness and ability to use force against recalcitrants such as the Applicant and that evidence of self‑contained LTTE cells in Colombo suggested that its resources were regarded as expendable and could be used to pursue the Applicant. The Tribunal was not satisfied that the conclusions suggested followed from this material, viewed in context.”
In relation to being seen as an LTTE associate by the authorities, the Tribunal said at about CB 130.8:
“The Applicant has asserted that if he reports the matter to police, they will accuse him of being an LTTE member and treat him accordingly. The Tribunal does not understand the rationale behind this claim, noir [sic: nor] accept that this is a real possibility. It is not in dispute that the security authorities mount vigorous and genuine operations against the LTTE and is not disposed towards any cooperation or connivance with them. The Applicant at hearing also stated that because of experience by Tamils at police stations, he would be afraid to approach a police station with such a complaint. The adviser asserted that the police are racist and that any Tamil in contact with the police is at risk of persecution. However, the Tribunal was not satisfied that a person who came to the police with information or complaint about the LTTE would be treated as an LTTE supporter.”
The first particular put forward by the applicant to support the first ground in the amended application is clearly contradicted by the Tribunal’s decision record. It is clear that the Tribunal specifically looked at the two specific complaints now raised by the applicant, and this particular complaint cannot be made out on what is before me.
The second particular asserts that the Tribunal erred in dismissing the claim for fear of harm by the LTTE by drawing an incorrect conclusion that it was not for a Convention purpose because it was not inflicted by the authorities with their approval and not condoned by the government. Mr. Reilly, Counsel for the respondent, has in written submissions, referred me to a number of authorities to support his submission that the Tribunal's approach encompassed the correct test.
In the case of Applicant A and Anor v Minister for Immigration and Ethnic Affairs and Anor [1997] CLR 190, Brennan CJ at 233:
“The feared “persecution” of which Article 1A(2) speaks exhibits certain qualities. The first of these qualities relates to the source of the persecution. A person ordinarily looks to ‘the country of this nationality’ for protection of his fundamental rights and freedoms, but if ‘a well founded fear of being persecuted’ makes a person unwilling to avail himself of the protection of [the country of his nationality] that fear must be a fear of persecution by the country of the putative refugee's nationality or persecution which that country is unable or unwilling to prevent. Then, Art 1C(5) provides that a refugee can no longer “continue to refuse to avail himself of the protection of the country of his nationality” if “the circumstances in connexion with which he has been recognised as a refugee have ceased to exist”. As the justification for the refugee’s not availing himself of the protection of that country is the existence of the relevant “circumstances”, those circumstances must have been such that the country of the refugee’s nationality was unable or unwilling to prevent their occurrence. Thus the definition of "refugee" must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee's nationality (35).”
In the same case McHugh J said at 257-258:
“The convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution.”
In this regard, the Tribunal relevantly said at CB 131.6:
“The Tribunal is satisfied that any harm attempted by the LTTE would not be condoned by the authorities and that the Sri Lankan authorities do not allow the LTTE to operate with impunity in Colombo to inflict such harm.”
This finding as it related to the situation in Colombo was open to the Tribunal to make. The applicants say there was no evidence that the government would contain the LTTE. The Tribunal looked at the situation regarding the LTTE operations in Columbo, in particular at CB 129.8 and at CB 130 looked at DFAT advice and specifically addressed the relevant issue. The applicants may not agree with the conclusion but have not put forward anything beyond mere assertion to support the claim that the Tribunal drew on incorrect conclusion. I can see no error in how the Tribunal has approached its task in this regard.
The third contention by the applicant is that the Tribunal failed to apply the correct “subjective” and “objective” elements of the test of “well-founded fear”. The applicant says it accepted the claims of the applicant of the specific harm suffered and did not completely reject the country information submitted by the applicant, but erred in failing to find that the harm suffered by the applicant was persecution for the purposes of the Convention. I note firstly, that the Tribunal's decision in the case before me predates the current Section 91R in the Migration Act. Relevantly, the Tribunal correctly set out the meaning of ‘being persecuted’ taken from Article 1A(2) of the Refugees Convention by reference to the case of Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388. [see CB 119.8-120.1]
The Tribunal did look at the applicant's claims in this regard as to what may constitute persecution, as contained in the applications, the written submissions and oral evidence. The Tribunal made specific reference to this issue in its recording of the applicant's claims and I refer to CB 123.7 where the Tribunal says:
“The Applicant also discussed what might constitute persecution. The adviser concluded that if the Applicant was approached by the LTTE and pressured to assist them, the likely consequence is that he is in danger from the LTTE for refusing and that this would be on the basis of an imputed political opinion. The adviser submitted that if the Applicant does not refuse, he is in danger from the security forces who would, if they found out, link him to the LTTE. As a result, it was submitted, he stands a real chance of extrajudicial punishment by racist police which would amount to persecution by reason of race or imputed political opinion.”
The applicant agrees that the Tribunal accepted the applicant's claims of specific harm and that it did not completely reject the country information supplied by the applicant. The Tribunal accepted that the applicants had been visited at their home as part of sweeps to check for LTTE members, and had been subjected to check point and other identity checks. (CB 126.7). It also found at CB 128.1:
“There was no evidence or claim that the Applicants have been specifically targeted or have been regarded as LTTE suspects. Nor have they claimed any specific physical mistreatment other than one incident when the Applicant was struck on the shoulder with a gun butt (in mid 1995).”
The Tribunal then found at CB 128.5:
“Having regard to all the evidence before it and the particular circumstances of the Applicants, the Tribunal is satisfied that [the] impact on the Applicants of security operations and measures in Colombo does not amount to persecution for a Convention reason or form part of a pattern of conduct amounting to persecution and that they do not have a well founded fear of persecution for this reason.
The Applicants have also been affected by LTTE attacks in Colombo, including the January 1996 Central Bank bombing and bomb threats against schools. However, there was no claim or evidence that these were directed against the applicants or any cognisable group of which they were members or that the authorities are not making genuine and serious efforts to protect citizens against the LTTE.”
It is clear that the Tribunal stated the correct test, looked at all of the applicants’ specific claims and made a finding of fact that in the particular circumstances of the applicants, the impact of security measures in Colombo did not amount to persecution. On the material before it, this finding was open to the Tribunal to make, and the applicants’ complaint now, in my view, really seeks impermissible merits review by this Court.
The fourth particular to ground one is that the Tribunal applied the wrong test, that being a balance of probabilities test in relation to persecution on return to Sri Lanka. At CB 120.4, the Tribunal articulated the correct and relevant test, namely, that of a ‘real chance’ of persecution for a Convention stipulated reason. There is nothing before me to show that the Tribunal did not apply this test in reaching its ultimate conclusion.
The fifth particular of the complaint is that the Tribunal erred in failing to ask itself the question: "What if I'm wrong?", in considering whether there was a real chance of persecution if the applicants were to return to Sri Lanka. This issue was pressed by Mr Patel for the applicants in his submissions before me today. Mr. Reilly for the respondent has referred me to Minister for Immigration and Multicultural Affairs v Rajalingam & Ors [1999] FCR 719, a Full Federal Court decision, as perhaps the authority on which the applicants seek to rely. That case looked at a situation where at first instance the Federal Court held that the Tribunal had erred in relation to its findings of fact on the past treatment of the applicants in that it had failed to ask itself the question: "What if I am wrong?", and that this failure affected the consideration of the question of the well-founded fear of persecution.
The case before me today can be distinguished from the situation in Rajahlingham on the basis that the Court was presented in that case with a situation where the Tribunal did not accept that a past event had occurred. The Court held that where there is sufficient doubt or where the Tribunal is uncertain as to whether an alleged event occurred, then the Tribunal may need to speculate and take account of the chance that the event had occurred. The Court also held that if the Tribunal's record of decision showed no doubt that the claimed event had not occurred, then the Tribunal would not need to engage in the: "What if I am wrong?" speculation. In the case before me, the plain reading of the Tribunal's decision record shows that it accepted the applicant's claims of past harm and also accepted that the applicant had been approached by the LTTE to assist them. Speculation as to: "What if I am wrong?", in these circumstances, as the respondent's counsel submits, would not have assisted the applicant. This is not a situation where the Tribunal had doubts about whether the past event had occurred. Further, in looking at the foreseeable future in relation to harm from action taken against the applicant by the LTTE, the Tribunal found that any action taken by the LTTE would not be for a Convention related reason, specifically for reasons of his actual or imputed political opinion. The Tribunal then did say at CB 131.6:
“ … and even if the Tribunal is wrong about this, the Tribunal is satisfied that any harm attempted by the LTTE would not be condoned by the authorities and that the Sri Lankan authorities do not allow the LTTE to operate with impunity in Colombo to inflict such harm.”
It is clear that the Tribunal is saying that whatever the situation in relation to the threats of harm from the LTTE in Colombo, the authorities would in any event not condone this situation. In these circumstances the applicant could not succeed in this complaint.
The applicant also claims in the second numbered particular 5, that the Tribunal misapplied country information and decided the application solely and only on country information cited in its decision. Firstly the Tribunal did have regard to country information but this involved country information submitted by the applicant's advisor at the hearing before it. See CB 123.9 to CB 124.2. Secondly, the respondent has referred me to Full Federal Court authority: NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10 and in particular, paragraphs [11]‑[13] as authority for the position that the Tribunal was entitled to have regard to country information and give it such weight as it considered appropriate.
In NAHI the Court said at [11]:
“There can be no objection in principle to the Tribunal relying on “country information”. The weight that it gives to such information is a matter for the Tribunal itself as a part of its fact finding function.”
Thirdly, it is clear from the Tribunal's decision record before me, that while it did rely on country information, this was not the sole reason for its decision as suggested by the applicant. The Tribunal also based its decision on a comprehensive analysis of the applicant's claims.
I have already made reference to the Tribunal's statement at CB 124.2 that it took into account all of the evidence and submissions. It was the applicant's claims, much of which was accepted, put in the context of country information, that characterised the Tribunal's approach to its task. It found that the harm claimed from the authorities did not amount to persecution, and that the fear of harm including future harm from the LTTE was not Convention based and that in any event, the Sri Lankan authorities would not condone the LTTE's attempted activities in that regard.
The applicant's second stated ground in the amended application is a repeat, in essence, of the first particular of ground 1 and fails for the same reason. Mr Patel's submissions to me today as I have said, revolved around the issue of the objective/subjective approach by the Tribunal, as to the appropriate test that the Tribunal is required to apply and how it did not apply it. In this regard, as I have already said, I can see no error in what the Tribunal has done in this case, let alone jurisdictional error and that the application should be dismissed and is dismissed on that basis.
It appears this Tribunal decision that is complained of before me today, was also before Moore, J (see Annexure B to the affidavit of Hervee Dejean for a copy of the orders made by his Honour on 12 March 1999 dismissing the applicant's application). Mr Patel was concerned that he did not have sufficient opportunity to seek instructions from his client in relation to this earlier litigation. I note Mr. Reilly's submission that in relation to matters of complaint that were raised today, these could have been raised at those earlier proceedings and were not, possibly giving rise to Anshun or issue estoppel. But I have already dismissed the application before me today on the basis that the Tribunal’s decision was not affected by jurisdictional error. I am not therefore required to examine any further the matters arising out of the earlier determination by the Federal Court in relation to the Tribunal’s decision.
RECORDED: NOT TRANSCRIBED
I certify that the preceding fourteen (16) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Wagma Aziza
Date: 23 May 2005
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