SZEHC v Minister for Immigration

[2005] FMCA 1215

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEHC & ORS v MINISTER FOR IMMIGRATION [2005] FMCA 1215

MIGRATION – Refugee – misinterpretation of the term “refugee” and “persecution” – misapplication of the real chance test – Tribunal failed to consider each separate aspect of the applicant’s claim – Tribunal misunderstood the basis on which the applicants were claiming to fear harm – country information.

Migration Act 1958
Federal Magistrates Court Rules 2001, Rule 21.02(2)(a)

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairsv Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairsv Wu Shang Liang & Others 185 CLR 259
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184

Applicant: SZEHC & ORS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2662 of 2004

Judgment of: Nicholls FM

Hearing date: 16 May 2005

Date of Last Submission: 12 May 2005

Delivered at: Sydney

Delivered on: 1 September 2005

REPRESENTATION

Counsel for the Applicant: Mr. J. Patel

Solicitors for the Applicant: Bharati Solicitors

Counsel for the Respondent: Ms. L. Clegg

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant to pay the respondent’s costs set in the amount of $5000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2662 of 2004

SZEHC & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 26 August 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 January 2004 and notified to the applicants by letter dated 13 February 2004 (Court Book-Volume 1, page 21) to affirm the decision of a delegate of the respondent Minister made on
   2 September 2002 to refuse protection visas to the applicants.

2. The applicants are wife, husband and their two children. All are Sri Lankan nationals of “Burgher” ethnicity or background. Their application for a protection visa to the respondent's Department is set out at Court Book-Volume 2, page 1 to CB-V2 44. The applicant wife made refugee claims. The husband and children (CB-V2 25 to CB-V2 39) applied as members of her family unit who did not have claims in their own right to be refugees. The applicant wife's claims to the respondent's Department are at CB-V2 41 to CB-V2 44. Her claims are summarised at paragraphs 7 to 16 of the respondent’s written submissions filed on 12 May 2005. I agree with these submissions and adopt them for the purposes of my judgement:

   “7. The applicant parents’ claims are summarised in protection visa application of the first applicant. The applicant children did not assert any independent claims. The claims of the applicant parents relate to fear of persecution by reason of the political opinion or imputed political opinion.

   8. The applicants are Sri Lankan citizens. They are of Burgher ethnicity and are Christian. From 1991 until 1994 the first applicant worked in the travel industry in Colombo, the second applicant worked as a wharf executive.

   9. In around November 1993 the first applicant was persuaded by a Mr. Ekanayake to join him as a partner in a travel business which she did. Together the first applicant and Ekanayake set up a travel agency trading as Flanagan Travel and Tours (Flanagan), which commenced trading in March 1994. Flanagan operated as a traditional travel agency performing ticketing and promotional work. Flanagan also had a business relationship with Manpower Recruiting Agency. Manpower would obtain visas for people and then direct those customers to Flanagan

   10. In June 2004 the first applicant was required to obtain tickets were a group of 30 Tamils travelling to Saipan. Having received work permits from Ekanayake for the group, the first applicant forwarded the work permits to the Airline for authorisation to issue the tickets. The first applicant was informed by the Airline that the work permits were false or invalid. When she asked Ekanayake if he knew that permits were false, he replied that he would be in big trouble from the Tamils if he could not get them to Saipan as they each paid him 50,000 rupees and they all belong to the LTTE. The first applicant told the Tribunal that the money for the tickets had not been deposited into the Flanagan's business account.

   11. From this time Ekanayake was away from Flanagan's most of the time and from 8 July 1994 he did not come into the business at all. However, from time to time the first applicant spoke to him over the telephone.

   12. The first applicant received a threatening telephone call from a Tamil person named Selvanayagam who demanded money and threatened her. Selvanayagam called her several times but only at Flanagan's and not at her home. On 15 July 1994, three Tamil boys came to Flanagan and asked her about Ekanayake. They wanted to know where he was and threatened to kill her. The first applicant replied that she did not know and said they told her not to mention the incident to anyone otherwise she and her family would be in danger. When the Tamil boys were at Flanagan’s they took personal papers belonging to the first applicant so they knew where she and her family lived and worked.

   13. In mid-November 1994 the second applicant also received threatening telephone calls at work. On 8 August 1994 the first and second applicant made a complaint to the police. They complain to the police, but nothing was done (at the hearing this claim was expanded to include a fear of the police who accused them of being connected to the LTTE).

   14. The first applicant closed Flanagan’s and commenced employment at a hotel. Further, she still had threatening calls and was followed by unknown strangers on several occasions on the way home. A letter from a colleague was given to the Tribunal to corroborate this claim.

   15.The first applicant's life was at risk and she was in fear. She decided to leave the country on a student visa accompanied by her husband and daughter.

   16.After living in Australia a few months, the first applicant's mother telephoned her from Sri Lanka and told her that Ekanayake had been murdered. The first applicant fears that if she went back to Sri Lanka she too would become a target.”

3. By way of amended application filed by the applicants’ Solicitor on 24 November 2004, the applicants assert jurisdictional error on the part of the Tribunal. Their complaints are:

   1)The Tribunal misinterpreted the test of refugee and misapplied the real chance test to the facts found by it and to the meaning of persecution.

   2)The Tribunal did not consider each separate aspect of the applicant’s claim of fear of persecution.

   3)The Tribunal did not give consideration to the cumulative effect of the various “views” of persecution held by the applicant.

   4)Although not expressly stated, the applicant’s particulars appeared to take issue with the country information relied on by the Tribunal, and asserting claims in relation to conditions in Sri Lanka.

4. The Tribunal relevantly had before it the file of the respondent's Department, which included the protection visa application, a record of interview with the respondent’s delegate and the delegate’s decision record. The applicant parents attended a hearing before the Tribunal on 8 January 2004. The Tribunal's decision record recounts the applicants’ claims at CB-V1 26.9 to CB-V1 32.4. It is clear that Tribunal saw the applicants’ claims as:

   1)The applicant wife claimed to be a target of the LTTE because of the failed travel arrangements involving a group of 30 persons going to Saipan in 1994, and in respect of which the applicant husband also claimed to have been subsequently contacted.

   2)The authorities in Sri Lanka may perceive the applicant wife to be a supporter of the LTTE.

   3)That the claimed murder of the applicant wife's former business partner, who had a high political profile, had implications for the applicants.

   4)The police did nothing to assist or find a solution to the matters arising out of the travel and work permit arrangements to Saipan for the claimed Tamil group when the applicants went to complain to the police.

5. The Tribunal referred to relevant country information concerning the LTTE, the treatment of Tamils by the Sri Lankan authorities, LTTE activities, and the situation of the Burgher community in Sri Lanka. This is reported at CB-V2 32.5 to CB-V2 35.5. The Tribunal accepted some of what the applicant parents had put forward. Significantly, it accepted their Burgher ethnicity, that they gave a truthful account of their employment in Sri Lanka, that the applicant wife was involved in the travel business and that there may have been Tamil people who paid for and did not receive tickets for travel. However, in relation to their other claims the Tribunal:

   1)Considered that it was “at best speculative” that the people who approached the applicant wife subsequently, were in fact with the LTTE (CB 36.3).

   2)Did not believe the people alleged to be from the LTTE had a serious intent to harm the applicants (CB 36.4).

   3)Accepted that the LTTE was a ruthless organisation and that it was not plausible that they would not have acted to silence the applicant wife or retrieve papers if they thought she had information which would expose them. (CB 36.5).

   4)Did not accept that after eight years there was a real chance that there were people who may have harassed the applicant wife or husband that would now inflict serious harm on the applicants (CB 36.8)

   5)Did not accept the police suspected that the applicants were connected with the LTTE or that there was a real chance that they would be so regarded if they were to return to Sri Lanka (CB 37.6).

   6)Did not consider that there was any evidence to suggest the profile of the wife's former business partner, and what happened to him, would have any implications for the applicants if they were to return to Sri Lanka. The Tribunal also noted that there had been no evidence provided as to how his profile could affect them (CB 37.9).

   7)Accepted that if the applicants did return to Sri Lanka and the LTTE resumed attacks in Colombo (noting there had been a ceasefire for two years) the chance of the applicants being affected is remote and in any event, being affected by any such attack would not be regarded as persecutory, because it would not have happened for a Convention related reason linked to the applicants (CB 38.4).

6. The applicants were represented before me by Mr. Patel of Counsel and I have written submissions from Mr. Patel filed on 10 May 2005 on behalf of the applicants. Ms. Clegg of Counsel appeared for the respondent Minister and I have already referred to the respondent’s written submissions. At the hearing before me, Mr. Patel clarified the grounds on which the applicants sought to rely:

   “1.Whether the Tribunal applied the correct test, that is, the real chance test of persecution, with the subsidiary issue being the misapplication of the term “persecution”.

   2.That the Tribunal misunderstood the basis on which the applicants were claiming to fear harm.”

7. In relation to the first ground, Mr. Patel submitted that the Tribunal had accepted that the applicant wife was a truthful witness and that when she related certain incidents, including significantly that she had been approached by armed people who claimed to be LTTE members, or at least that is what she understood, that she was evidencing a real fear of persecution. Mr. Patel appeared to argue that having established that she had a subjective fear, that the applicant wife’s claims, being that of the people who approached her following the incident relating to group of 30 who did not get the airline tickets that they had paid for, were people from the LTTE, was sufficient to establish that the fear was objective. He also seemed to arguable that even if they were not from the LTTE, but former members of the LTTE, or as he described it “unauthorised agents”, then her fear would still be justified in those circumstances. His submission was that in failing to accept this, the Tribunal failed to apply the correct test, either the real chance test or the correct test for “persecution”. He also argued that the Tribunal’s finding that, in spite of the applicant wife's fear that the people who lost their money when the travel business closed would harm her, it found that they did not seek to do so in some 18 months between July 1994 and her departure from Australia, was not a sufficient basis for the Tribunal to say that her fear of persecution was not well founded.

8. It is clear that the words in Article 1A(2) of the Refugees Convention that refer to a fear being “well founded”, add an objective element to the requirement that an applicant must hold a fear. For that fear to be well founded there must be, as McHugh J. said in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 829:

   “An objective examination of the facts to determine whether the fear is justified.”

   Dawson J. in the same case said at 396:

“Whilst there must be a fear of being persecuted, it must not all be in the mind, there must be a sufficient foundation for that fear.”

Further, Mason CJ. at 389, Toohey J. at 406 – 7, Dawson J. at 396-398 and McHugh J. at 428-429 articulated that a fear of being persecuted is well founded if there is a real chance of being persecuted. While a real chance requires a substantial, as distinct from a remote chance, the High Court in Minister for Immigration and Ethnic Affairsv Guo (1997) 191 CLR 559 affirmed that a person can have a well founded fear of persecution, even though the possibility of persecution occurring is well below 50 per cent. It is also clear from the same case (at 572) that a fear of persecution is not well founded if it is merely assumed or if it is mere speculation.

1. In the case before me the Tribunal set out its understanding of the definition of refugee, commencing in its decision record at CB 25.1 I can see no error in the way the Tribunal has set out its understanding of the relevant tests at CB 25 to CB 26. Further, I accept the submission of Ms. Clegg for the respondent that, throughout the decision the Tribunal frequently referred to the applicant's prospects of harm in terms of a real chance. Ms. Clegg submits, as analogous, the observation of Kirby J. in Minister for Immigration and Ethnic Affairsv Wu Shang Liang & Others 185 CLR 259 at 295, made when referring to the Tribunal's decision in that case and the fact that the decision maker had referred to the real chance test repeatedly throughout the consideration of the claims. In that case the Tribunal started and finished with the correct test and for that reason it was clear that the Tribunal had applied the correct test. In the case before me, in any event, a plain reading of the decision record shows that the correct articulation of the test, the canvassing of the applicant's claims and an examination of those claims against the real chance test. In relation to those claims, the Tribunal accepted that the applicants were of Burgher ethnicity and that they had given a truthful account of their employment in Sri Lanka. In particular, the Tribunal accepted the evidence that the applicant wife was a director of, and operated a company in Colombo known as ‘Flanagan Travels and Tours’ and accepted that the business operated for a few months and was shut down in September 1994 with some debt. The Tribunal also accepted that there may have been Tamil people who paid for, but did not receive tickets for the travel that they had booked and that they may have been angry, and pressed for the return of their papers and their money (CB 35.8).

2. In relation specifically to the example raised by Mr. Patel to support his argument concerning this ground, the Tribunal examined the applicants’ claims that the Tamil people who were aggrieved when they did not get the tickets that they had paid for, were with the LTTE. The Tribunal clearly set out in its decision record that the applicant wife said she formed this view because her business partner (Mr. Ekanayake) had told her that these people work with the LTTE and that on this basis the applicant wife therefore thought that the callers who rang to demand money and threatened her in connection with this matter, were also with the LTTE, as were the people she claimed followed her in the street at this time. The applicant wife similarly believed that three Tamil boys who came into her office on 15 July 1994 were also with the LTTE, because they were Tamil and they were armed. The Tribunal found that it was at best, very speculative that the people who had approached the applicant wife, and who had contacted the applicant husband, were in fact with the LTTE. Given its doubts, the Tribunal found that even if they had been connected to the LTTE it did not consider that the evidence before it indicated that these people had a serious intent to harm the applicant parents. The Tribunal at CB 36.5 set out its reasons for this. Contrary to Mr. Patel's submission, the Tribunal appears not to have accepted that there was even a subjective fear, because the Tribunal found at CB 36.6 that the applicant did not leave Sri Lanka until 18 months after the events of which she claimed to have occurred relating to the people not getting the tickets that they had paid for. In any event, the Tribunal found that the evidence appeared to indicate that the threats and harassment stopped before the applicant left the country, but found that 8 years had passed since the family had left Sri Lanka and the Tribunal did not accept that there was a real chance that the people who might have harassed and threatened the applicant parents in the past, would do so upon their return to Sri Lanka or that there was a real chance they would inflict serious harm on either of the applicant parents for the reasons advanced in the claims. I should also note that at the hearing before me, Mr. Patel argued that the Tribunal's statement that it was at best speculative that the people who approached the applicant wife were in fact the LTTE, meant that the Tribunal should then, because of the doubt contained in this statement, have gone on to consider the situation if it were wrong in this finding as to whether the people were in fact with the LTTE. Clearly, this submission fails as the Tribunal's finding at CB 36.4 shows that the Tribunal did look at the two alternatives and considered that even if the people were connected with the LTTE, the Tribunal did not consider that the evidence indicated that these people had serious intent to harm the applicant parents. These findings were all open to the Tribunal to make on the evidence before it and this ground, as submitted by Mr. Patel, must fail.

3. Although he did not specifically argue this ground at the hearing before me, I note that another complaint in the amended application is that the Tribunal did not consider each separate aspect of the applicants’ claims. Ms. Clegg in written submissions made reference to the Full Federal Court decision in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 and the need for the Tribunal to identify the “component integers” of the applicant's claims and to consider those claims. It is clear that the Tribunal identified the following claims, as already referred to in paragraph 4 above, considered each of the claims and made findings in relation to each of them:

   1)The claim to being a target of the LTTE, as discussed above, is reported that CB 27.9 to CB 29.6, and is dealt with at CB 35.9 to CB 36.8. The Tribunal described as, at best speculative, the claim that the people who approached the wife and contacted the husband were LTTE and found that even if they were, the evidence does not indicate that they had a serious intent to harm the applicants. The Tribunal gave reasons and found that there was not a real chance of serious harm from these people, should the applicants return to Sri Lanka.

   2)The claim of fear from the authorities is identified at CB 31.4 and considered at CB 36.9 to CB 37.7. The Tribunal was unable to accept that the evidence indicated that the police suspected the applicant parents were connected to the LTTE.

   3)In relation to the alleged murder of the applicant wife's former business partner and the claim that this would have implications for the applicants, the Tribunal reported on the applicants’ claims at CB 31.5 to CB 32.2 and found at CB 37.8:

   “I do not consider that there is any evidence to suggest that the profile of Mr. Ekanayake and what happened to him have any implications for what the applicants might face if they were to return and note that there has been no evidence provided about just how his profile could affect them.”

   4)In relation to the claim that the police did nothing to assist when they went to complain about the matters arising out of the travel arrangements, the Tribunal records the complaint at CB 29.6 to CB 30.5. The Tribunal said at CB 29.8:

   “They explained at the hearing that they had reported the matter to the police so that the police could protect them from the LTTE.”

   This claim is clearly linked to the view the applicant wife put that the aggrieved persons were members of the LTTE or that it was the LTTE that were now pursuing the complaint. The Tribunal found at CB 36.4:

   “It seems to me to be at best very speculative that the people who approached the applicant wife and who contacted the applicant husband were in fact with the LTTE but even if the people were connected to the LTTE, I do not consider that the evidence indicates that these people had a serious intent to harm the applicant parents.”

   Having found that there was not a serious intent by these people to harm the applicants then the need for police protection as claimed by the applicants falls away.

   The applicants have not argued that there were any other claims that they put forward before the Tribunal and to that extent this ground, although not pressed by Mr. Patel, clearly cannot succeed.

1. The particular aspect of the broader claim above that was argued by Mr. Patel at the hearing before me was that there was a misunderstanding on the part of the Tribunal on the basis on which the applicant wife claimed to fear harm. Mr. Patel's argument was that the Tribunal misinterpreted the applicants’ claims and in particular misinterpreted the claims in relation to the fear of harm from the LTTE. For the reasons already set out above, I can see no such error on the part of the Tribunal. The Tribunal clearly made findings specifically on the claims made by the applicants, and on what is before me these findings were open to the Tribunal to make on the information that had been supplied by the applicants, and to some extent independent country information that it had at its disposal. I cannot see that the Tribunal failed to take into account any relevant claims or considerations. It dealt with all of the claims as put by the applicants and the findings were open to it, and it gave reasons. The applicants did not succeed before the Tribunal as they were unable to satisfy the Tribunal that there was a real chance that on return to Sri Lanka they would be persecuted by people who they claimed had harassed or threatened the applicant parents in the past, or that there was a real chance that they would inflict serious harm on either of them for the reasons advanced in their claims. The Tribunal considered all of the applicants’ claims as put and could not be satisfied as to the applicants having a well founded fear of persecution for a Convention reason. I can see no jurisdictional error in the Tribunal decision or in how it went about its task. The applicants’ grounds as put forward by Mr. Patel do not succeed, and the application is accordingly dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date:  30 August 2005