SZFTS v Minister for Immigration

[2006] FMCA 1254

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFTS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1254

MIGRATION – Review of RRT decision − where Tribunal considered applicant not to be credible − whether Tribunal made an error of jurisdictional fact − whether error crucial to the decision − whether Tribunal’s decision evidenced bias − whether Tribunal failed to comply with s.424A − whether the Tribunal considered every integer of the applicant’s claim.

Migration Act 1958, s.424A

NABE v Minister for Immigration [2004] FCAFC 263
NBCY v Minister for Immigration [2004] FCA 92
VWST v Minister for Immigration [2004] FCAFC 286

Applicant: SZFTS

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG496 of 2005

Judgment of: Raphael FM

Hearing date: 16 August 2006

Date of Last Submission: 16 August 2006

Delivered at: Sydney

Delivered on: 16 August 2006

REPRESENTATION

Applicant in Person

Solicitors for the Respondent: Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $5,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG496 of 2005

SZFTS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter claims to be a citizen of Sri Lanka.  He arrived in Australia on 7 November 2003 on an Indian passport.  On 5 December 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 22 March 2004 a delegate of the Minister refused to grant a protection visa and on 6 April 2004 the applicant applied for review of that decision. The Tribunal wrote to the applicant advising him that it was unable to make a decision in his favour on the papers alone and invited him to a hearing which he attended.  On

   
   

   12 January 2005 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 1 February 2005.

2. The decision of the delegate was based upon the delegate’s belief that the applicant was not a Sri Lankan but was a citizen of India, as evidenced by his passport that had been found to be genuine by the Document Examination Unit. After the matter was referred to the Tribunal the applicant provided to it or the Department certain further documents.  These included a Sri Lankan passport issued on 25 May 1998, a Sri Lankan driving licence and a Sri Lankan identity card. These were sent to the Document Examination Unit. By the time the matter came before the Tribunal for hearing no decision as to the genuineness of any of those documents had been made, and the Tribunal decided to proceed on the basis of the oral evidence of the applicant because it felt that it did not wish to wait for what it described as “an indeterminate time” for the document examination unit to provide its report. 

3. The applicant tells me that as of today he has not yet received his documents back.  This has prevented him from making an application in what he claims to be his own name for various benefits provided by the Government of Australia.  I do think that the usefulness of the Document Examination Unit has now been exhausted due to the decision of the Tribunal and it is only reasonable that the applicant’s documents be returned to him as soon as possible. 

   The Tribunal concluded, at [CB 157] that:

   “For the present purpose the Tribunal is prepared to accept that the applicant is a citizen of Sri Lanka … The Tribunal also therefore accepts that the applicant is [name given], a Tamil speaking Muslim businessman, and that he lived in Colombo for many years to 2003.”

4. The Tribunal examined the applicant’s claims in considerable detail, but in its findings and reasons concluded that it had difficulty in accepting as credible his account of his experiences in Sri Lanka in the period between 2000 to 2003.  In 2003 the applicant gave up politics because, he claimed, his wife and property had been badly injured and damaged as a result of these activities by persons he claimed were his political enemies.

5. The Tribunal also found at [CB 158] that it had difficulty with the credibility of the applicant’s claims and explanations in relation to his stay in India.  It would have been possible at this stage for the Tribunal to conclude the matter.  The Tribunal is the finder of fact.  Provided that it has some evidence upon which to base its factual findings, including findings of credibility, it is the sole arbiter.  There is no appeal to this court on the grounds that the Tribunal erred in making a particular finding of fact, only if the Tribunal fell into jurisdictional error in the manner in which it may have made those findings or if the Tribunal has wrongly found a jurisdictional fact. 

6. Notwithstanding this clear statement of the law NABE v Minister for Immigration [2004] FCAFC 263 at [53], the Tribunal felt it necessary to apply what I would describe as a cascading series of further grounds and reasons for its views on the basis that each preceding finding had been made a different way. So, at [CB 159] the Tribunal commenced with the sentence:

   “Even if the applicant’s accounts of his experiences, especially in 2003 are completely true the Tribunal does not accept that the applicant was of adverse interest to the Sri Lankan authorities when he left Sri Lanka on 1 July 2003.”

   The Tribunal then establishes the reasons for coming to that finding.  The next paragraph commences with the words:

   “Even if the Tribunal accepts the applicant’s claims about his experiences in Sri Lanka, the Tribunal is not satisfied that the applicant has a well founded fear of persecution within the meaning of the Convention if he returns to Sri Lanka now.”

   The Tribunal then provided reasons for this. It is at this stage that what I consider to be the one error in the Tribunal’s decision making process reveals itself.  The Tribunal states:

   “The Tribunal is satisfied that the applicant will not become politically active again in Sri Lanka, not because he fears persecution but because the wishes of his family and his conscience will not allow him to do so and in support of this the Tribunal notes that the applicant does not appear to have retained any interest in the fate of the proposed ACMC, or Mr Mohideen, since he ceased his involvement in late June 2003.”

7. My reading of the decision as a whole indicates that the wishes of his family and his conscience arose out of his wife’s request that he no longer carry out his political activities because of the injuries which had occurred to her and the damage which had occurred to their property [CB 151].

8. This comment, in my view, indicates that the Tribunal may well have made a mistake of a jurisdictional fact because a fear of what might occur by way of persecution to one’s spouse in the event that one continued the political activities which caused one to leave a country of origin would seem to me to be a valid ground for claiming asylum under the Convention: NBCY v Minister for Immigration [2004] FCA 922. In that case Tamberlin J states at [25]

   “Both in principle and on authority “persecution”, in the sense of serious detriment or harm to a person, can arise from a threat to their family and those to whom that person is strongly attached by bonds of kinship, love, friendship or commitment.”

   But the Tribunal rescues itself from this problem by making a finding at [CB 160] that even if he returned to Sri Lanka:

   “Even if the applicant does become politically active on return to Sri Lanka, the Tribunal accepts independent country information to the effect that there is a diversity of opinion in Sri Lanka, and among Muslims, about the current peace process and what it could mean for Muslims generally and especially for large Muslim communities in the East and North.  However, independent country information before the Tribunal does not suggest that Muslims, or Muslim politicians, or Muslim political activists, especially those resident in Colombo (in Western Province) like the applicant, are targeted by the LTTE or by the SLMC or its leaders or by the UNP or by Fawzy, for reason of their actual or imputed political opinion, or reason of their race.”

9. The applicant has provided a document entitled “Written Submissions” dated 28 July 2006.  He makes a number of claims with which I shall now deal.  The first claim is that the member did not follow proper procedures. But he does not give any particulars and so it is impossible for me to make any comment thereon. 

10. The second matter he raises is that the Tribunal accepted that he was the person he said he was but illogically concluded that it had difficulty in accepting as credible his account of experiences in Sri Lanka.  As the Full Bench said in VWST v Minister for Immigration [2004] FCAFC 286 at [18]:

    “Accordingly we agree that the current state of the law is that want of logic in the reasons of the RRT is not an available ground for review.  This point was confirmed by a Full Court in NATC v Minister for Immigration [2004] FCAFC 2.”

11. The third point made by the applicant is that the Tribunal did not make its decision in good faith and states that the manner in which the Tribunal debated his country and political involvement evidenced apprehended bias.  The applicant has not provided the court with a copy of the transcript and there is nothing on the face of the Tribunal decision to suggest for one moment that the Tribunal was in any way biased or had done anything from which a claim for apprehended bias might be adduced.

12. The fourth matter raised by the applicant was that the Tribunal fell into jurisdictional error by failing to adhere to s.424A Migration Act 1958 (the “Act”). The applicant has not provided me with any information as to the manner in which the Tribunal breached s.424A, or what information the Tribunal had and it did not give to him that it considered would be the reason or part of the reason for affirming the decision that was under review. In the absence of such particulars I am unable to make a finding in the applicant’s favour in this regard.

13. The fifth matter was that the Tribunal did not give the applicant a fair chance to provide oral arguments about fear.  Again no evidence or particulars is provided.  A reading of the Tribunal’s decision makes it quite clear that the Tribunal went into some detail about all of the applicant’s claims and made determinations in respect of them. 

14. The sixth matter is that the procedures required to be observed were not observed, but again there are no particulars.  The seventh matter is that the Tribunal ignored relevant evidence which indicated bias and constituted jurisdictional error.  Again there are no particulars from which a court could come to any conclusion. 

15. The eighth matter is that the Tribunal member ignored the merits of the claim.  This is a request for impermissible merits review.  The ninth matter is not a claim but an assertion that the applicant is a genuine refugee.  The 10th matter is an allegation of lack of procedural fairness but no particulars are provided. 

16. The 11th matter refers to some documents listed in Part C which related to India. I am not satisfied that the Tribunal used these matters to make a decision as to whether or not the applicant was a person to whom Australia owed protection obligations as a result of his fear of matters in Sri Lanka. But in any event the information would appear to be information that is covered by the exception found in s.424A(3)(a) of the Act.

17. The final matter is that the applicant does not believe that his application was taken into consideration properly and therefore he says he was denied procedural fairness.  The review of the decision itself and the thoroughness with which all the relevant facts are rehearsed and the Tribunal’s views upon them satisfies me that there is nothing to this allegation.

18. Before me today the applicant stated that his concern about the decision was that the Tribunal was suspicious of him because of the passport problem and that the Tribunal therefore did not investigate his case properly.  This submission cannot be sustained.  As I have indicated earlier, the Tribunal made a finding that the applicant was the person he claimed to be and then proceeded to deal with each and every one of his claims.  Its findings as to the applicant’s lack of credibility were based upon the available evidence and cannot be traduced.  I would not be amenable to any suggestion that the Tribunal failed properly to investigate this applicant’s case.

19. I am unable to find any circumstances in which I could say that that Tribunal fell into jurisdictional error in the manner in which it dealt with the essential circumstances of this case.  The error that I have pointed out was an error made in relation to a finding that was not necessary to have been made at all.  The Tribunal had already expressed the view that it did not believe the applicant’s story.  But in any event, the Tribunal had independent grounds for believing that there was no well founded fear of persecution should the applicant return to Sri Lanka.

20. I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $5,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: