SZFXP v Minister for Immigration and Citizenship

[2007] FCA 287

FEDERAL COURT OF AUSTRALIA

SZFXP v Minister for Immigration & Citizenship [2007] FCA 287

SZFXP, SZFXQ AND SZFXR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1921 OF 2006

BUCHANAN J
22 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1921 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFXP
First Appellant

SZFXQ
Second Appellant

SZFXR
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	22 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave is granted to amend the title of the proceedings so that the first respondent is named Minister for Immigration and Citizenship.

2.        The appeal is dismissed with costs.

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 1921 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFXP
First Appellant

SZFXQ
Second Appellant

SZFXR
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	22 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The first appellant is a 46 year old Sri Lankan man.  The second and third appellants are his wife and son.  The son is now 12 years old.  No independent claims are made on behalf of the second and third appellants and the fate of their appeal depends upon the view to be taken of the appeal by the first appellant.

2. The appellants travelled to Australia on 7 July 2003 so that the third appellant could have medical treatment.  The first appellant returned to Sri Lanka for family reasons in April 2004 and came back to Australia on 19 May 2004.  The appellants applied for protection (class XA) visas on 29 June 2004. 

3. The foundation of the claim of the first appellant for a protection visa lies in events in 1989 and 1990.  The appellant said that at this time he was a member of the JVP Party in Sri Lanka.  It was a period of political turmoil.  He claims that during this period a person in the area and his wife and three daughters were killed by an unknown group.  He stated that he was thought by the army and police to have been implicated in the killing. 

4. He set out in his application, in terms which were recorded by the Refugee Review Tribunal (‘the RRT’) in its decision, that his two older brothers were taken into custody and assaulted and tortured.  Subsequently, he surrendered to the army in October 1989 and he remained in custody for two periods of five months each.  He said, with respect to the first period, that he was assaulted and tortured in various ways and questioned during that period.  He was then, according to his account, sent to a detention centre for the second five month period and then in August 1990 to a ‘rehabilitation camp’ from whence he escaped and made his way home.  He then went to Singapore where he remained for five years before returning to Sri Lanka, where he lived for about eight years before coming to Australia for the first time.  The occasion for that first visit was, as I earlier recorded, to seek medical attention for his son.

5. A delegate of the first respondent refused the applications for protection visas on 3 August 2004.  An application for review was made to the RRT which, by decision dated 28 January 2005, affirmed the decision not to grant protection visas.  The RRT did not believe or accept the first appellant's claims that he was likely to be harmed or killed if he returned to Sri Lanka.  It described his evidence as unconvincing, vague and ambivalent.  It found his version of events implausible and it did not accept that he had been subject to threats of harm by reason of his past association with the JVP.  It did not accept that there was any real chance that he faced harm by reason of an imputed political opinion if he returned to Sri Lanka.

6. The appellants commenced proceedings in the Federal Magistrates Court on 18 March 2005, seeking judicial review of the decision of the RRT.  The application, as finally dealt with, alleged jurisdictional error, Wednesbury unreasonableness, procedural unfairness and manifestly unreasonable conclusions.  In a judgment delivered on 8 September 2006 Barnes FM dismissed the application.  Barnes FM pointed out that the proceedings in the Federal Magistrates Court did not permit a ‘merits review’ and that suggestions that the RRT had failed to give proper weight to the first appellant's claim did not establish jurisdictional error.  Barnes FM concluded that it had not been established that the RRT misunderstood or misconceived the applicant’s claims. 

7. The foundation for the first appellant's allegation of jurisdictional error in the first ground of challenge before the Federal Magistrates Court was an assertion that the RRT had reached conclusions contrary to the facts and the information available on the first appellant's file.  I consider that Barnes FM was correct to reject this ground and was not in error in the reasons given for that rejection.  Barnes FM recorded that the second ground of Wednesbury unreasonableness was not pressed and I need not say anything further about that ground.

8. The third ground relied upon a suggestion that the RRT had been procedurally unfair and had failed to comply with the provisions of s 424A(1)(a) and (c) of the Migration Act 1958 (Cth) by failing to indicate to the first appellant that it would find his evidence to be either vague or ambivalent and inviting him to comment. That contention seems to me to have been without substance and was, in my opinion, rightly rejected by the Federal Magistrate. The final ground required to be addressed in the Federal Magistrates Court consisted of the suggestion that the RRT’s conclusions were manifestly unreasonable. This argument was supported by the proposition that the RRT had failed to consider the first appellant's claims in ‘clear substantial articulate and constructive manner [sic]’. There appears to me to have been no substance in this submission, which was also rightly rejected.

9. Barnes FM accordingly dismissed the application before the Federal Magistrates Court and ordered the payment of costs fixed in the sum of $5,000.  From that judgment, the present appeal was brought. 

10. Two grounds were given in the notice of appeal which was originally filed.  They sought to re-agitate the arguments rejected by Barnes FM.  However, shortly before the hearing of this appeal, those grounds were abandoned and new grounds of appeal were propounded.  They were:

    ‘1.       The Federal Magistrate erred in failing to find that the Second Respondent fell into jurisdictional error by ignoring relevant considerations and material in reaching the conclusion that the first appellant was not a person to whom Australia has protection obligations under the Refugee Convention as amended by the Refugee Protocol, such relevant considerations and material being the torture of the first appellant by Sri Lankan authorities and the continued use of torture by those authorities.

    2.        The Second Respondent fell into jurisdictional error by ignoring relevant considerations and material in reaching the conclusion that the first appellant was not a person to whom Australia has protection obligations under the Refugee Convention as amended by the Refugee Protocol, such relevant considerations and material being the evidence of torture of the first appellant by Sri Lankan authorities and the continued use of torture by those authorities.

    3.        The Federal Magistrate erred in failing to find that the Second Respondent fell into jurisdictional error by failing to address the issue of whether persecution involves “serious harm” for the purposes of section 92R(1)(b) of the Migration Act 1958 in circumstances where there was evidence that the first appellant was tortured by Sri Lankan authorities and those authorities continue to use torture.

    4.        The Second Respondent fell into jurisdictional error by failing to address the issue of whether persecution involves “serious harm” for the purposes of section 92R(1)(b) of the Migration Act 1958 in circumstances where there was evidence that the first appellant was tortured by Sri Lankan authorities and those authorities continue to use torture.

    5.        The Federal Magistrate erred in failing to find that the Second Respondent did not apply the appropriate “real chance test” in circumstances where it ignored relevant considerations and material in reaching the conclusion that the first appellant was not a person to whom Australia has protection obligations under the Refugee Convention as amended by the Refugee Protocol, such relevant considerations and material being the torture of the first appellant by Sri Lankan authorities and the continued use of torture by those authorities.

    6.        The Second Respondent fell into jurisdictional error in circumstances where it ignored relevant considerations and material in reaching the conclusion that the first appellant was not a person to whom Australia has protection obligations under the Refugee Convention as amended by the Refugee Protocol, such relevant considerations and material being the torture of the first appellant by Sri Lankan authorities and the continued use of torture by those authorities.’

11. This morning, notwithstanding the lack of consent by the first respondent to the amendment to the appeal, I gave leave to amend the notice of appeal because, although the grounds were new, they did not raise for consideration any matter not in the appeal papers and both sides had addressed the new grounds in their written submissions.

12. Two difficulties arise immediately for the appellants from the change in the direction of their case.  First, the arguments put to this Court were not put to the Federal Magistrates Court.  It is impossible to make out a case, based on the new arguments, that Barnes FM erred in the decision from which this appeal is brought.  Demonstration of error is a primary pre-condition to a successful appeal.  On this ground alone the appeal to this Court would fail.

13. Secondly, the case now advanced is not the case, it seems to me, relied upon by the appellants before the RRT.  Nevertheless, Mr Combe this morning in comprehensive submissions, has sought to persuade me that there is to be found, in the way in which the RRT approached the matters for decision, a failure to take into account a critical element in the appellant's claims and that, in all the circumstances, justifies remitting the matter for further consideration.

14. The decision of the RRT records, in a way which was not challenged before me, the exchanges which occurred between the Tribunal and the first appellant and at a later stage, remarks which were made by the second appellant.  The essence of the factual position which is thereby revealed is that, although the first appellant had no current involvement with the JVP and although he stated that at the time of his detention and questioning in 1989 and 1990 he was cleared of any responsibility for the killings which had occurred at that time, nevertheless there were persons who continued to associate him with those events who would pursue him and kill him.  He had, however, according to the material recorded in the decision of the RRT, lived for about eight years in various parts of Sri Lanka, holding important positions in his employment without having suffered any physical harm.  The RRT recorded his claim in these terms:

    ‘The Applicant claims that he fears he will be killed on his return to Sri Lanka by reason of events in his village in 1989 when the Applicant was a member of JVP.’

15. Mr Combe in his submissions has urged upon me that the RRT made a jurisdictional error in failing to pursue with the first appellant, and ultimately take into account in its assessment of his claims, his allegation that he had been tortured in 1989 or 1990.  Coupled with a reference to country material that suggests that torture still occurs in Sri Lanka, sometimes at the hands of government agencies, it was submitted to me that there arose an essential element of the first appellant's claims which had not been addressed by the RRT with the result that jurisdictional error had occurred.

16. The principal difficulty with this contention is that the RRT was not satisfied on the material before it that the first appellant had at the present time a well founded fear of persecution.  It recorded its findings in the following way:

    ‘The main Applicant’s claims may be summarised as follows.  The Applicant claims that he fears that he will be killed on his return to Sri Lanka by reason of events in his village in 1989 when the Applicant was a member of JVP.  Tribunal finds as follows.

    The Tribunal is not satisfied that there is a real chance of the Applicant being persecuted by reason of an imputed political opinion or any other Convention ground on return to Sri Lanka or in the reasonably foreseeable future.  In the circumstances, the Tribunal is not satisfied that the Applicant has a well-founded fear of persecution under the Convention.

    The Tribunal reasons to this finding as follows.  The Tribunal considers that the Applicant’s evidence in respect to why persons are wishing to harm him, how he knows that people wish to harm him and who these persons are to be tenuous, highly speculative and unconvincing.  The Applicant claims that he believes that persons wish to harm him because at various points in time various members of his family, including his wife at their home address, received visits and phone calls from strangers asking about the Applicant’s whereabouts.

    The Applicant’s evidence in respect to how these strangers are connected to several army men and some local police whom he believes wish to avenge the death of a family in his village in the 1989, when the Applicant was at that time as member of JVP, was vague and ambivalent.  Further the Applicant was unable to provide any relevant detail on these persons.  He claimed on the one hand that these people included the local police officer but when asked the name of this local police officer stated that he did not know his name.

    The Tribunal notes that the Applicant resided unharmed in Sri Lanka for eight years prior to his arrival in Australia.  The Tribunal considers that it is implausible that over this eight year period strangers continued to track the Applicant down and enquire after the Applicant through family members, including visiting his wife at home while he was at work, but that at no point in time do these strangers manage to locate or harm the Applicant.

    Accordingly the Tribunal does not accept that the Applicant has been subject to threats of harm by reason of his past association with the JVP.  As the Tribunal does not accept that the Applicant was threatened the Tribunal does not accept that that [sic] there exists a real chance that the Applicant faces harm by reason of an imputed political opinion on his return to Sri Lanka.’

17. These assessments were matters for the RRT to make.  It is not the function of this Court, and it was not the function of the Federal Magistrates Court, to decide whether the claims of the appellants had been rightly rejected in the absence of some demonstrated jurisdictional error.  Even if jurisdictional error were demonstrated, the determination of the appellants’ claims would remain a matter for the RRT to determine.

18. I see no basis upon which to find a jurisdictional error in the rejection by the RRT of the first appellant's present claims to have a well founded fear of persecution.  Absent this threshold being crossed, it seems to me that consideration of events 15 years ago can have no part to play and that no jurisdictional error is constituted by a failure to pursue the matter with the first appellant.

19. As no error in the decision of Barnes FM has been demonstrated and no jurisdictional error in the decision of the RRT has been demonstrated, there is no foundation for relief in this Court and the appeal must be dismissed with costs. 

20. The orders which I will make are:

    1.Leave is granted to amend the title of the proceedings so that the first respondent is named Minister for Immigration and Citizenship.

    2.        The appeal is dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:       8 March 2007

Counsel for the Appellant:	Mr A Combe
Solicitor for the Appellant:	Carrol & O’Dea
Counsel for the Respondent:	Mr S Sirtes
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	22 February 2007
Date of Judgment:	22 February 2007