SZGAZ v Minister for Immigration - [2006] FMCA 1405

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGAZ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1405

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 483A

Minister for Immigration v Rajalingam (1999) 93 FCR 220
Minister for Immigration v Yusuf (2001) 206 CLR 323
NABE [No.2] v Minister for Immigration (2004) 144 FCR 1
SAAD v Minister for Immigration [2003] FCAFC 65
SAAP v Minister for Immigration [2005] HCA 24
SCAT v Minister for Immigration (2003) 76 ALD 625
WAEE v Minister for Immigration (2003) 75 ALD 630

Applicant:

SZGAZ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG865 of 2005

Judgment of:

Lloyd-Jones FM

Hearing date:

13 September 2006

Delivered at:

Sydney

Delivered on:

16 November 2006

REPRESENTATION

Counsel for the Applicant:

Mr C Colbourne

Solicitors for the Applicant:

Siva Logan Solicitors

Counsel for the Respondents:

Ms V McWilliam

Solicitors for the Respondents:

Sparke Helmore Solicitors

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 8 April 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG865 of 2005

SZGAZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 8 April 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

The Tribunal decision was made on 25 February 2005 and handed down on 17 March 2005, affirming a decision of the delegate of the first respondent made on 15 November 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGAZ”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].

Background

The Tribunal decision of Ms Margaret O’Brien, reference N04/50294, contains the following background information. The applicant, who claims to be a citizen of Sri Lanka, arrived in Australia on

21 December 2003. On 27 January 2004, she lodged an application for a Protection (class XA) visa with the Department of Immigration under the Act. On 15 November 2004, a delegate of the Minister refused to grant a protection visa and on 7 December 2004, the applicant applied to the Tribunal for review of the delegate’s decision.(Court Book (“CB”) 84) According to information provided in the protection visa application, completed with the assistance of a registered migration agent, the applicant is a Tamil and was born in Jaffna in 1954 and married in Vavuniya in 1977. The applicant’s daughter lives in Australia and her son lives elsewhere. The applicant lived in Pandrikaithakulam near Omanthai (in the Vanni) from 1993 to 1998. From 1998 to 2003 she lived at Mulliyavalai near Mullaitivu. The applicant was a cook from 1988 to 2003. She obtained her current passport without difficulty in November 2003 and her Australian visa on 9 December 2003. The applicant left Sri Lanka legally shortly thereafter.(CB 86)
Attached to her application was a statement which has been conveniently summarised by Mr Colbourne, counsel for the applicant, and I adopt paragraphs 6 to 13 of his written submissions:
6.In 1977, the Applicant married a policeman and moved to Omanthai in Vanni, where the Applicant owned a house (CB 26.3). They had a daughter in 1978 (CB 4.3) and a son in 1981 (CB 3.3). Her husband worked as a dental technician in the police hospital and was often away from home for long periods and she learnt he had been threatened by LTTE on many occasions and was scared of settling in Omanthai. (CB 26.3)
7.In 1987, the LTTE was fighting the Indian Peace Keeping Force (the “IPKF”) and the Applicant suffered at the hands of the LTTE and lived in fear of the shelling and bombing by both sides. The LTTE forced her to help them and when they learnt her husband was a policeman they suspected she might be passing information to the authorities and threatened to kill her. After the IPKF departed, LTTE cadres dragged Mrs Thavapalakulasingam out of her house and kicked her and called her a traitor. The LTTE sent her letters asking her to produce her husband but she told her husband not to come back and to use his influence to get the Applicant and their daughter and son out of the village (CB 26.5).
8.In 1988, the Applicant came to realise that her husband had a mistress and was not interested in helping them. She had to bring up the children by herself and made a living by cooking and selling food. The LTTE realised her husband had deserted her and approached her for money (CB 26.8).
9.In 1990, the LTTE took control of Vanni and refused to let the Applicant leave and forced her to cook for them. When the peace talks collapsed in 1990, the Applicant again suffering from the shelling and bombing, as the LTTE and Sri Lankan authorities fought each other (CB 27.3). The Applicant was held like a hostage by the LTTE and continued to cook for them and treat wounded LTTE cadres and was forced to serve the LTTE permanently and give the LTTE some of her earnings. She was not allowed to return to Jaffna or go to Colombo. She was concerned that the LTTE would recruit her children. She sent her daughter out of Vanni with the help of agents and later sent her son by the same means to Colombo and he subsequently left Sri Lanka (CB 27.4).
10.In 1998, the LTTE forced the Applicant and others to leave their properties and proceed towards Mullaitivu. She lost contact with her daughter. Her property was used by the LTTE as a place to store ammunition and the well on the property was rendered useless (CB 14 & 27.7).
11.The Applicant remained in Mullativu until the present ceasefire came into effect. She went to Vanni to see her house but was chased away by LTTE cadres and the area was occupied by the families of LTTE heroes. She then arranged to travel to Colombo. All her relatives had fled Jaffna and there was no one in Vanni to look after her (CB 28.3)
12.As a lonely woman, the Applicant feared life in Colombo in the midst of government searches for LTTE cadres. She was well known as an LTTE woman and feared being taken by the authorities for interrogation and torture. She obtained a visa and came to Australia (CB 28.4).
13.In submissions to the Tribunal, it was stated that:
(a)   the Applicant feared persecution by the authorities and of being taken into custody to identify LTTE cadres (CB 51.3) and being charged with assisting the LTTE (CB 52.2 & 52.8);
(b)   she spent terrible and fearful days working for the LTTE (CB 52.9) and had been threatened with death by the LTTE if she left Vanni and had done so (CB 51.7); and
(c)   she will be working for the LTTE until the day she dies if she returns to Sri Lanka and she will face persecution by the LTTE and have to live a life as a slave without any basic freedom (CB 52.6).

Tribunal’s Findings and Reasons

A convenient summary of the Tribunal’s findings and reasons is also contained in paragraphs 15 to 19 of the written submissions of

Mr Colbourne:
15.The Tribunal had difficulty obtaining a coherent account from the Applicant (CB 88.8) but noted her evidence that –
(a)   she referred to the LTTE, for whom she had cooked as “the boys” (CB 89.2) and she left them secretly and after she left they were looking for her (CB 89.4);
(b)   the LTTE will be waiting to kill her because she deceived them by leaving them (CB 91.4) or the LTTE will think she has joined Karuna, a renegade LTTE commander, and she fears being tortured and killed by the LTTE as a traitor (CB 91.5);
(c)   she fears being taken for questioning by the Army and of the LTTE killing her to prevent her saying something about the LTTE to the Army (CB 91.6); and
(d)   she was sacred of the Army and police because they might think she had come to plant a bomb or someone could tell lies about her (CB 92.1).
16.The Tribunal found the Applicant to be a witness of credit but that her evidence was confused due to her overwhelming feeling of depression and hopelessness (CB 94.8).
17.The Tribunal also found that, from the mid 1980s until about early 2003, she lived in LTTE controlled areas and had to do the LTTE’s bidding, follow its rules, obtain permission to leave and contribute financially (CB 95.5) and, in particular, had to cook for and assist the LTTE as required (CB 95.9).
18.The Tribunal noted that even if her treatment at the hands of the LTTE amounted to persecution, it could not be satisfied that she was targeted for a Convention reason, rather than because she was living in an area under LTTE control (CB 95.9).
19.The Tribunal proceeded to consider the position if her treatment by the LTTE did constitute persecution for a Convention reason. Nevertheless, it concluded that her fear of persecution by the LTTE was not well-founded because (CB 96.3) –
(1)   there is nothing to suggest that the LTTE was concerned about her escape or had tried to find her;
(2)   the independent evidence did not suggest that it was plausible that the LTTE would expend resources in locating her;
(3)   the three year old ceasefire and the LTTE’s well established position as the controlling authority in some parts of the Vanni, where the applicant lived, means it was not plausible that the LTTE would persecute her to prevent her giving information to the authorities; and
(4)   on [SZGAZ] own evidence about why she fears the LTTE, the Tribunal was not satisfied that, if she returned to LTTE controlled areas, she would have a well-founded fear of persecution.

Application for Review of the Tribunal’s Decision

On 8 April 2005, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. On 24 June 2005, the applicant filed an amended application. At the hearing, Mr Colbourne sought leave to file a further amended application which contained the following grounds:
The Tribunal exceeding its jurisdiction and constructively failed to exercise its jurisdiction by –
(1) failing to deal with the Applicant’s claim that, after she left the Liberation Tigers of Tamil Eelam (the “LTTE”) secretly, the LTTE were looking for her; and
(2) failing to deal with the Applicant’s claim that she would have to work like a slave for the Liberation Tigers of Tamil Eelam, if she were to return to Sri Lanka (CB 52.6)
Ms McWilliam, counsel for the respondents, raised no objection. Leave was granted for the applicant to file the further amended application.

Reasons

Mr Colbourne submits that the applicant had two claims, one was that she was treated as a slave by the LTTE and the other was that the LTTE was looking for her after she escaped from them. Both aspects were integers of the overall claim and the failure of the Tribunal to deal with both integers resulted in jurisdictional error.
In respect of the first ground, Mr Colbourne submits that the Tribunal must deal with all the integers of a claim: SAAD v Minister for Immigration [2003] FCAFC 65 at [1], [39] - [40] and [42] per Cooper, Carr and Finklestein JJ. The Court in that case found that the Tribunal failed to consider the applicant’s first ‘surplus’ claim that he faced persecution in Iran because he had applied for a protection visa in Australia. That Court held that a failure to consider a discrete claim constitutes jurisdictional error of the kind referred to in Minister for Immigration v Yusuf (2001) 206 CLR 323 and remitted the matter to the Tribunal.
Mr Colbourne also referred me to SCAT v Minister for Immigration (2003) 76 ALD 625. Justices Madgwick and Conti found that the Tribunal did not deal with the claim put on behalf of the applicants that, as Mandeans from Iran, they faced serious discrimination which had the potential to cause serious psychological harm. Their Honours held at [29]:
29… even on the narrow view of the effect of S157 proposed by counsel for the appellant, it cannot be other than an important matter, going to the core of the Tribunal's jurisdiction, to overlook crucial material amounting, as Allsop J put it in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259, to an integer of the claim. In that case, Allsop J, with whom Spender J agreed, said that "To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on". His Honour then made clear that this includes a failure to examine all the integers of any claim, saying "The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Immigration and Multicultural Affairs v Peko-Wallsend (1986) 162 CLR 24 ... and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323" (emphasis added). Merkel J agreed with Allsop J in the result and was not at odds with Allsop J's approach. Another Full Court (Black CJ, Wilcox and Moore JJ) agreed with this approach in W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 at 78-81 [31]-[38].
Mr Colbourne submits that the Tribunal stated that it was not satisfied “that she will be targeted for a Convention reason. This is because there is nothing in the Applicant’s evidence to suggest that the LTTE was concerned about her “escape””.(CB 96.3) Mr Colbourne submits that this was wrong because the Tribunal in its reasons did record the applicant saying that the LTTE was looking for her after she departed the area controlled by them:
Asked why she left the boys, she said she left secretly and after she left they were looking for her.(CB 89.5)
Mr Colbourne argues that the Tribunal decision clearly recorded that it found the applicant to be a witness of credit based on this evidence:
…The Tribunal is satisfied that the applicant is a witness of credit and that the ambiguities and confusion in that evidence was due to an overwhelming feeling of depression and hopelessness when she had to re-live her experiences by giving an account of her situation.(CB 94.7)
Mr Colbourne further argues that there were three separate factors that led the Tribunal being satisfied that the applicant would not be persecuted for a Convention reason:
This is because there is nothing in the applicant’s evidence to suggest that the LTTE was concerned about her “escape” or that they tried to find her…and the independent country information does not suggest that it is plausible for the LTTE to expend its resources on locating her, one of many tens of thousands of Tamils who had lived for many years, in areas controlled by the LTTE. Furthermore, given that the ceasefire has been in place for three years now, and the LTTE is well established as a controlling authority in some parts of the Vanni where the Applicant lived, the Tribunal does not accept as plausible that the LTTE would try to find her and persecute her so that she doesn’t give the authorities information about them or identify them.(CB 96.3)
Mr Colbourne submits that these are not independent but cumulative findings. It is also clear from the above passages that the Tribunal overlooked the applicant’s evidence of the LTTE searching for her.

He submits that if the Tribunal had properly appreciated that fact, or not overlooked it, it may have come to a different view on her case. The Tribunal then continued:
Nor is the Tribunal satisfied, on the Applicant’s own evidence about why she fears the LTTE, that if she returns to Vanni or more particularly to LTTE controlled areas, that she has a well-founded fear of persecution from the LTTE for a Convention reason.(CB 96.5)
Mr Colbourne submits that it is not clear but is likely that the Tribunal was referring to evidence at its own hearing. Further that the reasons why the LTTE was searching for the applicant which the Tribunal overlooked were:
The LTTE will be waiting to kill her because she deceived them by leaving them. (CB 94)
Or that the LTTE will think she has joined Karuna, a renegade LTTE commander, and she fears being tortured and killed by the LTTE as a traitor.(CB 91.5)
She fears being questioned by the army and of the LTTE killing her to prevent her saying anything about the LTTE to the army.(CB 91.6)
Mr Colbourne submits that the Tribunal dealt with the applicant’s fears in respect of the LTTE but misunderstood that claim. It overlooked that she feared being treated as a slave. That claim was not dealt with. The Tribunal considered the Sri Lankan security forces and stated it was not satisfied that she had a well-founded fear for a Convention reason. It also dealt with fear of imprisonment on false charges and being treated as a slave and prisoner by the Sri Lankan authorities.

Mr Colbourne submits the applicant’s claim of being treated like a slave, relates to the LTTE, which the Tribunal misunderstood.
Ms McWilliam in her written submissions submits that the claim of the LTTE searching for the applicant was relevant to whether the applicant’s fear of persecution was well-founded. She submits that the Tribunal accepted that the applicant feared persecution.(CB 96.3) However, the Tribunal did not accept that the fear was well-founded, because:
a)Independent country information does not suggest that it is plausible for the LTTE to expend resources locating the applicant.
b)Given that the ceasefire has been in place for three years, and the LTTE was well-established as the controlling authority in some parts of the Vanni where the applicant lived, the Tribunal did not accept as plausible that the LTTE would try to find her and persecute her.
Thus, the applicant’s claim was dealt with as part of the more general claim of having a well-founded fear of persecution. Where the reasons are otherwise comprehensive, and the issue has at least been identified, it may be unnecessary to make a finding on a particular matter which is subsumed in findings of greater generality, or because there is a factual premise upon which a contention rests which has been rejected: WAEE v Minister for Immigration (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ.
Ms McWilliam acknowledged that the following Tribunal statement may not be accurate: “there is nothing in the Applicant’s evidence to suggest that the LTTE was concerned about her “escape” or that they tried to find her”.(CB 96.3) However, a mere factual error by the Tribunal will not constitute jurisdictional error unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision: NABE [No.2] v Minister for Immigration (2004) 144 FCR 1 at [53] per Black CJ, French and Selway JJ.

Ms McWilliam drew the Court’s attention to a number of alternative reasons given by the Tribunal for finding that the applicant’s fear was not well-founded, set out at [6.19] above. The reasons provide an independent basis for the Tribunal’s finding that the applicant’s fear was not well-founded. Ms McWilliam submits that, accordingly, any error did not amount to a failure to exercise jurisdiction.
After considering the submissions by both parties and re-reading the Tribunal’s ‘Findings and Reasons’, I note that the Tribunal’s expressed a great deal of sympathy for the applicant and the situation she was in: CB 98. Prior to those remarks, I believe the Tribunal member had considered each category of the applicant’s claims and dealt with them. I accept the submission made by Ms McWilliam that particular matters are sometimes subsumed in findings of greater generality, or that a factual premise upon which a contention rests has been rejected.

I accept that in this case there may have been a cumulative finding in respect of related issues, given that the applicant sought to leave a LTTE-controlled area which she categorised as “escape from their influence”.
A consideration of the independent country reports indicate that the LTTE was unlikely to be in the position or have the resources to locate the applicant, force her return, or avenge her escape by killing her.

The Tribunal dealt with each of the claims either separately or in conjunction with matters of similar nature. The relative weight which a Tribunal gives for each piece of evidence is a function of its fact finding obligation. Although the relevant weight may be subject to inaccuracy or factual error, this does not constitute jurisdictional error unless it is a jurisdictional fact or an error which vitiates the decision.
In respect of the second ground, that the Tribunal failed to deal with the claim that the applicant would be a slave to the LTTE, Mr Colbourne referred the Court to a passage from the Tribunal decision:
As the Applicant escaped from LTTE control she fears returning to the Vanni. It was also submitted that the peace talks will be unsuccessful and even if successful, the LTTE will be in full control of the area and as the Applicant had already been branded a traitor by the LTTE she will be persecuted by the LTTE and have to be a slave and without freedom.(CB 88.5)
Mr Colbourne submits that the Tribunal found that even if the LTTE’s more recent treatment of the applicant amounted to persecution, it could not be satisfied that she was targeted by the LTTE for a Convention reason but rather that she was living in a LTTE-dominated area which made her life difficult.(CB 95.9) Mr Colbourne argues that the Tribunal made no mention in this passage of the applicant being forced to work for the LTTE as a slave or denied her freedom.
The Tribunal then considered the position of the applicant if her treatment by the LTTE did amount to persecution for a Convention reason. The Tribunal proceeding in this manner shows that its lack of satisfaction that any persecution was for a Convention reason did not negate that possibility, which it was required to address: Minister for Immigration v Rajalingam (1999) 93 FCR 220 at 241; N1202/01A v Minister for Immigration (2002) 68 ALD 21 at [53]. The Tribunal was not satisfied that the applicant was at risk of Convention related persecution from the LTTE because she left the LTTE-controlled area without permission. Neither was the Tribunal satisfied that she had a well-founded fear based on her own evidence of why she feared the LTTE.(CB 96.2) Mr Colbourne argues that this last finding related to the applicant’s evidence that the LTTE would think that she has joined Karuna and may execute her for being a traitor.
Ms McWilliam submits that the applicant makes two claims about being a slave. One is a slave to the LTTE and the other is a slave to the authorities:
…she will be persecuted by the LTTE and have to a slave and without freedom.(CB 88.5)
Finally it was submitted that the Applicant has no one to turn to and is afraid to return to Sri Lanka “where the citizens are treated as slaves and prisoners for the reason of race and religious bias on the part of the Sri Lankan authorities”.(CB 88.6)
Ms McWilliam submits that the Tribunal dealt with both assertions.
Ms McWilliam then referred to the Tribunal decision under ‘Findings and Reasons’:
Given the difficulties with her evidence about this matter the Tribunal can only find that the Applicant lived in LTTE controlled areas since at least the mid 1980s until say, at the latest, early 2003, and that during that time she, and other Tamils living in the Tamil LTTE dominated areas, were administered by the LTTE and as such had to do their bidding, follow their rules, obtain permission to leave for Government controlled areas, and contribute financially.(CB 95.6)
She submits that the Tribunal was clearly focused on the things the applicant had to do for the LTTE and then made the following finding:
…she lived in LTTE areas, cooked for the LTTE and for passing travellers for money, and assist the LTTE as required.(CB 95)
However, the Tribunal came to the conclusion that even if it was satisfied that the treatment by the LTTE amounted to persecution, it was not for Convention reasons:
…even if the LTTE’s treatment of the Applicant, as described in her evidence, amounted to persecution, the Tribunal cannot be satisfied that she was targeted by the LTTE in recent years, for a Convention reason, rather than because she was living in a particular area when the LTTE took it over and was caught up in the civil war and thus her well was ruined and her home or land, as was the property of others, taken over by heroes’ families.(CB 95-96)
Ms McWilliam submits that given the Tribunal’s finding that the applicant working for the LTTE in the past did not amount to persecution for a Convention reason, it was unnecessary for the Tribunal to consider whether fear of having to work for the LTTE in the future would amount to persecution for a Convention reason. Further, the Tribunal was not satisfied, “on the Applicant’s own evidence about why she fears the LTTE, that if she returns to the Vanni or more particularly to LTTE controlled areas, that she has a well-founded fear of persecution from the LTTE for a Convention reason.’(CB 96.5) There is nothing to suggest, as the applicant submits, that such finding was limited to the applicant’s fear that the LTTE would believe that she had joined Karuna and therefore execute her.
The Tribunal then dealt with the slave issue in relation to the Sri Lankan authorities.(CB 96.5) However, the applicant’s own evidence to the Tribunal does not suggest that she was mistreated by the security authorities for a Convention reason, including when she was detained for identity and bona fide checks at a check point in Colombo, or on several other occasions when she was briefly detained by security forces for routine security screening. The country information indicates that there were about half a million Tamils in Colombo who had come from the north and east of Sri Lanka at the time of the ceasefire. A number of these people may have moved to Colombo for terrorist reasons but the applicant did not fit this profile. The applicant was detained while her identity and bona fides were verified. She was released without charge and on her own admission was not mistreated.(CB 96-97)
I accept the submission made by Ms McWilliam that the Tribunal considered both the applicant’s claims that she would be treated as a slave by the LTTE, and similarly by Sri Lankan authorities, if she were to return to LTTE-controlled areas of Sri Lanka. Both these claims were addressed in the Tribunal decision under ‘Findings and Reasons’.

Conclusion

I am satisfied that none of the grounds of review contained in the further amended application filed at the commencement of the hearing of this matter can be sustained. The application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 15 November 2006