SZGAZ v Minister for Immigration and Citizenship
[2007] FCA 471
•3 April 2007
FEDERAL COURT OF AUSTRALIA
SZGAZ v Minister for Immigration and Citizenship [2007] FCA 471
MIGRATION – protection visa – witness of credit – no persecution in recent years – no failure by Tribunal to consider claims
Migration Act 1958 (Cth)
SZGAZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2352 OF 2006BUCHANAN J
3 APRIL 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2352 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZGAZ
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
3 APRIL 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to 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 2352 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZGAZ
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE:
3 APRIL 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is a citizen of Sri Lanka. She arrived in Australia on 21 December 2003. On 27 January 2004 she lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth).
On 15 November 2004 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) refused to grant a protection visa. On 7 December 2004 the appellant applied for review of the delegate’s decision to the Refugee Review Tribunal (‘the RRT’). On 17 March 2005, after a hearing conducted on 17 February 2005 the RRT affirmed the decision not to grant a protection visa.
On 8 April 2005 the appellant sought judicial review, in the Federal Magistrates Court, of the decision of the RRT. That application was heard by Lloyd-Jones FM. On 16 November 2006 he dismissed the application for judicial review with costs. From that judgment the present appeal is brought, by Notice of Appeal dated 1 December 2006. An amended Notice of Appeal was filed in Court, without objection, at the hearing of the appeal, on 26 February, 2007.
The following background is recorded in the RRT Decision –
‘According to information provided in the protection visa application, completed with the assistance of a registered migration agent, the Applicant was born in Jaffna in 1954 and married in Vavuniya district in 1977; her daughter lives in Australia and her son lives abroad. The Applicant lived at Pandrikaithakulam (various spellings) near Omanthai (in the Vanni) from 1993 to 1998 and from 1998 to 2003 she lived at Mulliyavalai near Mullaitivu (also various spellings and in the Vanni but on the east coast). The Applicant was a cook from 1988 until 2003. She obtained her current passport without difficulty in November 2003, and her Australian visa on 9 December 2003; she left Sri Lanka legally shortly afterwards.
In the accompanying statement the Applicant explained that her husband, a police officer and dental technician, spent long periods away from home because he feared living in Omanthai because of the LTTE (the Tamil rebel group). In 1987 when the Indian Peace Keeping Force (IPKF) fought the LTTE the Applicant suffered at the hands of the LTTE; she lived in fear amid shelling and bombing from both sides, and the LTTE forced all Tamils to support it in various ways. The Applicant had to inform the LTTE when IPKF soldiers came to neighbouring areas. When LTTE youth learned that her husband was a police officer they threatened her as they suspected her of passing information to the Government forces through her husband. After the IPKF left, LTTE cadres dragged her out of her house and kicked her in front of villagers and called her a traitor; she had to convince them that she supported them. Her husband never came home after the IPKF came to the Vanni; the LTTE told her to produce her husband but she sent messages to him saying not to return home and to get the family out of there. He did not reply and in 1988 she learned that he had a mistress and was not interested in getting the family out of the Omanthai area.
The Applicant supported her children during the fighting between the LTTE and the IPKF, by selling food parcels to refugees going to Colombo and the LTTE wanted money from her. In 1990 after the IPKF left, the Applicant had to cook for the LTTE and they refused to let her leave the Vanni area they controlled. After collapse of the (then) peace talks in June 1990 she had to treat injured LTTE cadres. As the LTTE was recruiting youths the Applicant sent her daughter out of the Vanni. Even in 1995 when Jaffna was captured by the Sri Lankan Army and many Tamils fled from the Vanni to Colombo, the Applicant was not allowed to go. She earned money selling food to refugees from Jaffna and when the LTTE realised this they demanded half her earnings. The worst thing was when the LTTE demanded her 14 year old son (therefore about 1995/6) be trained for the LTTE; she sent him to Colombo and then overseas. As a result the LTTE harassed her to work for them.
In 1998 the LTTE forced the Tamils towards Mullaitivu where they lived under LTTE control, and in the midst of bombing and shelling, and had to provide services to the LTTE. The Applicant lost touch with her daughter and was worried about her education as the Applicant couldn't earn enough money. In 2000 the LTTE regained most of the land they'd lost to the Army; the LTTE mined the area, hid arms and munitions there, and didn't allow residents to return to their land. The Applicant's well was ruined when ammunition was buried in it. In 2000 the Applicant's daughter married and in 2001 she left Sri Lanka.
The Applicant remained in Mullaitivu until the (current) peace talks began but on return to her home in the Vanni, LTTE militants there chased her away; her house and other houses in the area were now occupied by LTTE heroes' families. The Applicant had no other place to go and was taken by agents to settle in Colombo. All the Applicant's relatives in Jaffna had fled Jaffna and there was no one in the Vanni to look after her. The Applicant feared living alone in Colombo in the midst of the Government's continuous search for LTTE members; the Applicant was well known "as an LTTE woman in our area" and feared being taken by the authorities for interrogation, and severely tortured in identifying LTTE militants or having worked for the LTTE. When the Applicant arrived in Colombo she met the woman who had helped her daughter there; this woman contacted an agent and they helped the Applicant get an Australian visa.’
The appellant gave oral evidence before the RRT. Taking her evidence, and appreciating its proper import, apparently provided some difficulty for the RRT which said:
‘At the Tribunal hearing the Applicant assured the Tribunal that the information and claims in the protection visa application were true, but there were some things she wanted to say rather than have written by the advisor. It was hard to obtain oral evidence from the Applicant as she had difficulty focusing and in giving a coherent account and her responses were often somewhat confused, ambiguous or vague.’
However the RRT found her to be a witness of credit. It said:
‘Although some of the Applicant’s oral evidence is inconsistent and unclear, and some of her written account is difficult to follow chronologically, the Tribunal is satisfied that the Applicant is a witness of credit and that the ambiguities and confusion in her evidence was due to her overwhelming feeling of depression and hopelessness when she had to re-live her experiences by giving an account of her situation.’
The appellant had claimed a fear of persecution from both LTTE and Sri Lankan security forces. The RRT found that neither aspect of the claim was made out.
As to LTTE the RRT said:
‘The Tribunal accepts that the Applicant is a citizen of Sri Lanka as claimed and as supported by her Sri Lankan passport. The Tribunal also accepts that the Applicant is a Tamil originally from Jaffna, that she was married in the Vavuniya district in 1977, that the family moved to Pandrikaithakulam near Omanthai in about 1980, that the Applicant’s husband, a police officer, abandoned her and her two children in 1988, and that for many years the Applicant lived in LTTE controlled or administered areas, before going to Colombo and then to Australia. The Applicant claims to fear persecution by the LTTE because she left them, and/or because the LTTE may think that she gave information about them to the Sri Lankan authorities, or because they regard her as a traitor or because she broke her promise to stay with the LTTE, or because they thought she had joined Karuna. However the Tribunal is not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the Convention from the LTTE if she returns to Sri Lanka.’
After some further discussion it recorded:
‘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.’
The appellant’s case depended very substantially, so far as her fear of persecution from LTTE was concerned, on the history of her relationship with LTTE and the harm she said she had suffered in various ways. The RRT’s analysis of this material included examination of whether, accepting that she had suffered as she claimed, consideration of the past history led to a conclusion that she would suffer persecution if she returned to Sri Lanka. There were two aspects to the RRT’s conclusions about this issue.
First, it was not satisfied that she had suffered persecution for a Convention reason in recent years.
The RRT said:
‘Although the Tribunal did not ask the Applicant for details, for the present purpose the Tribunal is prepared to accept that the Applicant's husband, a police officer, mistreated her during their marriage, and that he abandoned her and their two children in 1988. The Applicant does not claim to fear harm from her estranged husband if she returns to Sri Lanka and the Tribunal accepts this as her evidence indicates that he has not had any interest in her or in his children since he abandoned them in 1988, and he has made a new life for himself.
The Tribunal accepts that until her husband abandoned her, she had difficulties from the LTTE because they suspected her of passing information about them to her husband, a police officer. The Tribunal also accepts that many years ago she was accused of being a traitor and physically assaulted by the LTTE. However since then and for many years to about 2003, she lived in LTTE areas, cooked for the LTTE and for passing travellers for money, and assisted the LTTE as required. Although the LTTE may have used harsh words to her and no doubt her life was very difficult after her husband left, the Tribunal is satisfied that 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.’
Secondly, it was not satisfied, in any event that there was a satisfactory basis for a fear of persecution if the appellant returned to Sri Lanka. It said:
‘In any case, even if the Applicant did suffer persecution for a Convention reason when she lived under LTTE control, the Tribunal is not satisfied that the Applicant’s fear of persecution from the LTTE, if she returns to Sri Lanka, is well-founded. The Tribunal accepts that the Applicant left the LTTE controlled area sometime in 2003 and that she did so without seeking permission, and that she fears returning to the Vanni. However the Tribunal is not satisfied that this gives rise to a well-founded fear of persecution or that she will be targeted on return 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 the 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. Nor is the Tribunal 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.’
The RRT also considered whether the appellant would suffer persecution, as she claimed, from Sri Lanka’s security forces. It said:
‘The Tribunal has considered the Applicant’s claims in relation to the Sri Lankan security forces, but is not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the Convention. In her written evidence she claimed to fear being detained, interrogated and tortured by the Government’s forces because she worked for the LTTE or that she would be treated this way by the Government’s forces in that they’d force her to identify LTTE militants. It was submitted that she fears imprisonment on false charges, that she’ll be treated as a slave and prisoner and that she “escaped from the Sri Lankan authorities from persecution”. In her oral evidence the Applicant claimed to fear the Army in that if she was reported to them as being a stranger in the neighbourhood and is taken for questioning, the LTTE will think she gave the Army information about the LTTE. In her oral evidence the Applicant claimed to be scared generally but she did not say that she feared persecution from the Army, or more generally from the Sri Lankan security forces, or that she was persecuted by them before she left the country, and the Tribunal is satisfied that her fear of persecution from the Sri Lankan authorities is not well-founded.’
The RRT referred to an occasion when the appellant was briefly detained at a Colombo checkpoint for an identity check. As to that incident it recorded:
‘In addition, the Applicant’s own evidence does not suggest that she was mistreated by the security forces for a Convention reason, including when she was detained for identity and bona fides checking at a Colombo checkpoint (presumably early November 2003 as that was when her passport was issued) or that she was forced to identify LTTE militants or that her brief detention by the security forces led the LTTE to suspect or assume she provided information about them.’
and
‘… her identity and bona fides were investigated when she was briefly detained in Colombo in late 2003, but she was released without charge and not mistreated. She then obtained a passport without difficulty and left the country legally some weeks later which indicates to the Tribunal that she is not of adverse interest to the Sri Lankan authorities.’
Finally, the RRT dealt with the possibility of persecution for religious reasons. It said:
‘As noted above, the Applicant, a Hindu, told the Tribunal that she never had any problems because of her religion. Therefore the Tribunal rejects the submission that the Applicant will be persecuted because of “religious bias” by the Sri Lankan authorities. In sum, the Tribunal is not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the Convention, from the Sri Lankan security forces or from the LTTE if she returns to Sri Lanka.’
Notwithstanding its conclusions about her claim, it is clear the RRT had great sympathy for the appellant’s personal circumstances, saying:
‘Although the Tribunal cannot be satisfied that the Applicant has a real chance of persecution for a Convention reason if she returns to Sri Lanka, the Applicant's case raises issues of a humanitarian and compassionate nature and the Tribunal has a great deal of sympathy for her situation. The Tribunal believes that the Applicant is genuinely scared of returning to Sri Lanka but much of her fear seems to stem from her feelings of depression and hopelessness as she feels alone and without support. She has had to fend for herself and raise her two children since her husband abandoned her in LTTE territory in 1988 and she successfully protected both children from forced recruitment into the LTTE by getting them away from LTTE dominated areas, but at great emotional and financial cost to them all. The Applicant has not been assisted by her brothers living abroad, or by her son, and she told the Tribunal that she is very depressed, even here in Australia, possibly at least in part because she feels she is a burden on her daughter. The tsunami devastation in the Mullaitivu area, the Applicant's recent home, will make it even more difficult for the Applicant to return there, an area she knows, given that her well had been ruined in the civil war and her land in Pandrikaithakulam was already taken over by LTTE heroes' families. However, the Tribunal's role is limited to determining whether an applicant satisfies the criteria for the grant of a protection visa and consideration of an applicant's circumstances on other grounds is a matter solely within the Minister's discretion.’
The amended Notice of Appeal, upon which the appellant relies in this court, reflects the grounds contained in the further amended application for judicial review dealt with by Lloyd-Jones FM. The relevant grounds in the amended Notice of Appeal read as follows:
‘2.The Court erred in that holding that the second respondent did address the appellant’s claim that after she left the Liberation Tigers of Tamil Eelam (the “LTTE”) secretly, the LTTE were looking for her.
Particulars
(a)Error in finding that the claim was addressed in findings of greater generality.
(b)Error in finding that the “claim” as categorised by the appellant, was merely an aspect of the evidence which did not have to be addressed (if this was indeed his Honour’s finding at (AB 199-200 at [21]).’
3.The Court erred in finding that the Tribunal did address the claim that the appellant would be treated as slave by the LTTE were she to return to Sri Lanka.
Particulars
(a)Error in finding that a finding as to lack of past persecution made it unnecessary for the Tribunal to make a finding as to the future.’
Lloyd-Jones FM also records contentions to the same effect, in submissions made to him, at para 8 of his judgment:
‘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.’
He went on to refer in detail to the submissions of the parties and the decision of the RRT. He did not accept either contention or that the RRT had fallen into jurisdictional error in its treatment of these matters.
The arguments before me on behalf of the appellant amount to a contention that a different view should be taken of the RRT decision, and the reasoning process it reveals, than was taken by Lloyd-Jones FM. Having regard to the way the argument is put, and because I have reached a conclusion that no jurisdictional error is disclosed by the decision of the RRT, it is not necessary in this case to consider whether issue should be taken with specific aspects of the reasons given by Lloyd-Jones FM.
A central difficulty for the appellant’s argument is that the matters she wishes to suggest were not considered by the RRT are recorded in the RRT decision itself. The present is not a case where it might fairly be said that matters have been overlooked because no mention is made of them.
The appellant’s fears if she returns to Sri Lanka were summarised in written submissions filed in the appeal on her behalf in the following terms:
‘As to her fears upon return to Sri Lanka she stated,
Ø The LTTE will be waiting to catch and kill her because she deceived them by telling a lie; she had promised to stay with them until she died but she had left with Daniel, hid, went to Colombo and then to Australia.
Ø She fears being tortured and killed by the LTTE as a traitor.
Ø She also fears the army and being accused of being an LTTE operative.’
Supporting references are given. Each of the supporting references is a reference to that part of the decision of the RRT where the RRT set out the evidence the appellant gave orally in response to questions posed by the RRT.
In the part of the RRT decision which summarises the appellant’s oral evidence the following is recorded:
‘Asked again when she last lived with and cooked for the LTTE boys, the Applicant said it was in 1998 when they had the lodge in front of her land. Asked if she ever saw them again she said that until she came here they wouldn’t let her go; there were Indian labourers around and LTTE women guarding her. This was 1998. Trying again the Tribunal asked when she went into hiding from the LTTE boys; the Applicant replied that after she wanted to come here she went into hiding.
…
Asked how she got away from the boys the Applicant said that sometimes she hid and one day Daniel took her in the lorry to Anuradhapura …
…
Asked what she did after she ceased cooking for the boys at their lodge in 1998 the Applicant said the Sri Lanka army advanced, the lodge was not there after 1998 and everyone fled to Mulliyavalai, an LTTE area; she was kept there, living in their house, cooking meals and treating the wounded. There are lots of houses and people like her helping the LTTE, such as elderly mothers, widows and others like her. The LTTE said they’d never release her as she has no-one so they will look after her.
…
Asked if there was any other reason the LTTE wanted to keep her, she said it was mainly for cooking.
…
Asked what she feared about returning to Sri Lanka now, the Applicant said she was scared; she heard about people being shot. Daniel was shot about 5 months after she came here. The LTTE will be waiting to catch and kill her because she deceived them by telling a lie; she’d promised to stay with them until she died but she left with Daniel, hid, went to Colombo and then to Australia. She left all her things at the LTTE place and only took her money. The Applicant said she was never an enemy of the LTTE and she only ever helped them so they’ll be angry that she left. The Applicant then said that they’ll think she joined Karuna or someone (a renegade LTTE commander further down the Sri Lankan east coast); asked why the LTTE could think this given that she was with them in the north east for many years and Karuna was active further south, she replied that they’d think like that, and they’re all mixed up in Colombo. She also fears being tortured and killed by the LTTE as a traitor.’
The process of eliciting the information and recording it in detail, as the RRT did, raises a substantial inference against the proposition that it was not taken into account in the decision-making process. Nevertheless, counsel for the appellant argues that the RRT decision itself shows that important matters were wrongly decided or overlooked. I have given close attention, therefore, to the matters which are suggested to reveal a lack of proper consideration of the claims by the RRT.
The appellant’s first complaint enunciated in the amended Grounds of Appeal is that the RRT failed to address the appellant’s claim that the LTTE was looking for her.
The appellant argued that the decision of the RRT contains a critical error which shows it misunderstood the appellant’s claims and thus failed to deal with them properly. The passage about which complaint is made reads:
‘The Tribunal accepts that the Applicant left the LTTE controlled area sometime in 2003 and that she did so without seeking permission, and that she fears returning to the Vanni.
However the Tribunal is not satisfied that this gives rise to a well-founded fear of persecution or that she will be targeted on return 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 the 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 the 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 the doesn’t give the authorities information about them or identify them.’
(emphasis added)In oral submissions the error in the RRT decision was said to be constituted by the contradiction between the passage I have emphasised and an earlier record of the appellant’s oral evidence at the hearing:
‘Asked why she left the boys, she said she left secretly and after she left they were looking for her.’
However, I do not see a real contradiction between the two passages. There does not appear to have been any evidence from the appellant, apart from the statement of her subjective fear which the RRT records and acknowledges, that in fact LTTE is concerned or they tried to find her. Her own evidence does not suggest that her role, even though she was under compulsion, was of a character to generate, objectively speaking, the likelihood of concern about her departure. In her evidence the appellant said ‘sometimes she hid’ and ‘one day’ she left but there is no suggestion the earlier occurrences of hiding led to retribution.
At the hearing before the Federal Magistrates Court counsel then representing the Minister accepted that the RRT decision may contain a mistake but submitted it was not such a mistake as to involve jurisdictional error. That submission was also put to me on the appeal with the conventional admonition against too stringent a textual dissection of the reasons for decision.
If the RRT had made a factual error which was important to its disclosed reasoning that might indicate that a jurisdictional error had occurred. I have given the issue careful consideration but I am not satisfied that is what happened.
There are a number of reasons for my conclusion. First, I do not believe the RRT misunderstood the nature of the appellant’s claims in the way suggested. It is very clear from other parts of the RRT decision that the RRT had firmly in mind the appellant’s fears of persecution after having left without permission. It recorded:
(a)‘She can’t relocate as she has been threatened with death by the LTTE if she left the Vanni; she left the Vanni secretly to escape being held prisoner by the LTTE and working for them under duress.’
(b)‘As the Applicant escaped from LTTE control she fears returning to the Vanni.’
(c)‘The LTTE will be waiting to catch and kill her because she deceived them by telling a lie; she’d promised to stay with them until she died but she left with Daniel, hid, went to Colombo and then to Australia.’
(d)‘The Applicant claims to fear persecution by the LTTE because she left them.’
(e)‘The Tribunal accepts that the Applicant left the LTTE controlled area sometime in 2003 and that she did so without seeking permission, and that she fears returning to the Vanni.’
Secondly, the passage in question seems to me to deal with a lack in the Appellant’s evidence of any objective foundation for a suggestion the LTTE would attempt to find her. Her evidence was that ‘sometimes she hid’ and that after her eventual escape she moved around for 4 – 5 months. Elsewhere she said the main reason the LTTE wanted to keep her was for cooking. Seen in the whole context of the evidence recorded there is no objective material, arising from her evidence, suggesting any form of continuing concern about her departure or systematic inquiry after her whereabouts.
Thirdly, the passage in question is the first of three different, and more or less independent, reasons given for concluding that even if the appellant did suffer persecution for a Convention reason when she earlier lived under LTTE control the RRT was not satisfied that on her return she would be persecuted for a Convention reason. It is important to remember, moreover, that the RRT rejected the suggestion that the appellant had in fact been persecuted for a Convention reason in the recent years before her departure for Australia.
Fourthly, in light of the finding just referred to, the appellant needed to show something more than the possibility of return to her earlier situation, even if she came to the attention of the LTTE group for whom she earlier worked. The RRT expressed great sympathy for her personal circumstances, both earlier and if she were to return to Sri Lanka, but was not satisfied that she had been in recent years, or would be, persecuted for a Convention reason. The only possible reason suggested to me in argument for a fear of persecution was imputed political opinion. There is no basis to set aside the RRT factual conclusion that such a case was not made out.
The second complaint in the amended Notice of Appeal was that the RRT failed to properly address the appellant’s claim that she would be treated as a slave if she returned to Sri Lanka. The suggestion is that the RRT only considered whether the Sri Lankan authorities might so treat her but not LTTE.
The appellant’s written submission says:
‘The Tribunal appears to have dealt with the applicant’s claim of being kept as a slave or prisoner at AB 99.4 as an aspect of her fear of the Sri Lankan authorities. It decided that she did not have a well founded fear of persecution at their hands.’
(emphasis added)This is a reference to a passage in the RRT’s ‘Findings and Reasons’ which reads:
‘Furthermore, there is nothing to suggest that the Applicant was or is known to the authorities as an LTTE woman, or that she would be imprisoned on false charges, or that she was treated by the Sri Lankan authorities as a slave or prisoner.’
However, the submission cannot be accepted. The passage relied upon to suggest error was clearly dealing with matters referred to in an earlier passage arising from written representations to the RRT on the appellant’s behalf, which the RRT was also obliged to consider.
The RRT said:
‘In her written evidence she claimed to fear being detained, interrogated and tortured by the Government’s forces because she worked for the LTTE or that she would be treated this way by the Government’s forces in that they’d force her to identify LTTE militants. It was submitted that she fears imprisonment on false charges, that she’ll be treated as a slave and prisoner and that she “escaped from the Sri Lankan authorities from persecution”.’
(emphasis added)The RRT did not fail to appreciate that the appellant also claimed her earlier treatment by the LTTE was a form of slavery to which, she feared, she might be returned. The following written representation was also made on her behalf, as the RRT recorded:
‘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.’
(emphasis added)If jurisdictional error by the RRT is established because a claim has not been considered when it should have been, or a clear lack of appreciation has been demonstrated of the factors to take into account in assessing a claim, the decision of the RRT may be set aside so that the application for a protection visa may be further considered but I am not satisfied in the present case that any such error has occurred.
It is clear, in my view, that the RRT had a good appreciation of the nature of all the appellant’s claims and did not fail to deal with any material aspect of them. The balanced consideration of all the appellant’s claims against the requirements to be satisfied to secure a protection visa is a matter for the RRT. It is not the function of this Court to attempt to weigh the various elements in the balance.
It follows from the foregoing discussion and reasons that I am not satisfied that Lloyd-Jones FM was in error to dismiss the application for judicial review and the appeal against his judgment must therefore be dismissed. The sympathy naturally generated by the appellant’s situation and fears does not provide a reason why costs should not follow the outcome of the case in the usual way.
I shall dismiss the appeal with costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 3 April 2007
Counsel for the Appellant: Mr L Karp Counsel for the Respondent: Mr B O'Donnell Solicitor for the Respondent: Sparke Helmore Date of Hearing: 26 February 2007 Date of Judgment: 3 April 2007
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