SZICK v Minister for Immigration
[2007] FMCA 471
•4 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZICK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 471 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Sri Lanka claiming fear of persecution for reasons of political opinion – whether Tribunal failed to deal with issue raised by applicant – no reviewable error. |
| Migration Act 1958 (Cth), ss.424A, 430, 474 |
| SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811 followed Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 followed |
| Applicant: | SZICK |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2471 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 December 2006 |
| Date of Last Submission: | 6 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 4 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Killalea |
| Solicitor for the Respondent: | Ms Mansour |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Citizenship.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2471 of 2006
| SZICK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal signed on 27th July and handed down on 8th August 2006.
The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant seeks orders in the nature of certiorari quashing the Tribunal’s decision and mandamus, requiring the Tribunal to determine the application for review according to law.
Background
The applicant is a citizen of Sri Lanka who arrived in Australia on
8th May 2005. He applied for a Protection (Class XA) visa on
3rd June 2005, but a delegate of the Minister refused the application on 25th August 2005. The applicant then sought a review of that decision by the Refugee Review Tribunal.
Application for Review by the Refugee Review Tribunal
The applicant lodged an application for review at the Sydney Registry of the Refugee Review Tribunal on 20th September 2005. He was represented by a migration agent, Mr Jayawardena. No other documents were lodged at the time of the application for review.
The Tribunal wrote to the applicant on 21st October 2005, inviting him to attend a hearing on 18th November. The applicant attended the hearing, accompanied by his adviser, and gave evidence with the assistance of a Sinhalese interpreter. The Tribunal handed down its decision on 20th December 2005, affirming the delegate’s decision.
The applicant sought judicial review of the Tribunal’s decision.
On 31st March 2006 in the Federal Magistrates Court, Barnes FM made the following orders:
(1)
A writ of certiorari issue, quashing the decision of the Second Respondent dated 30 November 2005 (Ref: N05/52303) affirming a decision of the delegate of the First Respondent dated
25 August 2005.
(2)A writ of mandamus issue, requiring the Second Respondent to determine the Applicant’s claims according to law.
(3)Each party bear its own costs.
The Tribunal wrote to the applicant on 19th May 2006, inviting him to attend a hearing on 6th July 2006. The applicant attended the hearing, accompanied by his adviser, and again gave evidence with the assistance of a Sinhalese interpreter.
The Tribunal handed down its decision on 8th August 2006. A copy of the decision record can be found on pages 75 to 85 of the Court Book.
The Tribunal noted the applicant’s claims of having been involved in politics from childhood. He was a member of the United National Party in Sri Lanka, which attracted unfavourable attention from political rivals. He resigned from the UNP in 2002 because he did not support the violent tactics in which they had started to engage. Nevertheless, he was targeted because of his past association with the party.
The UNP lost power after the 2004 election and the applicant claimed to have become an obvious target for “paramilitary groups and political henchmen”[1] and a week after the election he was detained by the authorities for two days and was assaulted by the police on a number of occasions.
[1] See Court book at 78
The Tribunal decision contains an extensive account of the applicant’s evidence at the hearing[2]. The Tribunal noted that the applicant’s advisor made an oral submission to the Tribunal.
[2] Court Book pages 79 to 82
The Tribunal’s findings and reasons
The Tribunal’s findings and reasons are set out on pages 82 to 85 of the Court Book. The Tribunal was satisfied that the applicant was a Sinhalese citizen of Sri Lanka.
The Tribunal accepted that the applicant was assaulted in about 1998 by members of the Sri Lanka Freedom Party and was satisfied that being assaulted does constitute serious harm as contemplated by the Migration Act. However, the Tribunal was also satisfied that the assault incident was “single and isolated”.[3] The Tribunal was not satisfied, however, that the applicant’s being detained by the authorities for one night in November 1998 constituted serious harm as contemplated by the Act.
[3] Court Book at 82-83
The Tribunal went on to find:
The Tribunal is satisfied that the applicant’s political activities/opinions in the UNP were not the essential and significant reason for his detention, and the Tribunal is not satisfied that he was taken by the police on false accusations because of political influence, or that corrupt politicians commenced legal action against him by being behind the action of the police.
On his own evidence, which the Tribunal accepts, the applicant has never been ill-treated by the Sri Lankan authorities and that he has no concerns about any other incidents, apart from the 1998 detention, which the Tribunal is satisfied does not constitute serious harm and that the applicant’s political activities/opinions in the UNP were not the essential and significant reason for his detention. In consideration of the evidence as a whole, the Tribunal is satisfied that there is not a real chance of the applicant suffering Convention-related serious harm at the hands of the Sri Lankan authorities if he returned to Sri Lanka.[4]
[4] Court book at 83
The Tribunal noted the applicant’s claim that he did not wish to return to Sri Lanka because he feared being threatened, but was not satisfied that the applicant had a political or other profile that meant that there was a real chance that he would suffer Convention-related serious harm if he were to return to Sri Lanka at the hands of the Sri Lankan security forces, or members of the opposition parties, or any other party.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution and affirmed the decision not to grant the applicant a protection (Class XA) visa.
Application for judicial review
The applicant commenced proceedings for judicial review of the Tribunal decision on 4th September 2006. In an amended application filed in court, with leave, on the day of the hearing, the applicant seeks orders in the nature of certiorari and mandamus. The application relies upon the ground that the Tribunal failed to attain, or failed to exercise jurisdiction by reason that the Tribunal failed to consider a relevant consideration, being that the applicant claimed that he was detained and assaulted by the police in 2004.
The particulars of that claim are that the Tribunal acknowledged the applicant’s claim (at page 78 of the Court Book) that:
During the (year) 2004 after his party lost the election and he “became an obvious target of various paramilitary groups and political henchmen”. One week after the elections he was detained by the authorities for two days. He was assaulted by the police on a (number of) occasions.
The applicant claims that the RRT did not consider his claim that he was detained and assaulted by the police in 2004.
Applicant’s submissions
The applicant was represented by Mr Killalea of counsel, who submitted that the applicant’s written claims included the claim that a week after the 2004 election he was detained by the authorities for two days and assaulted by the police on (a number of) occasions. The submission goes that the Tribunal asked the applicant whether he had been detained on any occasion by the Sri Lankan authorities, other than in November 1998 (Court Book at 81). The applicant responded in the negative.
The submission is that:
·The RRT manifestly did not directly ask the applicant about his written claim to have been detained by the authorities in 2004 and assaulted by the police. The applicant may fairly, in conformity with s. 430 of the Migration Act, rely upon the lack of reference to that claim in the RRT’s decision record as confirming that the RRT did not consider that claim.
·The RRT clearly took the course of not considering those of the applicant’s written claims that were inconsistent with his oral evidence.
·The applicant’s claim that he was detained by the authorities in 2004 and assaulted by the police is prima facie inconsistent with his oral evidence that he was only detained once, and that was in 1998.
·The inconsistency may be open to explanation, for example, the applicant may have misunderstood the questions put to him (see at Court Book 69) or he may have been traumatised by the events of 2004, thereby affecting his powers of recall under the stress of an RRT hearing.
·The RRT’s finding of inconsistency did not necessarily predicate that the claim of detention in 2004 and assault by the police could not be maintained; and
·The RRT decided not to consider the applicant’s claim that he was detained by the authorities in 2004 and assaulted by the police.
In an oral submission, Mr Killalea put to the court that, at page 81 of the Court Book, the applicant confirmed to the Tribunal that he had not been detained by the authorities on any other occasion. The applicant’s oral evidence appeared to be inconsistent with the claim that he made in writing about having been detained in 2004. As a result, he submitted that the Tribunal could not be said to have considered the issue just by referring to it on page 78 of the Court Book. He submitted that the Tribunal could have asked the applicant “What about your claim that you were detained in 2004?”
Submissions on behalf of the Respondent Minister
For the first respondent, the Minister, Ms Mansour submitted that the tribunal did not ask the applicant about the claimed 2004 incident but it is not for the Tribunal to make out the applicant’s case for him or her. She referred the court to the decision of Bennett J in SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 as authority for the proposition that the Tribunal is obliged to address the applicant’s claims but is not obliged to consider every assertion of fact (see also Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [47]).
Again, she submitted that the Tribunal asked the applicant several times if he had been detained after the incident in 1998 and he had replied in the negative. The applicant was questioned about other detentions and the questions were fairly and squarely put.
As to the point made by the applicant about s. 430 of the Migration Act, this would not amount to a jurisdictional error. All the material facts relied on by the Tribunal were set out in the decision. The tribunal found inconsistencies in the applicant’s evidence and considered the inconsistencies.
Applicant’s submission in reply
In reply, Mr Killalea submitted that, whilst is not for the Tribunal to make the applicant’s case, it is the Tribunal’s duty to deal with the applicant’s case. The claim of having been detained and assaulted in 2004 is material because the applicant says that two years after having resigned from the United National Party he was still being targeted.
He further submitted that the Tribunal had not addressed the factual assertions in some detail. Rather, the Tribunal overlooked the 2004 incident or decided not to consider it because it was inconsistent with the oral evidence.
Conclusions
If the Tribunal fails to consider a part of an applicant’s claim there may well be jurisdictional error. The Full Court of the Federal Court has clearly set out the matters to be considered in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [47]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Again, in SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811, an appeal from a decision of a Federal Magistrate, Bennett J held at [11]:
There is no doubt that the Tribunal was required to address the appellant’s claims and their component integers; WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630. The Tribunal is not, as the appellant appears to be contending, obliged to consider every assertion of fact.
Both of the above decisions are binding on this court. In my view, the Tribunal did address the applicant’s claims and their component integers. The Tribunal did not fail to address a claim made by the applicant. It referred to the applicant’s claim of his detention and assault after the election in 2004 and followed up the issue of the applicant’s claim to have been detained.
It was not necessary for the Tribunal specifically to have asked the applicant about the claim to have been detained and assaulted in 2004 when the Tribunal had already asked the applicant if he had been detained on any other occasion apart from the November 1998 incident.
In order to ascertain whether the Tribunal failed to consider a claim made by the applicant, it should be made clear that the applicant only ever made one specific claim to have been detained by the authorities, although he made a general claim that “At times, politically motivated officials took me into police custody without citing the reasons for such arrest and kept me in police cells without producing me to the courts.” He only ever made one specific claim about having been detained.
The discrepancy in the applicant’s evidence is in the date when he claimed that the detention happened, not the number of times that he was detained.
The applicant’s original claim was made in a written statement he made dated 2nd June 2005, which he attached to his application for a protection visa. He was represented by a solicitor and migration agent, Mr Chandra Jayawardena. A copy of that statement appears on pages 26 and 27 of the Court Book. In that statement, he claimed to have been arrested by the police and locked up for two days, one week after the General Election in 2004. The claim that he had been detained in 1998 only ever emerged during the Tribunal hearing. The tribunal described the evidence in this way:
The Tribunal asked the applicant if he has ever been taken into custody by the Sri Lankan authorities and the applicant stated that on one occasion he was taken into custody by the authorities and kept for one night. The Tribunal asked the applicant when that occurred. He replied that it was in 1997 or 1998…
The Tribunal asked the again when he was detained and he stated he was detained in November of 1998. The Tribunal indicated to the applicant that when the Tribunal asked him earlier about incidents of detention by the authorities, he stated that he was detained on one occasion in 1997 or 1998. The Tribunal noted that the applicant did not give a specific date of November 1998. The Tribunal asked the applicant why he was now able to give a more specific date and earlier he did not. The applicant stated that the incident of November 1998 was an incident that he could not forget. He said he now remembers the incident very well.[5]
[5] Court Book at 80
The Tribunal pressed the applicant about having been detained by the authorities:
The Tribunal asked the applicant if he was detained on any other occasions apart from the November 1998 incident.
The applicant confirmed that he has not been detained on any other occasion. The Tribunal asked the applicant if he has ever been ill-treated by the Sri Lankan authorities and the applicant stated that he has never been ill-treated by the Sri Lankan authorities apart from the time that he was detained in November 1998.[6]
[6] Court Book at 81
The Tribunal asked the applicant about incidents that had occurred after he resigned from the UNP in 2002:
The Tribunal asked him if anything else had happened to him since his resignation from the UNP in 2002 and the applicant stated that nothing else specific had occurred to him after that date.
In my view it is clear that the Tribunal went to some trouble to ascertain from the applicant what claims he was making about having been detained and ill-treated by the authorities. The applicant’s evidence clearly established that he was referring to one specific incident that had occurred in 1998. He was given the opportunity to refer to any event that had taken place after 2002 and he said that nothing specific had happened. Counsel’s submissions that the applicant may have misunderstood the question or had been so traumatised by the events of 2004 that his powers of recall were affected, when he had made a statement about the incident in 2005, is unsupported by any evidence whatsoever and is, with respect, fanciful.
In my view, the Tribunal clearly ascertained that there was one incident of detention by the authorities and one only. The Tribunal dealt with the issue and set out its reasons for doing so. There is no failure to comply with s. 430 and the Tribunal did not fall into jurisdictional error.
The Tribunal decision is unaffected by jurisdictional error and is therefore a privative clause decision as defined by s.474(2) of the Migration Act. The application will be dismissed.
The title of the Minister has changed to Minister for Immigration and Citizenship and an order will be made to reflect that change.
All that remains is to consider the question of costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 27 March 2007
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