SZIWR v Minister for Immigration

Case •

[2006] FMCA 1642

•

26 October 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIWR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1642
MIGRATION – Visa - protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is citizen of Sri Lanka of Tamil ethnicity and Hindu religion claiming fear of persecution by the authorities and by the LTTE – credibility – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth). s.424
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZEEU v Minister for Immigration & Multicultural Affairs [2006] FCAFC 2
Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929
Re Minister for Immigration and Multicultural Affairs (2000) 168 ALR 407; [2000] HCA 1
SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026
Applicant: SZIWR
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 1512 of 2006
Judgment of: Scarlett FM
Hearing date: 26 October 2006
Date of last submission: 26 October 2006
Delivered at: Sydney
Delivered on: 26 October 2006

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Mr Bird
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent's costs fixed in the sum of $4,000.00.

  3. I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1512 of 2006

SZIWR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL  AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Application

  1. This is an application for review of the decision of the Refugee Review Tribunal. The decision was signed on 13th April 2006 and handed down on 2nd May 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.

Background

  1. The Applicant is a citizen of Sri Lanka who arrived in Australian on 3rd July 2005. On 17th August he applied for a Protection (Class XA) visa claiming a well founded fear of persecution in his native country.  He is ethnically a Tamil from Jaffna and his religion is Hindu.

  2. He claimed that he fitted the usual profile of interest to the Sri Lankan authorities as he is a citizen male Tamil from the north and that there was a real chance that he may be arrested, abused and mistreated by the security forces due to his Tamil race and imputed political opinion. He also claimed a fear of persecution from members of the LTTE if he were to return to Sri Lanka.

  3. A delegate of the Minister refused the application for a protection visa on 25th January 2006. On 16th February 2006, the Applicant applied to the Refugee Review Tribunal seeking a review of the delegate's decision. He accompanied that application with a copy of the delegate's decision record. The Tribunal wrote to the Applicant on 28th February inviting him to attend a hearing of the Tribunal. At the request of the Applicant the date of the hearing was postponed from 3rd to 6th April.  That was as a result of the Applicant seeking a postponement and enclosing a medical certificate. 

  4. The Applicant attended the Tribunal hearing. He provided some material to the Tribunal including a report from Amnesty International Australia and he also provided his passport.  He provided a copy of the death certificate of his late father who had died in Canada and a copy of his identity card.

  5. After the Tribunal hearing the Applicant provided some further material to the Tribunal which consisted of a further copy of the documents from Amnesty International. He also provided some material from the internet from the BBC news containing a reference to 10 sailors and a bus driver, all of whom were killed after a Navy bus hit a mine in North Eastern Sri Lanka.

  6. The Tribunal's decision record appears on pages 166-180 of the Court Book. The Tribunal considered the Applicant's evidence provided in documentary form and his oral evidence at the hearing. The Tribunal noted that the Applicant had travelled to Russia to study medicine and remained there for two years. He did not complete the course due to language difficulties.

  7. Whilst he was in Russia in 2002 his parents left Sri Lanka and travelled to Canada because his brother and sister were there. His father subsequently died in Canada. The Applicant returned to Sri Lanka and later applied to emigrate to Canada but was unsuccessful. 

  8. The Tribunal heard from the Applicant that the police had come to his home and detained him and had tied him up and beaten him in January 2002 before he went to Russia. The Tribunal also heard from the Applicant about how the LTTE had forced him to undertaken physical training.

  9. The Applicant told the Tribunal that he had been approached by members of a group called the Karuna Group and they had threatened to kill him on 12th May 2005. The Applicant told the Tribunal that when his father in Canada found out about this threat, it brought about his death. 

The Tribunal’s findings and reasons

  1. The Tribunal's findings and reasons are set out on pages 176-180 of the Court Book.  Based on his Sri Lankan passport the Tribunal accepted that the Applicant was a citizen of the Democrat Socialist Republic of Sri Lanka. The Tribunal also accepted that the Applicant is ethnically a Jaffna Tamil and his religion is Hindu.

  2. The Tribunal noted the Applicant's claims and accepted that during the conflict in Sri Lanka the applicant experienced some difficulties and his family fled to Colombo in 2000. The Tribunal also accepted that the Applicant had been interviewed by the police on three occasions but did not accept that he had been tortured by the authorities.

  3. The Tribunal considered the Applicant's claim that he fitted the usual profile of a person of interest to the Sri Lankan authorities being a single male Tamil from the north. The Tribunal did not accept that the authorities suspected the Applicant of LTTE sympathies for that reason nor that there was a real chance that he might be arrested, abused and mistreated by the security forces due to his Tamil race and imputed political opinion if he were to relocate to Colombo.

  4. The Tribunal did not accept that the Sri Lankan security forces wanted to persecute the Applicant and that the government had failed to protect him from persecution by the LTTE in the past. The Tribunal did not accept that the Applicant had a well founded fear of serious harm amounting to persecution for a Convention reason on that basis.

  5. The Tribunal also considered the Applicant's claims that he had been approached and threatened by members of the Karuna group in Colombo and formed a negative view of the Applicant's credibility.  In a paragraph of the Tribunal's findings and reasons that begins on page 178 and continues without a break through to page 180 the Tribunal described the Applicant's evidence as ‘evasive and inconsistent’.

  6. The Tribunal also found in that same paragraph later on page 178 of the Court Book that the Applicant was deliberately evasive in his response to the questions put to him by the Tribunal. At page 179 of the Court Book the Tribunal found that the Applicant was not a credible witness.

  7. The Tribunal was not satisfied that the Applicant faced a real chance of serious harm amounting to persecution for a Convention reason. The Tribunal did consider the question of relocation and said on page 180:

    The Tribunal also accepts that after this experience when he has been in Sri Lanka he has lived in Colombo.  Accordingly, given all the above the Tribunal is satisfied that if for any subjective reason the Applicant does not wish to return to Vanni, it would be reasonable for him to live in Colombo or somewhere else in Sri Lanka, and is further satisfied that if he did so he could live in safety from the LTTE and other militant forces such as the Karuna group.

  8. The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and did not satisfy the criterion set out in s.36 (2) of the Migration Act for a protection visa.

The application for judicial review

  1. The Applicant sought a review of that decision by means of an application filed on 24th May 2006 in this Court. He sought to take advantage of the Panel Legal Advice Scheme offered by the Refugee Review Tribunal but according to the Court file, the barrister to whom he was referred Ms Hoeben was not able to contact him. Accordingly, she noted that she completed an advice to the applicant on the basis of the papers provided to her.

  2. The Applicant had changed his address and in fact I note from the Court Book that the Applicant has changed his address on several occasions and whilst he filed a Notice of Change of Address for Service at the Court, he conceded that he had not asked the post office to forward his mail to his new address. This may explain why Ms Hoeben was not able to contact him.

  3. Whilst this is unfortunate and his amended application clearly shows that he did not have any legal advice in its preparation, this is not a matter that I consider would impel me to adjourn the proceedings.  In fairness, the Applicant did not apply for an adjournment.

  4. In his amended application filed on 31st August 2006 the Applicant sets out five grounds for review. He seeks constitutional writs to set aside the Tribunal's decision and have his application sent back to the Tribunal for a further hearing.  The Applicant did not provide a written outline of submissions but made oral submissions to the Court setting out five grounds of review which differed somewhat from the grounds in his amended application. I will address all of them.

  5. The Applicant also sought to tender a medical certificate. That certificate related to the Applicant's condition which he said was derived from his experiences in Sri Lanka. As the medical certificate had not been submitted to the Tribunal I refused the tender on the basis that the Court cannot consider fresh evidence.

  6. The grounds of review set out in the Applicant's amended application are the following and I will quote them almost verbatim.

    i)Country information before the Tribunal that a Tamil from the north is at risk of Convention persecution which has not been taken into account. I am a Tamil from the north.

    ii)Section 424A letter was not given to me as the Tribunal relied on the adverse information which was not put to me for my comment.

    iii)Inconsistencies between my evidence to the Department of Immigration and Multicultural and Indigenous Affairs and Refugee Review Tribunal were not put forward to me.

    iv)After I returned to Sri Lanka my fear of persecution had been increased due to the change in situation in Sri Lanka was not taken into account.

    v)The Tribunal accepts I am originally from the north. Country information supports Tamils originally from the north is at risk of persecution.  The Tribunal did not explain why and how I did not fit the usual profile of a person of interest to the Sri Lankan authorities. 

  7. I asked the Applicant about the first of these grounds but he was not able to explain it to the Court.  Instead he chose to read out a prepared statement in which he set out five grounds that were somewhat different from the grounds in his amended application. 

  8. The solicitor for the Respondent Minister has filed an outline of submissions answering the five grounds in the Applicant's amended application.  The solicitor for the Respondent Minister noted the first ground, the complaint that the Tribunal did not take unspecified country information into account. Whilst the country information was not particularised the solicitor for the First Respondent speculated that the country information would be a newspaper clipping annexed to a covering letter dated 1st December 2005, the report from Amnesty International and the news article submitted on 12th April 2006.

  9. He submitted that the Tribunal did consider that information when assessing the Applicant's claims, that he had a well founded fear of persecution as a Tamil from the north.  He submitted, and in my view correctly, that the Tribunal specifically referred to that material at pages 172, 173 and 176 of the Court Book. Thus, he submits that the Tribunal considered but rejected those claims by the Applicant and those were findings of fact that were open to the Tribunal.

  10. He further submitted that this was an attempt to cavil with the Tribunal's factual findings and referred to the decision of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 to the effect that the Court has no power to interfere with the merits of the Tribunal's decision.

  11. As to the second and third grounds the solicitor for the First Respondent, Mr Bird, submitted that the second ground alleged a breach of s.424A of the Migration Act and the third ground impliedly argues a breach of s.424A being a breach of the type discussed in SZEEU v Minister for Immigration & Multicultural Affairs [2006] FCAFC 2.

  12. He submitted that as to the second ground there was no particulars of any adverse information caught by the operation of the section and the evidence of inconsistencies did not form part of the reasons for the Tribunal's decision.  He further submitted that the Tribunal's findings that the Applicant was not a credible witness arose directly out of the evidence that the Applicant gave to the Tribunal hearing.

  13. As to the fourth ground, it is submitted that it is not a ground of review and as to the fifth ground, it is submitted that it is a challenge to the Tribunal's factual findings.

  14. In my view, the first ground alleged, namely that the Tribunal did not consider country information may in certain circumstances constitute a failure to consider a relevant part of the Applicant's claim.  In this case, however, there is no evidence that the Tribunal filed to consider a relevant part of the Applicant's claim. The Tribunal clearly considered the country information that the Applicant provided at various times and referred to it on pages 172, 173 and 176.  I am of a view that the Tribunal did consider the relevant country information but as was submitted to the Court the relevance or weight given to country information is entirely a matter for the Tribunal.  (See Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929 at [72]).

  15. As to the second and third grounds I am not of a view that any breach of s.424A of the Migration Act has been shown. There is no adverse information upon which the Tribunal relied as a reason or part of the reason for affirming the delegate's decision and the inconsistencies between the Applicant's evidence to the Department and the Applicant's evidence to the Tribunal do not appear to me to be a part of the reasons for the Tribunal's decision.

  16. The fourth ground which is claim that after the Applicant returned to Sri Lanka his fear of persecution increased due to the change in the situation in that country was not taken into account is to my mind no more than a challenge to a factual finding by the Tribunal. It does not establish any jurisdictional error.

  17. The fifth ground, in which the Applicant points out that the Tribunal did accept that he was originally from the north and was a Tamil, is clearly a challenge to a factual finding by the Tribunal. The Applicant complains that the Tribunal did not explain why and how he did not fit the usual profile of a person of interest to the Sri Lankan authorities.

  18. Certainly, the Tribunal did make that statement and it appears at page 178 of the Court Book where the Tribunal said:

    Accordingly, the Tribunal does not accept that he fits the usual profile of a person of interest to the Sri Lankan authorities.

    But this to my mind is a statement by the Tribunal that it was rejecting a facet of the Applicant's claim.  The Tribunal earlier on page 177 and 178 set out why it was satisfied that the Applicant was willing to return to Sri Lanka on 8th May 2004 as it felt that the Applicant would not have done so if he felt there was a real chance of experiencing serious harm for a Convention reason.

  19. The Tribunal has considered the Applicant's claim as a person of interest to the Sri Lankan authorities because he was a Tamil from the north but did not accept it. The Applicant has told the Court that the Tribunal did not say or give a reason for why it rejected the Applicant's claims. The fact is that the Tribunal was not satisfied about the Applicant's credibility as a witness.

  20. The Tribunal specifically found that the Applicant was not a credible witness at page 179 of the Court Book and referred to the Applicant being evasive and inconsistent in his answers to questions on page 178 of the Court Book. Credibility is a factual matter and as the High Court of Australia made clear in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham, (2000) 168 ALR 407; [2000] HCA 1, it is entirely a matter for the Tribunal.

  21. The Applicant in his statement to the Court sets out five grounds that were not identical to the grounds set out in his amended application. First, he claimed that the Tribunal had failed to consider that he was a Tamil from Jaffna and did not consider that there was no protection given to Tamils in his situation by the Sri Lankan government.

  22. Part of that claim I have already dealt with. As to the balance of the claim that the Applicant claimed that he did not obtain or was able to obtain protection from the Sri Lankan authorities, I am not of a view that that has been made out, in that the Applicant's claims of threats by members of the Karuna group were just not accepted by the Tribunal.

  23. The Applicant's second claim that the Tribunal did not consider the situation of people like him who were Tamils in Sri Lanka in my view the Tribunal specifically did and that is made quite clear on page 176-179 of the Court Book.

  24. Again, the Applicant made a claim of a breach of s.424A of the Migration Act in that he says that the Tribunal did not give him particulars of everything that was considered against him and has not given a clear decision as to the basis upon which his application for a protection visa was refused. It is not incumbent upon the Tribunal to provide information as to its conclusions or thought processes and in any event they do not constitute information for the purpose of s.424A of the Migration Act. In this case the Tribunal was not satisfied that the Applicant had made out his claim on the basis of his evidence to the Tribunal and the Tribunal found that the Applicant was not a credible witness.

  25. The fourth ground given by the Applicant today is that he comes from the Northern Province and people like him are in danger from the Sri Lankan government. He submitted that the Tribunal had not considered that he would be in danger. In my view this claim is no more than a reiteration of the factual basis of his claim for a protection visa and no jurisdictional error is shown.

  26. The fifth ground is that the Tribunal failed to give the reasons for refusing his protection visa. He said that he did not know how the Tribunal had come to the conclusion that he was not a refugee and the Tribunal failed to consider the main points in his case. The Tribunal had not stated the reasons for not accepting his protection visa application and therefore has not followed the procedures set out presumably by the Migration Act and the Migration Regulations in his case. In my view this is a reiteration of the Applicant's other grounds and no jurisdictional error has been made out.

  27. The Applicant pointed out that he now has no hope and no family in Sri Lanka and still suffers problems from the persecution he received in his native country. It is of course most unfortunate that the Applicant now has no family in Sri Lanka and his surviving family members reside in Canada. This however is not a matter that the Court can take into account.

  1. One other point that the solicitor for the First Respondent raised arises from the notification on 30th March 2006 by the Tribunal that it had rescheduled his hearing from 3rd April to 6th April 2006. This was as a result of the Applicant's request for a postponement on the basis of a medical certificate which he had provided. It is submitted, and in my view correctly, that no issue arose out of that course of action and in my view it is well established that the Tribunal is not required again to comply with the provisions of s.424(5)A of the Migration Act. In other words it is not required to give 14 days' notice when rescheduling a hearing at the request of the Applicant.

  2. In my view, this matter has been effectively dealt with in the judgment of Conti J in SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026 at [19] and [29]. That decision by his Honour was of course a decision on an appeal from the Federal Magistrates Court and is of course binding. It is in fact, although nothing turns on it, a decision on an appeal from one of my decisions. In my view, no jurisdictional error has been made out.

  3. I have considered the 10 grounds raised by the Applicant but not one of them amounts of jurisdictional error. I have conducted my own independent examination of the Tribunal decision and supportive material as I am mindful that the Applicant is not legally represented in these proceedings. I have not been able to identify any jurisdictional error that has not been raised by the Applicant.

  4. As there is no jurisdictional error the Tribunal decision is a privative clause decision as defined in s.474 (2) of the Migration Act. As


    sub-section (1) makes clear a privative clause is final and conclusive and is not subject to certiorari, mandamus, injunction, prohibition or declaration in any Court on any account.  It follows that the application must be dismissed.

  5. There is an application for costs on behalf of the First Respondent Minister. The Applicant has been wholly unsuccessful in his claim and in my view it is appropriate that a costs order should be made. The costs are estimated at $4,000.00 on a party party basis.  I am of a belief that that is an appropriate amount but I accept what the Applicant says that he would have difficulty meeting that order.

  6. Unless an order for time to pay is made the Applicant would be required to pay that amount within 28 days.  Whilst he is working I see no reason to doubt that he would find that amount difficult. Accordingly, I will allow six months to pay. 

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  8 November 2006

Correction

The omission of the word ‘not’ in the third line of paragraph 44. It now correctly reads ‘….He said that he did not know how the Tribunal had come to the conclusion that he was not a refugee and the Tribunal failed to consider the main points in his case…’

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