SZIWR v Minister for Immigration and Citizenship

[2007] FCA 408

FEDERAL COURT OF AUSTRALIA

SZIWR v Minister for Immigration & Citizenship [2007] FCA 408

SZIWR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2258 OF 2006

GRAHAM J
5 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2258 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIWR
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	5 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be changed to read ‘Minister for Immigration and Citizenship’.

2.Refugee Review Tribunal be added as a second respondent.

3.The appeal be dismissed.

4.The appellant pay the first respondent’s 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 2258 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIWR
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	5 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant was born in Nallur, Jaffna, Sri Lanka on 6 January 1971.  He describes himself as a Tamil from the north.  He is a person who practises the Hindu religion.  He has been identified for the purposes of these proceedings as SZIWR.  When his Application for Review was before the Refugee Review Tribunal (‘the Tribunal’) he provided to the Tribunal a letter which he obtained from Amnesty International Australia, dated 29 March 2006, which referred to the ethnic groups in the Democratic Socialist Republic of Sri Lanka as ‘Sinhalese (74%), Tamils (18%), Muslims (7%), others (1%)’.

2. In 1995 when the appellant was about 24 years of age, the appellant and his family relocated to Chavakachcheri, and then to Kilinochchi.   According to the appellant, Chavakachcheri is located about 15 kilometres from Nallur and Kilinochchi is located ‘very far’ from that town.  In 2000 the family relocated to Colombo, which is even further from Nallur than Kilinochchi.

3. The appellant was apparently taken by the Liberation Tigers of Tamil Eelam (LTTE) to the district of Vanni for physical (not military) training for a few months when the family was living in Kilinochchi.  When the appellant's father needed medical attention in Colombo the appellant was permitted to leave the LTTE training camp to assist his mother in taking his father to Colombo for treatment. 

4. On 20 October 2000 the appellant secured a Sri Lankan passport, which was issued to him in Colombo.  He travelled on that passport from Sri Lanka to Russia, leaving Sri Lanka on 17 May 2002 and returning on 8 May 2004.  The purpose of the appellant’s visit to Russia would appear to have been to enable him to undertake medical studies, which he proceeded to undertake at the Kursk State Medical University.  The appellant returned to Sri Lanka without completing his medical degree.  On 2 June 2005 he secured an Australian three-month Visitor Visa in Colombo to permit him to undertake study in Australia.

5. The appellant left Sri Lanka and arrived in Australia on 3 July 2005.  On 16 August 2005 he applied for a Protection (Class XA) Visa, which was posted to the Department, so it would seem, by Craddock Murray Neumann Lawyers, the appellant’s migration agent apparently being a member or employee of that firm.  The Application for a Protection Visa included the following under the heading ‘Why did you leave that country?’:

   ‘I am a single Tamil male from Jaffna.
   The LTTE forced me assist them and undertake training
   I lived in LTTE controlled areas for many years.
   The pro-government Tamil militant groups who work with the Sri Lankan security forces arrested and detained me and interrogated on suspicion links with the LTTE beacuse (sic) I am a Tamil from the north and my past involvement with the LTTE.
   They tortured me.
   CID officers interrogated me and accused me as an LTTE supporter.

   I am a single Tamil male from the north which is one of the reasons to suspect me as the authorities for suspicion connection with the LTTE.  I fit the usual profile of those interest to the Sri Lankan authorities.  Therefore, there is a real chance that I may be arrested, abused and mistreated by the Sri Lankan security forces for reason of my race (Tamil ethnicity) and my imputed political opinion (being a Tamil from the north part of Sri Lanka and I lived in the LTTE controlled ares (sic) for many years and, where I was forced by the LTTE to assist them or join them will result me being imputed with an adverse political opinion, that is, being a LTTE sympathiser or supporter) if I relocate in Colombo now or in the reasonably foreseeable future

   The peace process is uncertain and I will face persecution at the hands of the Sri Lankan security forces.

   My details of the Convention claims will be sent to you as soon as possible.  …’

6. In response to another question ‘What do you fear may happen to you if you go back to that country?’ the appellant stated:

   ‘I fear of arrest, detention, interrogation and torture at the hand of the Sri lankan security forces and pro government militant groups.

   The LTTE will persecute me for my failure to co-operate with them.

   My details of the Convention claims will be sent to you as soon as possible.  …’

7. In response to the question ‘Who do you think may harm/mistreat you if you go back?’ the appellant recorded:

   ‘The Sri Lankan security forces, LTTE, Pro-government Tamil militant groups.

   My details of the Convention claims will be sent to you as soon as possible.  …’

8. In response to the question ‘Why do you think this will happen to you if you go back?’ the appellant recorded:

   ‘I am a Tamil male from the north.

   I lived in LTTE controlled areas for many years where the LTTE forced me to assist and to undertake training with them.

   The Pro-government Tamil militant groups will assist the Sri lankan security forces to indetify (sic) as an LTTE suspect.

   My details of the Convention claims will be sent to you as soon as possible.  …’

9. In response to the question ‘Do you think the authorities of that country can and will protect you if you go back?  If not, why not?’ the appellant said:

   The Sri Lankan security forces want to persecute me and the Sri Lankan government failed to protect me from the LTTE’s persecution in the past. 

   The Sri Lankan security forces always want to persecute Tamils from the north who lived in the LTTE controlled areas.

   My details of the Convention claims will be sent to you as soon as possible.  …’

10. Subsequently a five page statement dated 6 September 2005 was provided by the appellant to the Department.  Following an interview with the Minister’s Delegate on 20 October 2005 the appellant’s lawyers provided a written submission on the appellant’s behalf to the Minister’s Delegate on 1 December 2005, which was accompanied by certain Country Information. 

11. On 25 January 2006 the Minister’s Delegate refused to grant the appellant a Protection (Class XA) Visa. 

12. Under s 65(1) of the Migration Act 1958 (Cth) (‘the Act’) the Minister is to grant a visa after considering a valid application for same if satisfied, relevantly, that:

    ‘…

    (ii)the other criteria for it prescribed by this Act or the regulations have been satisfied;  …’

    If not so satisfied the Minister is to refuse to grant the visa. Under s 36(2) of the Act a criterion for a Protection Visa is that the applicant for the visa is:

    ‘(a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the [Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967(‘the Refugees Convention’)].’

13. Under Article 1A of the Refugees Convention the term ‘refugee’ applies to any person who:

    ‘…

    (2) … owing to well-founded fear of being persecuted for reasons of race, religion ... or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;  …’

14. The appellant had claimed to be a refugee within the meaning of the Refugees Convention. 

15. On 16 February 2006 the appellant applied to the second respondent, the Tribunal, for review of the Minister’s Delegate’s decision.  No material was provided with that Application in support of it, although certain material was later provided by the appellant to the Tribunal.  On 5 April 2006 the appellant provided a copy of the letter dated 29 March 2006, which he had received from Amnesty International Australia, to the Tribunal, and on 11 April 2006 he hand-delivered a further copy of the same letter to the Tribunal.  In addition, on 12 April 2006 the appellant wrote to the Tribunal, drawing attention to the then current situation in Sri Lanka and attaching a two page printout of a BBC News item relating to a mine explosion in north-eastern Sri Lanka, which resulted in 10 sailors and a bus driver being killed. 

16. By letter dated 28 February 2006 the Tribunal invited the appellant to a hearing on 3 April 2006.  At the request of the appellant that hearing was postponed to 6 April 2006.  A hearing took place on 6 April 2006 which apparently commenced at about 12.55 pm and continued until about 2.20 pm.  At that hearing the appellant appeared in person.  On 13 April 2006 the Tribunal decided the Application for Review, affirming the decision of the Minister’s Delegate not to grant the appellant a Protection (Class XA) Visa.  That decision was handed down on 2 May 2006.  The Tribunal’s ‘STATEMENT OF DECISION AND REASONS’ were recorded on some 15 pages of closely-typed script.  The Tribunal Member referred to the relevant law and the appellant's claims and evidence.  Under the heading ‘FINDINGS AND REASONS’ the Tribunal Member said, amongst other things:

    ‘The Tribunal is wiling (sic) to give the Applicant the benefit of the doubt and accept that as he was originally from the Jaffna area of Sri Lanka that during the conflict he experienced some difficulties and his family fled to Colombo in 2000.  The Tribunal also accepts that the Applicant has been interviewed by the police on three occasions but from his unsupported claims does not accept that he has been tortured by the Sri Lankan authorities including the army, security forces or police.’

17. The Tribunal drew attention to the fact that no medical evidence had been provided by the appellant in relation to the wounds or treatment he claims to have received when he was tortured.  He did not provide a copy of any warrant for his arrest, a detention order, a search warrant or any other document to support his claims.  The Tribunal referred to the fact that it asked the appellant at the hearing before it why, if he was as badly treated as he claims and he feared future mistreatment or persecution, he was willing to go back to Sri Lanka from Russia in May 2004, over two years after he had left.  His response included an indication that he believed that because of a ceasefire which pre-dated his departure for Russia, he could live in Sri Lanka peacefully.

18. The Tribunal referred to the fact that the appellant had made no application for refugee status when living in Russia.  The Tribunal did not believe that the experiences which the appellant had prior to his departure for Russia, either individually or collectively, amounted to his having a well-founded fear of serious harm amounting to persecution for a Convention reason necessitating his applying for refugee status in Russia, or ‘elsewhere in Europe or even approaching UNHCR’.

19. The Tribunal accepted that the appellant was willing to return to Sri Lanka on 8 May 2004 and was satisfied that he would not have done so if he felt that there was a real chance of experiencing serious harm for a Convention reason.  In these circumstances the Tribunal did not accept that he fitted the usual profile of a person of interest to the Sri Lankan authorities as a single male Tamil from the north, or 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 were he to relocate to Colombo then or in the reasonably foreseeable future.

20. The Tribunal did not accept that the Sri Lankan security forces wanted to persecute the appellant and did not accept that the Government had failed to protect him from the LTTE’s persecution in the past.  Furthermore the Tribunal did not accept that the appellant had a well-founded fear of serious harm amounting to persecution for a Convention reason on that basis.  The Tribunal found that the appellant was ‘deliberately evasive’ in his response to certain questions that were put to him.

21. The Tribunal was unable to satisfy itself, as the appellant claimed, that members of the Karuna group threatened to kill him on 12 May 2005.  The Tribunal did not find the appellant to be a credible witness.  The Tribunal was unable to satisfy itself that the appellant had a well-founded fear of serious harm amounting to persecution for a Convention reason from the Karuna group, its allies, other militant groups or the authorities, and the Tribunal did not accept the appellant's claims in that regard.

22. After considering the Country Information submitted by the appellant to the Tribunal, the Tribunal recorded that it was satisfied that there was not a real chance that the appellant would be subjected to serious harm amounting to persecution for a Convention reason in the then current security environment, or in the foreseeable future.  The Tribunal did not accept that there was a real chance that the appellant would be picked up at a checkpoint or round-up and be mistreated as a Tamil from the north with a record of having been detained and mistreated due to his race and imputed political opinion.  Nor did it accept that he would be persecuted on that basis.

23. The Tribunal was satisfied that it would be reasonable for the appellant to live in Colombo or somewhere else in Sri Lanka where he could do so in safety from the LTTE and other militant forces such as the Karuna group. 

24. On 24 May 2006 the appellant applied to the Federal Magistrates Court of Australia for constitutional writ relief in respect of the Tribunal's decision.  On 31 August 2006 the appellant filed an Amended Application in the Federal Magistrates Court which came before Federal Magistrate Scarlett for hearing on 26 October 2006.

25. It would appear that before his Honour the appellant placed reliance upon the five grounds of appeal nominated in the Amended Application and also on additional grounds which were recorded in a statement which the appellant had prepared.  The learned Federal Magistrate proceeded to consider all of the matters which had been raised.  If I may say so with respect, his Honour dealt with the several grounds raised in an exemplary manner.  Subject only to the correction of typographical errors such as the omission of the word ‘not’ in the third line of paragraph 44 of his Honour's reasons for judgment, I, with respect, would record my concurrence with the decision which his Honour reached and the reasons for it.  His Honour indicated that none of the matters raised constituted jurisdictional error.

26. On 15 November 2006 the appellant filed a Notice of Appeal in this Court appealing from the decision of the Federal Magistrate.  The grounds recorded in the Notice of Appeal were expressed as follows:

    ‘(1)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.

    (2)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

    (3)Inconsistencies between my evidence to Department of Immigration and Multicultural and Indigenous Affairs and RRT were not put forward to me

    (4) After I returned to SriLanka my fear of persecution had been increased due to the change in situation in SriLanka was not taken into account.

    (5) The Tribunal acccepts (sic) 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 SriLankan authorities.’

27. When invited to address me in relation to the grounds of appeal, which I would observe correspond with the five grounds of appeal specified in the Amended Application before the Federal Magistrates Court, it became clear that the appellant had no understanding of the legal issues which the grounds suggested may have relevance. 

28. It seems clear to me that there was no misuse or failure to properly use Country Information, that there was no failure to give notice to the appellant of information that the Tribunal considered would be the reason or part of the reason for affirming the Minister’s Delegate’s decision as required by s 424A of the Act and that there was no failure on the part of the Tribunal to explain why the appellant did not make out a case for refugee status to the satisfaction of the Tribunal.

29. It would seem to me that the case which the appellant wishes to make is that the Tribunal has accepted the refugee status of other Tamils and it is unfair and unreasonable for the Tribunal to refuse to accept the appellant’s claimed refugee status.  The matter which is put to the Court by the appellant clearly demonstrates that what he seeks is a merits review and nothing more.  He does not make out a case for any jurisdictional error on the part of the Tribunal. 

30. Accordingly, the appeal is dismissed.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham J.

Associate:

Dated:        21 March 2007

The Appellant appeared in person.
Counsel for the First Respondent:	Mr M P Cleary
Solicitor for the First Respondent:	DLA Phillips Fox
The Second Respondent did not appear.
Date of Hearing:	5 March 2007
Date of Judgment:	5 March 2007