SZIYJ v Minister for Immigration
[2007] FMCA 919
•15 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIYJ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 919 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.91X, 422B, 424A, 476 Federal Magistrates Court Rules 2001 (Cth), rr.44.11, 44.12 |
| Applicant A & Anor v Minister for Immigration (1997) 190 CLR 225 SAAP v Minister for Immigration [2005] HCA 24 SBAP v Refugee Review Tribunal [2002] FCA 590 |
| Applicants: | SZIYJ & SZJLJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1727 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 23 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2007 |
REPRESENTATION
| Advocate for the Applicants: | The applicants appeared in person with the assistance of a Tamil interpreter |
| Counsel for the First Respondent: | Ms R Francois |
| Solicitors for the First Respondent: | Ms M Mafessanti of Clayton Utz |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 19 June 2006 is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1727 of 2006
| SZIYJ & SZJLJ |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 19 June 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 11 May 2006 and handed down on
23 May 2006, affirming a decision of the delegate of the first respondent made on 17 August 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicants seek relief against the decision of the Tribunal.
The applicants in these proceedings are not to be identified pursuant to s.91X of the Act and have been given the pseudonyms “SZIYJ” (applicant husband) and “SZJLJ” (applicant wife).
The applicants seek an order under s.476 of the Act that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A Court Book ("CB") prepared by the first respondent's solicitors was filed on 25 July 2006. I have marked this Exhibit “A" and it was read into evidence.
Background
The Tribunal decision of A Younes, reference N0653235, contains the following background information:
The Applicants are husband and wife, who claim to be citizens of Sri Lanka. They arrived in Australia on 10 March 2004 and applied to the Department of Immigration and Multicultural Affairs for Protection (Class XA) visas on 23 April 2004. The delegate decided to refuse to grant the visas on 17 August 2004 and notified the applicants of the decision and their review rights by letter dated 17 August 2004. The applicants applied to the Tribunal on 27 August 2004 for review of the delegate’s decision. On 28 February 2005, the Tribunal constituted by another Member affirmed the decision not to grant a protection visa. Subsequently, the applicants sought judicial review of the Tribunal’s decision and on 2 March 2006, by consent the Federal Magistrates Court quashed the Tribunal’s decision of 28 February 2005 and remitted the matter to the RRT for reconsideration.(CB 205)
The applicants’ claims
The applicants’ claims are set out in the written submissions prepared by Ms Francois on behalf of the first respondent and I adopt paragraphs 5 and 6 for the purposes of this judgment:
5. The applicant claims that as a member of the Tamil minority and suspected LTTE sympathizer he had been subjected to acts of violence and extortion by members of the Singhalese majority and that the police had participated in some of those acts of violence by arresting him and abusing him on several occasions (CB26 –28 and 101 – 102). The key aspects of his claims, set out in his statement attached to his protection visa application, were that:
(a) in 1980 a bus he owned had been damaged by the Singhalese bus driver be had employed (CB 26 [6]);
(b) during 1983 his family’s belongings were burnt in communal riots and they became refugees and fled to Batticaloa (CB 26 [7]);
(c) his family later returned to Colombo where they were “arrested several times and then released” (CB 26 [8 & 9]);
(d) he obtained work in the Maldives but returned to Colombo in June 2000 when his contract expired (CB 26 [11]);
(e) during 2001 and 2002 he was in dispute with a Singhalese tenant on his daughter’s property, in which the tenant refused to pay rent, physically abused and threatened him and the police would not intervene (CB 26 - 27 [12, 13, 17 - 24]);
(f) in October 2002 he was taken by the police and held for two days where he was “interrogated and assaulted continuously” in relation to an allegation that he had provided assistance to “relative Tiger boys from Batticaloa” (CB 27 [15]);
(g) Singhalese thugs always attempted to extort money from him and regularly stoned his house, once grabbing his money purse and even his glasses (CB 27 [16 & 17]);
(h) his daughter was abducted and raped by EPDP members (Douglas Devannanda’s group) because she was suspected of being an LTTE member or assisting them (CB 28 [25]); and
(i) the security forces were also watching his family’s movements (CB 28 [26]).
6. In his letter to the first RRT dated 23 November 2004 the applicant summarised his claims as being that, “we suffered harassment and persecution in Colombo from various elements. The tenant, Singhalese thugs and security forces repeatedly harassed us…we were perceived as holding political opinion of LTTE. We are more vulnerable if riots flare up because the thugs and the tenant with the help of the police definitely kill us” (CB 101).
Tribunal’s findings and reasons
A summary of the Tribunal’s reasons is contained in the first respondent’s written submissions and I adopt paragraphs 7 to 13 for the purpose of this judgment:
7. On 5 Apr 2006 the applicant, his wife and adviser attended the RRT hearing (CB 118). During the hearing the RRT raised its doubts about the applicant’s claims with him. In particular, the RRT put to the applicant that the discrepancies in the evidence given to the previous RRT and the newly constituted RRT about his history of arrests could cast doubt on the veracity of his claims (CB 211.9 and see also CB 212.5) In response the applicant said he now suffers from memory loss. The RRT informed the applicant that without expert clinical evidence it may not accept that be suffered from any relevant clinical condition which it needed to take into consideration in assessing his evidence (CB 212.2). The RRT also put to the applicant that his responses in relation to questions that it asked about his problems with his tenant appeared “vague, general and evasive” (CB 212.9 – 213.1). The RRT also discussed with the applicant its doubts about the claimed sexual assault of his daughter and obtained his comments (CB 214.2).
8.The RRT also obtained evidence from the applicant’s wife who was not able to corroborate her husband’s claims about his arrests (CB 214.8 - 215.2).
9.After the hearing, the RRT sent the applicant a letter on 12 Apri1 2006 pursuant to section 424A a the Migration Act 1958 (Cth) (the “Act”) (CB 173 - 179). On 26 April 2006 the applicant’s migration agent sent two medical reports to the RRT (CB 182 - 184). One dated 13 April 2006 was from Mayne Health Diagnostic Imaging which provided the results of a CT brain scan of the applicant. That report concluded that (CB 184):
“There are low density changes at the peripheral aspect of the left cerebella hemisphere and adjacent to the tip of the right temporal horn. Further evaluation with MRI should be considered. There is no white matter oedema or local mass effect. No other significant abnormality noted.”
10.The second report was from the applicant’s general practitioner dated 24 April 2006 and stated that the applicant:
“…has memory loss for over 2 - 3 years. CT scat of brain shows a low-density lesion in L cerebella area. I feel that it is an old stroke. He also suffers from post traumatic stress due to events in Sri Lanka. I feel his memory loss is due to (a) old stroke of the brain and (b) post traumatic stress disorder.” (CB 183)
11.On 1 May2006 the applicant’s adviser provided submissions in response to the section 424A letter (CB 188-196).
12.The RRT affirmed the decision of the delegate because it did not believe the applicant. The RRT noted that in relation the general practitioner’s conclusion about the applicant’s memory loss, the doctor did not “outline the assessments he undertook in order to reach those conclusions, apart from relying on the results of the CT scan which makes no mention of effects on memory, nor does he explain the clinical bases for those conclusions.” (CB 219.4). The RRT also observed that neither report made any comment about the applicant’s ability or otherwise to give evidence at a hearing (CB 219). The RRT accepted that the applicant had a stroke and suffered from post traumatic stress disorder which may have affected his memory (CB 219.7). However the RRT:
“…was not satisfied that those clinical conditions account for the evidentiary problems. In essence, looking at the evidence cumulatively, the Tribunal is satisfied that the evidentiary problems noted below are indications of, at the very least, exaggerations, which in the Tribunal’s opinion raise doubts about the applicant’s credibility.” (CB 219.7)
13. The RRT did not accept that the applicant or any member of his family was ever arrested or interrogated as claimed (CB 221.3) or that the Sri Lankan security forces were watching his family’s movements (CB 221.5). While the RRT accepted that the applicant may have had some difficulties with his tenant, it was not satisfied that the applicant’s ethnicity was the essential and significant reason for the failure of the police to intervene and noted that in any event the applicant had bean able to pursue his case against the tenant in the courts it India (CB 222.3). In addition the RRT did not accept that the harm the applicant had suffered at the hands of his tenant was for any Convention ground, including membership of any particular social group (CB 222.7). The RRT did not accept that the applicant’s daughter had been sexually assaulted and further held that even if it was wrong, it was not satisfied that the assault was for a Convention reason (CB 223.5). The RRT then considered separately the other less recent incidents of harm alleged to have been perpetrated against the applicant by the Singhalese majority and did not accept that they were Convention related or gave rise to a well founded fear of persecution (CB 223.7 - 224.5). In summary the RRT concluded,
“In evidence, there are generic reports which the Tribunal accepts that Tamils in Sri Lanka can be ill-treated, however, in the applicant’s case, looking at the evidence as a whole, the Tribunal rejects any harm he has suffered is essentially and significantly related to his Tamil ethnicity, or any imputed LTTE support. On his own evidence, the applicant has never been involved in any political activities.
In summary, on the basis of the evidence as a whole, the Tribunal does not accept that the applicant has suffered any Convention-related harm or that there is a real chance of Convention-related harm occurring to the applicant in the reasonably foreseeable future. Therefore, the Tribunal is not satisfied the applicant has a well founded fear of persecution as contemplated by the Convention.” (CB 224.5)
Application for review of the Tribunal’s decision
On 19 June 2006, the applicants filed an application for review in this Court under s.39B of the Judiciary Act. At the first Court date, the applicants were granted leave to file and serve an amended application by 19 September 2006 to join the applicant wife as a party to these proceedings. The applicants were also to give complete particulars of each ground of review relied upon. The applicants complied with those orders, and filed an amended application on 28 September 2006 which contains the following grounds:
1.The Tribunal failed to put adverse particulars, which are part of the reasons of the decision in writing pursuant to section 424A. The Tribunal erred jurisdictionally.
Particulars
Dr. T. Sing Radiologist and Dr. K. Karalasingham had given documentary evidence or information about the applicant’s memory loss among the submissions of the advisor. The Tribunal considered all of these information adversely and not given opportunity to the applicant to address those issues. The Tribunal also breached the common law natural justice rule by not giving opportunity to comment those adverse findings, which are imperative; and in this respect the decision is unfair and void. The Tribunal failed to discharge its function according to the statute and common law.
2. The Tribunal identified wrong issue and posses the wrong question for itself and fell into jurisdictional error in making this finding.
Particulars:
The Tribunal did not obtain expert opinion or independent assessment about the memory loss of the applicant.
3. The Tribunal decision was affected by bias.
Particulars
Rejection of the medical opinion in the absent of the independent assessment by the Tribunal and failure to put the adverse inferences and findings to the applicant in writing about the medical condition, cumulatively give rise to the inference that the member had come to the case with a closed mind or had prejudged the credibility and therefore the claims of the Applicant, with the result that the decision was affected by bias.
4.The Refugee Review Tribunal failed to apply the correct test and principles of relevant law in arriving its decision and that it fell in error in taking into consideration irrelevant matters and in failing to take into account the matters that relevant to reaching to its decision and therefore committed jurisdictional error.
Particulars
The Refugee Review Tribunal considered many irrelevant issues for the applicant’s credibility but refused to consider the evidence.
5.The Tribunal made a jurisdictional error in that it misunderstood and misapplied the relevant law:
Particulars:
i) The Tribunal misunderstood arid misapplied the law in regard to what is convention ground of “Particular Social Group”. The Tamil land lords who renting out their houses have particular problems and life threats in Colombo, as they arc soft target from these Singhalese people if they are thugs or politicians or both. The Tribunal accepted the problems faced by the applicant but wrongly concluded that the harm was private and unconnected to a Convention grounds.
ii) The Tribunal made error of law because it found that the harm during 1979 and 1983 does not constitute persecution as contemplated by the Convention.
iii) The Tribunal accepted that the Singhalese bus conductor and driver damaged the applicant’s bus. However it decided it did not Convention related.
iv) The Tribunal erred in law in relation to the findings of the claim of the extortion. The Tribunal rejected the constant extorsion claims on the basis of the credibility (caused by his memory loss); and only accepted the incident of taking of his glasses and purse. However the Tribunal made finding that this single act of violence unrelated to a Convention ground. The Tribunal made finding that “in evidence there are generic reports which the Tribunal accepts that Tamils in Sri Lanka can be ill treated. However, in the applicant’s case, looking at the evidence as a whole, the Tribunal rejects that any harm he had suffered is essentially and significantly related to his Tamil ethnicity or any imputed LTTE support. On his own evidence, the applicant has never been involved in any political activities”. However the Tribunal did not asses the applicant’s evidence as a whole or cumulatively; and failed to assess the Convention ground of the “Particular Social Group” and consequently erred in applying or interpreting the relevant law of “Particular Social Group”.(copied without alteration or correction)
Submissions and reasons
The applicants appeared as self-represented litigants with the assistance of a Tamil interpreter. Despite orders to file written submissions 14 days prior to the final hearing, the applicants confirmed that they had not done so. The applicants did make limited submissions in reply to Ms Francois’ oral submissions. They indicated that they would rely on their amended application in these proceedings.
Ms Francois filed written submissions together with a list of authorities in response to the issues raised in the applicants’ amended application. Ms Francois submits that the applicants and their adviser attended the Tribunal hearing of 5 April 2006. On 12 April 2006, the Tribunal wrote to the applicants’ adviser inviting the applicants to comment on information that it had in its possession and which would, subject to their comments, be the reason or part of the reasons for deciding that the applicants were not entitled to a protection visa.(CB 173-180) The Tribunal set out in that letter a substantial body of material which it stated raised doubts about the applicants’ credibility and the veracity of their claims. The applicants were invited to comment on that information by 26 April 2006.
The adviser responded to the Tribunal on 26 April 2006 seeking an extension of time for the applicants to comment. He enclosed medical reports and an opinion from a doctor in relation to the applicant husband’s memory loss.(CB 182-184) The Tribunal declined that request but said that it would continue to consider any information prior to finalising the matter on 1 May 2006.(CB 185)
The agent then responded to the Tribunal with a detailed letter dated
1 May 2006 again enclosing the two previous medical reports.(CB 188-196)
The Tribunal’s ‘Findings and Reasons’ makes specific reference to the material contained in the adviser’s letter and the attached medical certificates. It commented as follows:
The Tribunal has considered the medical reports and the Tribunal is satisfied that the applicant has had a stroke and suffers from PDSD and that it is possible that those conditions had an impact on the applicant’s memory, the extent of which the Tribunal cannot determine on the basis of the available evidence. However, in consideration of the evidence as a whole and given the Tribunal’s observations about the medical reports as well as its own observations of the applicant, the Tribunal is not satisfied that those clinical conditions account for the evidentiary problems. In essence, looking at the evidence cumulatively, the Tribunal is satisfied that the that the evidentiary problems noted below are indications of, at the very least, exaggerations, which in the Tribunal’s opinion raise doubts about the applicant’s credibility.(CB 219.7)
The Tribunal then listed instances where the applicant husband was questioned over details of his claims in respect of:
a)That he had been arrested “about four times…last incident involving two days” in 2001. This was inconsistent with his claim and the evidence of being arrested on two to three occasions;
b)The conflicting evidence about the number of times his daughter had been detained at the check-point;
c)That he could not remember the frequency and duration of his arrest(s) in 2001 and 2002;
d)That he had been taken into custody in October 2002 for two days (paragraph 15 of his statement) but failed to mention this in the evidence given to the Tribunal.(CB 220)
The Tribunal acknowledged the applicant’s claim of memory loss, however, it was not persuaded that it accounted for the inconsistent, vague and evasive responses to questions about being arrested.(CB 212.2) The Tribunal concluded that these matters raised doubts about his claim which could not be adequately explained by the alleged memory loss. I accept the submission made by Ms Francois that the procedure adopted by the Tribunal in respect of the applicant husband’s medical claims was correct and as required by the authority in SAAP v Minister for Immigration [2005] HCA 24.
Ms Francois addressed the five grounds of review contained in the amended application. The first ground alleges that the Tribunal breached s.424A of the Act and the requirements of procedural fairness in failing to put its adverse conclusion about the medical reports to the applicants. Ms Francois submits that the Tribunal did accept most of the medical evidence, however, it did not accept the doctor’s conclusion that the applicant husband had memory loss and its affect on his ability to give evidence. Critically, the Tribunal did not use the applicants’ medical evidence as “part of the reason for affirming the decision under review”. It is submitted that the Tribunal analysed the evidence, but it did not assist it’s assessment of the extent of the husband’s memory loss at the hearing. Accordingly, Ms Francois submits that s.424A(1) does not apply to the information in the medical reports by virtue of s.424A(3)(b), and that common law procedural fairness does not apply due to s.422B: Minister for Immigration v Lay Lat [2006] FCAFC 61 at [46]-[59] per Heerey, Conti and Jacobson JJ.
The Tribunal wrote to the applicant on 12 April 2006 in accordance with s.424A.(CB 173-180) The essential elements of that letter are repeated in the Tribunal decision.(CB 215-217) The applicants’ migration agent responded to the letter and included letters from
Dr Ruben Karalasingham (CB 183,195) and Mayne Health Diagnostic Imaging (CB 184,196). Clearly, these fall under s.424A(3)(b):
3. This section does not apply to information:
(b)That the applicant gave for the purposes of the application;
I agree with the submissions made by Ms Francois and the first ground cannot be sustained.
In respect of the second ground, which alleges that the Tribunal should have obtained its own expert report or assessment about the husband’s memory loss, Ms Francois submits that the Tribunal was not obliged to do so. It is not a condition of the exercise of the Tribunal’s powers that it should investigative powers, see Minister for Immigration v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ:
Secondly, whilst s 427 of the Act confers power on the tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s 426 provides that, even if an applicant requests that the tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the tribunal is not required to obtain such evidence. Thus, the tribunal is under no duty to inquire.
I agree with the written submissions made by Ms Francois in respect of the second ground, and the decision of Minister for Immigration v SGLB supports this view. The second ground cannot succeed.
The third ground alleges that the Tribunal was biased due to its failure to put to the applicants its adverse inferences about the medical reports. The applicants submit this indicates the Tribunal member came to the case with a closed mind, or had prejudged the applicants’ credibility. Ms Francois’ written submissions state that the proof of bias must be established other than by perusing the face of the record: O’Toole v Charles David Pty Ltd (1991) 171 CLR 232; SEAA v Minister for Immigration [2002] FCA 668. It requires proof of extreme circumstances, such as dishonesty: WAFV of 2002 v Refugee Review Tribunal [2003] FCA 16; SBAP v Refugee Review Tribunal [2002] FCA 590. Also that an allegation of bias is serious and should not be made lightly: Kordan Pty Ltd v Commissioner of Taxation [2000] FCA 1807. Ms Francois submits that there is no proper evidence to support an assertion that the Tribunal was biased in this case, nor is there any evidence which gives rise to a reasonable apprehension of bias. There is nothing on the face of the decision to indicate that the Tribunal had a mind “incapable of alteration”: Minister for Immigration v Jia (2001) 205 CLR 507 at 532. Nor is there anything that would cause a “fair minded lay observer [to] reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Ex parte H (2001) 179 ALR 425 and cited by Kenny J in VFAB v Minister for Immigration [2003] FCA 872.
There was no evidence provided to support the claim of bias, nor did the applicants make any submissions to advance the claim. They merely relied on the limited particulars of their amended application. This Court is being requested to assess the claim on the face of the records, but the authorities clearly state that approach cannot be applied. The third ground cannot succeed.
The fourth ground alleges that the Tribunal considered “irrelevant issues for the applicant’s credibility but refused to consider the evidence”. Ms Francois submits that in reaching its decision, the Tribunal relied upon the inconsistencies, vagueness and evasions in the applicant husband’s evidence to reject his credibility, which is an entirely orthodox approach. The Tribunal also had regard and gave careful consideration to the applicants’ evidence.
The particulars to the fourth ground do not identify what the applicants claim as irrelevant, or what evidence the Tribunal refused to consider. A fair reading of the decision indicates that the Tribunal considered the evidence before it and dealt with it appropriately. The credibility finding made by the Tribunal was a finding of fact. The fourth ground cannot be sustained.
The fifth ground alleges that the Tribunal erred in making various findings which were specified in the particulars. Particular (i) submits that the Tribunal did not undertake the analysis required and as set out in Applicant S v Minister for Immigration (2004) 217 CLR 387.
Ms Francois submits that the majority comprising of Chief Justice Gleeson, Gummow and Kirby JJ, laid down three requirements for determining the existence of a particular social group:
a)The group must be identified by characteristics or attributes common to all members of the group;
b)The characteristics or attributes common to all members of the group cannot be shared fear of persecution;
c)The possession of that characteristic or attribute must distinguish the group from society at large.(Applicant S at [36])
Further, McHugh J in Applicant S at [62] – [64] observed that while the relevant society may not recognise the group, the persecutor must at least recognise the group as a particular social group and intend to persecute them because of their membership of it.
Ms Francois submits that particulars (i) and (v) of the fifth ground take issue with the way in which the Tribunal addressed whether the applicant was a member of a particular social group. The applicants assert that the Tribunal erred because “the Tamil landlords who renting out their houses have particular problems and life threats in Colombo, as they are soft targets from these Singhalese people if they are thugs or politicians or both”. However, this was a challenge to the merits of the findings. The Tribunal appropriately identified the relevant principles from Applicant S to determine whether a particular social group existed in Sri Lanka.(CB 222.8) It determined that there was no particular social group of Tamil landlords who had lease agreements with Singhalese tenants.(CB 223.3, 222.7) In addition, it made an alternative finding that there would be adequate state protection for that group in the Sri Lankan courts.(CB 223.4)
I accept that the Tribunal correctly identified Applicant S and Applicant A & Anor v MIEA & Anor (1997) 190 CLR 225 as the appropriate authorities to apply and the Tribunal has that in its decision. Further this Court cannot review the merits of the Tribunal decision: Minister for Immigration v Wu Shan Liang [1996] HCA 6.
In particular (ii) of the fifth ground, the applicants challenge the Tribunal’s finding that the harm suffered during the 1979 and 1983 riots did not amount to Convention related persecution. The Tribunal’s finding was in the following terms:
The Tribunal is satisfied that during the civil unrest in 1979, the applicant was concerned for his family, that they went to the home of a Muslim person, and that when they returned, they found that valuables had been taken from their home. The applicant acknowledged that this “happened all over Sri Lanka”. The Tribunal is satisfied that the harm they suffered was a result of the general state of unrest that prevailed in Sri Lanka and in these circumstances, does not constitute persecution as contemplated by the Convention. Similarly, the Tribunal is satisfied that any harm suffered during the communal riots during 1983, does not constitute persecution as contemplated by the Convention.(CB 223.9)
It is submitted that from these reasons, it is apparent that the Tribunal relied upon the applicants’ evidence that this type of harm “happened all over Sri Lanka” and thus found that the harm was not directed against the applicants for a Convention reason, but was indiscriminate. There is no error in this approach as the Tribunal correctly identified that its task was to determine if the harm feared was on a Convention ground: Minister for Immigration v Ibrahim (2000) 204 CLR 1.
Justice Gaudron set out the test to be applied in Ibrahim at [16]:
16.The Convention does not require that the individual who claims to be a refugee should have been the victim of persecution. The Convention test is simply whether the individual concerned has a “well-founded fear of persecution”. Nor does the Convention require that the individual establish a systematic course of conduct directed against a particular group of persons of which he or she is a member. On the contrary, a well-founded fear of persecution may be based on isolated incidents which are intended to, or are likely to, cause fear on the part of persons of a particular race, religion, nationality, social group or political opinion.
At the Tribunal hearing on 5 April 2006, the applicant husband gave evidence which the Tribunal recorded as:
The Tribunal asked the applicant about his claim at paragraph 5 of the statement, namely that in 1979, he suffered seriously by his Singhalese neighbours and “thugs”. The applicant said that in 1979 there was civil unrest and people were being hurt, including children at that time. He said he was concerned for the safety of his family, and he took his kids and hid in the home of a Muslim person. He said he stayed at that home for about two days. He said subsequently he returned to his house and found that valuable goods had been taken from his home. The Tribunal put to the applicant who agreed that the problems were due to civil unrest. The applicant said that this “happened all over Sri Lanka”. The Tribunal put to the applicant that generally-speaking, harm suffered during civil unrest would not come within the Convention definition. (CB 210-211).
On the applicant husband’s own admission, the unrest in 1979 was general civil unrest not directed at them specifically but applied to the whole population. I accept the submission made by Ms Francois in respect of this particular.
Particular (iii) of the fifth ground relates to the Tribunal’s acceptance that a Singhalese bus driver had damaged the applicant husband’s bus and the Tribunal was not satisfied that it was for a Convention reason.(CB 224.1) Ms Francois submits that the applicants do not elaborate upon how the Tribunal erred. The Tribunal had discussed this potential conclusion with the applicant husband during its hearing.(CB 211.2) However, the husband gave no further evidence about why he concluded that it was his Tamil ethnicity which motivated the incident. His said that he could not report it to police because they would not have assisted him. Therefore, there is no error in the Tribunal’s inability to be satisfied about the cause of the incident.
I accept Ms Francois’ submission that this particular is an attempt by the applicants to seek merits review and cannot be entertained by this Court.
Particular (iv) of the fifth ground relates to that the Tribunal’s acceptance that the applicants had been a victim of a single robbery in which two items had been stolen and its finding that the incident was unrelated to a Convention ground.(CB 224.2) Ms Francois submits that the applicants do not explain how the Tribunal erred. It is submitted that this is essentially a challenge to the merits of the Tribunal’s conclusions.
I am satisfied that none of the particulars identified under the fifth ground identify any jurisdictional error and this ground cannot be sustained.
Conclusion
I am of the view that none of the alleged jurisdictional errors claimed by the applicants in the amended application can be sustained. The applicants are self-represented litigants who appeared with the assistance of a Tamil interpreter. They clearly had no understanding of the issues before the Court or how to present their case, and relied instead on the amended application without further oral submissions. The only submission made in reply to the first respondent’s submissions was that they were being targeted because they were Tamil. I am obliged to independently consider whether any argument based on the material in the Court Book, and in particular the Tribunal decision, can support a claim of jurisdictional error. No error is apparent from the face of those documents. Consequently, the applicants’ claims should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicants pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 15 June 2007
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