SZLQF v Minister for Immigration and Citizenship

[2008] FCA 756

FEDERAL COURT OF AUSTRALIA

SZLQF v Minister for Immigration & Citizenship [2008] FCA 756

SZLQF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 357 OF 2008

MARSHALL J
23 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 357 OF 2008

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLQF
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	23 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs of the appeal, fixed at $2,000.

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 357 OF 2008

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLQF
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	23 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from a judgment of the Federal Magistrates Court of Australia: see SZLQF v Minister for Immigration & Anor [2008] FMCA 188. The Federal Magistrate dismissed the appellant’s application for judicial review of a decision made by the second respondent Refugee Review Tribunal to affirm a decision of the first respondent, Minister to refuse the grant of a protection visa.

2. The appellant is a citizen of Sri Lanka of Sinhalese ethnicity and speaks Tamil. He was born and raised in Negombo in the Western Province of the country. He is married with three children who appear on the original visa application as members of the appellant’s family unit.

3. The appellant entered Australia on a visitor’s visa on 12 March 2007. On 25 April 2007 the appellant lodged an application for a protection visa based on an alleged well founded fear of persecution if returned to Sri Lanka. He claims to have a well founded fear of persecution due to his political opinion, imputed or otherwise.

4. The appellant claims to be a member and supporter of the United National Party and consequently to have suffered from intimidation and harassment depending on the political fortunes of the UNP and opposing political parties. The appellant founds his entitlement to a protection visa on the following claims:

   ·since 1974 he has been engaged in a fish business and in 1980 he started sourcing fish from the Tamil north of the country;

   ·in 1983 two of his fish delivery vehicles were attacked because they were carrying “Tamil’s fish”;

   ·from 1994, when the ruling UNP was defeated in a general election, he began to suffer persecution from the new People’s Alliance government and his fortunes declined;

   ·in 2001 the UNP regained power, he re-established his links with Tamil fish traders and his fortunes improved. He paid taxes to the Liberation Tigers of Tamil Eelam and was in partnership with ethnic Tamils from the Jaffna peninsula;

   ·from this period he played an active role as a financial supporter of the UNP in its political campaigns;

   ·in 2004 the UNP lost power and he began to suffer harassment for his association with the UNP and Tamil fish traders;

   ·in December 2005 he was tortured for four days by the police and accused of supporting the LTTE and harbouring suspected Tamils;

   ·in February 2006 he was detained by the police for two days and questioned about his association with the LTTE and Tamils;

   ·in March 2006 the police raided his house at night and assaulted him and his Tamil associates. He was detained and tortured by the police. He continued to pay taxes to the LTTE;

   ·in September 2006 he was again detained by the police, questioned about his association with Tamils and the LTTE and tortured. He received medical treatment for his injuries;

   ·in October 2006 he was threatened by thugs and accused of being a LTTE supporter or a “Sihala Tiger”; and

   ·by December 2006, because of his predicament, he feared for his life and was forced to live with his parish priest to avoid being targeted by the police.

5. Consequently, the appellant claims to have a well founded fear of persecution for reasons of his political opinion as an active member and financial supporter of the UNP, because of his association with the LTTE and because of his business connections with the Tamil north of the country.

   MINISTER’S DECISION

6. The Minister’s delegate rejected the appellant’s application for a protection visa on 4 June 2007. The delegate decided that the appellant was not a person to whom Australia owed protection obligations under s 36 of the Migration Act 1958 (Cth) (“the Act”) and regs 866.221 or 785.221 of the Migration Regulations 1994 (Cth). That decision was based on a number of factors including “country information” which suggested that there was no substantial ideological difference between the UNP and the Sri Lanka Freedom Party and that the appellant has no political profile. The delegate decided that the appellant’s profile does not fit the type of person the security forces would suspect of being a LTTE supporter nor does it fit the type of person who is at risk of harm due to the ongoing instability in the country.

   REFUGEE REVIEW TRIBUNAL DECISION

7. The appellant sought review of the Minister’s decision by the Tribunal. The appellant was invited to appear before the Tribunal to give evidence and present arguments regarding the review. The appellant provided the Tribunal with additional documentary evidence including:

   ·a UNP identification card;

   ·a letter from Rev Fr Jude Nicholas “to whom it may concern” apparently undated; and

   ·a letter from Joseph Michael Perera, Chief Organiser of the UNP, Member of Parliament, Former Speaker of Sri Lanka, also undated.

8. The Tribunal questioned the appellant regarding his application and the documentary evidence given at the hearing. The Tribunal found the appellant lacked credibility and his evidence in relation to significant claims was essentially vague, general and lacking in important details. It was satisfied that the claimed harm had not happened to the appellant. Further, the adverse credibility finding made by the Tribunal led it to conclude the documentary evidence provided by the appellant in support of his application was not truthful. The Tribunal affirmed the delegate’s decision on 27 September 2007.

   JUDICIAL REVIEW

9. The appellant sought judicial review in the Federal Magistrates Court pursuant to s 39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Act. The grounds for review were identical to those in the current appeal, namely:

   ·jurisdictional error; and

   ·breach of procedure.

   No particulars were given at first instance or on appeal regarding how the decision is said to be infected by jurisdictional error nor how the Tribunal breached procedure.

10. Nonetheless, in the court below, the appellant submitted that the Tribunal had breached s 424A of the Act by not giving him information which the Tribunal considers to be the reason for making its decision. That submission was rejected on the grounds that s 424A was not enlivened by the conduct of the hearing. There was no “information” upon which the Tribunal acted for the purposes of the section and the provision does not require the Tribunal to disclose its “subjective appraisals and thought processes, including its disbelief of the applicant’s evidence”: see SZLQF v Minister for Immigration & Anor [2008] FMCA 188 at [44]; and see also SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 616. I see no reason to disturb that finding.

11. In the Federal Magistrates Court, the appellant submitted that the Tribunal failed to consider the additional documentary evidence produced at the Tribunal hearing referred to above at [7]. The Federal Magistrate was satisfied that the Tribunal devoted careful attention to those documents: see SZLQF v Minister for Immigration & Anor [2008] FMCA 188 at [33]. Further, his Honour said at [37]:

    Far from the Tribunal failing to take these documents into account, I consider that it gave close consideration to each, and when considered in conjunction with the evidence as a whole, I am satisfied that it was open to it to reach the following conclusions in relation to the documents:
               …

    [g]iven the Tribunal’s concerns about the applicant’s credibility, the       Tribunal does not place weight on those documents. In essence and for the adverse credibility finding, the Tribunal is not satisfied that the            documents contain truthful information ….

    THE APPEAL

12. The submission referred to at [11] above is repeated by the appellant in the current appeal. Like his Honour, I am satisfied that the Tribunal considered all the evidence before it, including the new documentary evidence. It reached conclusions on that evidence that were open to it. It must be remembered that questions of fact and the weight to be placed on evidence are questions for the Tribunal. Under s 420(2)(a) of the Act, the Tribunal’s approach to evidence is not constrained by legal forms or rules of evidence. It acted within its jurisdiction in arriving at its evidentiary conclusions.

13. The appellant further submits that the Tribunal ignored the peculiar “profile” he has as a “citizen and domicile of Negombo”. It is not clear how that submission reveals an error of law in the judgment on appeal. It concerns the factual findings of the Tribunal. I take it to be a challenge to the “country information” used by the Tribunal to assess the appellant’s claims for a protection visa. The Tribunal is capable of relying on “country information” or other sources of information that it considers appropriate as it is not bound by rules of evidence: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. Further, the Tribunal did assess the appellant’s particular claims regarding his individual circumstances and it is clear from its reasons that it questioned him in detail about them and gave him ample opportunity to present arguments about them. The Tribunal concluded that those claims were not credible. Its assessment of the credibility of the appellant was a matter for it; see Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59. There is no jurisdictional error made out by the appellant.

14. 
    Accordingly, the appeal is dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        23 May 2008

The Appellant appeared for himself.
Counsel for the First Respondent:	Ms B K Nolan
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	23 May 2008
Date of Judgment:	23 May 2008