SZNXT v Minister for Immigration and Citizenship

[2010] FCA 955

FEDERAL COURT OF AUSTRALIA

SZNXT v Minister for Immigration and Citizenship [2010] FCA 955

Citation:		SZNXT v Minister for Immigration and Citizenship [2010] FCA 955
Appeal from:		SZNXT v Minister for Immigration and Citizenship [2010] FMCA 320
Parties:		SZNXT, SZNXU, SZNXV, SZNXW and SZNXY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 712 of 2010
Judge:		SIOPIS J
Date of judgment:		2 September 2010
Legislation:		Migration Act 1958 (Cth), ss 424A(3), 425
Date of hearing:	25 August 2010
Place:	Adelaide
Division:	GENERAL DIVISION
Number of paragraphs:	41
Counsel for the Appellants:	The first appellant appeared in person.
Counsel for the First Respondent:	Mr K Tredrea
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 712 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNXT
First Appellant

SZNXU
Second Appellant

SZNXV
Third Appellant

SZNXW
Fourth Appellant

SZNXY
Fifth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	2 SEPTEMBER 2010
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appellants’ appeal is dismissed.

2.The appellants are to pay the first respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 712 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNXT
First Appellant

SZNXU
Second Appellant

SZNXV
Third Appellant

SZNXW
Fourth Appellant

SZNXY
Fifth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	2 SEPTEMBER 2010
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The first appellant is a citizen of Sri Lanka who made an application for a protection visa on 7 January 2009.  The second to fifth appellants are members of the first appellant’s family and they were also included as applicants for protection visas.  Their claims are dependent upon the claim of the first appellant.

2. The first appellant’s protection visa application included a 10 page statement setting out the facts in support of the first appellant’s claim.  The first appellant said that he was a Sri Lankan Muslim whose language was Tamil.  The first appellant claimed that he had expertise in computer hardware and software and was known as a successful businessman, supplying computers and related services to Tamils and Sinahalese in Colombo.  The first appellant said that he employed Tamil youths in his business from time to time and that most of his customers were Tamils.  The first appellant stated that on 24 July 2001, Liberation Tigers of Tamil Eelam (LTTE) elite cadres were involved in an attack on the Colombo Bandaranaike international airport and that trainer planes, jet fighters, helicopters and airbuses were destroyed.  The first appellant went on to say that he was subsequently arrested and taken to Negombo police station where he was beaten by police and accused of being a Tamil Tiger.  He claimed that he was subsequently released when his wife and parents contacted a Muslim member of parliament, on condition that he would assist the authorities with their investigation.

3. The first appellant said that by 2002, the government signed a peace accord with the LTTE and the authorities stopped visiting him.  He was able to resume his normal business operations by travelling to private homes and installing and repairing computers.  The first appellant said that he also engaged the services of Mr A, who had many Tamil friends, to assist him in the conduct of his business.

4. In 2006, said the first appellant, negotiations between the government and the LTTE came to a standstill and he again became the subject of interest from police officers who started to visit and question him.  He said that he was identified by the authorities as a “LTTE collaborator” and detained.  The police said that the LTTE had been using his computers.  The first appellant said that he was released from detention with the assistance of two Tamil speaking persons who asked him for a bribe.  The first appellant said that on being released he immediately made plans to find a way to leave the country permanently.  His work colleague, Mr A, promised to assist him to travel to Australia on a student visa.  The first appellant said that he then fled Negombo, and moved in with a Muslim friend, until he left Sri Lanka for Australia in March 2007.

5. On departing for Australia, the first appellant left his work colleague, Mr A, to conduct his business.  All his family members, other than his eldest son, who was studying Arabic in Colombo, subsequently joined the first appellant in Australia.

6. The first appellant then said that he returned to Sri Lanka in September 2007 because his father was ill and wanted to see him.  He said that his work colleague, Mr A, had told him that it was safe, as the authorities had not questioned Mr A.  The first appellant went on to say that his father’s condition was bad, but that he could not stay because the authorities were suddenly conducting cordon operations in search of LTTE cadres.  The first appellant said that he feared to stay any longer, and returned to Australia.  Within a month of him arriving back in Australia, the first appellant was told that his father had passed away.  However, said the first appellant, he did not go back to Sri Lanka for his father’s funeral because he feared to do so as “abductions and murders were increasing day after day at that time”, and Mr A advised him not to come back.

7. The first appellant then went on to say that, thereafter, his son who had remained in Sri Lanka, had told him that he was missing his family and did not want to continue his studies.  Further, around the same time in August 2008, Mr A called the first appellant urgently saying that Mr A had to leave Sri Lanka and that the first appellant should sell his business.

8. Therefore, said the first appellant, he went back to Sri Lanka in November 2008 for family and business reasons.  When he got there he found that Mr A had not deposited the computer stock with the first appellant’s grandmother, as he had instructed Mr A to do.  He also found that Mr A had not paid rent on the business property, and that Mr A had been detained by the authorities for a few months before he fled Negombo.  The first appellant said that he learned from the Sinhalese owner of the business property that the authorities were searching for Mr A and the first appellant.  The property owner went on to say that he had been ordered to report to the police if Mr A or the first appellant returned, but that as the first appellant had been a “longstanding tenant” he would not inform the police provided that the first appellant paid the overdue rent.

9. The first appellant said that he found out from another employee of his business that Mr A had been found by the authorities to have involvement with the LTTE, and that the authorities were investigating Mr A and the first appellant’s past involvement in the LTTE.  The first appellant said that he feared that if he stayed in Negombo he could be taken away and killed if he was caught.  He then left Sri Lanka with his son to return to Australia.  The first appellant applied for a protection visa on 7 January 2009.

10. The delegate rejected the first appellant’s claim for a protection visa on 1 May 2009.

    THE REFUGEE REVIEW TRIBUNAL

11. The first appellant then applied to the Refugee Review Tribunal (the Tribunal) on 18 May 2009, for a review of the delegate’s decision.  The first appellant attended a hearing before the Tribunal.  At the hearing, the first appellant gave evidence and the Tribunal asked him a number of questions.  The Tribunal asked the first appellant to explain why, if he feared for his safety when he left Sri Lanka in March 2007, he had returned to Sri Lanka in September 2007 and November 2008; and also why he had delayed applying for a protection visa until January 2009.  The first appellant gave evidence seeking to explain the matters raised by the Tribunal.  He said that he had not intended to leave Sri Lanka permanently in 2007, but intended to return when the troubles ceased, and that his lawyer had made a mistake by not including that information in his statement.

12. The Tribunal also brought to the attention of the first appellant, country information to the effect that Sri Lankan authorities scrutinised the arrival and departure of persons at the Colombo Bandaranaike international airport.  The Tribunal raised with the first appellant the inconsistency between this information and the fact that the first appellant was able to enter and exit Sri Lanka on his own passport and visa.  The first appellant said that he received the help of a powerful Minister to enter and exit Sri Lanka in 2007, and said that the failure to mention this in the statement was also because of a mistake made by his lawyer.

13. By a decision dated 25 August 2009, the Tribunal affirmed the decision of the delegate not to grant the first appellant, and consequently the second to fifth appellants, applications for a protection visa.  The Tribunal’s decision was based on credibility grounds.  The Tribunal found that the first appellant had not, and was not, of interest to the authorities in Sri Lanka, and had not been subjected to the threats he had claimed.  The Tribunal rejected all the claims made by the first appellant.

14. The Tribunal said that they considered that the first appellant had given inconsistent evidence and that he had modified his evidence in an attempt to explain the difficulties which the Tribunal had raised with him about his claims.  The Tribunal found that there were a number of inconsistencies between the first appellant’s statement accompanying his visa application and the evidence which he gave.  The Tribunal was of the view that if the first appellant had left Sri Lanka because he generally feared harm there in 2006 and 2007, he would not have returned to Sri Lanka in September 2008 and remained there for about three weeks, and also would not have returned again in November 2008.

15. Further, the Tribunal found that if the first appellant had, in March 2007, entertained the fears he expressed in his original statement, he would have claimed protection earlier than he did in January 2009.  Further, the Tribunal said that the first appellant’s evidence that he was of interest to the authorities was inconsistent with him being able to enter and exit Sri Lanka using his passport and visa.

    THE FEDERAL MAGISTRATES COURT

16. The first appellant then made an application to the Federal Magistrates Court on 1 September 2009, for judicial review of the Tribunal’s decision.  The grounds for the judicial review application were as follows:

    1.The Tribunal completely disregarded the fear the Applicant had when he fled the country finally and constantly manipulated the questions put towards the Applicant in order to confuse the Applicant made an unreasonable procedural error and thus made a jurisdictional error.

    2.The Tribunal knowingly and with bias failed to consider the submissions made by the Applicant in relation to the original claims and the reasons given therein and with an ulterior motive to rejected the Applicant’s claims and thus made a jurisdictional error.

    3.The Tribunal made a jurisdictional error by not giving the Applicant an opportunity to explain in writing, any doubts the Tribunal had.  The Tribunal failed to comply with procedural fairness and thus made procedural and jurisdictional error.

    4.The Tribunal made an error in Law in not accepting the Applicant as a Tamil speaking Muslim wishing to return back to his country in any point of time when a peace deal is reached and continued to make erroneous findings as to his intention to return back to his country and thus made a jurisdictional [sic].

17. The Federal Magistrate rejected all of the grounds of review.

    THE APPEAL TO THIS COURT

18. On appeal to this Court, the grounds of appeal relied upon by the first appellant in this Court are as follows:

    1.The Tribunal and the Federal Magistrate exceeding their jurisdiction and constructively failed to exercise its jurisdiction by failing to accept the fact that the First Appellant decided to make a protection visa application only after he escaped arrest during his trip in 2008.

    2.The Tribunal and Federal Magistrates Court failed to accept the fear of arrest the Appellant had in relation to the involvement in LTTE and failed to grant the opportunity for the First Appellant to explain why he decided to apply for protection via [sic] after his return trip from Sri Lanka in 2008.

    3.The Federal Magistrates Court constructively ignored relevant facts in the claims which the Tribunal should have taken into consideration and found that the Tribunal was not required to consider those material facts which are the core facts establishing his fear of persecution.

    4.The Federal Magistrates Court and the Tribunal identified wrong issues and the Tribunal knowingly asked wrong questions for the First Appellant to get confused as to relevant dates and time frames stated in the claims.

    Ground 1

19. The first appellant made a similar complaint before the Federal Magistrate.  The Federal Magistrate found that the Tribunal had not accepted the first appellant’s evidence that he was of interest to the Sri Lankan authorities, nor that he had, in fact, held any fear of harm when he left Sri Lanka in November 2008, nor at any other time.  The Federal Magistrate found that the first appellant’s complaint amounted to an attempt to challenge a factual finding of the Tribunal and that, therefore, no jurisdictional error was disclosed.

20. Before this Court, the first appellant repeated his complaint that the Tribunal had rejected his claim that on the last occasion that he visited Sri Lanka, namely, in November 2008, that he feared serious harm, and that it was for that reason that he made his protection visa application in January 2009.

21. In my view, the Federal Magistrate did not err in his characterisation of the first appellant’s complaint.  The fact that the Tribunal did not accept the first appellant’s claim did not give rise to the jurisdictional error referred to in the first appellant’s grounds of appeal.  The first ground of appeal is rejected.

    Ground 2

22. The first limb of this ground of appeal makes a similar complaint to that made in ground 1.  As set out above, in my view the Federal Magistrate did not err in characterising the complaint as a complaint going to the fact finding of the Tribunal which did not disclose jurisdictional error.

23. As to the second limb of the complaint in this ground of appeal, the Federal Magistrate found that the Tribunal’s decision record showed that the Tribunal gave the first appellant an opportunity to deal with the difficulties it had with his claim, and that the Tribunal had, accordingly, complied with its duty under s 425 of the Migration Act 1958 (Cth) (the Act).

24. In my view, the Federal Magistrate did not err in coming to that view.  The first appellant was given an opportunity by the Tribunal to explain why he had waited until January 2009 to apply for a protection visa, when he had said in his statement that he had left Sri Lanka in March 2007 and September 2007 consequent upon threats of serious harm.  The first appellant gave evidence on these matters.  The Tribunal rejected that evidence.  It was open to the Tribunal to do so, without falling into jurisdictional error.  Ground 2 of the appeal is rejected.

    Ground 3

25. The Federal Magistrate found that the Tribunal took into account all the relevant facts as disclosed in the first appellant’s statement and evidence; and addressed, in its decision record, all the relevant issues which arose from those facts.  The Federal Magistrate found that the Tribunal was not obliged to refer, in its reasons for decision, to every piece of information which came before it.

26. Before this Court, the first appellant did not identify the relevant facts which he said the Tribunal did not take into account.  In my view, the Federal Magistrate did not err in the conclusion to which he came.  It is apparent from an examination of the Tribunal’s decision record that the Tribunal took into account and considered the “core claims” made by the first appellant, but rejected them on credibility grounds.  This ground of appeal is rejected.

    
    Ground 4

27. This ground of appeal appears to be a combination of a complaint that the Tribunal failed to address the relevant issues and that the Tribunal asked questions with the intention of confusing the first appellant.

28. The Federal Magistrate dealt with both elements of this complaint in his decision.

29. As to the allegation that the Tribunal identified wrong issues, this complaint, in essence, repeats the complaint made in ground 3 of the grounds of appeal.

30. Before this Court the first appellant did not, in his submissions, point to any specific issue which the Tribunal had failed to identify, or had wrongly identified.  Rather, the thrust of the first appellant’s complaint in his submissions before this Court, was directed to the failure of the Tribunal to accept that he held the fear that he claimed when he left Sri Lanka in November 2008.  This was a complaint which he also raised before the Federal Magistrate and which the Federal Magistrate correctly characterised as not disclosing jurisdictional error on the part of the Tribunal.

31. Accordingly, to the extent that this ground of appeal complains that the Tribunal erred in identifying wrong issues, and that the Federal Magistrate erred in failing so to find, this part of the appeal is rejected.

32. Before the Federal Magistrate the first appellant also contended that the Tribunal asked questions with the intention of confusing the first appellant. The Federal Magistrate rejected that contention. The Federal Magistrate found that there was no evidence before the Federal Magistrate that supported this contention. The Federal Magistrate said that the transcript of the hearing before the Tribunal was not in evidence before him. The Federal Magistrate also pointed out that the first appellant’s complaint may refer to the matters that were put to the first appellant pursuant to the Tribunal’s duty under s 425 of the Act. The Federal Magistrate said that the Tribunal was obliged to put its concerns to the first appellant and there was no basis on which to conclude that the Tribunal had intended to confuse the first appellant by asking those questions.

33. The Federal Magistrate also dealt with a further ground of review claiming that the Tribunal was biased and found that there was no evidence to support that serious allegation.

34. The first appellant did not advance any submissions before this Court which cast any further light on this ground of appeal.

35. In my view, the Federal Magistrate did not err in deciding that there was no basis to conclude that the Tribunal had intentionally tried to confuse the first appellant by the questions that it asked him.  It is the case that the Tribunal did ask the first appellant questions giving the first appellant an opportunity to deal with the question of why he had delayed applying for a protection visa, and the other difficulties it had with his claim.  However, it was not possible to infer from those questions that the Tribunal, thereby, intentionally tried to confuse the first appellant.  It was incumbent on the Tribunal to raise with the first appellant difficulties that it had with the first appellant’s claim.

1. Further, inherent in the first appellant’s allegation, is the allegation that the Tribunal acted in bad faith – an allegation which is a serious allegation that must be supported by cogent evidence.  There was no such evidence before the Federal Magistrate.

2. This ground of appeal is rejected.

   Further complaints in written submissions

3. The first appellant also relied on written submissions.  Most of the written submissions were directed to the matters referred to in the grounds of appeal.  However, the written submissions also contained complaints which went beyond those made in the grounds of appeal.

4. The first appellant appeared to take issue with the country information as to the security measures at the Colombo Bandaranaike international airport relied upon by the Tribunal. In my view, this complaint does not disclose jurisdictional error. It was open to the Tribunal to make the findings which it did in respect of the country information. The question as to what country information the Tribunal should rely upon, was a matter for the Tribunal. Further, insofar as the first appellant’s complaint in respect of country information was that he was not given an opportunity to comment thereon in writing, s 424A(3) of the Act excludes country information from the information upon which a visa applicant is to be given an opportunity to comment. Accordingly, the first appellant’s complaint is rejected.

5. There is also a reference in the written submissions to the fact that the first appellant had difficulty interacting with the interpreter before the Tribunal.  The first appellant complained to the Federal Magistrate regarding inadequate interpreter services before the Tribunal.  The Federal Magistrate found that in the absence of the transcript or any evidence from a qualified interpreter attesting to the inadequacies of interpretation, the first appellant had failed to show that the interpreter services were inadequate.  Further, the Federal Magistrate said that the first appellant had not sought to identify any part of the Tribunal’s summary of the evidence which could be said to demonstrate any inadequacy in the interpreting services.  Before this Court, the first appellant did not advance any specific submission challenging the Federal Magistrate’s approach.  In my view, the Federal Magistrate did not err in the conclusions to which he came.  This complaint of the first appellant is also rejected.

6. It follows that the appeal is dismissed with costs.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        2 September 2010