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MIGRATION - Review of RRT decision - where Tribunal is of the view that treatment received by the applicant did not amount to persecution.

SZAUF v Minisgter for Immigration [2004] FMCA 862 (15 November 2004)

SZAUF v Minisgter for Immigration [2004] FMCA 862 (15 November 2004)
Last Updated: 30 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAUF v MINISTER FOR IMMIGRATION
[2004] FMCA 862




MIGRATION - Review of RRT decision - where Tribunal is of the view that treatment received by the applicant did not amount to persecution.




Federal Magistrates Court Rules

Migration Act 1958 (Cth), s.91R

NARE v Minister for Immigration [2003] FCA 554

Applicant:
SZAUF & ORS




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1109 of 2003




Delivered on:


15 November 2004




Delivered at:


Sydney




Hearing date:


15 November 2004




Judgment of:


Raphael FM




REPRESENTATION

For the Applicant:


Applicant in person




Counsel for the Respondent:


Mr R Bromwich




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs in the sum of $4,250 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1109 of 2004

SZAUF & ORS



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. There are four applicants in these proceedings, a husband, wife and two children. Both the husband and wife have separate applications. At the commencement of the proceedings I made orders that the first and second applicant act as litigation guardians to the third and fourth applicants. The third and fourth applicants have no independent applications to make. All four applicants are Sri Lankan citizens who arrived in Australia on 16 May 2001. On 28 June 2001 they lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs.

2. On 12 August 2002 a delegate of the Minister refused to grant protection visas and on 6 September 2002 the applicants applied for review of that decision. The male applicant gave oral evidence to the Tribunal on 14 February 2003 that the female applicant was suffering from anxiety attacks and other problems and so a statement was received on her behalf. On 2 May 2003 the Tribunal determined to affirm the decision not to grant protection visas and handed down that decision on 27 May 2003.

3. The applicants made an application for judicial review of the Tribunal's decision on 18 June 2003 claiming that the Tribunal had made an error of law by not accepting them as refugees. On 21 July 2004 an amended application was filed. According to the applicant this was as a result of certain legal advice, certainly the amended application has the look of a document prepared by a person who understands the law in this area, it is only to be regretted that if that person is a lawyer he or she did not identify themselves to the court.

4. The claims which the male applicant made to the delegate in the Tribunal were that he had a well founded fear of persecution for the Convention reasons of race, religion and political opinion because he was a Tamil who had, through his brother, some association with the LTTE. His wife who is not a Tamil claimed that her grounds for seeking asylum were that she was married to a Tamil upon whom the suspicions of the security services had fallen and that she had undergone certain persecutory activities carried out by the security forces at a time when he had been arrested. The Tribunal also took into consideration the possibility of her having Convention-related claims arising out of her marriage to a Tamil.

5. One of the facts which came to light during the course of the hearings before the delegate and the Tribunal was that the applicant had in about 1990 managed to obtain a genuine Singhalese person's identity card in a name which was not his own and that he had used that card to obtain a genuine Sri Lankan passport upon which he travelled. Indeed, he actually married his wife using that name in February 1993 prior to his travelling to Abu Dhabi where he stayed, save for a short return in 1996 whilst his wife had a thyroid operation, until 1999.

6. He returned to Sri Lanka in 1999 following his mother's death. He claimed that he was ill-treated by the police in October 1999 and that he was arrested and had to pay a large bribe in order to secure his release. His wife was also interrogated. In her statement the interrogation appears to have been concentrated on her husband's reasons for adopting a different identity and in the view of the Tribunal the police came to accept that he had done this because of the known difficulties experienced between persons of Tamil ethnicity marrying persons of Singhalese ethnicity rather than because of any association with the LTTE.

7. In its findings and reasons the Tribunal assesses the various claims made by both applicants and between [CB 218] and [219] provides the reasons why it does not have the necessary degree of satisfaction concerning the male applicant's alleged subjective fear of persecution for a convention reason. Dealing with the incident that the applicant alleged occurred at the end of 1999 the Tribunal says:

" ... the Tribunal is inclined to accept the reason why the first applicant changed his name was actually for the reason he gave to the police (for the sake of his family). But be that as it may, and of far greater importance, the Tribunal has not been able to satisfy itself that the essential and significant reason for police interest in the first applicant, and indeed the treatment that he claims he received from them on that occasion, was because of his race or imputed political opinion (LTTE supporter) or for any other Convention related reason but rather because by his own admission he was the holder of an identity card issued in another name. Indeed, in the circumstances he describes, the Tribunal accepts the Sri Lankan police would have had a legitimate interest in ascertaining the first applicant's actual identity particularly in view of the heightened and escalating troubles in Sri Lanka at that time, and finds that they would be naturally suspicious why a person was in possession of a document issued in another name. Nevertheless, the applicant claims that they were still willing to release him on 22 January 2004 after 4 days, albeit with a payment of a bribe, and he left Sri Lanka clearly using his Sri Lankan passport two days later on 24 January 2000 without any apparent further difficulties. In short, in view of all the above, the Tribunal has not been able to satisfy itself that the first applicant was detained and mistreated as he claimed and the Tribunal finds that the first applicant has embellished these claims for the sake of enhancing his claim to refugee status."

8. The Tribunal then goes on to consider the applicant's claims concerning his association with the LTTE. It notes the Norwegian sponsored peace talks before coming to the conclusion at [CB 221] that there was not a real chance that he and his family would experience serious harm amounting to persecution for a convention reason if he returned to Sri Lanka either now or in the foreseeable future.

9. In regard to the second applicant the Tribunal deals with her at [CB 222] where it makes the following comment:

"The Tribunal finds that the claims made in her protection visa application are very vague and general and no supporting evidence is provided .... The Tribunal is satisfied that if the second applicant had a well founded fear of persecution because of the way she was treated between 1993 [and] when she went to Abu Dhabi in 1996, then she would not have been willing to return to Sri Lanka in 1999 because of the funeral of her mother in law or for any other reason."

10. The Tribunal also made a finding that the treatment which the second applicant claimed to have received in 1999 did not amount to persecution within s.91R of the Migration Act 1958 (Cth) although it accepted that it was a stressful situation.

11. The amended application refers to a number of alleged jurisdictional errors. The first is that the Tribunal did not make a finding as to whether or not the police had visited the applicant's home asking about his whereabouts since he had been in Australia. At [CB 220] the Tribunal makes a clear reference to the claim that the police had visited his home and asked about his whereabouts and that the occupants of the house are questioned every time there was an incident. The Tribunal considered this information in the context of what might happen to the applicant should he return to the country between [CB 220] and [CB 221]. The Tribunal stated:

" Notwithstanding the claims made by the first applicant that there is not a real chance that he and his family would experience serious harm amounting to persecution for a Convention reason on this basis if he returned to Sri Lanka, either now or in the foreseeable future."

12. It seems to me that the Tribunal has, for the purposes of the decision, accepted that these visits may have occurred but has decided that because of the current peace talks if the applicants returned to Sri Lanka they would not be placed in any danger.

13. Similarly I do not believe that the Tribunal held an erroneous understanding of what constituted a well founded fear of persecution because it failed to take into account a relevant consideration as to whether acts of persecution had occurred in the past, nor that it failed to address an essential integer of the applicant's claim by failing to make a finding with respect to matters described above. I am satisfied that the Tribunal did not misunderstand what was involved in the Convention definition of refugees, which is clearly set out at the commencement of the Tribunal's reasons for decision.

14. Finally, I do not accept that the Tribunal failed to address part of the applicant's claim which had been clearly articulated before the Tribunal and in doing so denied him natural justice by failing to give him (or they) a hearing of their substantive case.

15. When the applicant appeared before me he told me that a lawyer had prepared the amended application but his oral submissions were limited to an appeal to the Court to allow him a further chance to establish the matters he failed to establish before the Tribunal. I would repeat to the applicant the words of Allsop J in NARE v Minister for Immigration [2003] FCA 554 on the role of the courts on review. His Honour said at [10]:

" What the applicant may well not appreciate, not being a lawyer, is that the process and purpose of review to this Court does not, and cannot, involve simple re-finding of facts found by the Tribunal. Rather the review is, broadly speaking, to ensure that the Tribunal has made the decision lawfully - for instance asking itself the right question, affording procedural fairness, dealing with all matters which the Migration Act 1958 (Cth) (the "Act") says must be dealt with, not dealing with matters extraneous to its task and correctly understanding the law to apply."

16. Having considered the whole of the Tribunal's reasons for decision in respect of both the male and female applicants I am satisfied that no case that the Tribunal has fallen into jurisdictional error has been made out. In these circumstances I must dismiss the application in respect of both the first and second applicants and the third and fourth applicants in so far as their claims rest on those of the first and second applicants.

17. I will order that the first and second applicants pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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