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MIGRATION - Review of decision of Refugee Review Tribunal - application for protection visa - where applicants had gained refugee status in another country and now seek protection from Australia - whether the applicant's were in receipt of effective protection in France - whether the applicants were excluded from Australia's protection in accordance with s.36(3) of the Act - whether the Tribunal considered the substantive merits of the applicant's application for refugee status - whether the Tribunal made a jurisdictional error by coming to the conclusion that the applicants could return to France.

SZAAE v Minister for Immigration [2003] FMCA 176 (16 May 2003)

SZAAE v Minister for Immigration [2003] FMCA 176 (16 May 2003)
Last Updated: 21 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAAE & ORS v MINISTER FOR IMMIGRATION
[2003] FMCA 176



MIGRATION - Review of decision of Refugee Review Tribunal - application for protection visa - where applicants had gained refugee status in another country and now seek protection from Australia - whether the applicant's were in receipt of effective protection in France - whether the applicants were excluded from Australia's protection in accordance with s.36(3) of the Act - whether the Tribunal considered the substantive merits of the applicant's application for refugee status - whether the Tribunal made a jurisdictional error by coming to the conclusion that the applicants could return to France.



Migration Act 1958 (Cth), s.36(3)

Australian Broadcasting Tribunal v Bond (1991) 70 CLR 321

Applicant S134/2002 [2003] HCA 1

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Waterford v The Commonwealth (1987) 163 CLR 54

Re Minister for Immigration; Ex parte Cohen [2001] HCA 10

Minister for Immigration v Bhardwaj (2002) 187 ALR 117

First Applicant:
SZAAE

Second Applicant:
SZAAF

Third Applicant:
SZAAG

Fourth Applicant:
SZAAH

Fifth Applicant:
SZAAI



Respondent:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 863 of 2002



Delivered on:


16 May 2003



Delivered at:


Sydney



Hearing date:


2 May 2003



Judgment of:


Raphael FM


REPRESENTATION

Counsel for the Applicants:


M J Patel



Counsel for the Respondent:


Mr S Lloyd



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs in the sum of $4,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 863 of 2002

SZAAE


First Applicant

SZAAF




Second Applicant

SZAAG




Third Applicant

SZAAH




Fourth Applicant

SZAAI




Fifth Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicants in this matter are a family of Sri Lankan citizens. They arrived in Australia as temporary business entrants in August 2000 and applied for protection (Class XA) visas on 10 October 2000. The family's application was considered by a delegate of the Minister. On 10 January 2001 the delegate refused to provide the applicants with protection. The applicants sought review from the Refugee Review Tribunal which decided to uphold the delegate's decision on 31 July 2002 and handed down that decision on 21 August 2002.

2. In its reasons for decision the Tribunal noted that only the first named applicant had made specific claims under the Refugees Convention. The other members of the family claimed to be members of her family unit and as such were entitled to combine their applications with hers. The Tribunal throughout its reasons refers to the first named female applicant as "the applicant". I will follow that course as well.

3. Although the applicant and her family are Sri Lankan Tamils from the Jafna peninsula they left their country of origin in or about 1990 and have since been resident in France where their two younger children were born. The applicant and her husband were both granted refugee status in France and had received certificates indicating that that status was, in the case of the applicant, valid until 29 June 2004 and in respect of her husband until 9 December 2003. Both the applicant and her husband also held a carte de resident which expired, in the case of the applicant on 10 July 2001 and in the case of her husband on 25 December 2000.

4. The family travelled to Australia on titres de voyages issued by the French Government under the Refugees Convention. The applicant's titre de voyage expired on 19 July 2001 while her husband's expired on 24 December 2000 and their three childrens' on 25 December 2000.

5. The applicant submitted that whilst in France she had been subjected to violence, threats and extortion by local members of the LTTE. She claimed that she was not provided with effective protection by the French Government and she sought protection from Australia on the basis that she had a well founded fear of persecution if she returned to Sri Lanka. This fear was said to have arisen out of her treatment in Sri Lanka prior to her obtaining refugee status in France.

6. The Tribunal determined that there were three matters which it had to consider. The first was whether or not the applicants were in receipt of effective protection from France, the second was whether the applicants were excluded from Australia's protection in accordance with s.36(3) of the Migration Act 1958 (Cth) which complements Article 33 of the Refugees Convention and thirdly the substantive merits of the applicant's application for refugee status. The decision which the Tribunal came to and which is the subject of the application for review in this court, was that the applicant and her family were not denied effective protection in France. For that reason the Tribunal did not consider the other two matters. It has been accepted by Counsel for the Minister that if I was to find that the Tribunal made a jurisdictional error in relation to this aspect of the matter then the case would have to be referred back to the Tribunal because the Tribunal had not completed its functions under the Act as it had made no findings on the other two matters.

7. When the case came before me Mr Patel, who appeared on behalf of the applicant, provided me with some written submissions. In paragraphs 8, 9 and 10 of those submissions which I reproduce below he succinctly sets out the one issue that was argued:

"8 The first preliminary question and issue the RRT had to determine was as stated by the RRT "whether or not the Applicant had a legally enforceable right to enter and reside in the third country in question or at any rate there was no doubt that the Applicant will be permitted to enter and reside in the third country in question.

9 The RRT, relying on the information gathered from DFAT facsimile dated 1 April 1996 and facsimile dated 23 April 1997 concluded that the Applicant would be permitted to enter and reside in the third country. At pg 93 line 11 the RRT stated "I find on the basis of the information available to me that, as a matter of practical reality and fact, the Applicant and her husband and their three children will be permitted to re-enter France and to reside there indefinitely unless they lose their refugee status in accordance wit the Refugees Convention.

10 It is submitted that on proper reading of the whole of the information it is patently obvious that the information relied on does not provide any support for the conclusion drawn by the RRT and it is patently obvious the information supports quite the contrary conclusion (particularly see Q 10 12 14 16 17 and 18 at pg 102 and 103 of COURT BOOK)."

8. The case that was argued before me was not that the Tribunal made a jurisdictional error in coming to the conclusion that if the parties returned to France they would be given effective protection, but that it made a jurisdictional error in coming to the conclusion that the applicants could return to France.

9. On 25 July 2002 the applicants' migration consultant wrote to the Tribunal a detailed letter on all of their claims. The third paragraph of that letter was in the following form:

"The applicants' French travel documents and their visas have expired. They have no legal right to enter France. The applicants have approached the French Embassy in order to determine whether they can return to France. The French authorities advised the applicants that they could not go to France since their visas and travel documents had expired.

The applicants requested this advice in writing and still been (sic) awaiting the result."

At [CB 93] the Tribunal notes that the applicant was placed on notice that the central issue in the review would be whether she and her husband and their children had effective protection in France:

"She has therefore had ample time to make enquiries in relation to their rights to re-enter and reside in France. Moreover four weeks have now lapsed since the hearing and I consider the applicant has therefore had adequate time to obtain advice from the French authorities on this issue. Having regard to the information available to me, referred to in the previous paragraph, I do not accept that the applicant and her husband have no right to enter France, as the applicant's representative claims they had been told by the French Embassy. I find on the basis of the information available to me that, as a matter of practical reality and fact, the applicant and her husband and their three children will be permitted to re-enter France and to reside there indefinitely unless they lose their refugee status in accordance with the Refugees Convention (DFAT facsimile dated 1 April 1996, CX23720; facsimile from Australian Embassy, Paris, dated 23 April 1997, CX26554, Q6 and A6, A18 and A25."

The references at the end of the above quotation refer to evidence relied upon by the Tribunal in coming to its conclusion and found between [CB 98 and 107]. The information which is mainly in the form of questions and answers sought by the department from the Embassy in Paris in 1997 is not specific to the applicant. Mr Patel argued that this information did not indicate that the applicants would be able to re-enter France or was at best equivocal on the subject. He argued that the Tribunal had made a fundamental error by accepting this evidence as establishing that the applicant could return to France. The applicant was thus denied procedural fairness and this would ground review.

10. The decision of the Tribunal refers to Q6 and A6, A18 and A25. Question 6 is in the following form:

"Q6 Persons accorded refugee status under the Convention can apply for a CDR at their local prefecture. These are valid for varying periods and are renewable automatically. This is the equivalent of our permanent residence and applies to all non citizens who are allowed to reside in France.

Answer 6 is in the following form:

A6 In accordance with item 10 of the ruling of 2 November 1945 a resident permit valid for ten years is granted automatically to foreigners who hold a refugee certificate.

Q18 and A18 are in the following form:

Q18 The TDV is a convention travel document. These are normally valid for 3 years. The holder of a TDV can apply at a French consulate to have it renewed. Where the TDV has expired but the person holds a valid carte de sejour they need permission to return to France. The French will accept a person who travels on an Australian travel document but they will need to approach the French Consulate and obtain a French visa.

A18 Para 1. A titre de voyage is valid for a maximum of 2 years. Para 2. Correct. Para 3. Correct.

Q25 and A25 are in the following form:

Q25 What impact does one document have on another if the holder wishes to return to France if one or more of these documents have expired? For example if a titre de voyage has expired and carte de sejour is still valid or vice versa.

A25 The refugee certificate is the most important document. This determines the status and gives automatic right of stay.

(i) If the refugee certificate is still valid and a titre de voyage and/or the residence permit has expired permission to return must be sought from the French authorities and then the documents will be renewed once back in France.

(ii) If the refugee certificate has expired, the French authorities must be consulted about maintaining protection and the right of stay."

11. Mr Patel in his argument referred me to questions 16 and 17 and it is appropriate that I record these as well:

"Q16 The TDV is a renewable document in theory but in practice the French authorities could decide whether to renew it on a case by case basis.

A16 Correct.

Q17 After a person's TDV and visitor's visa have expired, the French authorities considered that the holder has taken residence in the country they are residing at the time of expiry (even if they were not legally resident). The French authorities cannot give any guarantee that the TDV would be renewed in this case. The matter would have to be referred to France.

A17 The decision lies with the Ministry of the Interior."

12. It is clear from these questions and responses that the situation of a French resident who holds a valid and subsisting refugee certificate is that if such a person is outside of France when that person's titre de voyage or carte de sejour expire permission must be sought to return to France. It is equally clear that those questions and answers do not reveal that a return to France is impossible or even unlikely. The applicants were unable to bring any evidence other than the evidence of their conversations with an officer at the French Consulate to support their claim that they would be refused entry into France.

13. The Tribunal found on the basis of this information that the applicants would be permitted to re-enter France. This is a conclusion which appears to me to be open to the Tribunal on the evidence quoted. But even if the conclusion was a wrong one, any error by the Tribunal would appear to be an error of fact as opposed to an error of law. Attempts to equate errors of fact with denial of procedural fairness were not accepted by the High Court in Australian Broadcasting Tribunal v Bond (1991) 70 CLR 321 at [357] or in Applicant S134/2002 [2003] HCA 1 at [41-42]. I cannot see any indication that the Tribunal acted capriciously in coming to the conclusion which it did, but even had it done so in that manner there would have been no reviewable error (See Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [137] where reference is made to the principle that there is no error of law in making a wrong finding of fact from Waterford v The Commonwealth (1987) 163 CLR 54 at 77 per Brennan J). This is not a case where an applicant has provided clear and unequivocal evidence from the French Embassy that she would not be permitted to enter France and that information has been ignored by the Tribunal. An opportunity to do this was given to the applicant but no information was forthcoming.

14. It is well said that not every error of fact constitutes an error of law and not every error of law constitutes a jurisdictional error:

"...an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law. A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in a finding of fact, made in the course of making a decision , demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error."

(Re Minister for Immigration; Ex parte Cohen [2001] HCA 10 at [35])

and:

"An "error" about the findings of fact that are made, which does not constitute or reveal a jurisdictional error, concerns the merits of administrative action, not its legality."

(See Minister for Immigration v Bhardwaj (2002) 187 ALR 117 at [149]).

15. In the circumstances of this case I am unable to find any error of law or jurisdictional error. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00 in accordance with Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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