FEDERAL COURT OF AUSTRALIA

SXFB v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCAFC 164

SXFB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No SAD 69 of 2005

FINN, EMMETT & BENNETT JJ

ADELAIDE

18 AUGUST 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The appellant, a Sri Lankan national, was an unsuccessful applicant for a protection visa.  He instituted proceedings in the Federal Court under Part 8 of the Migration Act 1958 (Cth) (“the Act”) which were incompetent because of the provisions of s 476 of that Act.  He then applied to the Court to have the application treated as one under s 39B of the Judiciary Act 1903 (Cth).  Though acknowledging this was clearly unsatisfactory, but given that the appellant was unrepresented, Selway J acceded to this request.  His Honour, nonetheless, thought no jurisdictional error had been disclosed and dismissed the application.

2                     There were two parts to the appellant’s visa claim of having a well-founded fear of persecution by reason of his political opinion.  The first was that he was active in the Sri Lanka Freedom Party (“the SLFP”) and assisted in distributing electoral material on its behalf.  He claimed he was threatened by political opponents in relation to that activity.  The second part of his claim was that he had made allegations in relation to a United National Party supporter and that it was believed that he still had documents relating to that person.  He feared harm from that person.  Although the SLFP was now in government, it would not protect him because he did not work for that party at the last election. 

3                     The Refugee Review Tribunal (“the Tribunal”) did not accept the appellant’s credibility, noting at the beginning of its consideration of his two claims that it had serious concerns about their veracity, essentially because of his less than convincing answers to questions related to his work in the SLFP and to the motivation of his would-be persecutors.  It enlarged upon these concerns in some detail in relation to each claim. 

4                     As to the first claim, the Tribunal gave the applicant the benefit of the doubt to the extent of accepting that he was a SLFP supporter who may have attended some meetings of the party.  It did not accept that his profile was such as to attract adverse attention from supporters of another party.  The second claim was wholly rejected.  

5                     The Tribunal went on to deal with the claim raised at the hearing that his family was being threatened on his account.  In light of its previous findings and the fact that this claim was first raised at the hearing, this claim was not accepted. 

6                     In the review proceedings before Selway J, his Honour found, as already noted, that there was no jurisdictional error apparent in the reasons and findings of the Tribunal.  His Honour indicated that the submissions made by the applicant were directed to the merits of a decision and that this was not within the jurisdiction of the Court. 

7                     The Notice of Appeal to this Court involved a new departure from what was raised below.  It opens with the assertion that the primary Judge “erred in finding there was no merit in the ground that the appellant was denied procedural fairness and determination”.  It then, in four sub-paragraphs, refers to matters that the Tribunal allegedly failed to consider and, in a fifth paragraph, it alleges the Tribunal failed to comply with s 427(1) of the Act by failing to make “necessary investigations into certain important matters with respect to the review of the appellant’s application”.  In support of the appeal, the appellant filed a submission which simply reiterated matters going to the merits of his claim.  Appended to this was a copy of a document purportedly emanating from a District Court in Sri Lanka which was said to demonstrate that he was unreasonably arrested and maliciously charged by the police on the instructions of his political opponents, but that the magistrate acquitted and discharged him. 

8                     As to the first four sub-paragraphs, there is clearly nothing to demonstrate that the Tribunal erred in the manner claimed.  The essence of the four complaints is that the Tribunal disbelieved the appellant and in consequence rejected the case he was advancing to it.  The fifth ground, relating to s 427 of the Act, seemingly refers to the powers of the Tribunal to make an investigation.  It is well accepted this does not give rise as of course to any mandatory obligation:  see Re Minister for Immigration and Multicultural Affairs;  ex parte Cassim (2000) 175 ALR 209 at [13].  This claim is obviously misconceived even if the appellant had adequately identified intelligible subject matter for the investigations contemplated, which he did not.

9                     The further material put before this Court clearly cannot have any bearing on the outcome of this appeal.  Assuming its authenticity, it relates to events over a two and a half year period, leading ultimately to the appellant’s being acquitted no later than 1 April 2002 of a charge, relating to events on 3 October 1999, concerning his alleged membership of an unlawful assembly and his participation in causing minor injuries to other persons.  The appellant conceded that this matter was not raised before the Tribunal.  It has no reflection in any of the claims he made to the Tribunal.  At best, what it shows is the effective operation of the justice system in Sri Lanka.  It provides no foundation at all for any possible claim of a well-founded fear of persecution for a Convention reason even assuming that this particular incident could be raised before this court. 

10                  The appeal should be dismissed with costs. 

Associate:

Dated:              18 August 2005