FEDERAL COURT OF AUSTRALIA

SZADC v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1497

SZADC AND OTHERS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1191 OF 2003

STONE J

16 DECEMBER 2003

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The first and second appellants pay the respondent’s cost of the appeal.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of Driver FM, given on 8 August 2003, dismissing the appellants’ application for judicial review of a decision of the Refugee Review Tribunal (‘Tribunal’).  The Tribunal’s decision affirmed decisions of delegates of the respondent not to grant the appellants Protection (Class XA) visas under the Migration Act 1958 (Cth).  On 22 September 2002, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the Chief Justice directed that this appeal be heard and determined by a single judge. 

Background

2                     In September 1999 the first three appellants arrived in Australia from Sri Lanka.  Only the first appellant makes specific claims under the Refugees Convention.  The second, third and fourth appellants base their claims on membership of the first appellant’s family unit.  In these reasons, a reference to the appellant is a reference to the first appellant.  Reference to the experience of the appellants does not include a reference to the fourth appellant who was born in Australian in February 2001.

3                     The appellant is a Sri Lankan Tamil from the Jaffna Peninsula.  Her claims relate to her experiences in the Sri Lankan civil war at the hands of government forces, Indian Peace Keeping Forces (‘IPKF’) and Tamil insurgents, including the Liberation Tigers of Tamil Eelam (‘LTTE’).  The appellant and her husband, also a Sri Lankan citizen, were married in Colombo in February 1992.  At the time of their marriage the husband was resident in Italy and after the marriage the husband and wife lived in Italy. 

The appellant’s claims

4                     The appellant’s claims relate to periods before and after her marriage.  She claimed that in 1984 while studying shorthand and typing at an institute in Jaffna she had been forced to type policy documents for the LTTE and also to print leaflets for them.  In 1985 she had been arrested on suspicion of being an LTTE supporter and kept in custody for two days.  In 1986 the LTTE had taken her to their camp for more than a week and forced her to cook and clean for them.  It is not clear whether her claim was that she had actually worked for the LTTE or whether this was a claim made by the Tamil Eelam Liberation Organisation (‘TELO’). 

5                     On 7 January 1995 the first, second and third appellants visited Sri Lanka.  The appellant said that this was possible because, at that time, the Sri Lankan government and the LTTE were engaged in peace negotiations.  On 11 March 1995 the appellant and her husband took the appellant’s father to India to receive medical treatment.  The appellant claimed that while in India some members of the Eelam People’s Revolutionary Liberation Front (‘EPRLF’) or the Eelam People’s Democratic Party (‘EPDP’) identified her and threatened to tell the Indian police she was a LTTE member if she did not give them money.  The appellant said that she and her husband paid them 10,000 rupees and returned to Sri Lanka on 25 March 1995, before returning to Italy on 31 March 1995. 

6                     On 24 July 1999 the appellants again returned to Sri Lanka, remaining there until 10 September 1999 when they travelled to Australia on visas granted in Italy issued on 20 July 1999.  The appellant gave evidence that on 29 July 1999 she and her husband were arrested on suspicion that they were LTTE members.  They were released after showing the police their passports and Italian work permits.  The appellant also said that, on 13 August 1999, that she and her husband and eldest child were stopped by two people who identified themselves as members of the People’s Liberation Organisation of Tamil Eelam (‘PLOTE’).  The appellant says that they accused her and her husband of being LTTE members and that her husband handed them their passports and Italian work permits.  They were told that they would have to attend a PLOTE camp to collect them.  The appellant and her husband went to the camp on 16 August 1999.  She stated that they were verbally abused by PLOTE members, who also hit her husband.  The appellant’s husband was forced to leave and the appellant was detained for a week or eight days, during which time she was tortured.  The appellant’s husband paid 200,000 rupees for her release and the return of their passports.  The Italian work permits were not returned.  The first and second appellants claimed that they could not return to Italy without their work permits.

The Tribunal’s decision

7                     The Tribunal accepted many of the appellant’s claims while rejecting some of the detail and putting a different interpretation on some events.  It accepted that the appellant, ‘like other people living in areas under the control of the LTTE’, had been forced to give assistance to the LTTE although it did not accept every detail of the appellant’s claim.  It accepted that she had been detained by the Sri Lankan Army for two days in 1985 and again in 1992.  It accepted that she had been detained by the LTTE in 1986, that she had been beaten and raped by members of the Indian Peace Keeping Force between 1987 and 1999 and that she had been subjected to criminal extortion while in India in 1995. 

8                     Despite accepting many of the appellant’s claims the Tribunal did not accept that the appellant was still at risk of harm from any of these sources, or any other, or had a subjective fear of such harm.  The Tribunal placed great weight on the fact that the appellants had not applied for refugee status in Italy.  Referring to the incident in India in 1995 when the appellant and her husband paid 10,000 rupees under threat the Tribunal said at [6]:

‘I consider it significant in this context that even after this incident the Applicant and her husband did not attempt to apply for refugee status when they returned to Italy.’ 

9                     The Tribunal did not accept the appellant’s explanation that she and her husband did not know that they could apply for refugee status in Italy.  In respect of the PLOTE episode the Tribunal said:

‘I do not accept that on 13 August 1999 the Applicant and her husband were stopped when returning from a temple in Colombo by two people from the PLOTE, that the Applicant’s husband gave these people his and the Applicant’s passports and work permits, that when the Applicant and her husband went to the PLOTE “camp” to retrieve these documents the Applicant’s husband was threatened and hit and the Applicant was detained and tortured, nor that the people from the PLOTE eventually released the Applicant and returned the passports but not the work permits in exchange for payment of 200,000 rupees.  As I indicated to the Applicant in the course of the first hearing before me, I do not consider it credible that she and her husband would have been intercepted by people from the PLOTE in the manner she has described ….  Likewise, I do not regard it as credible that the people from the PLOTE would have returned the passports of the Applicant and her husband but would not have returned their Italian work permits.  As I put to the Applicant, I consider that her evidence with regard to her detention by the PLOTE is an elaborate account intended to explain how she and her husband lost their Italian work permits.  While I accept, having regard to the advice which the Tribunal obtained from the Consulate-General of Italy, that the Applicant and her husband have placed themselves in a position where they are unable to return to Italy, I consider that it was always their intention to come to Australia and to apply for refugee status here. 

Furthermore, even if I were accept the Applicant’s account of her detention by the PLOTE in Colombo in August 1999, I would not accept that this would provide her with a basis for a well-founded fear of persecution by the PLOTE or the other pro-Government Tamil militant groups such as the EPRLF, the EPDP or the TELO if she were to return to Sri Lanka now or in the reasonably foreseeable future.’ 

10                  The Tribunal also placed great weight on the independent country information concerning the prospects of peace between the LTTE.  The Tribunal referred to the ceasefire agreement between the LTTE and the Sri Lankan government signed in February 2002 and easing of security measures throughout the country.  The Tribunal commented,

‘I accept that there is evidence that both parties … are making preparations in case war is resumed but I do not accept that this means that a resumption of war is likely. … I consider that the current peace process has better prospects of success than previous attempts because of the involvement of the international community.  Norway was involved in brokering the ceasefire and it is leading the monitoring mission which is overseeing the implementation of the ceasefire agreement.’

11                  The Tribunal felt that the threat of harm from the LTTE had abated not only because of the likelihood of peace but also because the appellant was now past the age of greatest interest to the LTTE.  For similar reasons the likelihood of being singled out by the Sri Lankan government had also lessened.  The Tribunal also pointed out that harm from Indian peacekeeping forces could be discounted because they were no longer in the country. 

12                  The Tribunal accepted that the LTTE was still engaged in extortion in the areas under its control but said that, ‘the evidence suggests that it does not discriminate on the basis of race or any other Convention reason in making its demands … it is simply engaged in extracting money from suitable victims.’  The Tribunal was not satisfied that the appellant had a well-founded fear of persecution and held that the appellants were not entitled to protection visas.

The Federal Magistrate’s decision

13                  Federal Magistrate Driver set out the background facts to this appeal at [2] of his reasons for judgment; [2003] FMCA 326.  His Honour adopted the summary contained in the written submissions of the respondent and it is convenient to quote part of that summary here:

‘The RRT’s reasons are lengthy and set out in considerable detail which claims are accepted and which are not and the consequences of its findings.  It may be briefly be summarised as follows:

a)         The RRT accepted the first applicant’s claims of having been forced to provide some assistance to the LTTE.  It accepted that she had been detained by the LTTE for a week in March 1986.  It accepted that her parents had to pay money to avoid her being forcibly recruited by the LTTE. 

b)         The RRT did not accept that the first applicant had a well-founded fear of harm from the LTTE or of being forcibly recruited by the LTTE. 

c)         The RRT accepted that the first applicant had been beaten and sexually assaulted by the Indian Peace Keeping Force between 1987 and 1990.  However, given that the IPKF has no role in Sri Lanka anymore, the first applicant could have no well-founded fear from the Indian armed forces. 

d)         The RRT accepted that the first and second applicant had been the subject of extortion from criminals in India in 1995.  However, the RRT considered that this crime was not for a Convention reason.  (In any event, there is no proposal to send the applicants to India.)

e)         The RRT accepted that the first applicant was detained by the Sri Lankan Army for two days in 1985 and that she was detained in a round-up operation in Colombo in 1992 (also for two days). 

f)         In light of evidence the RRT had about a ceasefire in Sri Lanka between the government and the LTTE, the RRT did not accept that she had a well-founded fear of persecution from Sri Lankan authorities. 

g)         For similar reasons, the RRT did not accept that the applicants were at risk of harm from Tamil organisations affiliated with the Sri Lankan authorities, such as EPRLF, EPDP, PLOTE or TELO. 

h)         The RRT considered that the applicants, who had lived in Italy (except for a couple of visits to Sri Lanka) since 1992, had decided not to apply for refugee status in Italy but seek it in Australia, where the second applicant’s family lived.’ 

14                  The grounds of review before Driver FM were expressed to be that:

‘a)       the RRT misunderstood and misapplied applicable law, and in particular, the law in relation to “well founded fear”.  This is said to constitute constructive failure to exercise jurisdiction; and

b)         the RRT decision was so unreasonable that no reasonable tribunal could have made it.’ 

15                  The learned Federal Magistrate dealt first with the second ground of review.  He found that there had been a factual error made by the Tribunal in that the Tribunal did not understand the appellant’s response to the Tribunal’s question why the PLOTE did not return the Italian work permits with the passports.  His Honour reviewed the transcript of the exchange between the Tribunal and the appellant on this point and formed the opinion that the Tribunal missed the point of the appellant’s response which was to the effect that the work permits were more valuable than the passports because they could have been used for travel.  His Honour accepted that,

‘This was a factual error by the presiding member but a mere factual error does not invalidate a decision of the [Tribunal]. Neither does that error, even when coupled with the contestable view of the presiding member about the applicant’s failure to seek refugee status in Italy, constitute unreasonableness, as that term is understood in Chan Yee Kin v Minister for Immigration  (1989) 169 CLR 379.  The conclusion reached by the [Tribunal] on the question of the genuiness of the applicant’s expressed fear of persecution was an assessment on credibility. …

The error made by the  [Tribunal] was a simple factual error not an error of jurisdiction.’

16                  Before considering the claim that the Tribunal had erred in applying the test for a well founded fear, his Honour commented:

‘The second part of the application, which is an attack upon the decision on the basis that the [Tribunal] misapplied the well founded fear test suffers from the initial difficulty that, as the  [Tribunal] had decided that the applicant did not have a genuine fear of persecution, it was strictly unnecessary for the  [Tribunal] to go on to consider whether any fear that the applicant may have had was well founded.  … The applicants contend that, once a subjective fear has been established on past experience, the question whether continuation of that fear is well founded needs to be tested against the real chance test … However, the premise is wrong because, although the [Tribunal] accepted  that the first applicant had suffered persecution up to 1995, the  [Tribunal] found that the applicant did not have a genuine fear of persecution when she returned to Sri Lanka in 1999 because she had failed to apply for refugee status during her long period in Italy and had nothing happened to her when she returned to Sri Lanka in 1999.’

17                  His Honour held, that having gone on to consider whether the appellant has a well founded fear of persecution, the Tribunal had dealt with the question correctly.  On the basis of the country information available to it, the Tribunal had concluded that there were three different parts of Sri Lanka to which the appellant could return without any real chance of being persecuted by the Sri Lankan government or by any Tamil militant organisation.  The Tribunal had therefore held that any fear of persecution for a Convention reason could not be well founded.  His Honour concluded,

‘In the circumstances, I find that the applicant has failed to demonstrate jurisdictional error in the decision of the [Tribunal] and that the application should therefore be dismissed.  There are humanitarian considerations in this case, bearing in mind the serious harm to which the applicant was subjected up to 1995 and the risk, the extent of which one may debate about, that the applicant may be subjected to similar harm if hostilities between the combatants are resumed in Sri Lanka.  Those are matters that can be considered by the Minister should he choose to do so.  It is open to the applicant to request that the Minister consider substituting a more favourable decision for the decision of the [Tribunal].’

This appeal

18                  At the hearing of this appeal the appellant was given leave to file the amended notice of appeal that was attached to submissions received on 1 December 2003.  The amended notice lists three grounds of appeal against the judgment of Driver FM:

‘1.        The learned Federal Magistrate erred in failing to find that the Tribunal had applied the wrong legal test for ascertaining the Convention requirement of a well founded fear of persecution.

2.                  The learned Federal Magistrate erred in failing to find that the Tribunal had reached a state of satisfaction in an unreasonable manner which failed to justify the assumptions relied on by the Tribunal in the context of a human rights matter as a refugee claim must be.

3.                  The learned Federal Magistrate erred in failing to find that the Tribunal had applied the wrong test in determining that the appellant was merely a general victim of extortion rather than a member of a social group persecuted for a Convention reason.’

Well founded fear of persecution

19                  The appellant submitted that the Tribunal had focussed on whether the appellant would be actually physically persecuted rather than on whether the appellant had a well founded fear of persecution.  Dr SC Churches who appeared pro bono for the appellant relied on two Full Court decisions, SGKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 44 (‘SGKB’) and SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120. 

20                  As the learned Federal Magistrate pointed out (see [16] above), given the Tribunal’s finding that the appellant did not have a subjective fear of persecution at least from 1999, it was not necessary for the Tribunal to consider the issue of a well founded fear.  For that reason alone this ground of appeal could not succeed. In any event, I do not accept that the Tribunal applied the wrong test. 

21                  The appellant pointed to the Tribunal’s comment (quoted at [10] above) that although the parties were making preparations for the resumption of war this did not mean that a resumption was ‘likely’.  The appellant submitted that even though the Tribunal went on to say that it did not accept that there was ‘a real chance’ that the appellant would be persecuted by the Sri Lankan government it was not sufficient for it to mouth the verbal formula.  It was submitted that the Tribunal had found that ill treatment was ‘unlikely’ in the face of evidence that there could be no certainty as to whether the peace negotiations would be successful.  This, it was submitted, indicated that the Tribunal had made the error identified by the Full Court in SGKB and considered not whether the appellant had a well-founded fear of persecution, but whether or not it was likely that she would suffer persecution.  At [22] the Full Court said that these two questions, ‘although distinct, are closely related’.  I confess, with respect, that I have some difficulty with the distinction unless the Full Court used the word, ‘likely’ to mean ‘more probable than not’.  If that was what was meant then clearly a failure to make the distinction would be inconsistent with the views expressed in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 to the effect that there may be a ‘real chance’ of an applicant facing persecution even though the probability is less than 50 per cent (at 389 per Mason CJ) or as little as 10 per cent (per McHugh J at 429).

22                  Federal Magistrate Driver however did not accept that the Tribunal made such an error.  His Honour, at [18] of his reasons, said that taken in context the word, ‘likely’, was used to mean ‘a real or not remote chance’;  see Boughey v The Queen (1986) 161 CLR 10 at 21.  I agree with his Honour that,

 ‘…it was open to the [Tribunal] to conclude that, on the material before it, the risk of the Sri Lankan civil war resuming was an insubstantial one, at least in the reasonably foreseeable future.’

Unreasonableness

23                  The appellant submitted that the Tribunal’s decision was so unreasonable that no reasonable decision maker could have made that decision.  Dr Churches submitted that in this respect the standard of review is not simply Wednesbury unreasonableness but rather ‘a standard of review of administrative decision making processes by reference to human rights and relied on a number of English decisions including R v Ministry of Defence; Ex parte Smith [1996] QB 517 at 558,  R v Secretary of State for the Home Department; Ex parte Smith [1987] AC 514,  Chesterfield Properties PLC v Secretary of State for the Environment [1997] EWHC Admin 709 at [29] and R v Lord Saville;  Ex parte A [2000] 1 WLR 1855.   Dr Churches submitted that the effect of these (and other) decisions is that where human rights are in issue the question is not, ‘is the decision reasonable?’ but ‘is it justified?’  He did not elaborate on the criteria that were to be applied in determining if a decision is ‘justified’.

24                  I find that this ground of review has not been made out for two reasons.  First, while other decision-makers may on the facts of this case have come to a different conclusion, it cannot be maintained that the decision of the Tribunal approaches anything like a Wednesbury standard of unreasonableness.  The Tribunal examined the appellant’s claims in detail; it considered relevant country information and then made its assessment.  The reasons were explained including where and why the Tribunal did not accept the appellant’s claims.  Second, there is no authority in this country of which I am aware that supports any special concept of unreasonableness in human rights situations.  The concept of Wednesbury unreasonableness was recently and comprehensively examined by a Full Court in Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 (‘Andary’).  Although the question of whether unreasonableness in that sense could amount to jurisdictional error might be still open, there is no suggestion in the discussion in Andary or in the authorities there cited that a special standard applies in cases involving human rights. 

Alleged failure to determine that the appellant was persecuted because of her membership of a social group

25                  The appellant conceded that this ground of review was not raised in the Federal Magistrates Court.  The respondent did not object to it being raised for the first time on appeal.  As this Court is in as good a position to decide the matter as the Federal Magistrate would have been had it been raised I gave leave to the appellant to make submissions on this ground of appeal.

26                  The appellant relied on the decision of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 to support her claim that the extortion referred to in [5] above was perpetrated on her because of her past association with the LTTE.  She claimed that she was identified as a member of a particular social group namely, ‘those open to denunciation for past separatist associations who may be made the object of extortion for fear of denunciation’.  Dr Churches submitted that the nature of the threat made, that is a threat to reveal a past LTTE association to the Sri Lankan authorities, was such that this could not be characterised as simple criminal activity but was persecution for a Convention reason.

27                  As the respondent submitted, the Tribunal’s finding that the appellant has no subjective fear of persecution (see [8] above) has the consequence that this ground of appeal must also fail.  However, the respondent also pointed out that the Tribunal rejected the appellant’s analysis of this incident because of inconsistency between the appellant’s written statement made in support of her application and her oral evidence at the hearing. For that reason the Tribunal did not accept that the extortionists had any political affiliation at all and  held that ‘there is nothing to suggest that they regarded the appellant and her husband as anything other than suitable victims from whom they could extract money.’  There was no clear evidence that the extortion was for a Convention reason and it was open to the Tribunal to reject this claim. 

28                  For the reasons set out above the appeal must be dismissed with costs.  The respondent does not seek costs against the infant appellants and the costs order will be directed only at the adult appellants.

Associate:

Dated:              16 December 2003