FEDERAL COURT OF AUSTRALIA

SZATB v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 274

SZATB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD1288 OF 2004

BENNETT J

11 MARCH 2005

SYDNEY

THE COURT ORDERS THAT:

            1.         Appeal dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The appellant appeals from the judgment of Federal Magistrate Raphael given on 19 August 2004 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 30 April 2003 and handed down on 23 May 2003.  The Tribunal’s decision affirmed a decision of a delegate of the respondent made on 10 September 2002 refusing the appellant’s application for a protection (class XA) visa.

2                     The appellant seeks an order that the matter be remitted to the Tribunal.

The Facts

3                     The appellant is a national of Sri Lanka.  He is a Tamil and a Roman Catholic.  The appellant claims in support of a protection visa that he has been persecuted because of his imputed political opinion, his ethnicity and his membership of a particular social group, young male Tamils from Jaffna.

4                     Until September 1995 the appellant lived in Jaffna with his parents.  The appellant claims that on 10 July 1995 he was captured by the Liberation Tigers of Tamil Eelam (‘LTTE’) and made to dig bunkers at the LTTE camp in Vaddukoddai.  He claims that while he was working there his group was attacked by a Sri Lankan helicopter, he was only fed once a day and only allowed to sleep for four or five hours. 

5                     The appellant decided to leave Jaffna but, as he was on his way to Colombo on 3 September 1995, he was thought to be an LTTE militant, taken to a PLOTE camp and interrogated together with his father.  The appellant and his father were released on 6 September 1995 after the payment of a bribe.  The appellant claims that he was interrogated by Sri Lankan authorities on 27 October 1995 during which he was roughly treated, was not allowed to sleep and given no food.  He was released on 30 October 1995 after the payment of a bribe.

6                     The appellant claims that on 9 February 1997 he was detained by police again, tied up and interrogated about the LTTE.  He was released on 12 February 1997 after the payment of another bribe.

7                     On 5 March 1998, the appellant was on his way to university at Nawala when there was a bomb blast in front of his bus; he was injured.  On 6 March 1998, while he was in hospital, the appellant claims that he was repeatedly questioned about his possible involvement in the blast.  He claims he continued to be questioned on suspicion of affiliation with the LTTE in August and November 1998.

8                     On 26 August 1998, the appellant claims one of his friends shot a Sri Lankan army captain.  The next day all Tamil students at his university were arrested by police, taken to the police station, questioned and finger-printed.  The appellant claims that on 30 August 1998, the authorities came and investigated him thoroughly and checked his house finding a calculator belonging to his friend.  The appellant claims that they returned again at midnight on 26 November 1998 for ‘further investigation and checking’.

9                     The appellant claims that in early 1999 he was discriminated against in a training program because he was a Tamil.

10                  The Tribunal noted that the appellant left Sri Lanka legally for India in 1999 without being questioned or without any claimed difficulties and was able to return without any claimed difficulty.  In 2001, the appellant travelled to New Zealand to study for 10 months and from there travelled to Australia arriving on 16 January 2002.

The Tribunal’s decision

11                  The appellant made an additional claim at the hearing before the Tribunal that he had been forcibly recruited into the LTTE while at school between 1991 and 1993.

12                  The Tribunal accepted the appellant’s version of the facts as he presented them, that is in respect to what had occurred to him in Sri Lanka.  The Tribunal found that, while the appellant may have experienced some low level of discrimination and harassment while in Sri Lanka, this was not serious harm amounting to persecution for a Convention reason.

13                  The Tribunal found, bearing in mind the progress towards resolution of the conflict in Sri Lanka, that there was not a real chance that the appellant would experience serious harm amounting to persecution for a Convention reason were he to return to Sri Lanka.  The Tribunal considered the appellant’s concern about returning to Sri Lanka but found that:

‘…in view of the continuing (albeit slow) progress being made to achieve a long lasting resolution of the conflict, the Tribunal is satisfied that notwithstanding the claims made by the [appellant] that there is not a real chance that he would experience serious harm amounting to persecution for a Convention reason.’

14                  The Tribunal also found, in considering the fact that the appellant had spent 10 months in New Zealand before settling in Australia that, had he had a well-founded fear of persecution for a Convention reason, he would have applied for refugee status in New Zealand.  The Tribunal did not accept the appellant’s explanation for not applying for asylum in New Zealand. That explanation was that he was concerned about his health as he has asthma and about New Zealand’s cold climate.  The Tribunal noted in this regard that the appellant could have relocated within New Zealand to avoid the cold. 

The Federal Magistrate’s decision

15                  On appeal to the Federal Magistrates Court, Raphael FM noted at [10]:

‘In seeking review from this court the applicant has divided his claims into three issues with two parts to each issue.  It was agreed by Mr Zipser, who appeared for the applicant, that he would have to succeed on all three issues in order to be successful in the review.  This was because the issues were not interdependent and if the court did not hold that any one of those issues involved a jurisdictional error on the part of the Tribunal then the decision would have to stand.  I will deal with each of the three issues in turn.’

16                  Federal Magistrate Raphael noted that the Tribunal accepted ‘the violent treatment and abuse which the applicant claims he suffered’.

17                  At [14] of his reasons Raphael FM found that the Tribunal had failed to consider whether the violence that it accepted the appellant had suffered had been inflicted on him because he is Tamil, that is for a Convention reason and that it had erred in this regard.

18                  The Federal Magistrate rejected the appellant’s claim that the Tribunal might have made incorrect findings about the peace talks in Sri Lanka, finding that:

‘It is implicit in the wording of the Tribunal’s decision that it felt firmly that the peace talks were not going to break down.’

In effect the Federal Magistrate found that the Tribunal’s determination as to the likelihood as to a future event occurring was a finding of fact. 

19                  The appellant also claimed before Raphael FM that the Tribunal had failed to give him particulars of country information on the basis of which it rejected statements by his migration agent that the peace talks might break down, as they did in 1995.  His Honour found that such country information was of a general nature rather than particularly referable to the appellant and that therefore it did not come within the purview of section 424A of the Migration Act 1958 (Cth) (‘the Act’).

20                  The appellant also claimed that the Tribunal erred in its findings with regard to his stay in New Zealand.  The Federal Magistrate held that the Tribunal did not err in this regard since:

‘It was a finding that he did not seek to relocate and that he would have done this if he had a serious medical condition exacerbated by the cold of Wellington.  This is a conclusion reached by the Tribunal upon the evidence given to it by the applicant.’

His Honour also rejected an argument that the Tribunal had denied the appellant procedural fairness by never putting the matter of relocation within New Zealand to him. 

21                  Finally, the appellant contended that, had the Tribunal accepted his argument that the peace talks were likely to fail it would not have come so quickly to the conclusion that he had no genuine fear of returning.  His Honour dismissed this argument as speculation. 

22                  His Honour concluded at [20]:

‘The applicant has not been able to demonstrate that the Tribunal fell into jurisdictional error in all of the issues which he raised.  That being the case his application must fail because, to cite only one example, the Tribunal was justified in coming to an opinion that he lacked the requisite well founded fear of persecution and this itself is fatal to his cause.’

Grounds of appeal

23                  In his original notice of appeal, filed on 2 September 2004, the appellant claims that Raphael FM erred in failing to find that the Tribunal acted beyond its jurisdiction in failing to consider the totality of his claims; in failing to find the Tribunal wrongly applied the test of well-founded fear of persecution;  in failing to find that the Tribunal erred in determination of material questions of fact relating to subjective or genuine fear; and finally, in his findings regarding the peace talks. 

24                  In his amended notice of appeal, the appellant claims that the Tribunal erred in not viewing the problems he faced in his home country as being related to his race; that the Tribunal’s treatment of the peace talks was infected with error of law; and that the Tribunal breached s 424A of the Act by failing to give him particulars of country information on the basis of which it rejected statements by his migration agent that the peace talks might break down.

Submissions

25                  The appellant’s written submissions restate the grounds of appeal but add little by way of argument.  The appellant refers to Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476 in support of his claims that the Tribunal ‘failed to take into account considerations made relevant by the governing legislation, or if its decision was tainted by procedural unfairness or bias’.

26                  In his written submissions Mr Potts, who appears for the respondent, summarises the procedural history of the matter and analyses the decisions of Raphael FM and of the Tribunal.  He also addresses each of the claims set out in the original notice of appeal.  Mr Potts had not received either the amended notice of appeal or the appellant’s written submissions at the time of preparing his submissions.

27                  Mr Potts contends that the claims that the Tribunal acted beyond jurisdiction and failed to consider the totality of the appellant’s claim should be rejected.  He contends that the appellant’s claim that the Tribunal wrongly applied the test of well-founded fear is not borne out by a reading of the Tribunal’s reasons and that this claim was not raised by the appellant before Raphael FM.

28                  Mr Potts also submits that a claim that the Tribunal erred in finding the appellant lacked a subjective fear of persecution should be rejected.  Mr Potts refers to the Federal Magistrate’s finding at [18] that:

‘…It is implicit in the Tribunal’s reasoning processes that it regarded a ten-month stay in the country, which was clearly sympathetic to the situation of refugees, without making an application to remain for whatever reason as indicative of a lack of genuine fear to return.’

29                  Finally, Mr Potts submits that the Federal Magistrate did not err on the issues of “peace talks” and “genuine fear” and that the Tribunal did not misunderstand or misapply the applicable law in this regard.  Rather, in reliance on the reasons of Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 (‘Rajalingam’), Mr Potts submits ‘that if the Tribunal has firmly reached a conclusion that a past event did not occur, then the Tribunal need not consider that it may have actually occurred (against its own finding) in considering the future’.  Mr Potts also submits that there was no duty to disclose country information relevant to this question as such information falls within s 424A(3)(a) of the Act. He relies on Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264.

30                  At the hearing before the Federal Magistrate the appellant was represented by counsel.  Before me the appellant was unrepresented and was assisted by an interpreter.  Having filed the two sets of written submissions which were substantively identical, the appellant said that he did not wish to add anything further and that he was content to have the decision made on the basis of his written submissions.

Consideration

31                  The Tribunal accepted all of the appellant’s factual claims as to what happened to him in Sri Lanka.  While accepting the claims, the Tribunal said that it was not able to satisfy itself that the essential and significant reason for these actions against the appellant was a Convention related reason.  In that regard the Federal Magistrate found that the Tribunal fell into error in that it did not ask itself the relevant question, whether or not the incidents occurred because the appellant was a Tamil or alternatively whether these incidents would have occurred if the appellant had been Sinhalese.

32                  That this constituted a jurisdictional error has not been challenged by the respondent.  However, the respondent submits that this finding does not result in the matter being referred back to the Tribunal.  It was submitted and accepted by the Federal Magistrate and by counsel for the appellant before the Federal Magistrate that the appellant had to succeed on each of the alleged errors claimed before the Federal Magistrate to succeed in his appeal.

33                  I propose to proceed on the basis in favour of the appellant that the incidents that he described occurred because of a Convention reason. 

34                  The first question to be considered is whether the Federal Magistrate was in error in failing to find jurisdictional error in the Tribunal’s decision that the appellant did not have a subjective well-founded fear of persecution.  The Tribunal accepted the appellant’s reasons for failing to seek to remain and seek protection in India in 1999.  However, the Tribunal was satisfied that if the appellant had a well-founded fear of persecution for a Convention reason, he would have applied for refugee status on or soon after his arrival in New Zealand in 2001.  The appellant did not apply for refugee status at any time during his 10 months in New Zealand.  The Tribunal found that the appellant did not leave the Wellington environs or seek to relocate to a warmer place anywhere else in New Zealand.  The Tribunal found that he would have done this if he had a serious medical condition as he claimed which was exacerbated by the cold of Wellington.  The Tribunal did not accept this explanation.  The Tribunal was satisfied that:

‘…If the appellant had a well founded fear of serious harm amounting to persecution in Sri Lanka, with all that that implies, then he would have applied for refugee status in spite of his claimed asthma and aversion to the cold.’

That factual finding by the Tribunal was sufficient to dispose of the appellant’s claim.

35                  Before the Federal Magistrate, it was accepted that the Tribunal’s reference to a ‘well-founded fear of serious harm’ was a reference to subjective fear being a constituent of the total well-founded fear.  The appellant argued before the Federal Magistrate and before me that the Tribunal did not give him an opportunity to explain why he could not relocate to a warmer part of New Zealand because, for example, he would have been unable to continue his studies there.

36                  The Federal Magistrate was of the view that what the Tribunal had said did not constitute a finding that the appellant could have relocated.   With respect to his Honour, I do not agree with that conclusion.  Mr Potts did not seek to support that conclusion.

37                  His Honour continued, however, to characterise the finding as a finding that the appellant did not seek to relocate and that he would have done this if he had a serious medical condition exacerbated by the cold of Wellington.  The Federal Magistrate pointed out that that was part of the Tribunal’s reasoning process but not a matter that had to be put to the appellant for the reasons his Honour set out at [12]:

‘The Tribunal is charged with determining whether or not it reaches a state of satisfaction as to a claim that an applicant has a well founded fear of persecution for a Convention reason.  In determining that actions which might have given him that fear were not motivated by Convention reasons the Tribunal is providing an explanation for why it does not reach the state of satisfaction.  The Tribunal is not obliged to expose his or her reasoning process or subjective determinations for comment to the person affected Re Minister for Immigration; Ex parte S154/2002 (2003) 210 ALR 437 at [54]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1993) 49 FCR 576 at [591].  Neither is the Tribunal required by the rules of procedural fairness to give the applicant a running commentary on his prospects of success so that there is a full warning of all possible reasons for failure Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57 at [31].  The issue which the Tribunal determined was quite clearly a matter in dispute because it was the essence of what the Tribunal had to decide.  The Tribunal had already indicated in its pre-hearing letter that it was not satisfied that the applicant was a person to whom the Convention applied.’

38                  The Federal Magistrate said that it is implicit in the Tribunal’s reasoning process that it regarded a 10 month stay in a country which was clearly sympathetic to the situation of refugees, without making an application to remain for whatever reason, as indicative of a lack of genuine fear to return.  The question of the appellant’s failure to apply for a visa in New Zealand was put to the appellant.  He was given the opportunity to address the issue.  The Tribunal made its finding based upon the matters put to it by the appellant.  It was not satisfied as to his explanation. The rejection of the explanation and the finding of lack of subjective fear were open to the Tribunal. 

39                  In WABY v Refugee Review Tribunal [2005] FCA 209 at [69] French J said:

‘In my opinion, the Tribunal was not required to pre-test its conclusions on any of these matters with the applicant before finalising its reasons.  Each were conclusions about and characterisations of the evidence put to the Tribunal by the applicant.  They were conclusions and characterisations which the Tribunal was entitled to reach ... It is open to the Tribunal to reject or not be persuaded by an applicant’s evidence without specifically putting to the applicant that the evidence has not convinced or persuaded it.’

40                  Those words are apposite in the present case.  The finding of a lack of a subjective fear of persecution was fatal to the appellant’s claim. 

41                  The appellant has also submitted that the Tribunal erred in finding that he did not have a well-founded fear because of the then current cease-fire in Sri Lanka.  The first alleged error was that the Tribunal should have speculated as to the possibility that the then current cease-fire and peace talks might fail and whether, in the circumstances, the appellant might be at risk of persecution. This argument fails because the Tribunal reached firm conclusions on the status of the cease-fire and peace talks and ‘[r]easonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued’(per Sackville J in Rajalingam at [67]). The second alleged error in this regard was in relation to the failure to put certain country reports to the appellant for comment.  The Federal Magistrate dealt with the same alleged errors in [15] to [17] of his Honour’s reasons. 

42                  I refer to the above matters for a sense of completeness.  No error on the part of the Federal Magistrate has been established. The lack of finding of subjective fear was fatal to the appellant’s claim, as a matter of logic.  The appellant has not established any appealable error by the Federal Magistrate.  It follows that the appeal must be dismissed.

43                  The order of the court is that the appeal is dismissed with costs.

Associate:

Dated:              24 March 2005

The appellant appeared in person assisted by an interpreter