FEDERAL COURT OF AUSTRALIA

SZLSE v Minister for Immigration and Citizenship [2008] FCA 1717

SZLSE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1240 of 2008

LINDGREN J

4 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The appellant appeals from a judgment of the Federal Magistrates Court of Australia given on 24 July 2008.  That Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal).  The Tribunal’s decision was signed on 7 November 2007 on a visitor visa and handed down on 15 November 2007.  The Tribunal affirmed a decision of the delegate of the first respondent (Minister) to refuse to grant a protection (Class XA) visa to the appellant. The Tribunal has filed a submitting appearance.

2                     The appellant is a citizen of Sri Lanka.  He arrived in Australia on 16 February 2007.  On 29 March 2007 he lodged an application with the Department of Immigration and Multicultural Affairs (Department) for a protection visa.  A delegate of the Minister refused the application on 13 July 2007.  On 6 August 2007 the appellant applied to the Tribunal for review of the delegate’s decision.

3                     Before the Tribunal the appellant claimed to have a well-founded fear of persecution by reason of his political opinion and perceived political opinion.  He claimed to have become a powerful member of the United National Party (UNP).  He claimed that he received death threats and was attacked and his shop was damaged several times by members of the Sri Lanka Freedom Party (SLFP) because of his position in the UNP.  He also feared persecution because the Sri Lankan Government suspected him of being connected with the Liberation Tigers of Tamil Eelam (LTTE) and the LTTE suspected him of involvement with the Government. 

4                     The appellant claimed that he had been harassed and that he and his business premises were the subject of theft on a number of occasions.  He said that he was forced into hiding.  He claimed to have received information that people with weapons were parked waiting near his house, and so he left Sri Lanka and came to Australia. 

5                     The Tribunal concluded that the appellant was not a reliable, credible or truthful witness.  In fact, the Tribunal’s reasons for decision amounted to a wholesale rejection of his evidence.  The Tribunal referred to certain photographs that the appellant had submitted and to a finding by the Department’s document examiner that they were composite images produced by the superimposition of a number of independent images.  The Tribunal was not satisfied with the appellant’s explanation regarding the photographs, calling it a desperate and deceptive attempt to overcome the delegate’s concerns and saying that it demonstrated a willingness on the part of the appellant to manufacture and manipulate evidence to achieve a favourable immigration outcome. 

6                     The Tribunal also found that the appellant’s knowledge of the UNP was inconsistent with the length of membership and the level of association that he claimed.  The Tribunal referred to other inconsistencies in the appellant’s evidence as reasons why it did not believe him. 

In his amended application to the Federal Magistrates Court for review of the Tribunal's decision, the appellant gave as the ground of his application:

jurisdictional error committed by the Refugee Review Tribunal.

However, there was annexed to the amended application a document of some three and a half pages making various complaints concerning the decision and reasons for decision of the Tribunal.  The Federal Magistrates Court summarised the three and a half page statement as raising the following grounds of complaint:

(a)        The Tribunal had rejected or ignored the appellant’s evidence because of bias and because the appellant had submitted some falsified photographs to the Tribunal;

(b)       The Tribunal had wrongly held that the appellant had delayed his departure from Sri Lanka for 15 months after his visa was issued when in fact the delay was only three months;

(c)        The Tribunal did not take proper account of the facts that led to the appellants fleeing from Sri Lanka; 

(d)       Because of its bias against him, and without a proper understanding of the situation in Sri Lanka and the cultural mores there, the Tribunal found fault with the appellant’s evidence;  and

(e)               The Tribunal made incorrect findings about the appellant’s credibility based on a misunderstanding of a medical certificate that he had submitted.  Scarlett FM dealt with all five points raised by the appellant. 

7                     I need not summarise the Federal Magistrate’s treatment of those points.  However, it is worth noting that in relation to (b) the Federal Magistrate observed that the ground was misconceived. The Tribunal had noted that the appellant’s visa was issued on 23 November 2006 and that he had not departed Sri Lanka until 15 February 2007 – some three months later.  It is true that in its Reasons for Decision the Tribunal noted that the appellant had been asked to explain the delay. The delay in question, however, was a delay of only some three months, not 15 months.  On the hearing of this morning the appellant seemed to suggest that the Tribunal had wrongly given a 2005 date as the date of the issue of the visa but this is not so. 

8                     The Federal Magistrate observed that even if the Tribunal had made the wrong finding which the appellant suggested it had made, that would have been a wrong finding of fact, not a jurisdictional error. 

9                     In the appellant’s notice of appeal to this Court the appellant states as his grounds of appeal the following:  (1) jurisdictional error, (2) breaches of procedures, (3) bias.  In a written submission filed in support of his appeal, he does not attempt to address those grounds in turn but complains that the Tribunal failed to deal with the element of race which he asserted was central to his claim for refugee status. 

10                  He complains that the Tribunal misunderstood his claims and failed to consider his fear of persecution on the basis of his race.  He points out that he is Sinhalese by ethnicity and a Buddhist by religion.  He asserts that those claims were clearly advanced in his application for the protection visa. 

11                  As Mr Markus, the solicitor for the Minister, observes, it does not appear that this complaint was made before the Federal Magistrates Court, although as Mr Markus fairly pointed out, in the statement annexed to the appellant’s amended application in the Federal Magistrates Court, the appellant stated:

The applicant was a very wealthy business man, belonging to the Sinhalese community by race and a Buddhist by religion – the dominant social group in his country.

12                  In the original application for the protection visa the central claim made was that the appellant’s subjective fear was of his political opponents in the SLFP.  His concluding statement in that application was:

I am positive that I will be killed by my political opponents in the SLFP if I go back to Sri Lanka.  I was lucky I saved my life my [sic- from] all these attempts on me. 

13                  The Tribunal recorded (at [9]) that the appellant had stated to the Department in a recorded interview, that he had been involved in business in Sri Lanka selling flour, rice and sugar and had come to Australia to protect his life for the reason of his political opinion as a member and supporter of the UNP.

14                  The Tribunal also recorded that in response to a question put by the Tribunal member at the hearing as to why the appellant did not want to return to Sri Lanka, he said he was fearful of being killed by the SLFP and that the SLFP had, in fact:

… given a contract to someone to kill him.

15                  The Tribunal went on to record that the appellant testified that in Sri Lanka putting up a poster could be a good reason to kill someone (at [12]).  Asked if he had any other fears, he told the Tribunal that (this assassination by or at the instance of members of the SLFP) was his main fear.  He said that he did not know who would kill him and that it was possible that they (the SLFP) could assign someone from the “Underground” to kidnap him. 

16                  It is true that there are also references in the Tribunal's Findings and Reasons to the fact that the appellant had, according to his claims, sheltered some Tamil business men in his house and had done business with Tamil friends.  Those references, however, appear to relate to matters of historical background in 1983 and 2002, and it seems clear that the reason the appellant gave for his fear that led him to leave Sri Lanka in early 2007 was, as the Tribunal noted:

based on the Convention ground of political opinion.

17                  The Tribunal stated at [21]:

Essentially, he claims to have been threatened, harassed, intimidated, assaulted, injured and his property damaged by members and supporters of SLFP.  He further claims to have been imputed with an adverse political opinion by the LTTE for his perceived support for the Government, and by the Government for his perceived collaboration with LTTE.

18                  I do not think it can be said that the claim which the appellant advanced was that his fear of persecution was on account of race.  On the contrary, the claim that he made was that he feared persecution on the ground of political opinion. 

19                  The appellant has not addressed submissions directed to the three grounds propounded in the notice of appeal, other than the submission concerning race which I have dealt with above. 

20                  I see no obviously error in the reasons of the Federal Magistrates Court and no other reason for thinking that any of those three grounds of appeal are supported in relation to the Decision and Reasons for Decision of the Tribunal. 

21                  For the above reasons, the appeal should be dismissed with costs.

Associate:

Dated:         4 November 2008