Applicant M31 of 2002 v Minister for Immigration and Multicultural & Indigenous [2004] FCA 533

FEDERAL COURT OF AUSTRALIA

Applicant M31 of 2002 v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCA 533

MIGRATION – application for protection visa – appeal from decision of Federal Magistrate – whether Refugee Review Tribunal considered all elements or integers of appellant's claim – whether location at which passport found integer of appellant's claim or merely "piece of evidence" relied upon Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] applied SDAO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 132 referred to Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42] applied Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [46]-[47] applied APPLICANT M31 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V458 of 2003 WEINBERG J 29 APRIL 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V458 OF 2003

BETWEEN: APPLICANT M31 OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WEINBERG J

DATE OF ORDER: 29 APRIL 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V458 OF 2003

BETWEEN: APPLICANT M31 OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WEINBERG J

DATE: 29 APRIL 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Federal Magistrate Hartnett who, on 22 May 2003, dismissed an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 8 February 2002. The Tribunal affirmed a decision of a delegate of the respondent Minister refusing the appellant a protection visa. 2 There is, in substance, only one ground of appeal. It is submitted that the learned Federal Magistrate erred in failing to hold that the Tribunal had not considered "an element or integer" of one of the central claims made by the appellant. The Tribunal identified that claim in the following terms: "The applicant believes that the Sri Lankan authorities suspect that he knowingly allowed the LTTE to use his original passport, and that they will therefore mistreat him." 3 In substance, the appellant maintained that he was of interest to the Sri Lankan authorities because his passport, which had been stolen in November 1998, after his arrival in Australia, had been found at an LTTE camp in Sri Lanka. He claimed that he would be suspected of having been at that camp, and that by reason of that fact, he would be questioned by the police. He further claimed that he feared "persecution" during the course of such questioning. 4 The background facts may be stated briefly. The appellant is a Sri Lankan Muslim from Kandy, in the Central Province. He is now aged 32. He came to Australia on a student visa on 27 October 1997. His student visa was cancelled because he did not comply with the terms of that visa. On 5 July 1999, he lodged an application for a protection visa. On 13 January 2000, a delegate of the respondent Minister found that he did not meet the requirements of the Refugees' Convention. On 14 February 2000, the appellant applied for review of that decision and, as previously noted, on 8 February 2002, that application was dismissed. The appellant then sought judicial review of that decision in the High Court. That application was remitted to this Court, and then transferred to the Federal Magistrates Court. It is the decision of that Court that is now the subject of this appeal. 5 In substance, the appellant claimed before the Tribunal that he feared persecution by the Sri Lankan authorities for political reasons. He said that he believed that the authorities suspected him of supporting the LTTE. He based that claim upon the fact that his Sri Lankan passport, which went missing on about 5 November 1998, ultimately ended up in the possession of the LTTE. 6 The circumstances in which the passport was lost are somewhat unclear. The appellant took the passport with him to Vic Roads in order to provide confirmation of his identity. He discovered that it had gone missing when he returned home later that day, and he reported its loss to the local police, three days later, on 8 November 1998. 7 In mid-November 1998, the appellant applied for a new passport. He claimed that in about June 1999, he learned that he was in trouble with the Sri Lankan authorities. It transpired that his original passport had turned up in a raid on a suspected terrorist hide out in the Kalmunai area. 8 The appellant maintained that he had not left Australia since his arrival in 1997. He said that he had never been involved in LTTE activities. However, according to international movement records maintained by the Department of Immigration, someone had left Australia on 9 November 1998 using his original passport. Moreover, the passport had been used again on 29 March 1999 when a person sought to enter this country. That person was refused entry.