SZATB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 274

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1288 OF 2004

BETWEEN: SZATB

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BENNETT J

DATE OF ORDER: 11 MARCH 2005

WHERE MADE: 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.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1288 OF 2004

BETWEEN: SZATB

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BENNETT J

DATE: 11 MARCH 2005

PLACE: SYDNEY

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.