SZAUF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 308

FEDERAL COURT OF AUSTRALIA

SZAUF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 308

SZAUF, SZAUG, SZAUH & SZAUI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 1799 of 2004 LINDGREN J 23 MARCH 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1799 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZAUF

FIRST APPELLANT

SZAUG

SECOND APPELLANT

SZAUH

THIRD APPELLANT

SZAUI

FOURTH APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 23 MARCH 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants 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

NEW SOUTH WALES DISTRICT REGISTRY NSD 1799 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZAUF

FIRST APPELLANT

SZAUG

SECOND APPELLANT

SZAUH

THIRD APPELLANT

SZAUI

FOURTH APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 23 MARCH 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellants are a husband and wife and their two children. The first appellant, the husband, has been appointed as next friend for the third and fourth appellants. 2 The appeal is from a decision of the Federal Magistrates Court of Australia ('FMCA') given on 15 November 2004. The FMCA dismissed an application for judicial review in respect of a decision of the Refugee Review Tribunal ('the Tribunal') made on 2 May 2003 and handed down on 27 May 2003. The Tribunal affirmed a decision of a delegate of the respondent Minister (respectively 'the Delegate' and 'the Minister') not to grant protection visas to the appellants. 3 Only the first and second appellants made specific claims under the 1951 Convention Relating to the Status of Refugees and 1967 Protocol Relating to the Status of Refugees. Only the first appellant has appeared on the hearing of the appeal today. Although the other appellants have not appeared, the second appellant has written a letter stating that she is unable to attend court and that her husband will attend in place of her and she has 'no objection'. 4 The Tribunal gave reasons for its decision extending over some 27 pages and the learned Federal Magistrate gave reasons for his decision extending over some five pages. I will not repeat or even summarise the background facts. The Federal Magistrate's reasons for decision can be found at SZAUF v The Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 862. 5 By their amended notice of appeal, the appellants state that they rely upon the grounds stated in their amended application in the FMCA. Although the appellants were not legally represented on the hearing in the FMCA, just as they have not been represented before this Court, that form of amended application appears to have been prepared with the benefit of professional assistance. It raises one ground of substance: that the Tribunal failed to deal with a particular claim and in that way committed a jurisdictional error. 6 The particular claim referred to is found in paras 50 and 51 of a written statement made by the first appellant dated 22 July 2001 which was before the Delegate and the Tribunal. Those two paragraphs are as follows: '50. After I fled Sri Lanka the police attended my home at .... Road, and questioned the family living there about my whereabouts and harassed them. I have heard that every time there was an incident in the area the occupants of the house had been questioned. 51. I am in fear and if I returned to Sri Lanka I would be killed or severely tortured and indefinitely detained due to my support to the LTTE and my brother's membership in the LTTE.' 7 In substance it is the first of these two paragraphs in respect of which the complaint is made that the Tribunal made no finding. 8 One thing is clear beyond question: the Tribunal member had both paragraphs present to his mind. At page 8 of its reasons, the member summarised both paragraphs. In relation to para 50, the member stated that the first appellant claimed that the police had visited his home asking about his whereabouts and the occupants of that house were questioned every time there was an incident. The member quoted from para 51. 9 Later in his reasons for decision, the member referred again to the claims made in both paragraphs. He did so at page 23 of his reasons for decision under the heading 'Findings and Reasons'. 10 In my opinion, the Tribunal did deal adequately with these claims. The first reason why I think it did so is that prior to reaching these claims in the 'Findings and Reasons' section, it had concluded that the first appellant was not of interest to the authorities. 11 The Tribunal rejected the first appellant's claim that he had a well-founded fear of persecution by reason of his brother's claimed association with the Liberation Tigers of Tamil Eelam ('LTTE'). It was that claimed association which was at the heart of the appellants' case. 12 Over several pages, the Tribunal had indicated those claims which it accepted and those which it did not accept. It accepted that the first appellant himself was not involved with the LTTE (other than occasionally, passing out some printed material), but that his brother, whom the first appellant had not seen since September 1990, had some sort of limited association with the LTTE, the exact nature of which was not clear. The Tribunal also accepted that the first appellant had been detained by police who were looking for his brother, in late September 1990, and had been mistreated by them (though not as badly as he claimed), and that he had signed, under coercion, a statement to the effect that his brother was involved with the LTTE 'and he had supported them', and that the appellant was released on payment of a bribe by his mother. 13 However, the Tribunal dealt with many later events between September 1990 and the family's arrival in Australia on 16 May 2001. In particular, the Tribunal dealt with movements of the first appellant out of and back to Sri Lanka on some five occasions since 1990 without difficulty. The Tribunal concluded that the first appellant had exaggerated the mistreatment he had suffered at the hands of the police and pointed to fairly lengthy periods of time the first appellant spent in Sri Lanka, when, according to the Tribunal's findings, he would have been able to leave. 14 The Tribunal found that the appellant had exaggerated his mistreatment by the police with a view to enhancing his claim to refugee status, and considered that this exaggeration raised serious questions about his credibility. 15 The Tribunal concluded that the first appellant was not of particular interest to the Sri Lankan police, except in relation to the matter of his being, on his own admission, the holder of an identity card issued in another name. The Tribunal found that as he could speak Singhalese, the first appellant 'changed his identity' and acquired a 'genuine ID card', followed by a passport in his new name, which he has used, and on which he has travelled overseas ever since. Accordingly, the first appellant used an identity card and a passport in a name different from his original name. Importantly, the Tribunal was not satisfied that the interest in the first appellant which the police showed in December 1999 and January 2000 (following his return to Sri Lanka from Abu Dhabi for his mother's funeral) was on account of race or political opinion or for any other Convention reason, but was because of his holding an identity card in a name other than his true name. This was a finding of fact which the Tribunal was entitled to make. 16 In summary, the most recent interest which the police had in the first appellant was, according to the Tribunal's findings, the legitimate one of inquiring into the ID card discrepancy. 17 Implicitly, the Tribunal found that, if the police had called at the first appellant's former address between January 2000 and the date of his written statement, 22 July 2001, it was on account of the same legitimate interest. 18 A second reason why I think the Tribunal addressed the claims made in paras 50 and 51 is that after the Tribunal mentioned them at page 23 of its reasons, it went on to consider the general security situation for the first and second appellants living in Sri Lanka, and, in particular, of the position of the first appellant as a Tamil with a Singhalese wife. The Tribunal referred to independent country information which it summarised and which led it to the conclusion that the situation in Sir Lanka had improved: 'so that many thousands of people affected by the previous fighting including ethnic Tamils now feel they can return to [Sri Lanka] in safety.' (at 24) The Tribunal said (at 24) that it followed that it was satisfied: 'notwithstanding the claims made by the first [appellant] that there is not a real chance that he and his family would experience serious harm amounting to persecution for a Convention reason on this basis if he returned to Sri Lanka, either [then – at the time of the Tribunal's decision] or in the foreseeable future.' 19 For the two reasons mentioned, I think that the Tribunal did address the claims made in paras 50 and 51. 20 The Tribunal dealt separately with claims made by the second appellant but the amended notice of appeal does not raise any additional complaint peculiar to the second appellant. 21 For the above reasons the appeal should be dismissed with costs.