SZFTS v Minister for Immigration and Multicultural Affairs [2006] FCA 1639 (16 November 2006)

Last Updated: 7 February 2007

FEDERAL COURT OF AUSTRALIA

SZFTS v Minister for Immigration and Multicultural Affairs [2006] FCA 1639

MIGRATION – no point of principle





Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 cited
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 referred to
NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293; (2002) 124 FCR 465 followed
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 followed
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 cited


















SZFTS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1667 OF 2006

JACOBSON J
16 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1667 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFTS Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	16 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The Appellant pay the First Respondent’s costs of the application.









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 1667 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFTS Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	JACOBSON J
DATE:	16 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Revised from Transcript)

Introduction

1 This is an appeal from the decision of Raphael FM given on 16 August 2006 dismissing an application for review of a decision of the Refugee Review Tribunal handed down on 1 February 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa.

2 The appellant claimed to be a citizen of Sri Lanka and also claimed to have a well-founded fear of persecution on the ground of his political opinion and his race. The RRT accepted that the appellant is a citizen of Sri Lanka and that he is a Tamil speaking Muslim businessman who lived in Colombo for many years to 2003.

3 The appellant’s claimed fear of persecution on political grounds was based upon his evidence that he was an active supporter of the ruling People’s Alliance, a political party in Sri Lanka, which the Tribunal noted was mainly comprised of a party known as the Sri Lankan Freedom Party. He also said that he was a key ally of a former Transport Minister. He claimed that the former Transport Minister and other people had been intimidating him and that he and his family had been assaulted and intimidated.

Decision of the RRT

4 The appellant’s claims are fully set out in the decision of the RRT and I will not state them in any further detail. The RRT had difficulty in accepting the appellant’s account of his claims as credible. It considered that his evidence was vague and inconsistent and rejected them on that basis.

5 However, the RRT went on to say that in any event there were other reasons for finding that the appellant did not have a well-founded fear of persecution on the grounds which were claimed. In particular, the RRT concluded that even if the appellant’s account was true, he was not of adverse interest to the Sri Lankan authorities when he left Sri Lanka on 1 July 2003. The RRT observed in particular that it was satisfied that the appellant would not become politically active again in Sri Lanka because the wishes of his family and his conscience would not allow him to do so.

6 The RRT did not accept the appellant’s claimed fear of harm for reasons of his race. It was not satisfied that this gave rise to a well-founded fear of persecution. It relied on independent country information to find that, although there had been reports of clashes between Muslims and Tamils, these clashes did not take place in Colombo where the appellant had lived and worked for many years.

7 The RRT concluded its reasons by stating that, even if the appellant were to become politically active on his return to Sri Lanka, independent country information showed a diversity of opinion about the peace process which was then in train. The Tribunal found that independent country information did not suggest that Muslims, especially those resident in Colombo, would be targeted by the political parties or the persons referred to by the appellant in his claims.

Decision of the Federal Magistrate

8 The Federal Magistrate saw no error in the RRT’s finding that the appellant’s claims were rejected on the basis of findings as to their credibility. The Federal Magistrate went on to describe what he called the "cascading series" of further grounds and reasons for the RRT’s alternative bases.

9 The learned Federal Magistrate considered that there was one error in the RRT’s reasons, namely that the appellant would not become politically active because of his family’s wishes and because of his conscience.

10 The Federal Magistrate considered that this may well have been what he called a mistake of a jurisdictional fact because of a decision of Tamberlin J in NBCY v Minister for Immigration (2004) 83 ALD 518. The Federal Magistrate did not apparently consider that this was an error of the kind referred to by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473.

11 In any event, the learned Federal Magistrate went on to point out that the finding was an unnecessary one because the Tribunal had already come to the view that the appellant’s claims should be rejected on credibility grounds. The Federal Magistrate observed that the RRT had independent grounds for believing that there was no well-founded fear of persecution if the appellant should return to Sri Lanka. Accordingly the Federal Magistrate did not consider that the RRT fell into jurisdictional error.

Discussion

12 The appellant’s notice of appeal raises four grounds of appeal. One of them is reliance upon the decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601. However, there is no substance in this ground of appeal because as a Full Court observed in NADR of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293; (2002) 124 FCR 465 at [24]–[28], the decision in Muin turns upon the question of whether the necessary factual basis is established. There was no such factual basis in the present case nor was there any admission of the necessary factual underpinnings that occurred in the High Court in Muin.

13 The other grounds of appeal are not particularised, but the appellant expanded upon them in written submissions. The appellant relies upon the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162. The appellant submits that the effect of this decision is that the RRT, having made up its mind to dismiss the application, was required to provide that information to the appellant in order to comply with the provisions of s 424A of the Migration Act 1958 (Cth). I do not consider that this ground of appeal is made out.

14 The decision of a Full Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] in the joint judgment of Finn and Stone JJ contains a useful summary of the meaning of the term "information" in s 424A(1). It is plain that the appellant does not point to any information of the kind set out in the joint judgment. The effect of the appellant’s submission is that the RRT was bound to provide him with an opportunity to comment upon its subjective thought processes before arriving at a decision. That is contrary to well established authority; see VAF at [24(iii)]. See also the decision in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576.

15 The remaining submissions in the written submissions of the appellant do not give rise to any ground of jurisdictional error on the part of the RRT, nor do they point to any error on the part of the Federal Magistrate. The effect of the submissions is to seek merits review. Whist the appellant refers to a number of well-known authorities on the question of jurisdictional error; the submissions merely refer to those authorities without engaging with the reasons why the application failed in the RRT.

16 The appellant appeared before me this morning in person. He was assisted by a Tamil interpreter. He did not add to his written submissions save to say that he was not satisfied with the decisions below and that he is unable to go back to Sri Lanka.

Conclusion

17 In my opinion the learned Federal Magistrate correctly found that no jurisdictional error was revealed in any of the matters which the appellant has raised. Accordingly, the order I will make is that the appeal be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson J.

Associate:

Dated: 16 November 2006

	The Appellant appeared in person.
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	16 November 2006
Date of Judgment:	16 November 2006