SZKMS v Minister for Immigration and Citizenship

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 21 April 2008
• Neutral Citation: [2008] FCA 499
• Date: 21 April 2008

FEDERAL COURT OF AUSTRALIA

SZKMS v Minister for Immigration and Citizenship [2008] FCA 499

PRACTICE AND PROCEDURE – where new grounds sought to be raised on appeal not argued before the Federal Magistrate – where if a party was entitled to raise issues for the first time on appeal, the appeal court will become de facto the primary court – whether enough that a party is unrepresented or that the Minister will not suffer any prejudice – whether in the interests of justice to allow grounds of appeal not advanced before the Federal Magistrates Court – whether any of the proposed grounds had any merit – application to amend rejected.

MIGRATION – where husband and wife appellants – whether Tribunal failed to consider an integer of the appellant wife’s claim – whether Tribunal failed to comply with s 425 – whether question of relocation should have been considered – appeals dismissed.

Migration Act 1958 (Cth) s 430(1)(c)

Attorney-General (NSW) v Quin (1990) 170 CLR 1 cited

Coulton v Holcombe (1986) 162 CLR 1 cited

Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 cited

H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 cited

Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 cited

Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71 cited

Metwally v University of Wollongong(1985) 60 ALR 68cited

Minister for Immigration v Yusuf (2001) 206 CLR 323 cited

SZKMS AND SZKMT v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1669 OF 2007

LANDER J

21 APRIL 2008

ADELAIDE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1669 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKMS First Appellant SZKMT Second Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	21 april 2008
WHERE MADE:	ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the first 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 1669 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKMS First Appellant SZKMT Second Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	LANDER J
DATE:	21 april 2008
PLACE:	ADELAIDE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1 This is an appeal against an order of a Federal Magistrate made on 1 August 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) given on 5 March 2007 and handed down on 20 March 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (as the Minister was then known) to refuse to grant Protection (Class XA) visas to the appellants.

2 The appellants, who are husband (SZKMS) and wife (SZKMT), are citizens of Sri Lanka who arrived in Australia on 10 September 2006. On 17 October 2006 the appellants lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (as it was then known). A delegate of the first respondent refused the application for protection visas on 27 November 2006. On 1 December 2006 the appellants applied to the Tribunal for a review of that decision.

3 Both appellants made claims under the Refugees Convention. The appellant husband claimed a well-founded fear of persecution because of his political opinions. He claimed that as a member of the National Youth Front, being the student wing of the United National Party (UNP), he had worked for a Cabinet Minister, the Prime Minister, and a local politician. He claimed that throughout this period he received threats to stop working for the UNP, including being beaten and having a gun put in his mouth.

4 On the night of local elections the appellant husband claimed that while he was at the politician’s house, political opponents entered the appellant husband’s home whilst his then fiancée (SZKMT), mother and aunt were at home. They destroyed some items, asked where the appellant husband was and, when the appellant wife who was then his fiancée refused to answer, they mistreated her and threatened to kill her. The appellant husband claimed that shortly thereafter he made a complaint to the police and he and his then fiancée moved to his sister’s house in Kandy. He claimed to have been beaten and have his life threatened by supporters of the People’s Liberation Front (Janatha Vimukthi Peramuna (JVP)) when standing at a bus stop with his fiancée in Kandy. When he returned to Columbo he was dragged into a car, had a gun pointed at him and warned that if he continued in politics he would “definitely” be killed. The appellant husband claimed that as a result of his fear he became sick and he and the appellant wife moved to her aunt’s house in Ganemulla before leaving for Australia. He feared that if he returned to Sri Lanka he would be killed by his “political enemies”.

5 The appellant wife also claimed she had a well-founded fear of persecution. She said that at the end of January 2006 she moved into live with the appellant husband at his house in Attidiya, Columbo. In mid-February she was taken by her husband to the mayor’s house for a dinner where her husband and the mayor discussed the upcoming local elections to be held on 30 March 2006.

6 She said that in mid-March one morning she saw a lot of people gathered around their house. When she went outside people started to laugh at her. She said she was embarrassed to see her name and humiliating things about her character were spray painted on the walls. She said that the words meant that her husband had used her to get votes for the party by “sending me with the politicians”.

7 She said, “I cannot explain how embarrassing and humiliating it was, I walked out there.” She said that the next day people pointed at her and were talking about her. She said that during the home invasion referred to in the appellant husband’s claims, she was asked where the appellant husband was and was threatened that if she told the police about the attack they would rape and kill her. Further, she witnessed the beating of her husband at a bus stop in Kandy and, as a result, she was constantly fearful. The appellant wife claimed that after the husband told her he had been kidnapped and his life threatened, she took him to her aunt’s place. She realised both their lives were in danger so they decided to move to Australia. She fears that they will both be killed should they return to Sri Lanka.

8 The Tribunal accepted that the appellants were citizens of Sri Lanka. The Tribunal accepted that the appellant husband was a member of the National Youth Front of the UNP. The Tribunal gave no weight to that involvement because of the appellant husband’s evidence that not all UNP supporters face harm in Sri Lanka and because the appellant husband consistently claimed that the harm he faced, and still faces, was specifically based on his work undertaken directly on behalf of UNP politicians rather than merely his affiliation with the UNP. The Tribunal also gave no weight to independent country evidence provided by the appellant in relation to harm caused to members of the National Youth Front.

9 The Tribunal found that the appellants were not credible witnesses because the appellants could not provide any evidence to support their claims. The Tribunal found the appellants’ reasons for the lack of such information “unimpressive and evasive”, and concluded that the appellants’ claims of persecution were fabricated. The Tribunal also found that the claims in relation to the home invasion lacked credibility. The Tribunal concluded by finding that, on the evidence, the appellant husband had no ongoing interest in politics in Sri Lanka and that neither appellant had any significant relationship with the UNP.

10 On 12 April 2007 the appellants applied to the Federal Magistrates Court for a review of the Tribunal’s decision. The appellants claimed that the Tribunal committed jurisdictional error because it misunderstood the test of well-founded fear of persecution; breached s 424A of the Migration Act 1958 (Cth) (the Act) by not informing the appellants that they failed to provide documentary evidence in support of their claims; and based its decision on hypothetical questions and situations, particularly in relation to the alleged home invasion. In written submissions, the appellants also claimed that the Tribunal failed to consider the claim that the wife appellant was threatened with rape and murder.

11 Her Honour described ground 1 as “a disagreement with the finding of the Tribunal that the Applicant husband has ‘any genuine, ongoing interest in politics in Sri Lanka.’” Her Honour found that the Tribunal was not satisfied that the appellants held a well-founded fear of persecution because of their failure to provide evidence and the Tribunal’s finding that they lacked credibility, which were findings open to the Tribunal on the evidence and the material before it. Her Honour also noted that the Tribunal informed the appellants of its concern regarding the lack of evidence and had adjourned the hearing to allow for the presentation of further evidence.

12 In relation to the second ground, her Honour noted that the...