Acz15 v Minister for Immigration and Border Protection
[2016] FCA 105
•16 February 2016
FEDERAL COURT OF AUSTRALIA
ACZ15 v Minister for Immigration and Border Protection [2016] FCA 105
Appeal from: ACZ15 v Minister for Immigration & Anor [2015] FCCA 2987 File number: NSD 1281 of 2015 Judge: DOWSETT J Date of judgment: 16 February 2016 Date of hearing: 15 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 18 Solicitor for the Appellant: Mr S Chanaka on behalf of Stephen Hodges Solicitor Counsel for the First Respondent: Ms R Francois Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent did not appear ORDERS
NSD 1281 of 2015 BETWEEN: ACZ15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
16 FEBRUARY 2016
THE COURT ORDERS THAT:
1.the application to amend the notice of appeal be refused; and
2.the appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DOWSETT J:
This is an appeal from a decision of the Federal Circuit Court, dismissing an application for review of a decision of the Refugee Review Tribunal.
The appellant claims to be a Tamil Christian, born on 4 July 1981 at a village called Pesalai in the Mannar district of Sri Lanka. He arrived in Australia on 28 June 2012. He resided in India from 2008 until 11 June 2012 when he left for Australia. On arrival in Australia, he was interviewed. In the course of the interview, the following exchange occurred:
Reasons to Leave
1.Why did you leave your country of nationality (country of residence)?
India
It’s pretty hard to live in India. Because the Indian government are definitely going to send us back to Sri Lanka. We can’t go back to Sri Lanka. That’s the reason I came here. I’m just looking [for] a peaceful life.
Q.How did you know the Indian government are going to send you back to Sri Lanka? The problem is over that’s their thinking and after a while we definitely have to go there so that’s why I left India.
Q.Do you know anyone who has been returned to Sri Lanka from India? No I don’t know anyone.
Q.What do you think would happen to you if were sent back to Sri Lanka from India? We can’t live a peaceful life there. A war can start there any time in Sri Lanka. So that’s the reason.
Q. Are there any other reasons you left India? That’s the only reason.
Q.What do you mean life is hard in India? I’m not saying it’s that [hard] to live in India. Definitely they are [going] to send us back to Sri Lanka. I want a proper peaceful life. That’s why I came here.
Q. Are there any other reasons why you left India? No.
Sri Lanka
We left Sri Lanka because of the war and went to India in 2007.
Q. Are there any other reasons why you left Sri Lanka. No.
Political Involvement
2.Have you or any members of your family been associated or involved with any political group or organisation? □Yes ✓No
3.Were you or any members of your family involved in any activities or protests against the government? □Yes ✓No
Social and Religious Groups
4. Are you a member of any particular social or religious group?
(For example – Sports group, Youth group, or a member of a particular church)
□Yes ✓No
Police/Security/Intelligence Organisations
5.Have you served with a police, security or intelligence organisation?
□Yes✓No
Police/Security/Intelligence Organisations Impact
6.(a)Were you ever arrested or detained by the police or security organisations?
□Yes ✓No
6.(b)Did the police and security or intelligence organisations impact on your day to day life in your home country? □Yes ✓No
Local Group Activity
7.Were there any armed groups, political groups, or religious groups operating in the area you lived? ✓Yes □No
If yes, provide details
In Sri Lanka LTTE was there.
Q.How do you know LTTE was in that area? Everybody in the world knows about this.
Q.What do LTTE do in those areas? They were fighting for a Tamil Elam. For Tamil people they don’t have their own country they are living under Singhalese rules. They were fighting against that.
What was the nature/level of your involvement with them?
I don’t have any involvement with that group.
Armed Conflict
8.(a) Have you ever participated in any armed conflict or fighting?
□Yes ✓No
8.(b) Have you ever received training in preparation for conflict?
□Yes ✓No
Military Service History only ask this question if the answer to Question 16, Part B is Yes
9.(a)Have you been involved in any military service” ? □Yes ✓No
The reference to “LTTE” is to the Liberation Tigers of Tamil Eelam.
On 11 December 2012, the appellant applied for a protection visa. In a supporting statutory declaration, he claimed to be Christian and to fear returning to Sri Lanka. He said that at his earlier interview, he had concealed certain matters for fear that such matters would be divulged in Sri Lanka. He had also been advised by other Tamil detainees not to mention his involvement with the LTTE as such disclosure would lead the Australian government to refuse him entry into Australia.
The appellant claimed that from about 2002 the LTTE had forced him to assist in smuggling weapons and other goods from Indonesia to the eastern parts of Sri Lanka. He gave some details of such activity and of his apprehension and detention by Indonesian authorities. He claimed that during his detention, members of his family fled to India, fearing that the Sri Lankan authorities would learn of his involvement with LTTE and harm them. He was eventually repatriated to Sri Lanka, with assistance from the International Organisation for Migration. Hence he was not challenged when he arrived in Sri Lanka. A few days later, the authorities came looking for him, but he was not at home. The appellant then travelled illegally to India, this being sometime in August 2007. In India he was issued with a “refugee card”. He resided in India until he left for Australia in June 2012. He left India because he feared that the Indian authorities would return him to Sri Lanka.
At paras 20‑24 of his statutory declaration made on 11 December 2012, the appellant said:
What I fear may happen to me if I return to that country and why.
20.I believe the authorities are aware of the role I played in the past in smuggling weapons and goods for the LTTE. Therefore I am at risk of being harmed and possibly killed by the Sri Lankan authorities.
21.As I fled Sri Lanka illegally and have claimed asylum in Australia I believe this would only increase the likelihood and risk of being harmed by the Sri Lankan authorities if returned.
Who I think may harm/mistreat me in that country and why.
22.Refer 20‑2l.
Why I think the authorities of that country cannot or will not protect me if I were to go back to that country.
23.I believe I have come to the adverse attention of the authorities as I have worked for the LTTE assisting the LTTE to smuggle weapons and other goods.
Why I think relocation to another area in my country is not a reasonable option.
24.The whole of Sri Lanka remains unsafe for Tamils. The authorities often question Tamils and ask for their National Identity cards. It is not possible to travel freely in Sri Lanka. I am at risk of being harmed no matter where I move to as I worked for the LTTE.
The Minister’s delegate refused the application. The delegate’s reasons suggest that the hearing was conducted on the basis that the appellant feared persecution at the hands of the Sri Lankan authorities by reason of his previous involvement with LTTE. However the delegate also dealt with the possible fear of persecution for reason of the appellant’s status as a failed asylum‑seeker, notwithstanding the fact that he had not claimed to have any such fear. The delegate’s reasons for rejecting those claims also disposed of any claim to complementary protection.
In applying to the Refugee Review Tribunal the appellant’s lawyers identified his claim as follows:
If [the appellant] is returned to Sri Lanka, he fears serious harm from the Sri Lankan authorities and government‑sponsored organisations for reasons of his:
1. Tamil ethnicity;
ii.imputed political opinion as he was forced to assist the LTTE to smuggling arms in Indonesian waters by boat;
iii.membership of a particular social group of people considered as wealthy (the target of physical assault and extortionate demands); and of failed asylum seekers from the West.
In its reasons for refusing the application at para 10, the Tribunal identified the following issues:
The issues in this case are whether the applicant's claims about his links with the Liberation Tigers of Tamil Eelam (LTTE) are credible, whether being a Tamil, and/or a Tamil from North or East Sri Lanka, and/or a fisherman from Mannar, and/or a Tamil and/or·a failed asylum seeker and/or illegal departee from Sri Lanka, satisfy/satisfies either of the protection criteria. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal set out in detail the relevant law concerning refugee status and “complementary protection criteria” and summarized the appellant’s claim. It rejected his claim that he had been involved in smuggling for LTTE. This conclusion was based upon the Tribunals’ view that there were substantial inconsistencies in the appellant’s claims, leading it to reject him as a credible witness. The Tribunal also rejected the appellant’s other claims, in each case giving reasons.
The appellant sought review of the Tribunal’s decision in the Federal Circuit Court. In the amended application to that Court the ground was that:
The [Tribunal] made an error of law with that error being a jurisdictional error as it failed to discern a convention reason/convention nexus in the [appellant’s] case.
Particulars
[The appellant] claimed he will be at harm on return to Sri Lanka by the authorities of that country as he has been associated with the LTTE.
The Tribunal failed to find a convention nexus, namely a person with a link to the LTTE.
The primary Judge concluded that the Tribunal’s decision was not infected by jurisdictional error. As I understand it, the appellant does not now assert error on his Honour’s part. Rather, he seeks to assert that neither the Tribunal nor the Circuit Court Judge addressed the question of his grave fear of serious harm or death in Sri Lanka because he would have no official Sri Lankan identification document. He accepts that this ground has not been previously raised and seeks to amend the notice of appeal accordingly.
When the appeal was called on for hearing, the solicitor appearing for the appellant had not formulated any proposed amended ground of appeal. Eventually, he sought to amend the notice of appeal to raise the following ground:
The FCC [and] the Tribunal failed to address the question of the appellant’s genuine fear of serious harm or death in Sri Lanka because he would have no official Sri Lankan identity document.
The solicitor drew attention to para 13.7 of the appellant’s outline of submissions. It reads:
The appellant travelled by bus to Mannar. At a checkpoint along the way, a police officer or soldier checked identification. The appellant only had the emergency passport. The officer did not know what it was and threatened to shoot him. Another officer came and saw the passport and the threat was resolved. The appellant gave an explanation for a wound on his arm and medications he was carrying.
The matter is described in a little more detail at [47]‑[49] of the Tribunal’s reasons.
The appellant’s solicitor otherwise relied on his written outline. In effect, the appellant submits that he fears persecution or serious harm for reason of his not having an official Sri Lankan identity document, such fear being based upon this one incident. As I have demonstrated, at no time since he arrived in Australia in June 2012 has he previously claimed that he holds any such fear. The appellant’s position seems to be that the incident speaks for itself.
No doubt the incident was frightening at the time, but it does not follow that he consequently has a well‑founded fear of persecution in the future, nor that the Minister has substantive grounds for believing that a necessary and foreseeable consequence of his removal to Sri Lanka would be a real risk of significant harm. His failure to draw attention to the matter at an earlier stage suggests otherwise. Further, as appears at para 37 of the Tribunal’s reasons, he has a birth certificate and other identification documents, including an identity card issued in India, and a lapsed emergency passport issued in Sri Lanka. There is no apparent reason for believing that he will be unable to acquire appropriate documentation. The respondent also points out that there is no reason to believe that the incident, which occurred in 2007, will occur again, or that it is indicative of any general pattern of behaviour at checkpoints. Further, the problem was quickly resolved by a superior officer.
In my view the incident provides no basis for a well‑founded fear of persecution. Nor could it provide substantial grounds for the Minister to believe that a necessary and foreseeable consequence of the appellant’s being returned to Sri Lanka would be a real risk that he would suffer significant harm. For those reasons, the proposed ground of appeal would enjoy no prospects of success. I refuse the application to amend the notice of appeal.
As the appellant has not otherwise sought to prosecute the appeal, it must be dismissed. I will hear any application as to costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 16 February 2016
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