Applicant A189 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 651

FEDERAL COURT OF AUSTRALIA

Applicant A189 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 651

APPLICANT A189 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 755 of 2003

SELWAY J
16 APRIL 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 755 OF 2003

BETWEEN:	APPLICANT A189 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	16 APRIL 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.          Application dismissed.

2.          The applicant to pay the first respondent’s costs.

3.          No order in relation to the costs of the second and third respondents.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 755 OF 2003

BETWEEN:	APPLICANT A189 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	16 APRIL 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. In this case, the applicant seeks prohibition certiorari mandamus and/or an injunction in relation to a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 16 September 2002 affirming a previous decision not to grant a protection visa to the applicant. The grounds for the grant of a protection visa are set out in s 36 of the Migration Act 1958 (Cth) (‘the Act’). Relevant subsections of that section provide:

   ‘(2)     A criterion for a protection visa is that the applicant for the visa is:

   (a)a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   …

   (3)Australia is taken not to have protection obligations to a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.

   …

   (5)      Also, if the non‑citizen has a well‑founded fear that:

   (a)      a country will return the non‑citizen to another country; and

   (b)the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;

   subsection (3) does not apply in relation to the first‑mentioned country.’

2. The effect of these provisions, in general terms, is that the applicant had to satisfy the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) - or, in this case, the Tribunal standing in the shoes of the Minister - that the applicant had a well‑founded fear of persecution for a convention based reason.  However, that would not assist if the applicant had a right to enter and reside in some other country unless he had a well‑founded fear of persecution in that other country or he had a well‑founded fear he would be returned to a place where he might be persecuted for a convention based reason.

3. In this case, it was accepted that the applicant is a Sri Lankan of Tamil ethnicity.  He applied for a protection visa on the basis that he had a well‑founded fear of persecution in Sri Lanka by reason of his ethnicity and his support of Tamil separatism in Sri Lanka.  Those were the claims which were considered by the Tribunal.  The basis of the claim is set out in the Tribunal’s reasons:

   ‘The Applicant states in his protection visa application, which was completed with the assistance of his adviser, that he is a forty-six year old, married, Sri Lankan Tamil of Christian religion.  He received a school education of thirteen years from 1958 to 1969 at Vavuniya, Sri Lanka.  He speaks reads and writes Tamil and English and speaks Hindi.  He states he worked for two five year stints in Chennai without furnishing the dates of these periods and that he “could not furnish accurate information due to the fact all/most employments were intermittent for long/short periods”.  The Applicant states that his wife, two children and a brother live in India.  He states his occupation as “general sales/exe/driver/operator/cheffeur”[sic].  He states he travelled to the United Arab Emirates for various periods from October 1993 to 1996, spending periods of up to three to six months there.  He also worked in Zambia for six months in 1997.

   The Applicant states he entered Australia on 16 January 2000 on an Indian passport, which was issued to him on 31 May 1996 in Madras and is valid for ten years.  In December 1999 he was granted a single travel, temporary business visa permitting travel to and stay in Australia for one month.  He departed India on 14 January 2000.

   In support of the application for a protection visa the Applicant lodged an exercise book containing his written account of his family background in Sri Lanka, their abuse and harsh experiences as Tamils in the war conditions in Sri Lanka, his flight from the war in Sri Lanka in the mid-eighties, his unlawful entry by boat from Sri Lanka into India in 1985, his subsequent passing off as an India national and his acquisition of an Indian passport after taking up residence in Tamil Nadu, India.  He states he tried his best to get out of India to any European or western country to seek asylum.   He states the main reason behind his application is he fears Sri Lankan forces/militants because he fears persecution from either side.  He also fears being extorted by informers in India who know his true background.’

   The Tribunal found that the applicant had an Indian passport:

   ‘… The Tribunal also finds that the Applicant has been and is recognised by the Indian Government as an Indian citizen by virtue of his being the holder of an Indian passport.  The Tribunal finds that the Applicant arrived in Australia on 16 January 2000 and that he remains here.

   The Applicant claims to fear persecution for reason of an actual or imputed political opinion and race.  The Applicant claims to fear persecution by Sri Lankan authorities or militants or the LTTE, if he should return to Sri Lanka.  He fears the Sri Lankan authorities will treat him as a suspected LTTE supporter, as a result of his Tamil background, and his and his family’s past activities.  He also fears persecution by the LTTE because he believes they may think he betrayed them and that they will kill him.  He fears returning to India as he may be exposed by extortionists or other people and may be deported to Sri Lanka.’

4. Those claims were considered by the Tribunal.  The Tribunal dismissed the application for three reasons.  First, the Tribunal was not satisfied that the applicant could not return to India:

   ‘The Tribunal has concluded in this matter that the Applicant does not have a genuine fear of persecution.  The Tribunal accepts that the Applicant is fearful of being discovered as a person who entered India unlawfully and has obtained an Indian passport under false pretences.  However, the Applicant holds a valid Indian passport and is able to reside permanently in India.  If he fears discovery, it is not necessary that he live in Tamil Nadu, which is a populous state of some sixty million people.  The Tribunal is satisfied that the Applicant can return to his family, who have continued to live peacefully in India during the Applicant's absences, and reasonably live in that state or in many of the other states of India, where English is widely spoken.  The Tribunal finds the Applicant is a resourceful and experienced man in the business world and would not have much difficulty re-establishing himself safely in India, where he has been able to secure a life for himself for many years since leaving Sri Lanka in 1985.

   The Applicant has been able to leave and enter India on many occasions since 1985 without difficulty and he currently holds a valid Indian passport.  The Tribunal acknowledges the Applicant's concern that he may be reported to the authorities at some future time as a person who is not entitled to Indian citizenship nor residence.  However, the Tribunal is satisfied that this is a remote possibility some seventeen years after he first arrived in India and many years after he received official recognition as an Indian citizen.  The Tribunal is satisfied that, if he did genuinely fear persecution, he would have sought effective protection many years ago.  The Tribunal is also satisfied that it has not been told the truth about the Applicant’s reasons for travel to Australia.  If he did genuinely come on business and decide only after arrival to seek refugee status, as he appeared to claim in his testimony, the Tribunal finds that he could not have had any concerns about persecution under the Convention either in Sri Lanka or India.  The Tribunal is satisfied that refugee protection has been available to the Applicant to seek in India since 1985 but that he has not sought it because he has not been in fear of persecution nor has he needed refugee protection.’

5. The Tribunal concluded, in relation to this issue:

   ‘On the other hand, the Tribunal is satisfied that he could return to live safely in India with his family.’

6. The second basis for dismissing the application was that the Tribunal was not satisfied that the applicant could not return to Sri Lanka with his Indian passport:

   ‘The Tribunal accepts that the Applicant and his family suffered harm in the past by Sri Lankan authorities and militants but that there is now a remote chance the Applicant would face persecution if he returns to Sri Lanka, which he could do on his Indian passport.  If he did so, the Sri Lankan authorities would not know of his background, unless he sought to notify his true status after his arrival in the country.’

7. Finally, the Tribunal was also not satisfied that the applicant could not return safely to live in Sri Lanka, even without an Indian passport:

   ‘If he returned on a temporary Sri Lankan travel document, the Applicant may face questions at the airport but the Tribunal is not satisfied that the Applicant would be unable to satisfy the authorities of his identity and long residence in India and that he is not, and has not been, involved with the LTTE.  The Tribunal is satisfied that, if the Applicant applies in Australia for a Sri Lankan passport, he may well be able to satisfy the Sri Lankan Embassy of his nationality and obtain travel documents of that country.

   On the country situation that exists at the moment and on the facts accepted by the Tribunal, the Tribunal is not satisfied that the Applicant would become the target of the LTTE.  The Tribunal notes articles in the BBC of 30 August 2002 and 16 September 2002, that reports that talks between the Sri Lankan government and the rebel Liberation Tigers of Tamil Eelam (LTTE) will be held today in the Thai coastal town of Sattahip.  The three-day talks are likely to be held in the naval base there.  The Tribunal accepts that, notwithstanding some optimism being expressed about the ceasefire and the prospect of successful talks, the situation in Sri Lanka is largely unsettled and volatile and there are many political and social problems that are obstacles in the way of a lasting resolution of the long conflict.  However, the Tribunal is satisfied that the Applicant could reasonably re-establish himself in Sri Lanka, either in Colombo where his business experience and skills would be most useful or in other towns or cities where Tamil communities reside.’

8. In consequence, the Tribunal ultimately reached the conclusion that it was not satisfied, on the evidence, that the applicant has a genuine fear of persecution.  It is accepted by the parties that the applicant cannot succeed in these proceedings unless the applicant can show that there is some jurisdictional error.  It is not altogether clear what jurisdictional error is alleged.  It seems that there is some complaint that the Tribunal did not adequately consider the risks of discovery of illegal entry into India.  However, it is clear from the quotations above that it did.

9. The issue that the Tribunal had to consider was one for Australian law. Under Australian law, it does not matter whether or not the applicant entered India illegally or whether he is entitled to an Indian passport. The question under Australian law is whether he had a well‑founded fear of persecution, to be understood in the context of the Act s 36 subss (3) and (5). That issue was properly addressed. The Tribunal came to the conclusion that the applicant could reside in India, however ‘that right arose or is expressed’. In any event, the finding that the applicant would not have a well‑founded fear of persecution if returned to Sri Lanka is conclusive.

10. The other matter raised in the appeal grounds is an allegation that the Tribunal was in error in its reference to the applicant residing in Tamil Nadu.  It is submitted by the applicant that this comment by the Tribunal evidences some jurisdictional error in relation to state protection.  However, that comment is obviously directed at the concern raised by the applicant in his interview that he feared extortion by persons in India who knew of his background.  In my view, that issue did not involve any jurisdictional error.  The suggestion by the Tribunal that, if that was a real fear, the applicant could live elsewhere in India seems sensible.

11. Since no jurisdictional error has been identified, the application is dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:             24 May 2004

Counsel for the Applicant:	M Clisby
Solicitor for the Applicant:	M Clisby
Counsel for the Respondent:	M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 April 2004
Date of Judgment:	16 April 2004