FRO17 v Minister for Immigration

[2018] FCCA 3521

FEDERAL CIRCUIT COURT OF AUSTRALIA

FRO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3521

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: FRO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1268 of 2017

Judgment of: Judge Vasta

Hearing date: 8 November 2018

Date of Last Submission: 8 November 2018

Delivered at: Brisbane

Delivered on: 8 November 2018

REPRESENTATION

Counsel for the Applicant: Mr M. Rawlings

Solicitors for the Applicant: FISHER DORE LAWYERS

Solicitors for the First Respondent: SPARKE HELMORE

ORDERS

1. That the Application filed 21 December 2017 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1268 of 2017

FRO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. The Applicant, FRO17, is a Sri Lankan citizen of Tamil ethnicity, though, as it will become clear from these reasons, notwithstanding that he was born in 1982 and would be now 36 years of age, he has really spent, it would seem, a total of about nine years in Sri Lanka.

2. This is because the civil war that broke out in Sri Lanka in the 1980s meant that he was displaced, or his family was displaced, in about 1989.  They moved to live in another district in the north and the Applicant claimed that his father was detained for questioning in 1990 and died on his way home.  He told the delegate that the father had been beaten by the Sri Lankan military and died of a heart attack coming home.  After that, the family fled to India as refugees and the Applicant lived most of his life in refugee camps in Tamil Nadu in India.

3. There was a ceasefire in Sri Lanka and his mother and siblings returned between 2002 and 2004.  He stayed in the camps for some time after that.  He decided to return to Sri Lanka in 2005 and he worked as a fisherman.  He said during that time that he was back in Sri Lanka, his fishing vessel was fired upon by the Sri Lankan army and navy on at least five occasions.  He said that other Tamil fishing vessels had the same problems, and he said that a group of Tamil leaders disappeared during this time.

4. In 2006, the Applicant departed illegally by boat back to India, and he said that he was fearful of his safety. He said that, notwithstanding that he went back to India, the Criminal Investigation Department and other Sri Lankan authorities, that were based in Chennai, were involved in policing and monitoring the refugee camps, and that he was singled out on a number of occasions.

5. He took part in protests against the Sri Lankan civil war and this was covered by the media and surveyed by the CID.  The CID would come to his home in the camps about twice a month to search his belongings.  He was also leader of a football team that played, and that he had gotten into trouble with authorities because of that.

6. He said that, in 2010, he attempted to flee India to Australia, but he was intercepted by authorities and detained.  He said that he and three others were singled out and beaten, but that it was the Sri Lankan CID that was doing the beating.  And he said in 2013 he boarded a people smuggler boat and came to Australia. 

7. He said that his mother and family have told him repeatedly not to return to Sri Lanka and they, that is, their family, have tried to leave to return to India, but have been stopped by authorities.  The Applicant is afraid to return to Sri Lanka because he did not grow up there.  He would not adjust.  He has heard from his family and media that Tamil young men are killed or abducted in white vans. 

8. He said that he has no future in India.  He has no rights or freedom of movement as a refugee.  He said that Sri Lankan authorities and the CID have imputed him with support of the LTTE because he grew up in Tamil Nadu as a refugee and his attendance at the 2009 protests would have corroborated that imputation.

9. He fears that he will be arbitrarily detained or arrested and harmed if he has to go back to Sri Lanka also because he was a failed asylum seeker who departed Sri Lanka illegally.  He also said that there was a data breach by the department and that Sri Lankan authorities will know that he made claims against the government; that they had tortured Tamils.

10. The IAA went through each of those claims.  They accepted that he was displaced in 1989.  They accepted that his father died just in 1989 or 1990, but did not accept that that was because he had been beaten by the Sri Lankan military.  The Applicant was simply too young to know.    

11. The IAA accepted that the Applicant had lived in India from 1990 until 2005 and then from 2006 until 2013, and that he had lived in refugee camps.  The IAA understood that the Applicant saw himself as a refugee, but that he had no citizenship rights at all in India and could not really do anything because of that. 

12. The IAA did not accept that the CID were as controlling in the camps as the Applicant made out and did not accept that he had been seen by those government forces as having an LTTE sympathy.  The IAA looked at the consistency of his claims and looked very carefully at what he had said in his original interviews. The claim that he had LTTE sympathies, or was imputed with that, seemed to be almost an afterthought to exaggerate his claims, having made those at the end of the safe haven enterprise visa interviews; but those claims were not contained in any of his previous affidavits or statutory declarations or other interviews. 

13. The IAA accepted that he had been told stories by relatives and other Tamils of monitoring of Tamils and that harm had come to some people in the past through abduction and arrest. The IAA accepted that he had seen similar stories in the media and that he had seen those media reports after he returned to India in 2006.  And the IAA accepted that the Applicant had a fear about going back to Sri Lanka because of those reports and the fact that he had spent minimal time there and certainly had not really established a life there. 

14. The IAA noted that the Applicant gave no evidence about his claim that his family have attempted to return to India but have been prevented by government and paramilitary groups, nor did he give evidence about his claim that they could not tell him why he should not return to Sri Lanka or if they were being targeted because they were afraid their communications were being monitored.

15. The IAA noted that there was no evidence of when the Applicant says this was, whether it was during the conflict, sometime later or recently, and if it were that they were reticent about talking about that, that such reticence did not prevent his mother telling him that his father’s claimed LTTE imputed link led to him being taken away and beaten.  If the mother was able to tell him that, then one would think that she would be able to tell the Applicant why it is that she was scared or why it is that she could not leave Sri Lanka. 

16. The IAA found that the Applicant’s relatives were not presently being persecuted for any refugee ground and the IAA did not accept that the Applicant’s family members were trying to leave Sri Lanka and were prevented by government or paramilitary. 

17. The IAA went through the refugee criteria, found that the Applicant did not have a well-founded fear of persecution.  They found that he would not of interest to the authorities, that he would not be imputed as being an LTTE sympathiser and therefore there would no reprisals from the government organisations or the CID. There was also a finding that the data breach did not enliven any of those claims. 

18. The IAA looked at the complementary protection provision and also came to the conclusion that the Applicant did not meet that criteria, therefore the IAA ended up affirming the decision. 

19. The original application to this Court had but one ground which was:

    1. The tribunal breached the hearing rule and denied the applicant procedural fairness and committed a jurisdictional error by failing to have regard to my status as a refugee who grew up in Tamil Nadu when considering whether the Sri Lankan authorities would impute to me a relevant political opinion/social group, namely, that I am a support of the LTTE.

20. The ground was refined somewhat by Mr Rawlings in very helpful submissions that he has given to this Court.  The gist of this is that the Applicant must have been a recognised refugee from the period 1990 to 2005.  That is because the civil war was going on at the time that the family left Sri Lanka and they went to the refugee camps. 

21. It was noted that, and accepted by the IAA, that the Applicant needed permission or, as it were, made passage from India back to Sri Lanka legally through the UNHCR.  That would give a clear inference that he had been recognised by the UNHCR as being a refugee.

22. It is that that status of being a recognised refugee when he returned to Sri Lanka that was not considered fully, it is argued.  Whilst the IAA did consider all of the circumstances and went through what had happened, the submission is that the fact that the Applicant was a recognised refugee would have allowed the authorities to draw that conclusion far more easily that he had LTTE sympathies, which would have meant that the time in which he was in Sri Lanka from 2005 to 2006 would make it more likely that what he complains of, as far as the CID and Sri Lankan authorities are concerned, should have been accepted.

23. Therefore, if that was accepted, then that would change the dynamic, which would then make it more likely that the CID were doing what the Applicant says they were doing in the camp and would then make it more likely that he would have a legitimate fear and that the fear would be more objectively real.  It is submitted that this was a claim that was definitely made on the evidence.

24. When one has a look at the evidence that was before the IAA, the first thing that one has to do is look at, “Well, what was the actual claim?”  As I said during the course of the hearing, one person can describe that fleeing a country because of the danger during a civil war, living in a refugee camp and having to simply stay there, means that one can describe oneself as a refugee. Even going back to India illegally and residing in a refugee camp may allow one to call oneself a refugee because one is seeking refuge. 

25. Then there is a different matter which would meant that, under Indian law, the Applicant had been recognised as an actual refugee under Indian law.  Of the former, there is plenty of evidence.  Of the latter, there is none.  The only inference that really can be drawn is that the UNHCR must have recognised the credentials because they were the ones who facilitated the move from India to Sri Lanka in 2005.

26. So this aspect only relates to the Applicant’s status from 1990 to 2005.  It cannot apply to the status that he had from 2006 to 2013.  It is then instructive to see what the IAA actually said about this time.  I will read paragraphs 10 and 11 into the record:

    10. The applicant claimed that he returned to live in Sri Lanka in Mullaitivu in 2005, believing it was safe and wanting to see his mother after she survived the tsunami, but returned to India after a year.  He stated he had arrived lawfully on a one-way travel document issued in India by the UNHCR.  I accept the applicant’s evidence in his SHEV application and interview and have had regard to some documents he produced, including a SL National ID card and a Sri Lanka Refugees ID card indicating an arrival in India on 12 August 2006 by boat from Mannar, Sri Lanka. I accept that the applicant arrived lawfully in Sri Lanka, lived for a year with his mother in Mullaitivu from 2005 to 2006 and then departed illegally by boat to India in approximately early August 2006. 

    11. The applicant’s claims of the Sri Lankan navy chasing and shooting fishing boats are credible as general experiences of civil war and I am willing to accept these occurred as such, in the context of the era of 2005/2006 being the disintegration of the ceasefire and the re-escalation of violent conflict. I find that the applicant returned to India in 2006 because of the re-escalation of the civil conflict and his fear of being killed. He made no claims and gave no evidence of the SLA or any Sri Lankan authorities having arrested or detained or questioned him or any member of his family in relation to any connection to the LTTE.

27. That is the evidence and that is what the Applicant had claimed.  It seemed to me, then, any claim that his status as an actual recognised refugee was not in, in any way, something that enhanced his claims as to what occurred when he returned to Sri Lanka.  As can be seen from what the IAA has said, the IAA has accepted all of his claims as to what has occurred after he left India and returned to Sri Lanka.  It has also accepted that those things that he said had occurred lead him to leave Sri Lanka again in 2006. 

28. It seems to me that the fact that he was a returned refugee who had been officially recognised as a refugee was not part of the claim that he had made in his claims because his claim was that there was no Sri Lankan authorities arresting, detaining, questioning him or any member of his member in relation to any connection to the LTTE during that time.  It was simply that he was a member of a Tamil fishing group that was fired on, on five or so occasions by the army or the navy.

29. Even if this claim had been made, that it could not have affected the way in which the IAA looked at this part of the claim because it is evident that the IAA accepted what the Applicant had said about his time in Sri Lanka. 

30. Because I find that such a claim was not made in his application, it then follows that there can be no reason that this aspect, in any way, made the evidence of the Applicant more credible as to what occurred in the camps, nor was it then something that needed to be looked at by the IAA when assessing overall risk.

31. Therefore, I find, that there was no jurisdictional error made by the IAA and I dismiss the application.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  9 January 2019