FRO17 v Minister for Immigration and Border Protection
[2019] FCA 969
•25 June 2019
FEDERAL COURT OF AUSTRALIA
FRO17 v Minister for Immigration and Border Protection [2019] FCA 969
Appeal from: FRO17 v Minister for Immigration & Anor [2018] FCCA 3521 File number: QUD 867 of 2018 Judge: RANGIAH J Date of judgment: 25 June 2019 Catchwords: MIGRATION – appeal against judgment of Federal Circuit Court – application for protection visa – whether Immigration Assessment Authority considered appellant’s UNHCR refugee status – whether failure to consider integer of claim – whether any error is material – appeal dismissed
Legislation: Migration Act 1958 (Cth) ss 5H(1), 36(2)(a) and 36(2A) Cases cited: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1; (2018) HCA 34
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
MZYTS v Minister for Immigration and Citizenship (2013) 230 FCR 431
NABE v Minister for Immigration (2004) 144 FCR 1
WAEE v Minister for Immigration (2003) 236 FCR 593
Date of hearing: 28 May 2019 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 28 Counsel for the Appellant: Ms J Marr Solicitor for the Appellant: Fisher Dore Counsel for the First Respondent: Mr J Byrnes Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
QUD 867 of 2018 BETWEEN: FRO17
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
25 JUNE 2019
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RANGIAH J:
This is an appeal against a judgment of the Federal Circuit Court of Australia delivered on 8 November 2018 dismissing an application for review of a decision of the Immigration Assessment Authority (the Authority). The Authority affirmed a decision of a delegate of the first respondent to refuse the appellant a Protection Visa.
The appellant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia by boat in 2013. On 31 May 2017, the delegate refused to grant the appellant a Protection Visa. The matter was then referred to the Authority.
The Authority’s decision
The Authority summarised the appellant’s claims as follows:
•The applicant is a Christian Tamil, born in 1982 in Trincomalee district in Eastern Province. Displaced by the civil war in about 1989 his family moved to live in Mullaitivu district in the north.
•In about 1990 the applicant’s father was detained for questioning for a day by the Sri Lankan military. He died on his way home after release, from a heart attack. He had been beaten. The applicant’s family believed the military suspected the father of links to the Liberation Tigers of Tamil Eelam (“LTTE”).
•In 1990 the applicant’s family fled to India as refugees. The applicant has lived most of his life in refugee camps in Tamil Nadu, India, whilst his mother and siblings returned, between 2002 and 2004 in the ceasefire, to Sri Lanka.
•The applicant returned to live in Mullaitivu with his mother in about 2005 and worked as a fisherman. On five occasions the Sri Lankan Army (“SLA”) and Navy chased and fired upon his and other Tamil fishing vessels. A group of Tamil leaders disappeared.
•In 2006 the applicant departed illegally by boat through a smuggler back to India fearful for his safety.
•Sri Lankan Police Criminal Investigation Department (“SL CID”) and other Sri Lankan authorities were based in Chennai, India. SL CID were involved in policing and monitoring the refugee camps.
•The authorities were aware of the applicant because he was the captain and spokesman of popular camp football team, ‘Ellam’, who participated in tournaments without proper permissions. He was also a spokesperson for the community, which sometimes attracted complaints to the authorities against him by disgruntled persons.
•Between 2007 and 2009 the applicant took part in about 5 protests against the Sri Lankan civil war and the torture and killing of Tamils in Sri Lanka. He was particularly involved in a big protest in Chennai in 2009 which was covered by the media and surveilled by the SL CID. He chanted slogans, organised hunger strikes and participated in silent processions and helped collect signatures on a petition to the United Nations (“UN”).
•Because of his leadership of the football team and partaking in protests the authorities, including SL CID, came to his home, about twice a month, to search his belongings and question him about being an LTTE member.
•In 2010, attempting to flee India to Australia with 70 others, intercepted by authorities and detained, the applicant and 3 others were singled out and beaten. These officers included the head of the SL CID monitoring the camp, who was previously involved in searching his home and questioning him.
•In April 2013 he boarded a people smuggler boat and came to Australia.
•The applicant’s mother and family have told him repeatedly not to return to Sri Lanka. They have tried to leave to return to India but have been stopped by authorities or paramilitary groups.
•The applicant is afraid to return to Sri Lanka because he did not grow up there and would not adjust and has heard from family and media that Tamil young men are killed or abducted in white vans. The applicant has no future in India; as a refugee he has no rights or freedom of movement.
•Sri Lankan authorities and CID have imputed the applicant with support of LTTE because he grew up in Tamil Nadu as a refugee, and his attendance at the 2009 protest there, as a single, Tamil male originating from former LTTE areas, and with an imputed family connection to the LTTE. He fears arbitrary detention or arrest and harm. He also fears arrest and harm upon return as a failed asylum seeker who departed Sri Lanka illegally. His details were leaked in the Department of Immigration and Border Protection’s (“the Department”) data breach and the Sri Lankan authorities will know that he made claims against the government of torturing Tamils. As a returnee from Australia the applicant will be particularly suspected of LTTE affiliation, because of connections made with the Tamil Diaspora, and will be at risk of extortion as a returnee from a wealthy country.
The Authority accepted some aspects of the appellant’s claims as being credible, but found that other aspects were not. It accepted that his father had died of a heart attack, that he may have been assaulted by unknown persons and that he had been detained for questioning by the Sri Lankan Army (SLA). The Authority did not accept that the appellant’s father had any connections to the Liberation Tigers of Tamil Eelam (LTTE), or that the SLA had marked the father as being involved with the LTTE. The Authority found that the appellant’s mother wanted to leave Sri Lanka to seek safety for her family from the general violence of the civil conflict in Sri Lanka.
The Authority accepted that the appellant had lived in refugee camps in Tamil Nadu in India from 1990 to 2005 and again from 2006 to 2013. It accepted that the appellant had returned to Sri Lanka in 2005. It accepted his claims of the Sri Lankan navy chasing and shooting at fishing boats as credible, and having occurred in the context of the civil war. The Authority found that the appellant returned to India in 2006 because of the re-escalation of the civil conflict and his fear of being killed.
The Authority did not accept the appellant’s claims that the Sri Lankan Criminal Investigation Department (Sri Lankan CID) and other authorities were based in Chennai and were formally policing refugee camps. It accepted that the appellant participated in a protest against the Sri Lankan government and the civil war, but found that his participation and assistance was at a low level. The Authority accepted that Sri Lankan agents may have been monitoring public protests, but did not accept that the appellant had been specifically identified by the authorities. It did not accept that the protest was specifically against the Sri Lankan government’s torturing and killing of Tamils.
The Authority did not accept the appellant’s claims that his participation in protests and reputation as a camp leader resulted in the Sri Lankan CID regularly searching and questioning him about LTTE membership. The Authority was willing to accept that the appellant was the captain and spokesman for a football team and that he got into some trouble with camp authorities, which may have included the Indian Q Branch. It did not accept that he was generally regarded as a spokesman for the community. It accepted, however, that he had been detained and beaten by the Indian Q Branch when he attempted to illegally depart India.
The Authority found that the appellant did not have any profile of adverse concern to Sri Lankan authorities for any real or perceived links to the LTTE arising from his father. It was not satisfied that the appellant’s activities in India would lead the authorities to impute to him an adverse political opinion. It found that the focus of the protest in which he participated was to end the civil war, rather than being pro-separatist or pro-LTTE. It also noted that the protest had occurred nearly eight years ago and, taking into account the improved security situation and the appellant’s lack of attendance at any protest or separatist activity since, the chance that he would experience any adverse attention on this basis was remote.
The Authority accepted that the appellant has a subjective fear for his life in Sri Lanka based upon his past experiences of the war and hearing accounts from relatives and the media of killings and abductions of Tamils. However, it was not satisfied that the appellant would be imputed with an adverse political opinion or LTTE affiliation or face a real chance of harm because he is a single Tamil male from former LTTE controlled areas, because of his father, his presence in India and Australia, his participation in protests and his football team in Tamil Nadu, or his affiliation with the Tamil diaspora. The Authority was not satisfied that there was a real chance that the appellant would face any harm as a result of his past experiences and profile.
The Authority accepted that as a returning asylum seeker who departed Sri Lanka illegally, the appellant would face questioning at the airport on his return and may be detained for a short period. However, the Authority did not consider that this would amount to serious harm.
The Authority accepted that the appellant’s details were the subject of a data breach in February 2014. It considered that, as a result of the data breach, there was a chance the Sri Lankan authorities had accessed material and might infer that the appellant had sought asylum in Australia. However, it was not satisfied that this would result in a real chance of harm to the appellant.
The Authority concluded that the appellant did not meet the requirements of the definition of a refugee in s 5H(1) of the Migration Act 1958 (Cth) (the Act) and, therefore, did not satisfy the refugee criterion in s 36(2)(a) of the Act. It also considered that he did not satisfy the complementary protection criterion in s 36(2A) of the Act. Accordingly, the Authority affirmed the delegate’s decision.
The judgment of the primary judge
The appellant then applied to the Federal Circuit Court for review of the Authority’s decision. The appellant relied upon the following ground:
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 or the LTTE.
(Errors in the original.)
The primary judge provided ex tempore reasons for the order dismissing the application. His Honour recorded the appellant’s argument as being to the effect that the appellant had been recognised by the United Nations High Commissioner for Refugees (UNHCR) as a refugee in the period from 1990 to 2005, but that status had not been considered by the Authority. The appellant argued that his status as a UNHCR-recognised refugee would have allowed the Sri Lankan authorities to draw the conclusion more easily that he had LTTE sympathies. The appellant argued that if the Authority had considered this matter, it is more likely that it would have accepted his evidence that he had been targeted by the Sri Lankan CID in the refugee camp.
The primary judge accepted that the UNHCR facilitated the appellant’s move from India to Sri Lanka in 2005. However, his Honour did not accept that the evidence demonstrated that the UNHCR recognised the appellant as a refugee in the period from 2006 to 2013. His Honour did not accept that the appellant’s status as a UNHCR-recognised refugee was part of his claims before the Authority. His Honour also considered that even if that was part of his claims, it could not have affected the assessment of the credibility of his claims for protection. That was because the Authority had accepted as credible the appellant’s evidence that he was on fishing boats that had been fired at by Sri Lankan authorities, leading to his return to India in 2006. His Honour found that there was no jurisdictional error by the Authority and dismissed the application.
The appeal
The appellant’s grounds of appeal are as follows:
1.The Federal Circuit Court at first instance erred in holding at paragraph [28] of the reasons for judgment that the Appellant’s refugee status, and particularly whether that status had been recognised by the UNHCR, was not a claim, articulated or unarticulated, that arose on the material before the Second Respondent.
2.The Federal Circuit Court at first instance erred in failing to find that there was jurisdictional error by the Second Respondent by failing to consider Appellant’s refugee status, and particularly whether that status had been recognised by the UNHCR, in the assessment of the Appellant’s claims under section 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).
The appellant submits that the Authority failed to address an integer of the appellant’s claim and that the primary judge erred in finding that it did not. The appellant submits that the question is whether the case put by the appellant before the Authority sufficiently raised his status as a UNHCR-recognised refugee such that the Authority should have dealt with it: cf NABE v Minister for Immigration (2004) 144 FCR 1 at [58]–[60]; WAEE v Minister for Immigration (2003) 236 FCR 593 at [45].
The appellant submits that his status as a UNHCR-recognised refugee was raised on the material before the Authority. This included the appellant’s responses in an interview with the Department of Immigration and Border Protection on 22 April 2013 in which he indicated that he had lived in a refugee camp until he departed for Australia, and where the identity documentation listed included a “refugee certificate” issued in India. Further, in an Unauthorised Maritime Arrival Interview on 23 September 2013, his documentation was recorded as including a “refugee identity card” and a “refugee certificate” issued by the Indian government in 2006. In answer to the question, “Have you had any contact with the United Nations High Commissioner for Refugees?”, the appellant answered “Yes” and stated that the date of contact was 2005. In addition, in the appellant’s application for a visa, he indicated that he had previously lived at a refugee camp and the name of the organisation which ran the camp was “UNHCR (unsure)”. He also said that in 2005 he had sought permission from the UNHCR to travel back to Sri Lanka to see his mother.
The appellant observes that the Authority accepted that from 1990 the applicant and his family had lived at various times in refugee camps in India and that he had returned in 2005 to Sri Lanka on a one-way travel document issued in India by the UNHCR; and that the Authority had regard to documents including a refugee’s ID card indicating his arrival in India in 2006.
The appellant submits that in view of the material before the Authority, the primary judge was wrong to find that the appellant’s status as a UNHCR-recognised refugee had not been raised. The appellant submits that as the appellant’s status was not referred to by the Authority, it should be inferred that this matter was not considered. The appellant submits that the effect of his UNHCR-recognised status being taken into account would have been to assist to substantiate his imputed LTTE connection and his contention that he had an enhanced political profile such that he was a target of the Sri Lankan CID. The appellant’s claim is, in substance, that he was recognised by the UNHCR as a refugee, that the Authority failed to take that status into account, and that it fell into jurisdictional error by its failure to do so.
There are, in my opinion, several obstacles to acceptance of the appellant’s submissions.
Firstly, the evidence before the Tribunal did not indicate that the appellant was a UNHCR-recognised refugee. In his application for a visa, he was asked the question, “Have you ever registered with the United Nations High Commissioner for Refugees (UNHCR)?”. He indicated “Yes”. He was then asked, “Have you ever been assessed for refugee status by the UNHCR?”. He indicated, “Yes”. As to the “Outcome of assessment”, he answered, “Not sure if the assessment was completed. We were not entitled to assessment I believe”. In his Unauthorised Maritime Arrival & Induction Interview, the appellant was asked if he had any contact with the UNHCR and answered “Yes” and gave the date of contact as 2005.
The material before the Authority indicated that the appellant had contact with the UNHCR, that he had lived in a refugee camp that may have been run by the UNHCR, that the UNHCR had facilitated his return to Sri Lanka in 2005 and that he had been assessed for refugee status by the UNHCR. However, the appellant did not assert that he had been recognised as a refugee by the UNHCR—he said he was unsure whether the assessment was completed and unsure whether he was entitled to assessment. Therefore, the factual premise of the appellant’s argument that the Authority failed to take into account his status as an UNHCR-recognised refugee has not been established.
Further, even if he was recognised as a refugee by the UNHCR, that recognition would seem to have occurred in India in 2005. However, in 2005 he voluntarily returned to Sri Lanka, so could not have had a well-founded fear of persecution in Sri Lanka at that time. He then returned to India in 2006. To be relevant, any UNHCR certification would have to have been made when he returned to India, but there is no evidence of any further UNHCR assessment after that time.
Secondly, even if the appellant’s status as a UNHCR refugee was raised before the Authority, it could not be described as an “integer” of a claim within the principles in NABE and WAEE. It was a piece of evidence. There may be jurisdictional error where a sufficiently important piece of evidence is overlooked so that it results in a sufficiently serious error: see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 111–112; MZYTS v Minister for Immigration and Citizenship (2013) 230 FCR 431 at 68–70; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 at [52]–[56]. However, the appellant did not advance his argument on such a basis.
Thirdly, for an error to be jurisdictional error, it must ordinarily be material: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1; (2018) HCA 34 at [29]–[30], [40], [72]. The appellant argues that if the Authority had considered his status as a UNHCR refugee, the Authority is more likely to have accepted that his profile was raised and he was imputed with an association with the LTTE such that he was likely to have been targeted by the Sri Lankan CID at the refugee camp. The Authority accepted that the appellant had been on fishing boats that were fired upon by the Sri Lankan navy in 2005, leading to his return to the refugee camp in India in 2006. However, the Authority found that the appellant had left Sri Lanka for India in 2006, not because of any fear of being persecuted by reason of an imputed association with the LTTE, but because of the general escalation of the civil war. The appellant’s claim before the Authority was to fear persecution on the basis of his imputed association with the LTTE. Even if the Authority had considered the appellant’s status as a UNHCR-recognised refugee, there was no evidence that this status was on the basis of an imputed association with the LTTE. Consideration of that status could not have made a difference to the outcome of the review.
Further, there was no evidence before the Authority that persons in the refugee camp in India who were assessed and recognised as refugees by the UNHCR acquired a higher profile and were more likely to be targeted than those who had not. This is another reason why any status as a UNHCR-recognised refugee could not have made a difference to the outcome of the review.
The appellant’s grounds of appeal must be rejected. The appeal will be dismissed with costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 25 June 2019
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