Applicant A189/2003 v Minister For Immigration & Multicultural& Indigenous Affairs [2004] FCAFC 281 (3 November 2004)

Last Updated: 4 November 2004

FEDERAL COURT OF AUSTRALIA

Applicant A189/2003 v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 281

MIGRATION – appeal – no error disclosed


















APPLICANT A189/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, JOHN LYNCH, MEMBER, REFUGEE REVIEW TRIBUNAL and PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SAD 92 OF 2004












COOPER, MARSHALL AND MANSFIELD JJ
3 NOVEMBER 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 92 OF 2004

ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE COURT

BETWEEN:	APPLICANT A189/2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT JOHN LYNCH, MEMBER, REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGES:	COOPER, MARSHALL AND MANSFIELD JJ
DATE OF ORDER:	3 NOVEMBER 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of and incidental to the appeal, to be taxed if not agreed.

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	SAD 92 OF 2004

ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE COURT

BETWEEN:	APPLICANT A189/2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT JOHN LYNCH, MEMBER, REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT

JUDGES:	COOPER, MARSHALL AND MANSFIELD JJ
DATE:	3 NOVEMBER 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT

1 This is an appeal from a judgment of Selway J in which his Honour dismissed the appellant’s application to review a decision of the Refugee Review Tribunal ("the RRT"). The RRT decided that the appellant was not entitled to a protection visa by reference to the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 ("the Convention"). The application before Selway J was one in which prerogative relief was sought against the respondents in respect of the appellant’s application for a protection visa.

Background

2 The appellant is a citizen of Sri Lanka of Tamil ethnicity, who has also been granted citizenship in India. He fled Sri Lanka by boat in 1985 and travelled to India. He holds an Indian passport. His wife and two children reside in India. He entered Australia in January 2000. In February 2000, he lodged an application for a protection visa. He claimed that he would face harm or mistreatment if returned to Sri Lanka.

3 On 27 April 2000, a delegate of the first respondent found that the appellant was not a person to whom Australia owes protection obligations under the Convention as he has the protection of India. On 5 May 2000 the appellant applied to the RRT to review the decision of the delegate.

The RRT decision

4 The RRT accepted that the appellant was a Sri Lankan national of Tamil ethnicity, who "has been and is recognised by the Indian Government as an Indian citizen by virtue of his being the holder of an Indian passport."

5 The RRT noted that the appellant claimed that he feared persecution by reason of his actual or imputed political opinion and his race, if returned to Sri Lanka. He claimed to fear persecution at the hands of the authorities and the Liberation Tigers of Tamil Eelam ("the LTTE"). He also claimed that if he was returned to India he may be exposed as having entered India illegally, in 1985, and risked deportation to Sri Lanka.

6 The RRT found that the appellant did not have a genuine fear of persecution. It considered that as the holder of an Indian passport, the appellant would be able to reside permanently in India, where he could live peacefully with his family. If the appellant feared that someone would discover the circumstances surrounding his obtaining Indian citizenship, the RRT considered that he could move to a part of India, other than Tamil Nadu (where his family lived). It found that he was able to move to other parts of India where English is widely spoken. The RRT had earlier found that the appellant was able to speak, read and write in English.

7 The RRT acknowledged that the appellant was concerned "that he may be reported to the authorities at some future time as a person who is not entitled to Indian citizenship nor residence". Nevertheless, it was satisfied that it was unlikely that he would be reported, given the lapse of time since the appellant entered India and became an Indian citizen.

8 The RRT was satisfied that if the appellant did genuinely fear persecution he would have sought effective protection many years ago. It found that there was a remote chance that he would fear persecution if he returned to Sri Lanka.

9 The RRT was not satisfied that if the appellant travelled to Sri Lanka he 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 RRT was also not satisfied that the appellant would become a target of the LTTE.

10 The RRT was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Convention.

The reasoning of the primary judge.

11 Selway J held that no jurisdictional error had been identified in the appellant’s application to the Court and dismissed that application.

12 At [8] of his reasons for judgment, his Honour said, after quoting, in the preceding paragraph, from the reasons for decision of the RRT, that:

"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."

13 At [9] Selway J said:

"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."

The notice of appeal

14 The notice of appeal contained one ground only. It alleged that the primary judge erred in law by not finding that the RRT had made a jurisdictional error. The alleged jurisdictional error was said to be:

"... having accepted that the appellant entered India unlawfully and obtained an Indian passport under false pretences that if the Appellants illegal conduct was discovered by the Indian authorities that the consequences of this could be that the Appellant would be deported back to Sri Lanka."

Consideration

15 The appellant’s appeal is bound to fail. First, as Selway J recognised, the RRT found that the appellant did not have a well-founded fear of persecution if returned to Sri Lanka. His Honour’s treatment of that finding is not challenged on appeal. Even if the RRT did fail to take into account the consideration identified in the appeal ground, it would not have affected its conclusion as to its state of satisfaction about whether the appellant had a well-founded fear of persecution if returned to Sri Lanka.

16 In any event, the appeal ground is without substance. As Selway J observed, the RRT did take into account the possibility that the appellant may be deported to Sri Lanka from India. It observed that that fear existed from the possibility of exposure "by extortionists or other people". However, the RRT considered that that possibility was a remote one. Accordingly the presumption upon which the appeal ground is based is incorrect.

The extra issue raised in the appellant’s written outline of submissions

17 In addition to the matter raised by the sole ground of appeal the appellant’s counsel referred to an extra alleged jurisdictional matter. He contended that the RRT failed to deal with a claim made by the appellant that the appellant’s continuing breach of Indian law, and the possible discovery of it by Indian authorities, was not considered by the RRT.

18 This additional argument is misconceived. The RRT did deal with the appellant’s claim in that regard, as is clear from [7] above in these reasons, which reference is taken from what is contained at p.31 of the RRT’s reasons for decision.

19 In effect this submission of the appellant is a re-casting of the issue raised in the sole ground of appeal. It involves the substitution of a reference to "failing to deal with an integer of the appellant’s claims" for a reference to "failing to take into account a relevant consideration." However the argument is clothed, it continues to lack merit.

Order

20 Having regard to the foregoing, we will order that the appeal be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Cooper, Marshall and Mansfield.

Associate:


Dated: 3 November 2004

Counsel for the Appellant:	Mr M Clisby
Solicitor for the Appellant:	Mark Clisby
Counsel for the Respondent:	Mr K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	3 November 2004
Date of Judgment:	3 November 2004