FEDERAL COURT OF AUSTRALIA

FGY17 v Minister for Home Affairs [2019] FCA 417

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1    This is an appeal from the judgment and orders of a judge of the Federal Circuit Court of Australia (the Federal Circuit Court) made on 27 September 2018. The primary judge ordered that the application for judicial review of a decision of the second respondent (the IAA) be dismissed with costs.

Background

2    The appellant is a citizen of Sri Lanka. He is of Tamil ethnicity. He lived in India as a refugee from 1990, when he was about 11 months old. He lived there until he departed India by boat in April 2013.

3    He arrived at Christmas Island on 25 April 2013, as a so-called “unauthorised maritime arrival”.

4    On 14 September 2016, he lodged an application for a Safe Haven Enterprise Class XE (Subclass 790) visa (SHEV). On 2 May 2017, a delegate of the first respondent (the Minister) refused to grant the SHEV.

5    On 15 May 2017, the matter was referred to the IAA. On 23 May 2017, the appellant’s representative provided to the IAA submissions, a letter from the founder of the Tamil Eelam Cricket Club, and evidence in support.

6    On 17 November 2017, the IAA affirmed the decision under review.

The appellant’s claims

7    The appellant’s original claims for protection were set out in a statutory declaration accompanying his SHEV application, and can be summarised as follows:

(1)    if he returns to Sri Lanka, he would be detained, tortured or killed as a suspected LTTE supporter by the Sri Lankan authorities;

(2)    he cannot speak Sinhalese and would be isolated and marginalised in Sri Lanka; and

(3)    Sri Lankan authorities would use against him information about the appellant obtained from a 2014 data breach of the Minister’s Department.

8    In his submissions to the IAA, the appellant made a claim that in January 2016 he had joined the Tamil Eelam Cricket Club (TEC) in Australia and had an adverse profile as a result of widespread news and social media coverage.

9    In his written submissions filed in this court, counsel for the appellant summarised the material placed before the IAA as part of his solicitor’s submission to the IAA as follows:

7    … [The] submission was accompanied by 68 pages of supporting information which clearly showed the name of the team, a team logo which included the LTTE Tiger emblem, and identified the appellant by name. That information included the following:

(a)    A letter from the Founder and Project Co-ordinator of the TEC, in which the writer expressed extreme concern that families of some of the players who were identified on the club’s Facebook page had been harassed in Sri Lanka because of their membership of the club, and was gravely concerned about the possibility of team members facing harm if returned to Sri Lanka.

(b)    An article stating that Eelam Tamils had been fighting to achieve, “the dream of liberation” and stating that the TEC was a part of the struggle, citing the head of the political wing of the LTTE as having expressed support for the South African team during the 2007 World Cup because South Africa had fought apartheid, and referring to the LTTE’s having built the infrastructure and administration of a government.

(c)    Team emblems which prominently included the LTTE tiger emblem and the team Facebook page with the appellant’s photograph near the team emblem featuring the LTTE tiger.

(d)    Photographs of the appellant in team uniform, and as part of the team.

(e)    A page clearly naming the appellant, and stating his playing record, and another page citing his record and those of other members of the team.

(f)    An entry on the SBS website which referred to the Tamil Eelam Cricket Club as a not for profit organisation to support cricket as a unifying link to the Tamil homeland, and inter alia to educate the broader community about why people seek asylum in Australia.

IAA decision

Information before the IAA

10    The IAA noted that it had regard to the material given to it by the Secretary of the Department under s 473CB of the Migration Act 1958 (Cth) (the Act), as well as the appellant’s submissions to it to the extent that they engaged with issues before the delegate.

11    In relation to country information provided by the appellant that pre-dated the delegate’s decision, the IAA was not satisfied of either of the matters in s 473DD(b), nor that there were exceptional circumstances to justify its consideration.

12    The IAA was satisfied that the applicant had attempted to raise the claim relating to his membership of the TEC with the delegate, but had been misunderstood. Accordingly, it considered that the claim satisfied s 473DD(b)(ii) and that there were exceptional circumstances to justify considering it.

Consideration of claims

Non-TEC Claims

13    The IAA accepted that the appellant’s father was imprisoned and that he fled to India with his family. However, in light of his claim that neither he nor his father had any links to the LTTE, as well as the fact that the imprisonment had occurred almost 30 years prior, the IAA was not satisfied that he would be of interest to Sri Lankan security services as a result of his connection to his father.

14    The IAA also found that while the appellant would face challenges returning to Sri Lanka due to having lived most of his life in Tamil Nadu in India, this would not amount to a real chance of harm.

TEC Claims

15    As to the TEC related claims, the IAA accepted that the appellant had joined the TEC, and that he had not done so to strengthen his protection claims.

16    It further accepted that the fact that he had joined the TEC had been reported publicly in the media, so that the Sri Lankan authorities could have accessed the appellant’s name and image as well as information about the TEC.

17    The IAA considered that nothing other than assertions by the appellant and statements by the TEC’s founder supported the claim that TEC players returning to Sri Lanka would be harmed.

18    The IAA noted country information that high-profile involvement in pro-LTTE diaspora groups might lead to adverse attention from the Sri Lankan authorities.

19    It found that while the words “Tamil Eelam” referred to the Tamil state and that the TEC’s tiger logo could suggest affinity with the LTTE, nothing in the materials before the IAA suggested that the TEC supported the LTTE or a separate Tamil state.

20    The IAA noted that the TEC “does not raise funds or promote support of the LTTE” and was not satisfied that the appellant would be perceived by Sri Lankan authorities as supportive of separatist activities or as a Tamil separatist.

21    The IAA did not consider that the appellant’s membership of the TEC or his published involvement in a cricket team would identify him as a Tamil separatist.

22    The IAA did not accept that the appellant would be socially isolated or treated with suspicion for speaking Tamil or English, and noted that no official laws or policies discriminated on the basis of ethnicity. Accordingly, it was not satisfied that he would face a real chance of harm due to his ethnicity, religion or language, as a Tamil returnee from Tamil Nadu, or due to his connections to his father or to the TEC.

23    By reference to country information, and its anterior findings regarding the appellant’s lack of relevant profile, the IAA was not satisfied that he faced a risk of harm as a failed asylum seeker, nor that any brief period of detention he faced while waiting to be brought before a Magistrate, even in poor prison conditions, would amount to serious harm for the purposes of the Act. In addition, the IAA was satisfied that the Immigrants and Emigrants Act 1949 (Sri Lanka) was a law of general application and was neither discriminatory in its terms nor applied in a discriminatory way.

24    In considering the complementary protection criterion, the IAA referred to its anterior findings and was not satisfied that the appellant faced a real risk of significant harm due to his Tamil ethnicity, Tamil language, inability to speak Sinhalese, Hindu religion, association with his father, membership of the TEC, residence in India or his seeking of asylum in Australia.

25    The IAA accepted that the appellant would be identified upon arrival at the airport in Sri Lanka as having departed illegally and may be detained for several hours at the airport and potentially detained on remand for a number of days pending bail. The IAA considered relevant country information and was not satisfied that the appellant would face a real risk of significant harm in detention at either the airport or in prison. The IAA also found that while the appellant may be subjected to questioning and may be required to pay a fine or provide a surety upon return to Sri Lanka, this did not amount to significant harm. Accordingly, the IAA was not satisfied that the appellant was a person to whom Australia owed protection obligations.

26    Because the submissions on this appeal focused on the relevant paragraphs of the IAA’s reasons with regard to the material contained in the submission to the IAA about the TEC, it is best to set them out in full:

16.    The applicant provided the IAA with a letter from the founder of TEC dated 11 May 2017. The letter states that the applicant joined TEC in January 2016. The letter goes on to say that families of some of their players whose name or image appears on their Facebook page have experienced harassment from the Sri Lankan authorities because of their membership of the cricket club. The applicant has provided the IAA with a number of media clippings from SBS and Tamil newspapers and social media printouts from facebook that provide details of TEC, photographs of the applicant with his name and details of the success of his team the ‘Cool Boys’. Extracts from SBS’s website states that TEC was formed in 2015 and is an international not-for-profit organisation to promote and support participation in cricket as a unifying link between the Tamil homeland and various diaspora communities. It also provides a means of strengthening cultural identify. [sic]

17.    I accept that the applicant joined TEC and has been successful and that this has been reported in publically accessible places in the news and on the internet. I accept that his name, image and information about TEC could have been accessed by Sri Lankan authorities. There is no information before me, aside from the applicant’s assertions and the TEC founder’s statement that families of members of TEC have been harassed by the Sri Lankan authorities, to support the applicant’s claim that players returning Sri Lanka would be identified or harmed on that basis.

…

27.    Since then the political situation in Sri Lanka has changed significantly with the election of the Sirisena Government in 2015. The Sirisena Government claims to have prioritised human rights and reconciliation. The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment visited Sri Lanka during April and May 2016 and reported that torture might be carried out by police in relation to regular criminal investigations, a risk which can increase when there is a perceived threat to national security. In spite of this, DFAT assesses that torture in Sri Lanka, perpetrated by either military, intelligence or police forces, is not presently systemic or state-sponsored. DFAT further assess that the risk of torture from military and intelligence forces has decreased since the end of the civil conflict. The applicant is not wanted on any criminal matters. Nor has not [sic] been involved in any separatist activities supporting the LTTE.

28.    The applicant claims that the fact that he fled to Tamil Nadu will cause him problems on his return. Country information suggests that since the January 2015 change of government in Sri Lanka, more Sri Lankan Tamils are considering repatriation. The numbers of returns in 2016 increased slightly compared to 2015. However, significant administrative barriers remain that hinder large-scale repatriation, including difficulties obtaining identity documentation, accessing government or non-government assistance in Sri Lanka, and logistical restrictions that only allow returnees to bring 50 kilograms of luggage on their repatriation flight. There is also a slight difference in the dialect of Tamil spoken in Sri Lanka as compared to Tamil Nadu.

29.    DFAT assesses that, while the process of returning from Tamil Nadu to Sri Lanka can involve some administrative and lifestyle difficulties, there is no evidence to suggest that individuals would experience official or societal discrimination upon their return, noting that ex-LTTE members or close associates returning from Tamil Nadu would likely be subject to monitoring as set out above. I do accept that the applicant will face challenges if he returns to Sri Lanka because he lived most of his life in Tamil Nadu but I do not accept that that there [sic] is a real chance he will face harm as a result of this.

30.    The applicant claims that he has a fear of being identified as having an affiliation with the LTTE because he plays cricket with TEC. In January 2016 the applicant started playing cricket with TEC, he was successful and this was reported using his name and image in the media from July 2016. These events occurred prior to the applicant making his SHEV application in September 2016, although the applicant did not raise any fear of harm on this basis in that application. The depictions of the applicant in the media and his cricket success suggest that the applicant enjoys playing cricket with TEC and did so for purposes other than to strengthen his claim to be a refugee.

31.    There is some evidence in the referred material that involvement in certain diaspora activities may give rise to adverse attention from the Sri Lankan authorities. DFAT reports that some Tamil groups continue to hold public demonstrations in their countries of residence to support a separate Tamil state in Sri Lanka and that “high profile leaders” of pro-LTTE diaspora groups may come to the attention of the Sri Lankan authorities as a result of their participation. There are also reports that Sri Lankan intelligence has a continuing interest in surveillance of diaspora events.

32.    I note that the words “Tamil Eelam” relate to the Tamil state and the image of the tiger on the logo could suggest an affinity with the LTTE. However, there is nothing in the materials before me to suggest that TEC supports the LTTE or the establishment of separate Tamil state. The stated purpose of TEC is an international not-for-profit organisation to promote and support participation in cricket as a unifying link between the Tamil homeland and various diaspora communities. It also provides a means of strengthening cultural identify. [sic] The organisation does not raise funds or promote support of the LTTE. I am not satisfied that the TEC or persons involved in the TEC such as the applicant would be perceived by the Sri Lankan authorities as engaging in, or supportive of separatist activities or as a threat to national security. I do not consider that the applicant’s membership of TEC and his published involvement in a cricket team will identify him as a Tamil separatist.

33.    The applicant also claims that he because he will be socially isolated and marginalised on return to Sri Lanka. He states he does not speak Sinhalese. He fears he will be treated with suspicion by the public because of his ethnicity and religion.

34.    DFAT assesses that most members of religious groups in Sri Lanka are able to practise their faith freely. People of Tamil ethnicity and Hindu faith make up second largest demographic groups in Sri Lanka at 15.4% and 12.6% respectively with Tamil Hindus making up the majority of the population in the North East where the applicant’s extended family lives.    

Proceedings in the Federal Circuit Court

27    By an application to show cause filed on 1 December 2017, the appellant sought judicial review of the IAA’s decision. He was granted leave to rely on an amended application which raised three grounds. For the reasons set out below, the primary judge dismissed the amended application on the basis that no jurisdictional error had been established.

28    By ground one, the appellant contended that the IAA failed to make a finding in relation to an integer of his claims that the relatives of members of the TEC had been harassed by the Sri Lankan authorities. The primary judge held that while there was a reference in the submissions to the proposition that families of some players had experienced harassment, no claim to fear harm on this basis was made by the appellant himself. Rather, the claim advanced was a fear of harm on account of the appellant’s membership of the TEC, which the IAA expressly disposed of: see [23]-[29] of the primary judge’s reasons.

29    By ground two, the appellant contended that it was legally unreasonable for the IAA to find that there was nothing in the materials before it to suggest that the TEC supported the LTTE or the establishment of a separate Tamil state. At the hearing, the appellant’s representative placed reliance on the various pieces of evidence which the IAA referred to in its reasons (see [26] above), including the newspaper articles, the TEC emblem, the letter from the TEC founder, and a photograph said to show LTTE fighters and the LTTE flag. The primary judge concluded that none of the media articles established that the TEC supported the LTTE or the establishment of a separate Tamil state. Further, he found that the media articles were not published by the TEC, and that the photograph referred to was not the subject of any submission advancing its significance. The primary judge held that the adverse finding by the IAA recognised the potential for the words and logos used to be affiliated with the LTTE, but that the IAA proceeded in any event to make a finding open on the material before it: see [30]-[32] of the primary judge’s reasons.

30    By ground three, the appellant contended that it was legally unreasonable for the IAA to find that the appellant would not be identified as a Tamil separatist on the basis of his membership of the TEC. At the hearing, the appellant’s representative submitted that this was particularly so in the context of the media articles, the letter from the TEC founder and the nature of the TEC emblems. The primary judge rejected this contention, holding that because the IAA expressly relied on the fact that the TEC did not raise funds or promote the LTTE, its finding that he would not be identified as a Tamil separatist because he was a member of the TEC could not be said to lack an evident and intelligible justification: see [33]-[34] of the primary judge’s reasons.

Notice of Appeal

31    On 4 October 2018, the appellant filed a Notice of Appeal within the statutory time limit. On 29 January 2019, he filed an affidavit seeking to file and rely upon a proposed Amended Notice of Appeal.

32    At the hearing of this appeal, the appellant was granted leave to rely on the Amended Notice of Appeal. The grounds are as follows:

1.    The Federal Circuit Court erred in holding that there was no claim advanced in the documentation before the second respondent that families of some players belonging to the Tamil Eelam Cricket Club (TEC) had experienced harassment from the Sri Lankan authorities because the [sic] players’ membership of the TEC.

2.    The Court should have found;

(a)    That such a claim was advanced,

(b)    That that claim was not lawfully considered by the second respondent, and,

(c)    That by failing to lawfully consider the claim that families of some of the TEC’s players had experienced harassment from the Sri Lankan authorities because of their membership of the Tamil Eelam Cricket Club, the second respondent had fallen into jurisdictional error.

3.    The Federal Circuit Court erred in finding that it was not legally unreasonable for the second respondent to find that there was nothing in the materials before it to suggest that the TEC supports the LTTE or the establishment of a separate Tamil state in Sri Lanka.

4.    The Federal Circuit Court erred in finding it was not legally unreasonable for the second respondent to find itself unsatisfied that the appellant would be perceived by the “Sri Lankan authorities” as supportive of separatist activities or be a threat to national security on the basis of his membership of the TEC.

Grounds one and two

33    Grounds one and two contend in substance that the primary judge erred in holding that there was no claim advanced that families of TEC players experienced harassment from Sri Lankan authorities. The appellant relied on Minister for Immigration v SZRKT (2012) 212 FCR 99 in support of the proposition that the statement in the letter from the TEC founder relating to the harassment of the players’ families in Sri Lanka was a “claim”, in that it was “an assertion of fact which raises the prospect of an applicant facing harm upon return”.

34    The appellant submitted that the primary judge was wrong to conclude that “no such claim was advanced by the appellant to fear harm in respect of the reference to relatives of members of TEC”. The appellant further submitted that because the IAA did not make any finding or draw any inference in relation to the credit of the TEC’s founder, or about the plausibility of his statements, the IAA had failed to address the claim and so had fallen into jurisdictional error.

35    In my view, these grounds do not establish any appellable error, for the reasons submitted on behalf of the Minister. The IAA’s task was to review the delegate’s decision to determine whether the appellant (not his family) faced a relevant risk of harm. It was not required to make a separate finding as to the risk of harm faced by family members of TEC members, and its finding that the appellant himself would not face a relevant risk of harm was dispositive. Accordingly, the primary judge was correct to treat the statement in the letter from the TEC founder as evidence in support of the appellant’s TEC claim (at [25]-[28]), and to conclude at [29] that no claim was advanced by the appellant himself to fear harm founded upon a claimed experience of relatives of TEC members.

36    Accordingly, grounds one and two must fail.

Ground three

37    Ground three takes issue with the rejection by the primary judge of the contention that it was legally unreasonable for the IAA to find that there was nothing in the material before it to suggest that the TEC supported the LTTE or the establishment of a separate Tamil state. The appellant contends that this finding was not open to the IAA in light of the fact that the TEC “took its name from the LTTE’s now defunct state” and used the LTTE tiger as an emblem, as well as in light of references to the LTTE in a translated newspaper article.

38    That article refers to the activities of the LTTE or the establishment of a separate Tamil state in the following ways:

The Eelam Tamils are fighting for the past sixty years with their dream of liberation. The people of Tamil Eelam living displaced throughout the world are working in many ways towards achieving their dream. The Tamil Eelam Cricket Team is also a kind of fighting action in this struggle.

When cricket competitions are underway the Eelam Tamils are always in a state of confusion and are perplexed as to which team in the competition to show their support. Eelam Tamils are not included in the Sri Lanka cricket team due to the policy of racial discrimination of the government. This is also yet another action of not awarding equal rights in every other sphere for Eelam Tamils.

Because of this kind of ill treatment meted to Eelam Tamils by the Sri Lanka government they usually do not extend their support to the Sri Lanka cricket team, they may support the Indian team rather than supporting the Sri Lanka team in competition. During the 2007 World Cup Tournament, when asked the Head of the Political Wing of the Liberation Tigers of Tamil Eelam (LTTE) answered “we will extend our support to the South African team, they have fought against apartheid”. This is the destiny of the stateless people.

During their time the LTTE was building all forms of infrastructure development for the people of Tamil Eelam, judiciary, police hospitals, administration, finance, they developed Tamil Eelam banks and legal administration all necessary for a government. During this time they developed a Tamil Eelam Netball Team and this team entered the international competitions. And the Liberation Tigers gave prominence to the traditional games of the people, however the sports sector was also developed according to the aspirations of the new generation. The building where the sports division functioned is now converted as an army camp. The sports sector would have developed manifolds had the Tigers were there today. Last 2012 the Eelam Tamils from countries like Canada, the United Kingdom Switzerland... [sic]

39    The appellant submits that because of what the article says it was not open to the IAA to find that “[t]here is nothing in the materials before me to suggest that TEC supports the LTTE or the establishment of [a] separate Tamil state”, and that it was not open for the primary judge to find that it was open for the IAA to find so.

40    But there is no support in this document, or any of the other new information, for a claim that the TEC supported the LTTE or a separate Tamil state. As the letter of support provided by the founder of the TEC said, the TEC’s objective to be “associated with the geographical location” rather than “a politicised concept which rose to prominence during the Sri Lankan Civil War”. And the article, it seems to me, is directed principally to the topic of cricket, and cricket competitions.

41    The Minister submits that the appellant’s contention amounts to say no more than that the IAA should have characterised the evidence differently, and that there was no appellable error in the primary judge’s conclusion that the IAA’s findings were open to it in circumstances where there was nothing in the new information provided to demonstrate that the TEC supported the LTTE or the establishment of a separate Tamil state.

42    In my view, that submission must be accepted. As the Minister’s representative submitted on appeal, the article does not indicate that the TEC supports or is in any way linked with the LTTE. On the material before it, it was therefore reasonably open to the IAA not to be satisfied that the appellant would face harm on the basis of his involvement with the TEC.

Ground four

43    Ground four contends that the primary judge erred in holding that it was not legally unreasonable for the IAA to find that the appellant’s membership of the TEC would not lead him to be perceived by the authorities as a separatist.

44    The appellant submitted that because the appellant’s membership of a cricket club that uses the LTTE logo and espouses the name of the LTTE’s defunct state, along with publicly available documents which identify the team with the Tamil separatist struggle, it was legally reasonable not to infer that members of the team would be perceived by the Sri Lankan authorities as at the very least supportive of the LTTE and a separate Tamil state.

45    In my view, as the Minister submitted, the primary judge correctly held, in light of the findings of the IAA regarding the activities of the TEC (including that the organisation did not raise funds or promote the LTTE), that it was plainly open to the IAA to conclude that members of the TEC would not be at risk of harm because of their membership of the team. The Minister says that, in any event, this submission goes no further than an invitation for this Court to engage in impermissible merits review. I agree.

CONCLUSION

46    For those reasons, the appeal must be dismissed, with costs to be agreed or assessed.

Associate:

Dated: 29 March 2019