FEDERAL COURT OF AUSTRALIA

DCI17 v Minister for Home Affairs & Anor [2020] FCA 522

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

MURPHY J:

1    The appellant, a citizen of Sri Lanka of Tamil ethnicity, appeals from a judgment of the Federal Circuit Court which dismissed his application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal) made 18 July 2018. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs (Minister) to refuse to grant the appellant a Safe Haven Enterprise Visa (protection visa) pursuant to ss 36 and 65 of the Migration Act 1958 (Cth) (Act).

2    By an amended notice of appeal the appellant alleges that the primary judge erred in failing to find that the Tribunal fell into jurisdictional error by failing to consider two of the appellant’s claims.

3    For the reasons I explain it is appropriate to dismiss the appeal.

THE FACTUAL AND PROCEDURAL BACKGROUND

4    The appellant arrived in Australia by boat in November 2010, without a visa. He was therefore an illegal ‘offshore entrant’ under the Act as it stood at the time, and he was detained in immigration detention, where he has remained ever since. As an ‘offshore entrant’ the appellant was not permitted to apply for a protection visa. Instead his claim for protection as a refugee was assessed by a non-statutory process consisting of an initial Refugee Status Assessment (RSA) by an officer of the Department of Immigration and Citizenship (Department), followed by an Independent Merits Review (IMR).

The application for a Refugee Status Assessment

5    On 18 January 2011 the appellant requested a RSA. With his application he lodged a statutory declaration dated 15 January 2011 in which he made claims for protection. He was interviewed by a Department officer. By reference to the statutory declaration and the RSA decision his claims may be summarised as follows:

(a)    in 1998 the Liberation Tigers of Tamil Eelam (LTTE) wanted him or his father to join their forces. When they refused the LTTE wanted to be paid a large sum of money which they did not have;

(b)    in 1999 the LTTE kidnapped him and kept him imprisoned for 10 days. He eventually escaped and, fearful that he might be taken again, he fled to India in 1999;

(c)    he lived in India until 2002 and then moved to Singapore where he was imprisoned for an unrelated matter from 2003 to 2007;

(d)    upon release from prison in 2007 he was deported to India where he lived until August 2009. He then returned to Sri Lanka to visit his family and while there was involved in a dispute with a Sinhalese family who had kicked his family out of their property in 2005. His brother-in-law went to see the Sinhalese to reclaim the property and he was killed. The Sinhalese threatened that they would do the same to his family, and so his parents and sister had to move from that area;

(e)    he fled Sri Lanka in October 2010 and arrived in Australia in November 2010;

(f)    he fears serious harm if returned to Sri Lanka because:

(i)    the Sinhalese will kill him and because the authorities are Sinhalese and he is a Tamil the authorities will not offer him protection;

(ii)    LTTE members will kill him as he had escaped them; and

(iii)    the Sri Lankan authorities were likely to suspect him of being a member of the LTTE and kill him.

He did not claim to have been involved with the LTTE while he was living in India between 2007 and 2009.

6    On 20 April 2011 the Departmental officer decided that the appellant was not a refugee as defined in the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (Refugees Convention).

The application for an Independent Merits Review

7    The appellant applied for an IMR of the RSA decision. His solicitors lodged a submission dated 18 October 2011 in support of that application, which reiterated the same claims. He was interviewed by the reviewer on 8 December 2011. Again, the appellant did not claim to have been involved with the LTTE while he was living in India between 2007 and 2009.

8    On 30 December 2011 the IMR decided that the appellant met the criterion for a protection visa set out in s 36(2) of the Act and recommended that the appellant be recognised as a person to whom Australia has protection obligations under the Refugees Convention.

The application for a protection visa

9    On 28 April 2015 the Minister exercised his powers under s 46A(2) of the Act to ‘lift the bar’ so as to allow the appellant to apply for a Temporary Protection (Class XD) visa. On 29 May 2015 the appellant applied for a Temporary Protection (subclass 785) visa. On 10 February 2016 the appellant withdrew that application and instead lodged the present application for a protection visa.

10    On 29 January 2016 the appellant lodged a further statutory declaration in support of his application which essentially reiterated the same claims. On 15 September 2016 a delegate of the Minister interviewed the appellant.

11    On 4 October 2016, the appellant’s solicitors lodged written submissions in support of the application (October 2016 submissions). The submissions reiterated the claims earlier made, and also advanced some new claims under the heading “Claims against India”, apparently responding to a concern that the appellant might be deported back to India rather than to Sri Lanka.

12    In the new claims the appellant claimed that while he was living in India from 2007 until August 2009 he provided significant assistance to a senior member of the LTTE, Brigadier Vigeswaran, who had fled from Sri Lanka to India and who was continuing to provide assistance to LTTE forces in Sri Lanka. In the materials the Brigadier’s name is spelt either as Vigeswaran or Vigneswaran. For consistency, I use the former spelling.

13    Relevantly the submissions stated:

He instructs that he would assist Vigneswaran smuggle goods including electronics, motorbikes and diesel from India to Sri Lanka. He instructs that Vigneswaran brought a vehicle for him to undertake work. The applicant was required to collect materials and bring them to Vigneswaran. Further, he was required to deliver goods to LTTE cadres living in camps on behalf of Vigneswaran. He instructs that Vigneswaran was based at a Heroes’ Camp in Tamil Nadu where many LTTE cadres lived. He instructs that Vigneswaran was a prominent member of the LTTE and considered the applicant highly. The Applicant instructs that he did not live at the camp rather regularly travelled there regularly [sic] in order to assist Vigneswaran.

The Applicant instructs that at the time there was a number of Tamil paramilitary groups in India who were recruiting Tamils to assist them. He further notes that the Sri Lankan Authorities were employing Tamils as spies in India. The Applicant believed that by choosing to assist Vigneswaran he would avoid being recruited by another group or faction.

The applicant instructs that he felt that Vigneswaran had a great level of power and therefore would be able to provide him with protection from being harmed in India. He notes that Vigneswaran was responsible for looking after the LTTE members living in camps in Tamil Nadu. The Applicant instructs that he also worked as a driver and in a factory during this time. The Applicant instructs that Vigneswaran was shot and killed in 2014. He believes the Sri Lankan Army and TMVP Party were behind his death. He further instructs that other individuals who assisted Vigneswaran have been killed in recent years. The Applicant instructs that the Sri Lankan Authorities have a strong influence in Tamil Nadu and therefore are able to harm former LTTE associates.

The Applicant instructs that while residing in India between 2007 and 2009, he was physically harmed on approximately four occasions. The Applicant instructs in approximately September 2007, Vigneswaran asked him to distribute money to LTTE members residing in Thayalpatti Sri Lankan Refugee Camp in India. The Applicant instructs that after distributing the money he stayed in a town called Marai, while resting in his room at a hotel, four people came and talked to him through his window. He instructs that the men were Sri Lankan, they asked him some questions about where he was from and then they started hitting and beating him. The men requested money from the applicant and he gave the men the money he held. The men then said to the applicant they knew he was supporting the LTTE in India and he must stop or he would be shot dead. The Applicant was tied down and one man stayed with him. The Applicant asked to go to the toilet and he then escaped through the window. The Applicant instructs that he was very fearful and therefore felt he had to take the opportunity to escape in order to avoid further harm.

The Applicant instructs that in March 2008, he was travelling with Vigneswaran back from Kanyakumari to Chennai near Shankamagar, when their car was shot at. As a result, the window shattered however no one was harmed and they were able to escape. The Applicant believes that they were shot at by TMVP Paramilitary supported by Sri Lankan Authorities.

The Applicant instructs that in early 2009, a family who had fled Sri Lanka had come to India and Vigneswaran had requested the applicant provide assistance to them to assist with their resettlement. The Applicant instructs that the father of the family, [name redacted] was a Senior Intelligence Office with the LTTE in India. The Applicant was required to assist them register at the Refugee Camp. The TMVP found out that the applicant was providing the family with assistance. The TMVP then came to the applicant's house. He instructs initially the men from the TMVP started asking him questions and said they were relatives of the family and they would like to make contact with them in India. The Applicant said he would need to check with the family prior to providing their details. The Applicant instructs the men left and said they would come back the next Monday. The Applicant instructs that he contacted the family and they said that they did not know who the men were and given their issues in Sri Lanka, they did not want to see them or have their details provided to them. The Applicant then informed Vigneswaran what happened. He told the applicant not to disclose the family's details and to avoid the TMVP men. The Applicant avoided being home on the Monday. Subsequently, the applicant was travelling back to his house on his motorcycle when he was stopped by the TMVP men. The men then threatened and physically harmed the applicant. As a result, he sustained injuries. Given the commotion, the Applicant instructs that his neighbors came out and then the men escaped, the applicant then moved homes.

The Applicant instructs that in approximately June 2009, the family caused agitation and the Refugee Camp and the police intervened. As a result, to avoid arrest the family had to move. The Applicant smuggled them out of the camp and assisted them relocate to Chennai. The Applicant instructs that the TMPV came to realise the applicant arranged for the family to escape the camp and therefore came to his house. The Applicant instructs that at the camps paramilitary groups have informers and he believes it was these informers that advised the TMPV that the applicant assisted the family leave the camp. The Applicant instructs the men came to his house about midnight and abducted him and took him to Nilakarai in Chennai. He instructs that there were four men and they took him to a beach. At the beach, they beat the applicant and three of the men showed him that they had guns. The Applicant was threatened that he must disclose the whereabouts of the family or he would be killed. The Applicant was very scared for his life and therefore decided to take the men to the house where the family were staying. He instructs fortunately the family had become aware the applicant had been abducted and therefore had already fled. The Applicant instructs that given he had been cooperative with the men they let him go. The Applicant went to seek assistance from Vigneswaran to keep him safe. Vigneswaran assisted him escape to Sri Lanka. He instructs however that he was still very scared upon return to Sri Lanka and could not live freely.

The Applicant is fearful that if he was forced to return to India, he would be subjected to serious harm by Tamil paramilitary group and the Indian and Sri Lankan Authorities due to his association with Vigneswaran and the LTTE between 2007 and 2009. Given he is fearful of the Authorities in India, the applicant does not believe he would able to obtain state protection nor would he be able to relocate to avoid harm. The Applicant is specifically concerned he would be imprisoned and tortured by the Indian Authorities who would want to obtain further information about his links to Vigneswaran. Given these matters, we submit that the applicant would be at a real risk of serious harm if returned to India.

The Applicant instructs that he did not previously disclose his association with Vigeswaran as he was advised to focus on his claims against Sri Lanka given that was the country in which his claims were being assessed against.

(Emphasis added.)

The delegate’s decision

14    On 15 March 2017 the delegate decided to refuse the appellant’s application for a protection visa. It is unnecessary to recount the delegate’s reasons for doing so when that decision has since been overtaken by the decision of the Tribunal. It suffices to note that the delegate did not accept that the appellant was involved with the LTTE in India from 2007 to 2009.

The first application to the Tribunal

15    On 20 March 2017 the appellant applied to the Tribunal to review the delegate’s decision. The appellant’s solicitors filed written submissions dated 4 May 2017. On 7 June 2017 the Tribunal decided to affirm the delegate decision to refuse to grant the appellant a protection visa. It is unnecessary to set out the Tribunal’s reasons because, by consent, the Federal Circuit Court made orders on 15 November 2017 to quash the decision and to remit the application to the Tribunal for redetermination.

The remitted application to the Tribunal

16    Upon the application being remitted to the Tribunal the appellant’s solicitors filed further written submissions dated 17 April 2018. Relevantly to the grounds of appeal, the submissions said the following:

…Given the applicant assisted Vigeswaran in India for a prolonged period and previously assisted the LTTE in Sri Lanka, there is a very high likelihood, the Sri Lankan Authorities would be aware of the applicant’s past and therefore subject him to serious harm, firstly to punish him for his past LTTE affiliation and secondly to obtain further information from him about the LTTE.

…

17    The remitted application was heard by a differently constituted Tribunal on 19 April 2018. The appellant was given leave to file further written submissions and his solicitors did so on 14 May 2018 (May 2018 submissions). Relevantly to the grounds of appeal the submissions said:

Applicant’s LTTE Involvement

We note that the Tribunal indicated that it would be helpful if the applicant could provide further information about his LTTE involvement in India, specifically about his association with Vigeswaran. The Applicant instructs that after he was deported from Singapore to India, he was scared that he would face issues in India. Given his previous LTTE affiliation in Sri Lanka, he was fearful the Indian and Sri Lankan Authorities may treat him with suspicion and subject him to harm. Further, he was concerned he would be hassled by the LTTE for not supporting them. Accordingly, in order to try and protect himself, he made inquiries with members of the Tamil Community in India about well-known LTTE leaders, specifically, he approached three friends who were involved in transporting medical supplies for the LTTE.

These inquires led the applicant to finding out about Vigeswaran. The Applicant then approached Vigeswaran and explained that he had undertaken training with the LTTE in Sri Lanka. He also explained to Vigeswaran that he was a hard worker and that he had no one to support him, therefore he was willing to assist Vigeswaran. Vigeswaran, allowed the applicant to stay with him for a few days, they shared meals together and spoke about their lives. During this time, the applicant believes Vigeswaran came to trust him. As such, Vigeswaran, requested that the applicant run errands for him. After a short period of time, the applicant was required to carry out many tasks for Vigeswaran. He was also provided with two security guards who would travel with him when he completed tasks. These guards had a lot of knowledge of Tamil Nadu and would ensure the applicant did not get lost and tried to keep him safe. The Applicant was given a vehicle to use. He instructs that each area in Tamil Nadu, had an LTTE leader, the applicant was appointed the leader for Tiruppur. The Applicant worked a logistic coordinator for Vigeswaran. The Applicant believes Vigeswaran trusted him given he was very diligent in his work.

The Applicant instructs that given he has a somewhat fair complexion and had developed a Tamil Nadu accent, given the time he had spent there, he was trusted by many Indians, this made it easier for him to carry out missions for Vigeswaran. He also instructs that given he always carried out tasks on time and diligently, Vigeswaran trusted him. Given his dedication and loyalty to Vigeswaran, he continued to be entrusted with more jobs. For example, he instructs that he was required to travel to camps and distribute money to LTTE affiliates, cadres and to the family members of LTTE fighters who had died. Given this role, the applicant possess a lot of information about which individuals were involved with the LTTE. The Applicant instructs that he was also required to attend factories and collect iron objects. He also attended a Match factories which were located in Sivakasi, Virudunagar Sathur, and Kovilpatti in Tamil Nadu. The factories purchased raw material to make fireworks and matches. The Applicant would attend the factories, purchase the raw materials, which would then be sent to Sri Lanka. The Applicant further instructs that there were fuel shortages, therefore there were restrictions on how much fuel could be purchased each day. The fuel shortages effected the LTTE’s ability to carry out missions in Sri Lanka and India. The Applicant was required to travel outside the city area, collect about 300 litres of fuel and bring it back. The Applicant instructs that Vigeswaran would require him to collect arms and weapons from different companies or from a particular person, he would then be told where to deliver them to by Vigeswaran. The Applicant instructs that all the supplies he collected including fuel, medical supplies, motorcycles, garments, iron, and supplies for weapons, would be dropped off by him at the sea shore, in jungle like areas, where the LTTE boats would come to collect the goods and take them back to Sri Lanka. He instructs that he was regularly required to drop the supplies off at the forest area near a remote village called Kurinjakulam and Kovilpatti. He instructs that these small villages are near Thanushkodi, which is a bigger town.

The Applicant instructs that when he would arrive, he would notify Vigeswaran, who required him to wait for 20 minutes, a Black Tigers Speed Boat would come and collect the goods. The Applicant instructs that although he did not want to assist the LTTE while in India, he felt compelled to do so as a survival mechanism. He instructs that given the nature of the work he completed and the knowledge he possess about the LTTE operations in India and those who were involved, he would be at a serious risk of harm upon return to Sri Lanka. He instructs that the Sri Lankan Authorities worked closely with the Authorities in Tamil Nadu and therefore it is highly likely they would be aware of his LTTE affiliation.

(Emphasis added.)

18    The submissions also said:

…It is evident from the applicant’s testimony that he was highly trusted by Vigeswaran and therefore given a high level of responsibility to assist him with logistics and operations for the LTTE in India. He was also afforded a leadership role, being appointed as a leader in Tiruppur. While working for Vigeswaran, it is evident, the applicant obtained information about the operations of the LTTE and about LTTE personnel and their families, specifically noting the applicant was assigned the role of distributing money to LTTE cadres and their families…

The Tribunal decision

19    On 18 July 2018 the Tribunal decided to affirm the delegate’s decision not to grant the appellant a protection visa.

20    In its reasons the Tribunal summarised the appellant’s claims in relation to his involvement with Brigadier Vigeswaran (at [33]-[35] and [46]), as follows:

33.    The applicant met the LTTE Brigadier in 2007 after he had returned from Singapore to India. The applicant chose to return to India because at that time he was on his own and felt secure being in India. He had decided for himself that he should remain in India “not to surrender” to the Sri Lankan authorities but to carry on with the “fight.” Indeed, that was the reason the applicant went find the Brigadier to assist him but also to receive from him “protection.” The applicant received training and assistance. In time, the applicant was provided with a vehicle and would (for the Brigadier) go where he was told to “pick up and distribute goods, materials” and “money.” The types of “goods” or “materials” the applicant distributed were “medicines” for LTTE combatants fighting in Sri Lanka. He also “distributed” materials used in the manufacture of weapons and weapons for the LTTE.

34.    The applicant was asked whether he did any other work for the Brigadier. The Tribunal was told that the he did no other work for the Brigadier except to transport medicines and materials as he was required to do.

35.    According to the applicant his service for the LTTE brigadier commenced in September 2007 and ended in 2010 when he returned to Sri Lanka.

…

46.    The Tribunal received on 14 May 2018 a further submission from the applicant’s representative and main points of that submission are as follows:

Applicant’s LTTE involvement

•    The applicant claimed that after he had been deported from Singapore to India, he feared that the Indian and Sri Lankan authorities would treat him with suspicion and subject him to harm. Therefore, in order to try to protect himself, the applicant made inquiries with members of the Tamil community in India about well-known LTTE leaders. He approached friends who were involved in transporting medical supplies for the LTTE.

•    Due to these inquiries, the applicant claimed he met the person known as Vigeswaran. He approached him and told him that he had undertaken training with the LTTE in Sri Lanka. The applicant also told Vigeswaran that he could work hard and had no support in India and would be willing to support him.

•    The applicant claims that over a period of time Vigeswaran came to trust him and then he was requested to do certain tasks for him. The applicant was provided with two security guards who would always travel with him. These personnel also had extensive knowledge of Tamil Nadu. The applicant was also provided with vehicle and later was appointed a leader of Tiruppur and his tasks included working as a logistic coordinator for Vigeswaran.

•    The applicant was instructed by Vigeswaran to visit the various LTTE camps and to distribute money to LTTE affiliates, cadres and to family members of LTTE fighters who had died in conflict.

•    Due to this role, the applicant claims to have in his possession significant amounts of information about which individuals were involved with the LTTE.

•    The applicant also claimed that he had the responsibility and coordination of the distribution of fuel supplies to areas which required such fuel for the prosecution of the war against the Sri Lankan army. He was also responsible for distributing supplies (of various kinds) near the remote villages of Kurinjakulam and Kovilapatti.

•    The applicant claims that he did not want to assist the LTTE while in India, he did so in order to “survive…” He claims that given the nature of the work he did for Vigeswaran in India he would be at a serious risk of harm upon return to Sri Lanka because the Sri Lankan authorities work closely with the authorities in Tamil Nadu and they would be made aware of his activities with the LTTE.

….

Applicant’s profile

•    The applicant claims that it is important to take into account his role with the LTTE in India. He was highly trusted by Vigeswaran and was given high responsibilities assisting him with logistics and operations for the LTTE in India.

•    He was appointed as a leader of the LTTE in Tiruppur and had gained valuable information about the LTTE operations and personnel.

•    The applicant claims that given the intensity of the Sri Lankan authorities’ intelligence gathering, his activities would be well known to them and therefore he was more likely to be of interest to them.

•    The Sri Lankan authorities it was claimed have an on-going interest in the activities of Tamil Diaspora and this could cause the applicant to be detained if he was to return to Sri Lanka.

•    Given that the Sri Lankan authorities wish to prevent a resurgence of the LTTE, it is highly plausible they would want to obtain information from the applicant concerning the LTTE’s operations and people in Tamil Nadu, India.

•    The applicant claims that his ongoing involvement with the LTTE in India would further place him at risk of serious harm if he returned because of the applicant’s race, area of origin, the fact he fled Sri Lanka and remained abroad for considerable period of time.

•    The applicant claims that his prolonged non-registration in Sri Lanka or in India would cause the Sri Lankan authorities to believe he was involved with the LTTE for longer period of time than was the real case.

21    The Tribunal broadly rejected the appellant’s claim to have worked for Brigadier Vigeswaran as follows (at [53]-[59]):

53.    The applicant claimed that after he had been deported from Singapore to India in 2007, he feared that the Indian and Sri Lankan authorities would treat him with suspicion and subject him to harm. Therefore, to protect himself, the applicant made inquiries with members of Tamil community in India seeking to join the LTTE (which he remained with until 2009 when he left India for Sri Lanka). Following these inquiries, the applicant claimed he met a person known as Vigeswaran – an LTTE ‘brigadier’ as he was described to the Tribunal. The applicant claims that over a period of time Vigeswaran came to trust him and the he was requested to do certain tasks for him. He was provided with a vehicle and was instructed by Vigeswaran to visit various LTTE camps and to distribute money to LTTE affiliates, cadres and to family members of LTTE combatants who had died in the civil war.

54.    Due to this role, the applicant claims to have in his possession significant amounts of information about which individuals were involved with the LTTE. The applicant also claimed that he had the responsibility and coordination of the distribution of fuel supplies to areas which required such fuel for the prosecution of the war against the Sri Lankan army. He also claimed to have been responsible for distributing supplies (of various kinds) near the remote villages of Kurinjakulam and Kovilapatti. The applicant claims that it was not his intention to assist the LTTE while in India but chose to do so in order to “survive”. The applicant claims that given the nature of the work he did for Vigeswaran in India, the applicant would be at a serious risk of harm if he was to return to Sri Lanka because the Sri Lankan authorities work closely with the authorities in Tamil Nadu and they would have been made aware of his activities with the LTTE. Although the Tribunal accepts and finds that the applicant may have had a past affiliation with the LTTE forced upon him in Sri Lanka by his abduction by the LTTE and later in India by his own choice, his claims of involvement in the logistics and as part of the chain of command of the LTTE that would make him a person of interest to the Sri Lankan authorities are not credible.

55.    First, the applicant’s description of his immediate superior ‘brigadier’ Vigeswaran who enters the applicant’s life and plays such a significant role as the applicant claims is described by the applicant in very minimal terms.

56.    Second, without any specific details provided to the Tribunal – the Tribunal was told that the applicant was given the responsibility for major logistics in wide field of military operations and trusted with sensitive information. That being so, the applicant provided very little specific information or examples of this role he had within the LTTE as he claimed in the actual hearing and only provided supplementary information in written submissions provided post-hearing by his counsel. Though the Tribunal accepts that past events would with the passage of time be difficult to recall in minute and exact detail, that being so, if the applicant was so integral in the LTTE military organisation as he claimed he would have remembered some details of his ‘significant involvement’ at the hearing proper. Indeed, when the applicant was asked by the Tribunal to describe and explain in detail his involvement with the individual the applicant described as ‘brigadier’ Vigeswaran the applicant was vague and his responses lacked the detail and substance one would expected from an individual who claimed to have been a ‘leader’ of a particular LTTE-occupied district (that of Tiruppur) and a confidant of an LTTE brigadier. Moreover, the Tribunal conducted its own research of the individual named by the applicant with the surname ‘Vigeswaran’ and found that a person called “Vanniasingham Vigneswaran” was the leader in Sri Lankan legislature of a pro-rebel citizens group called District Tamil People’s Forum in the eastern port city of Trincomalee, who was assassinated in Sri Lanka on April 7 2006 and had no relationship to any ‘brigadier’ of the LTTE as was claimed by the applicant. The Tribunal was unable in its research to find any independent sources of information on the existence, activities or whereabouts of a LTTE ‘brigadier’ named Vigeswaran as described by the applicant. Therefore the Tribunal finds that the applicant may have had a past affiliation with the LTTE one forced upon him while still in Sri Lanka by the LTTE abducting him and the other by his own choice and free will upon his return to India from Singapore in 2007. However, the Tribunal does not find as credible the applicant’s claims that he was an integral part of the LTTE and a leader of the LTTE in the district of Trippur as he claimed and that this had made him a person of interest to the Sri Lankan Army and security police if he was to return to Sri Lanka.

57.    The Tribunal also noted the persuasive decision of the country guidance case of GJ & Others (post-civil war: returnees Sri Lanka CG [2013] UKUT 00319 (IAC), where the UK Upper Tribunal identified as one of its four risks categories as “Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the Diaspora and/or a renewal of hostilities within Sri Lanka.” (Paragraph 356 (7a)). The Tribunal in GJ and Others also found that unlike in the past, returnees (like the applicant in this application) who have a previous connection with the LTTE are able to return to their communities without suffering ill-treatment. Civil society groups on the ground (according to the Tribunal) did not report recent issues of ill-treatment. The police interest, if any, is not in any previous involvement with the LTTE, but on whether the person has committed any criminal act. The Upper Tribunal goes on to state that “…those former LTTE members most at risk are those who are perceived to be a threat because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism….”

58.    Third, the Tribunal finds that it does not accept the applicant’s claim that he was at risk because he was an important operative of the LTTE because such an individual would not have left his safe haven in southern India and travelled to Sri Lanka in the middle of a conflict to see his family and remain in a highly charged environment for a considerable period of time without inviting suspicions or the attention of the local military or security services of Sri Lankan state. Such actions portray not only a ‘naive’ individual as the applicant was described in the written submissions of his Counsel but also one that was not as important or a significant part of the LTTE chain of operations as he claimed. Overall, Tribunal considers that the claims of the applicant’s association with the chain of operations of the LTTE in India were introduced by the applicant to act as an embellishment of the truth in order to enhance his claim for protection and the Tribunal does not accept the the claim that he held a senior position with considerable authority and responsibility within the LTTE organisation prior to the end of the Sri Lankan civil war.

59.    Finally, the applicant displayed no post-conflict Tamil separatist beliefs in his evidence to the Tribunal and only aspired to “live in peace…”

(Emphasis in original.)

The application to the Federal Circuit Court

22    On 10 August 2018 the appellant applied for judicial review of the Tribunal decision in the Federal Circuit Court. By an amended application dated 17 January 2019 the appellant raised the following grounds:

1.    The Tribunal failed to consider the applicant’s claim that he was at risk of harm upon return to Sri Lanka as a former LTTE supporter who in India was involved in the supply and transport of goods to the LTTE (the LTTE association and transportation claims).

Particulars

a.    The LTTE association and transportation claims were made in post hearing written submissions from the applicant’s advisors to the delegate dated 4 October 2016.

b.     While the Tribunal did not accept the applicant’s claims made in submissions dated 14 May 2018 to have been involved as a logistics coordinator as part of the LTTE chain of command in India (at AAT [54]) or as a leader of the LTTE in the district of Tiruppur (at AAT [46], [56]), the Tribunal found the applicant ‘may have had a past affiliation with the LTTE... by his own choice and free will upon his return to India from Singapore in 2007’: at AAT [54], [56].

c.     These findings left intact the applicant’s earlier claims to have assisted an LTTE Brigadier Vigneswaran in India smuggle goods for the LTTE in Sri Lanka, to have delivered goods to LTTE cadres living in camps in India on behalf of Vigneswaran and on one occasion to have distributed money to LTTE members residing in Thayalpatti Sri Lankan Refugee Camp in India: advisors submissions dated 4 October 2016 at pages 5-7.

d.     The Tribunal’s considerations and findings at AAT [62] in relation to the 2012 UNHCR Eligibility Guidelines did not specifically refer to the relevant risk category, were limited to the applicant’s experiences in Sri Lanka, and did not take into account the applicant’s experiences in India. As a result the applicant’s claim that his experiences in India (to the extent they were accepted by the Tribunal at AAT [54] and [56]) brought him into the relevant risk category, were left unconsidered.

2.    The Tribunal failed to consider the applicant’s claims that the Sri Lankan authorities would consider him an LTTE affiliate upon return to Sri Lanka because of the assistance he gave to a senior LTTE intelligence officer and his family in India and his experience in India of the Tamil paramilitary group the TMVP.

Particulars

a.    The applicant claimed that in early 2009 the TMVP learned of the assistance the applicant gave to a senior LTTE intelligence officer to resettle his family in a refuge camp in India and because of this the TMVP threatened and physically harmed the applicant causing him injury.

b.    The applicant claimed that in June 2009 the TMVP learned from informers that the applicant had assisted the same family to relocate from a refugee camp in Chennai and because of this the TMVP abducted the applicant, took him to Chennai, beat him and threatened to kill him if he did not disclose the whereabouts of the family.

c.    The claims were made in submissions to the delegate dated 4 October 2016 and were not considered by the Tribunal in its decision, nor were they subsumed in more general findings.

23    The primary judge dismissed the application for judicial review on 24 July 2019.

24    In relation to ground one of the application for review - the allegation that the Tribunal failed to consider what the appellant described as ‘the LTTE association and transportation claims’- the primary judge held (at [25]):

…the Tribunal closely analysed the applicant’s claims as to the extent of his involvement in alleged association and transportation matters, but rejected the proposition that any role or activity relevantly assumed or undertaken by the applicant would have given rise to him having obtained a profile of sufficient significance so as to elevate him as a person of interest to the Sri Lankan authorities. The Tribunal found that the applicant’s claims as to the extent of his involvement in providing logistical assistance to the LTTE or as part of the chain of command of the LTTE lacked credibility.

25    In relation to ground two of the application - the allegation that the Tribunal failed to consider the appellant’s claim that he would be at risk because of the assistance he gave to a senior LTTE intelligence officer and his family in India - the primary judge noted (at [33]-[34]) that the Minister conceded that the Tribunal had not specifically dealt with that issue in its reasons. But in the primary judge’s view it was implicit in the Tribunal’s reasons that it had rejected the appellant’s claim that he had assisted the relocation of a senior LTTE intelligence officer and his family as such assertion fell into the category of the appellant’s evidence found by the Tribunal to lack credibility at [53]-[59] of its reasons.

26    The primary judge further noted:

(a)    (at [34]-[35]) that in the May 2018 submissions the appellant did not make any reference to his alleged assistance to the senior LTTE intelligence officer, notwithstanding that the Tribunal had informed him that it would be helpful if he could provide further information about his LTTE involvement in India, specifically about his association with Brigadier Vigeswaran. Had the appellant sought to press the claim of assistance to the senior LTTE intelligence officer, the primary judge would have expected him to mention that the Brigadier had arranged for him or ordered him to relocate that person and he did not do so; and

(b)    (at [36]) that the appellant’s omission to refer to that claim is to be assessed in light of the appellant not having had recorded any mention of his alleged involvement with such senior intelligence officer when he was asked if he had done any other work for the Brigadier, as set out at [33]-[35] of the Tribunal’s reasons.

27    In holding that it was not necessary for the Tribunal to refer to every piece of evidence and every contention made by the appellant in its reasons (at [37]) the primary judge cited with approval the decision in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (WAEE) at [46]–[47] (French, Sackville and Healy JJ).

THE APPLICATION TO THIS COURT

28    On 8 August 2019 the appellant filed a notice of appeal to this Court and an amended notice of appeal was subsequently filed on 3 February 2020. The amended grounds of the appeal mirror the grounds below but are not particularised.

Ground one

29    In ground one of the appeal the appellant alleges that the Tribunal fell into jurisdictional error by failing to consider his claim that he was at risk of harm if returned to Sri Lanka as a former LTTE supporter who was involved in the supply and transport of goods to the LTTE while he was living in India.

30    This ground involves differentiating between the appellant’s claims in relation to his involvement with Brigadier Vigeswaran such that they comprise two sets of claims, being:

(a)    the claim in the October 2016 submissions (set out above at [13]) that the appellant assisted LTTE Brigadier Vigeswaran to smuggle goods and materials to Sri Lanka, to collect and bring goods and materials to Brigadier Vigeswaran, and to deliver goods and materials including money on behalf of Brigadier Vigeswaran to LTTE affiliates, cadres, and the families of LTTE fighters who died in the conflict (described by the appellant as “the LTTE association and transportation claims”); and

(b)    the claim in the May 2018 submissions (set out above at [17]) that he was highly trusted by Brigadier Vigeswaran, was given high responsibilities in assisting him with logistics and operations for the LTTE in India, and was appointed as a leader of the LTTE in the Tiruppur district (described by the appellant as “the LTTE leadership and coordination claims”).

31    The appellant argues that the LTTE leadership and coordination claims in the May 2018 submissions were made in addition to, and not in derogation from or substitution for, the LTTE association and transportation claims made in the October 2016 submissions. He contends that while the Tribunal specifically rejected his claim that he was involved as a logistics coordinator as part of the LTTE chain of command in India (at [54]) and as a leader of the LTTE in the district of Tirrupur (at [56]), it failed to consider his claims that he was tasked to obtain goods and materials at the direction of Brigadier Vigeswaran and to either smuggle them to Sri Lanka, or to deliver them to LTTE supporters in India.

32    The appellant contends that the Tribunal itself differentiated between the two sets of claims by expressly accepting the appellant’s affiliation with the LTTE in India “by his own choice” (at [54] and [56]) and then finding (at [58]) that the appellant’s claim to have been associated with “the chain of operations of the LTTE in India” were an embellishment of the truth in an attempt to enhance his claim for protection. He argues that while the Tribunal did not accept that the appellant held a senior position with considerable authority and responsibility within the LTTE while living in India (at [58]), it said nothing about his claim to have smuggled goods and materials out of India for the LTTE and also to have distributed them to LTTE cadres living in camps in India on behalf of Vigeswaran.

33    The appellant submits that the Tribunal failed to address his claim to fear harm as a result of his involvement in the collection and delivery of goods and materials for the LTTE. He relies on Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at [42] where Allsop J (as his Honour then was) said that the Tribunal’s statutory task was to:

…consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.

Consideration

34    I am not persuaded that the Tribunal fell into jurisdictional error as alleged by the appellant.

35    The appellant’s claim to fear harm at the hands of the Sri Lankan authorities because of his association with the LTTE through his work for Brigadier Vigeswaran in India between 2007 and August 2009 was made in different interviews, submissions and evidence as part of his protection visa application and the related reviews. While the appellant did not always give the same account, his relevant claims may be fairly summarised as being that between 2007 and August 2009 he worked for LTTE Brigadier Vigeswaran and:

(a)    collected and delivered goods, materials and money, including fuel, medical supplies, motorcycles, garments, iron and weapons which he would drop off for smuggling to Sri Lanka;

(b)    delivered materials to the Brigadier and also delivered materials and money to LTTE affiliates, cadres and family members of LTTE fighters who had died;

(c)    was given high responsibilities in assisting the Brigadier with logistics and operations for the LTTE in India;

(d)    was appointed as the LTTE leader for the Tiruppur area of Tamil Nadu; and

(e)    assisted a senior LTTE intelligence officer and his family to resettle in a refugee camp in Chennai and then relocated him after there was trouble at the camp.

In each of those activities he claims to have been directed by Brigadier Vigeswaran.

36    As a result of those activities he contends there is a real chance he will be seriously harmed if returned to Sri Lanka, including because: (a) the Sri Lankan authorities worked closely with the authorities in Tamil Nadu who were aware of his LTTE affiliation, and it was therefore likely the Sri Lankan authorities would also be aware of his LTTE association; and (b) another Tamil who returned to Sri Lanka (whom he identified) told the Sri Lankan authorities about the appellant’s work with the LTTE in India, and the Sri Lankan authorities came looking for the appellant at his sister’s house in Sri Lanka.

37    Ground one rests on the appellant’s contention that it is appropriate to distinguish what he now describes as the ‘LTTE leadership and co-ordination claims’ from the ‘LTTE association and transportation claims’, such that they are properly understood as two distinct claims. The appellant accepts that the Tribunal dealt with the latter set of claims but contends that it did not consider the former set.

38    In my view the appellant’s attempt to distinguish the claims in this way is artificial, and on a fair reading of the Tribunal’s reasons it understood the appellant’s claims and rejected them.

39    First, it should be understood that in the interviews, submissions and evidence by which the appellant advanced the relevant claims he did not describe them as separate or distinct, and he did not use the labels that he now uses in attempting to distinguish them.

40    Second, it is clear that the Tribunal appreciated that the appellant claimed to have had significant involvement in providing logistical support for the LTTE through his association with Brigadier Vigeswaran. For example, the Tribunal said that the appellant claimed:

(a)    to have been provided with a vehicle and was directed by Brigadier Vigeswaran to go to pick up and distribute goods materials and money, including medicine and weapons for LTTE combatants fighting in Sri Lanka (at [33]); and

(b)    to have been instructed by Brigadier Vigeswaran to visit various LTTE camps and distribute money to LTTE affiliates, cadres and to family members of LTTE fighters who had died in the conflict (at [46]).

41    It is also clear that the Tribunal appreciated that the appellant claimed to have a senior role in the LTTE in relation to logistics, and to have been appointed to a leadership role in a particular district (at [53]-[54], [56] and [58]).

42    Third, and importantly, the Tribunal broadly rejected the appellant’s claim to have had any association at all with Brigadier Vigeswaran (at [55]-[59]), for the reasons that:

(a)    the appellant was only able to describe the alleged Brigadier, the key figure in this chapter of the appellant’s life, in minimal terms (at [55]);

(b)    the appellant gave very little specific information about or examples of his claimed leadership role during the Tribunal hearing, and only provided supplementary information by way of post-hearing supplementary submissions by his solicitors. When asked to describe and explain in detail his involvement with the alleged Brigadier the appellant’s responses were vague and lacked detail and substance (at [56]);

(c)    the Tribunal’s own research could find no independent source of information on the existence, activities or whereabouts of an LTTE Brigadier named Vigeswaran (at [56]);

(d)    it was implausible that the appellant would have left his safe haven in southern India and travelled to Sri Lanka in August 2009 to see his family if he was an important LTTE operative (at [58]); and

(e)    the appellant displayed no post-conflict Tamil separatist beliefs in his evidence to the Tribunal and only aspired to “live in peace” (at [59]).

Those reasons explained the Tribunal’s finding (at [54]) that the appellant’s claims “of involvement in the logistics and as part of the chain of command of the LTTE” were not credible.

43    The appellant claimed in the May 2018 submissions to have a more senior logistical role in the LTTE than he had claimed in the October 2016 submissions, but all of the roles or tasks that the appellant claimed to have undertaken were at the direction of and under the supervision of the alleged Brigadier. The Tribunal broadly rejected the appellant’s claim to have had any association at all with the alleged Brigadier and even doubted his existence. That rejection encompassed the claim that the appellant now describes as the LTTE association and transportation claims.

44    Fourth, it should not lightly be inferred that the Tribunal overlooked relevant considerations or material (Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 at [30] (Tracey J)) and I would not do so in the circumstances of the present case. The Tribunal was not required to discuss each part of the evidence in his reasons, let alone the particular way in which a claim as first described in submissions was overtaken by later more comprehensive submissions: ETA067 v Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228 at [14] (Bell, Keane, Gordon JJ). On a fair reading of its reasons it is appropriate to infer that the Tribunal’s rejection of the appellant’s claims to have been involved in “logistics and as part of the chain of command of the LTTE” (at [54]) encompassed all of the claims which the Tribunal had described earlier in its reasons. By the structure and the express language of its reasons, the reasons show that the Tribunal considered and dealt with the appellant’s claim that he was at risk of harm upon return to Sri Lanka as a former LTTE supporter who in India was involved in the supply and transport of goods to the LTTE.

45    The appellant failed to establish that the Tribunal erred as alleged, and failed to show that the primary judge fell into appealable error. This ground of the appeal fails.

Ground 2

46    In ground two of the appeal the appellant alleges that the Tribunal failed to consider his claim that the Sri Lankan authorities would consider him an LTTE affiliate upon return to Sri Lanka because of the assistance he gave to a senior LTTE intelligence officer and his family in India and his experience in India of the Tamil paramilitary group the TMVP.

47    The appellant’s claim that he assisted a senior LTTE intelligence officer and his family to be settled in a refugee camp in Chennai, India, and then assisted them to relocate when there was trouble at the refugee camp, was made in the October 2016 submissions (set out above at [13]). It is common ground that the Tribunal’s reasons make no reference to this aspect of the appellant’s claims.

48    The appellant again says that the May 2018 submissions were in addition to, and not in derogation from or substitution for the October 2016 submissions. He argues that the later submissions were made in response to a request by the Tribunal for “further information about [the appellant’s] involvement in India, specifically about his association with Vigeswaran”.

49    The appellant contends that these claims are not subsumed in more general findings and contends that the Tribunal’s failure to mention the senior LTTE intelligence officer, the assistance the appellant provided him and his family, and the harm that he suffered at the hands of the TMVP as a result, reveals that the Tribunal erred by failing to consider that claim or that component of his claims.

Consideration

50    I am not persuaded that the Tribunal erred as alleged.

51    The claim that the appellant had assisted the senior intelligence officer and his family was made in the October 2016 submissions and was one of several examples of the tasks that the appellant claimed to have undertaken for the LTTE at the direction of Brigadier Vigeswaran, in support of the claim that the Sri Lankan authorities were likely to see him as being associated with the LTTE. It was just another example and it was not advanced as a separate or stand-alone claim which required separate consideration. It is noteworthy that the appellant did not make any reference to this claim in the detailed May 2018 submissions, notwithstanding that the Tribunal had informed him that it would be helpful if he could provide further information about his LTTE involvement in India, specifically about his association with Brigadier Vigeswaran.

52    The claim was premised on the appellant having an association with the Brigadier and, as I have said, the Tribunal broadly rejected the appellant’s claim to have had an association with the alleged Brigadier and even doubted his existence. On a fair reading of the Tribunal’s reasons, that equates to a rejection of the claim relating to the assistance the appellant claimed to have provided the senior intelligence officer.

53    In my view the appellant’s claims relating to the LTTE intelligence officer are subsumed in the Tribunal’s conclusion that the appellant’s claimed involvement with Brigadier Vigeswaran was not credible. There was no requirement for the Tribunal to make a specific finding in reference to the appellant’s claim that he assisted the senior LTTE intelligence officer, when that claim was disposed of by findings of greater generality: WAEE at [46]-[47]; Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 at [46] (Besanko, Barker and Bromwich JJ).

54    To the extent that the appellant seeks to draw significance from the Tribunal’s statements (at [54] and [56]) that the appellant may have had some kind of affiliation with the LTTE in India “by his own choice”, that does not take the appellant’s case far. The Tribunal did not accept that the appellant had an association with the alleged Brigadier and the assistance he claimed to have provided to the senior LTTE intelligence officer was premised on the existence of such an association.

55    The appellant failed to establish that the Tribunal erred as alleged, and failed to establish appealable error by the primary judge. This ground of appeal fails.

CONCLUSION

56    It is appropriate to dismiss the appeal and order the appellant to pay the Minister’s costs.

Associate:

Dated:    22 April 2020