Xavier v Minister for Immigration & Multicultural Affairs [2000] FCA 1808

FEDERAL COURT OF AUSTRALIA

Xavier v Minister for Immigration & Multicultural Affairs [2000] FCA 1808

MIGRATION – appeal – protection visa – refugee – decision of primary judge dismissing application to review decision of Refugee Review Tribunal – appellant Tamil citizen of Sri Lanka – whether leave should be granted to raise fresh ground – whether Tribunal failed to make unambiguous finding about appellant's claimed involvement with LTTE

Migration Act 1958 (Cth) s 430(1)

Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 applied JOY DANIEL XAVER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 784 OF 2000 HEEREY, MOORE AND GOLDBERG JJ 15 DECEMBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 784 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: JOY DANIEL XAVIER

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: HEEREY, MOORE AND GOLDBERG JJ

DATE OF ORDER: 15 DECEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 784 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: JOY DANIEL XAVIER

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: HEEREY, MOORE AND GOLDBERG JJ

DATE: 15 DECEMBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT:

Introduction 1 This is an appeal by Mr Joy Daniel Xavier ("the appellant") from a judgment of Merkel J dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 12 November 1999. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs of 28 May 1997 to refuse to grant the appellant a protection visa. 2 The appellant arrived in Australia on 7 February 1996. The gravamen of the appellant's claim for a protection visa, as summarised by his counsel in this appeal, was as follows. He is a Tamil from Jaffna. In October 1987, he was orphaned as a result of shelling by the Sri Lankan forces. In 1992 he was drafted into the Liberation Tigers of Tamil Eelam ("the LTTE"), where he performed various non-combatant duties. Following disputes with his Area Commander, he deserted from the LTTE in 1995. With the help of Catholic priests the appellant made his way from Jaffna to Colombo and thence to Australia. He claimed he feared persecution by the LTTE as a traitor were he to return to Sri Lanka because of his desertion. The appellant also claimed he feared being persecuted by the Sri Lankan authorities because of his LTTE activities. An aspect of this latter claim was that while he was not aware of what the authorities knew of his LTTE activities, they have informants within the community and had been regularly interviewing people who crossed between Jaffna and Colombo and would not miss the appellant. The Tribunal's decision 3 The Tribunal did not accept aspects of the appellant's account. The Tribunal made a series of findings about the appellant's claimed role in the LTTE. It found it was implausible that the LTTE would have entrusted the claimed role to the appellant who was a 16 year old. It did not accept that the appellant left the LTTE for the reasons he contended. At one point in its reasons the Tribunal said: "The Tribunal asked the applicant what role he had played in the investigation by the LTTE into the presumed leaking of information before the attack on the Mullaitivu army camp. The Applicant replied that he did what he was told. This is not consistent with the initial claim that his team participated in this investigation the outcome of which was the trigger for his unhappiness with the movement and one of the alleged reasons that he 'deserted'. The Applicant's answers at the hearing did not reflect the claims of not only participation but also importance and responsibility which had been presented originally. The Tribunal finds that the role of the Applicant in LTTE activities has been exaggerated to boost the claim that he would be punished if he were to return to Sri Lanka." (Emphasis added) 4 On three occasions the Tribunal expressed a conclusion to the effect that the appellant was not a member of the LTTE or involved with the LTTE. It first did so in the following passage: "The Tribunal, given the discrepancies, inconsistencies, implausibilities and lack of congruence of the Applicant's claims with the situation in Sri Lanka, does not accept that the Applicant was ever involved with the LTTE as claimed and that his departure from the North occurred as claimed. On the basis of these conclusions the Tribunal finds that there is no real chance of the Applicant being persecuted by the LTTE for reasons of his desertion. Further, on the basis that the Tribunal has found that the Applicant was not a member of the LTTE and has never been of any interest to the authorities, the Tribunal does not accept that the Applicant will be of interest to the authorities on the basis of his alleged LTTE membership should he return to Sri Lanka." (Emphasis added) 5 Later in its reasons the Tribunal said: "The Tribunal is further satisfied that the Applicant would not be persecuted for a Convention reason on return, given it has found that he is not a member of the LTTE or has ever been suspected as a member or supporter and has never been of interest to the authorities. Nor does it accept that he would be persecuted on arrival because he is a young man from the North." (Emphasis added) 6 Towards the conclusion of its reasons the Tribunal said: "The Tribunal finds that, in assessing the Applicant's evidence and claims as well as the country information cited, the Applicant does not face a real chance of being persecuted for his race/ethnicity should he return to Sri Lanka. The Tribunal has not accepted that the Applicant was involved with the LTTE thus it finds that there is not a real chance that the Applicant would be persecuted for reasons of his political opinion should he return to Sri Lanka." (Emphasis added) 7 One specific matter raised by the appellant concerned what might happen to him on his return to Sri Lanka. His claim was that he would, as a young Tamil male (originally from Jaffna) return from overseas to Colombo where he would be at particular risk at the hands of the authorities. On this question the Tribunal said (in a passage which immediately preceded the passage quoted in par 5 above): In respect to his arrival in Colombo, referring to the country information above pertaining to the situation for returnees, which is more applicable to the Applicant as he is not from Colombo, the Tribunal draws the conclusion that the Applicant may well be stopped and questioned at Colombo airport since he does not have extensive documentation but such detention would not constitute persecution as it is a legitimate means for Sri Lanka to deal with its security."