Applicants in V 722 of 2000 v Minister for Immigration & Multicultural Affairs [2002] FCA 1059

FEDERAL COURT OF AUSTRALIA

Applicants in V 722 of 2000 v Minister for Immigration & Multicultural Affairs [2002] FCA 1059

APPLICANTS IN V 722 OF 2000 v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 722 of 2000

RYAN J

26 AUGUST 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 722 of 2000

BETWEEN: APPLICANTS IN V 722 OF 2000

Applicants

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 26 AUGUST 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The applicants have leave further to amend their application to conform with the draft further amended application filed on 17 July 2001. 2. The application be dismissed. 3. The applicants pay the respondent's costs of the application, such costs to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 722 of 2000

BETWEEN: APPLICANTS IN V 722 OF 2000

Applicants

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 26 AUGUST 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 There are before the Court applications for review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a refusal by a delegate of the respondent Minister to grant protection visas. The applicants are Sri Lankan nationals of Tamil ethnicity who arrived in Australia on 12 March 2000. The adult applicants are husband and wife. The husband left Sri Lanka in 1981 and worked in Qatar until 1986. Thereafter he became a resident of Palermo in Italy. During his residence in Italy he returned to Sri Lanka on three occasions, on one of which, in 1992, he married the second applicant. He returned to Italy in 1992 and his wife joined him there in 1993. Subsequently, two children, the third and fourth applicants were born to them in Italy. The first applicant has, from 1986 to 2000, had a succession of work permits issued by the Italian authorities. The most recent "Foreigners' Permit of Stay" was in evidence before the Tribunal and in its English text noted his date of entry into Italy as 25/07/86 and apparently recorded him as the holder of passport number M1466597, valid until 15/11/01. The document further noted that the applicant's first permit had been issued on 6/03/1987 valid until 11/11/1992, and the last "renewal/revision" was recorded as having issued on 5/12/1996, valid until 11/11/2000. 2 The male applicant has a number of relatives, only two of whom, his mother and one brother, still live in Sri Lanka. Other brothers and sisters have sought and obtained asylum in Switzerland and the United Kingdom. The first applicant claims that one of his brothers had been kidnapped in Sri Lanka by the Liberation Tigers of Tamil Elam ("LTTE") in 1992 at about the time when the first and second applicants were married. 3 The Tribunal summarised the adult applicants' claims in these terms; "He claims not to have had any difficulties in Italy until he was invited by a Tamil social club to take part in a variety program which included music recitals and drama. The drama highlighted the plight of the Tamils and was not supportive of the cause and means employed by the LTTE. The staging of this drama angered the LTTE. They confronted the applicants and since then harassed them. He claims that the LTTE is involved in several activities in European countries and was punitive to people who did not comply with their demands. The applicants were concerned over these developments in their lives and decided to flee the situation or maybe move to another region with a different employment sponsorship. While in Australia they learned "of more threats to them from the LTTE through the identity and involvement of the first applicant's brother in Sri Lanka and identifying the second applicant to Elaruban [her brother] with whom the LTTE was having a constant friction." The applicants did not seek asylum at any time in Italy or in any other country. Their right to enter or remain in Italy arose out of the employment permits dependent on the sponsorship of the employers. The applicants claim that "once the LTTE noted their absence and wanted to know their whereabouts they started ringing the employers and hassled them so much, they realised that it will be unnecessary trouble for them and did not want the applicant for further employment". The applicant wife, in addition to the joint claims as above, claimed that she lived in Jaffna until her departure in, 1992. At the time of the Indian Peace Keeping Force's (IPKF) arrival she was involved with the LTTE. She provided assistance to the movement. Her brother Elaruban became committed full-time and was in their camps. The applicant wife claims that in her village there was another girl with the same name (Elamathy) who was a fully-fledged member of the LTTE. The IPKF had information about the second Elamathy and targeted the area. This caused the applicant wife to also be identified as a sympathiser of the movement. "Serious trouble and harassment began to occur to the [applicant wife] and her mother because of the active interest with which IPKF hunted Elamathy. These searches identified Elaruban as well. Sensing the danger, to a young girl like the [applicant wife], the mother and other siblings managed to bring her out of Jaffna, hurriedly married her to the [applicant] who was then in Italy, and had her out of the country and out of danger." After the departure of the applicant wife, Elaruban developed disagreements with the LTTE and fled to Germany." 4 The claim about difficulties encountered in Italy after involvement in Tamil theatricals was expanded during the oral hearing before the Tribunal which recounted it as follows; "He claimed that between 1988 and 1993 he had a Tamil play group and put on plays once or twice a year. He claims that on 1 November 1999 he staged a play which was critical of the way in which an election for a representative of the Tamil community to the Palermo authorities had been conducted; such election having been won by an LTTE representative, one from the "Tamil Coordinating Group" which the Tribunal was assured was a front for the LTTE. On that night the play was disrupted by people in the audience and had to be abandoned. There were 700 people in the theatre in via Dante. On the next evening four or five people came to his house and warned him to stop criticising the LTTE. One of the group, named Metha, asked him later by phone to act in another play which was supportive of the LTTE. He refused but they kept pressuring him to do so. They continued to harass him and began to ring him at work, even after the play was performed by someone else." 5 After noting that the applicants' claims related essentially to a fear of persecution in a third country, Italy, and were governed by sub-ss (3), (4) and (5) of s 36 of the Migration Act 1958 ("the Act"), the Tribunal made these findings; "The applicants have a right to return to Italy. Their temporary residence permit (Permesso di Soggiorno) expires on 11 November 2000. They have also applied for a permanent residence permit (Carta di Soggiorno) in May 1998 and although they have not received a decision on their application the Tribunal notes that Italian Law No 40 of 6 March 1998 made provisions for such an application and that no adverse inference can be drawn from the non-receipt of the decision up to this point since this law was an attempt to regularise the status of hundreds of thousands of foreigners in Italy, as was reported in the Italian press at the time." 6 The Tribunal then indicated that it gave no weight to a letter from the first applicant's last Italian employer which (in translation) recited; "… that Mr Nanthakumar SINNATHURAI, born on 1/11/1961 in Jaffna (CLM) moved out of our home as during working hours he was getting too many phone calls from strangers who were continuously interrupting his work at our place. After he left us we know that countrymen of his were looking for him to ask him for money. They even wanted him to work as an actor to make money for the LTTE. We furthermore do not want him to come back to work for us as we are afraid of these people and he also does not want to return to Italy because he is afraid that his countrymen will do him and his family harm." 7 The Tribunal discounted that letter because it had been written at the instigation of the first applicant after the applicants had been invited to a hearing by the Tribunal and was initially unsigned. The Tribunal further criticised it because "it mimics the applicant's claims in relation to his situation in Italy and adds that his pursuers wanted money from him, which has not been claimed by the applicant at any stage of the process". The Tribunal then made this further finding about the effect of what it regarded as relevant Italian immigration law; "Even if the applicant had been sacked from his work or was no longer wanted by that employer, this does not vitiate the right to enter and reside in Italy. Art 4 of law No. 40 of 6 March 1998 states inter alia that holders of a current permit need only notify the border control of their intention to re-enter. The Tribunal finds that the above establishes that the applicant has a right to re-enter and reside in Italy." 8 The Tribunal then proceeded to consider whether the applicants had a well-founded fear of persecution, for a Convention reason, in Italy. It accepted that the first applicant may have been involved in Tamil theatricals and may have been approached by the LTTE and continued; "The applicant had an Australian visitor's visa issued to him on 23 November 1999. He did not leave until 12 March 2000. This does not indicate to the Tribunal a situation of intolerable persecution as adduced by the applicant. The applicant said at the hearing that they did not leave Italy in December as originally intended because they were exploring moving to some other region of Italy, yet also at the hearing, the applicant stated that they obtained the visa to come to Australia because the applicant wife's mother was not well. The applicant further said at the hearing that he did not resort to calling the police because he was afraid of reprisals by the LTTE. There is no evidence before the Tribunal which would indicate that the Italian authorities would not provide protection to the applicant should he require it." 9 Reference was then made to a claim that the applicants had learned, since arriving in Australia, that LTTE activists in Palermo had become aware of the links between the applicants and the first applicant's brother and his wife's brother, who were each viewed as hostile to the LTTE. The Tribunal rejected this claim saying; "This knowledge, it was argued, will lead to their being persecuted if they return to Italy. Without discussing the extraordinary circumstance by which these two links were discovered only when the applicants absented themselves from Italy for a few months, even though they have been residing there for over a decade, the Tribunal finds implausible and does not accept the proposition that the applicants would be subject to Convention persecution, in Italy, by virtue of being brother and sister to people who may not be liked by the LTTE and whose interaction with the LTTE concluded many years before. The Tribunal also does not accept that the applicant has lost his employment because of the LTTE. Firstly, it is implausible that a long term employee, regularly employed (as evidenced by the receipts for superannuation and other benefit deductions made by the employer and presented to the Tribunal at the hearing) would be sacked even if phone calls were being made to the employer. It must also be noted that these phone calls, if they were being made were being made to the number where the applicant worked as domestic staff; the applicant stated that the employer was not happy about having his employee's work distracted by the phone calls. Secondly, even if the applicant has lost this particular job, the loss of it does not amount to convention persecution." 10 The Tribunal next referred to "country information" about the activities of the LTTE outside Sri Lanka among large expatriate communities, particularly in Britain, Germany, Italy and Canada. The literature suggested that those activities were focused on fund-raising and the Tribunal, although noting the applicants had not claimed to have been approached for money for the LTTE, accepted that there is some harassment of Tamils from the LTTE for the purpose of collecting money. 11 The Tribunal concluded its findings by reciting; "The Tribunal does not accept that the applicant's brother, and brother-in-law's repudiation of the LTTE would lead to his or his wife being subjected to harm of the type and severity to constitute Convention persecution in Italy even if the LTTE in Italy were aware of it. It therefore finds that there is no real chance that the applicants would be persecuted for a Convention reason should they return to Italy. The Tribunal notes that their status in Italy is not that of refugees; it notes further that Italy is a signatory to the Convention and there is no evidence before the Tribunal which would indicate that the applicants would be returned to Sri Lanka by Italy. The Tribunal also notes that the applicants have an application for permanent residence pending. In summary, the Tribunal finds that given the fact that the applicants have a right to reside in Italy and that their fear of persecution in Italy is not well‑founded, Australia does not have protection obligations in relation to the applicants."