FEDERAL COURT OF AUSTRALIA

MZAMH v Minister for Immigration and Border Protection [2016] FCA 477

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to amend the Notice of Appeal by substitution for the grounds originally included in that notice, grounds (1)(a) and (2) set out in the Amended Notice of Appeal handed up to court on 5 May 2016.

2.    The appeal be dismissed.

3.    The appellant pay the respondent Minister's costs.

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

REASONS FOR JUDGMENT

JESSUP J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia given on 21 December 2015 in which the appellant’s application for judicial review of a decision of the Refugee Review Tribunal made on 25 September 2014 to affirm an earlier decision of a delegate of the respondent Minister not to grant the appellant a Protection (Class XA) visa was dismissed.

2    In the Federal Circuit Court, the appellant had the following grounds of judicial review:

(1)    The [T]ribunal made a jurisdictional error in the sense that it did not give relevant consideration to the applicant’s claim to the following:

(a)    Tribunal did not consider and/or failed to understand the close connection between the Applicant’s father and General Sarath Fonseka.

(b)    The Tribunal did not consider the applicant as a member of a particular social group, namely being a son of the former Colonel of Sri Lanka who is a strong supporter of the defeated [G]eneral.

(2)    The Refugee Review Tribunal made a jurisdictional error in regards to giving irrelevant consideration that his father was not detained arrested or otherwise subject to any formal investigative or legal proceedings in Sri Lanka during the political campaign and after General Sarath Fonseka’s arrest.

At least in terms, neither of those grounds is now sought to be agitated.

3    Rather, the appellant has sought to rely upon the following grounds of appeal by way of an amendment for which he needed leave:

(1)    The Federal Circuit Court erred in not finding that the RRT in fact made jurisdictional errors by failing to address the following questions which it was required to address in light of its findings as to political instability and treatment of opposition supporters during election campaigns without police protection:

(a)    Whether the [a]ppellant had a well-founded fear of persecution by reason of lack of governmental protection from persecution;

(b)    Whether the [a]ppellant had a well-founded fear of persecution during future election campaigns.

(2)    The Federal Circuit Court erred in not finding that the RRT in fact made a jurisdictional error by failing to apply the correct standard of scrutiny to the [a]ppellant’s claims in support of his contention that he had a well-founded fear of persecution by reason of his father’s relationship with General Fonseka and applying an impermissibly strict standard of scrutiny to these claims and this contention[.]

4    When leave to amend was sought by counsel for the appellant, counsel for the Minister opposed the grant of leave in relation to ground 1(b), but otherwise did not stand in the way of the court granting the leave which was sought. I propose to deal with the appeal upon the basis that grounds 1(a) and 2 are relied on by the appellant, and I shall give consideration to whether the leave which the appellant seeks in relation to ground 1(b) should be granted.

5    The passage in the reasons of the Tribunal by reference to which the new ground 1(a) would proceed is para 34 as follows:

The Tribunal accepts that the security situation in Sri Lanka is at times unstable and that this is exacerbated during election periods. The Tribunal further accepts that opposition election candidates and their supporters are on occasion subjected to harassment and violence that is politically motivated and that the Sri Lankan police may be perpetrators of that conduct and/or withhold protection from opposition politicians and their supporters. However, given the Tribunal’s findings about the applicant’s own political activities set out above, the Tribunal does not accept there to be a real chance that he will be targeted for serious harm amounting to persecution for any reason relating to his own political beliefs or activities if he returns to Sri Lanka now or in the reasonably foreseeable future, rather the Tribunal considers that chance to be remote.

6    The reference to the Tribunal’s findings about the appellant’s own political activities in para 34 picked up a series of much more detailed findings and deliberative considerations which the Tribunal had made and given to the appellant’s own personal circumstances. It was in the light of those findings that the Tribunal made the observation in para 34 that, whatever might have been the general position in Sri Lanka, the appellant himself was not faced with a real chance of being targeted for serious harm amounting to persecution for any reason relating to his own political beliefs or activities.

7    To the extent that I was invited by counsel for the appellant to conclude that the Tribunal had fallen into jurisdictional error by failing to provide a logically consistent chain of reasoning which linked its earlier findings about the appellant, as an individual, with its conclusions based upon the applicability of those findings to the general environment referred to in para 34, I have no hesitation in rejecting that invitation. Specifically, I reject the submission embodied in ground 1(a) that the Tribunal failed to address the question whether the instability existing in Sri Lanka at times was such as presented for the appellant, as an individual, a real chance of being targeted for serious harm amounting to persecution for any reason relating to his political beliefs or activities.

8    I need only add that my attention was drawn to no instance in which the appellant, as an individual, was given concrete cause to apprehend that the protection of the law enforcement authorities in Sri Lanka had been or would be denied to him if he was confronted by circumstances of the kind referred to in para 34.

9    With respect to the proposed ground 1(b), nothing in the reasons of the Tribunal, or otherwise in the material in the case, to which my attention has been drawn this morning provides any basis for a supposition that the existence of a well-founded fear of persecution particularly during election campaigns was a distinct part of the appellant’s case in the Tribunal, and it is not suggested that it was ever part of his case in the Federal Circuit Court. The basis of this proposed ground, it seems, is the first sentence in para 34 to which I have already referred. The primary Judge set out that paragraph in a slightly different context, and described it as derivative of country information that had been placed before the Tribunal by the appellant. Insofar as it was country information of a general nature, it seems that the Tribunal accepted what the appellant said. The only step which remained for the Tribunal to take was to consider whether the appellant himself had a well-founded fear of persecution in an environment of election campaigns conducted in the future.

10    The whole of the Tribunal’s reasons were, of course, directed towards a prospective state of affairs, that is to say, whether the appellant had a genuine fear that he would be persecuted if he were obliged to return to Sri Lanka. There cannot be any suggestion, and none was advanced, that the Tribunal misapprehended its function in that regard. What it appears to have done is to have acknowledged the country information, but held that it did not give rise to a fear of the kind referred to in the Refugee Convention in the case of the appellant himself. From all that appears, the prospects of ground 1(b) succeeding would be insignificant at best. And since it was not an argument presented to the Federal Circuit Court, I am disposed to deal with it by refusing the appellant’s application for leave to incorporate it in his Notice of Appeal.

11    With respect to ground 2 in the Amended Notice of Appeal, what the appellant sought to do was to invoke the authority of some previous judgments of this court which deal with the treatment which Tribunals need to give to circumstances in which applicants for protection visas might not have any one strong basis for a fear of persecution of the kind claimed, but might rely upon a variety of lesser, or miscellaneous, circumstances which, taken together, might justify the conclusion that such a fear was well-founded.

12    Although the broad thread of jurisprudence upon which the appellant here relies cannot be gainsaid, there is nothing in the facts of the case that would go close to making it relevant to his own circumstances. I am not at all sure that ground 2 articulates an available head of jurisdictional error to the extent that it focuses upon a particular standard of scrutiny which the Tribunal was supposed to have been obliged to apply. But, accepting that, in the right case, an error of the kind alleged might cross the bar of jurisdictional error, I am quite unpersuaded that the present case falls into that category.

13    Counsel for the Minister has drawn my attention to a number of passages in the Tribunal’s lengthy and systematic reasons which leave no doubt but that the process by which it arrived at its conclusion, not only general but also specifically in connection with the appellant’s father’s relationship with General Fonseka, was, as a matter of administrative law, quite beyond reproach. In the respects dealt with in ground 2, my conclusion is that the Tribunal did not fall into jurisdictional error.

14    For the reasons I have given, the appeal must be dismissed.

Associate:

Dated:    17 May 2016