FEDERAL COURT OF AUSTRALIA

AMR15 v Minister for Immigration and Border Protection [2017] FCA 171

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

TRACEY J:

1    The appellant, AMR15, is a citizen of Sri Lanka. He applied to the first respondent, the Minister for Immigration and Border Protection (“Minister”), for a Protection (class XA) visa (“protection visa”) under the Migration Act 1958 (Cth). The appellant claimed to fear harm upon his return to Sri Lanka because of his Tamil race, his political opinion and his membership of a particular social group, which he described as “failed asylum seekers”. His application was rejected by a delegate of the Minister.

2    The appellant sought review of that decision by the former Refugee Review Tribunal (“the Tribunal”), which affirmed the delegate’s decision.

3    The appellant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court (“the FCC”). That Court had regard to the terms of the appellant’s application and his written and oral submissions in order to identify what it found were nine grounds of review. It rejected each of them and dismissed the application for judicial review: see AMR15 v Minister for Immigration and Border Protection [2016] FCCA 2200.

4    AMR15 now appeals to this Court from the decision of the FCC (although the sole ground appearing in the notice of appeal alleges “jurisdictional error” on the part of that Court). It is alleged that the FCC erred in three ways:

“(a)    By rejecting the applicant’s claim that the three integers of his claim had not been addressed.

(b)    By rejecting the applicant’s claim that the complementary protection regime had not been properly considered.

(c)    By rejecting the applicant’s claim that procedural fairness had been denied in its consideration of aspects of country information.”

I have proceeded on the basis that each of these grounds alleges appealable error on the part of the FCC in not accepting the claims of jurisdictional error which had been directed against the Tribunal.

5    The FCC examined the Tribunal’s reasons and concluded that the Tribunal had given careful consideration to the three bases of the appellant’s claim for a protection visa and to the question of complementary protection. The FCC explained the way in which the denial of procedural fairness ground had been advanced before it and dealt with that ground in the following passages:

“22.    In his written submissions to this Court the applicant says the Tribunal failed to provide him, for his consideration, aspects of country information relating to pro-government (non-state) paramilitary groups. He says that the Tribunal did not put to him adverse country information in respect of failed asylum seeker/returnee Tamils to Sri Lanka with reference to bail if taken into custody.

23.    I accept the submission of Counsel for the first respondent that the procedural fairness/natural justice provisions oblige the Tribunal to invite the applicant to the hearing and secondly, to put to him in a way that the Tribunal considered appropriate anything that the Tribunal felt that it would be reason or part of a reason for refusing him the visa. Importantly, however, the Tribunal is not obliged to disclose, for comment or response, its thought process. Further, that obligation does not apply to information provided by s 424A(3) being information of a general nature and not specifically about the applicant. Consequently, no such obligation arose where the Tribunal’s decision rested on inconsistencies between the applicant’s claim and objective or general country information non-specific to this applicant. However, in any event, and despite no obligations, it is clear from [26], [27], [28] and [29] that the Tribunal did discuss with the applicant certain country information.

24.    In all of those circumstances I reject the assertion that the Tribunal failed to comply with its obligations in s 424A and this ground of complaint is without merit.”

6    The appellant appeared in person at the hearing of his appeal before this Court. He had the assistance of an interpreter.

7    Although the appellant had been afforded the opportunity of filing written submissions in advance of the hearing, he had not done so. When invited to make oral submissions in support of his appeal, the appellant raised a number of matters, none of which related to his appeal grounds. He said that the inconsistent answers, which he had given about a person who had been shot in Sri Lanka, and to which the Tribunal referred at [18], were the result of confusing questions asked by the Tribunal. No such complaint was made at the time of the Tribunal hearing and the appellant had the assistance of an interpreter at that hearing. When asked about which aspects of country information were covered by paragraph (c) of his notice of appeal, the appellant referred to claims relating to his association with the Liberation Tigers of Tamil Eelam. The Tribunal dealt with this issue at [21] of its reasons but did not reject the appellant’s claims in this regard by reference to any country information.

8    Although the appellant did not seek to develop any submissions relating to the three grounds appearing in his notice of appeal, I will deal briefly with them.

9    The Tribunal devoted discrete sections of its reasons to each of the three integers of the appellant’s claims: see [25]-[31] (Tamil ethnicity); [32]-[35] (political opinion); and [36]-[42] (membership of a particular social group). In each instance the Tribunal recounted the claims made and then assessed them having regard to relevant country information. The Tribunal did not fail to give careful consideration to these claims.

10    The appellant’s complementary protection claims were also recorded and dealt with in a discrete section of the Tribunal’s reasons: see [44]-[49]. Again, there can be no justification for the allegation that this aspect of the appellant’s case had not been given careful attention by the Tribunal.

11    The appellant was unable to identify any “aspects of country information” which, he said, had been involved in the alleged denial of procedural fairness.

12    None of the appellant’s grounds has been made out.

13    The appeal must be dismissed with costs.

Associate:

Dated:    27 February 2017