FEDERAL COURT OF AUSTRALIA

CTP15 v Minister for Immigration and Border Protection [2018] FCA 296

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

3.    Pursuant to ss 37AF(1) and 37AG(1) of the Federal Court of Australia Act 1976 (Cth), the identity of the appellant be suppressed from the transcript of the hearing.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

LEE J:

a    background

1    By notice of appeal dated 19 July 2017, the appellant appeals from a decision of the Federal Circuit Court to dismiss an application for judicial review of a decision of the second respondent (Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Protection (Class XA) visa (Visa). The primary judge heard the appellant’s application on 17 June 2016 and delivered reasons for its dismissal on 30 June 2017 (primary judgment).

2    The primary judgment (at [23]) indicates that before the primary judge, the appellant pursued only one ground of review, submitting that the Tribunal’s consideration of whether he faced harm on the basis of his Tamil ethnicity “was limited to the Makkal Viduthalai Pulikal and his interest in joining the Sri Lankan Police Force”.

3    The contention made by the appellant was that the Tribunal failed to consider whether he could suffer persecution, or serious or significant harm on the basis of his Tamil ethnicity “throughout Sri Lanka”. It was suggested that by failing to consider what was described as “every integer of his claim”, the Tribunal fell into jurisdictional error by failing to carry out its statutory task under s 36(2) of the Migration Act 1958 (Cth).

4    In the notice of appeal filed in this Court, the sole ground of appeal reflects the way in which the matter was conducted below, and is as follows:

His Honour erred when he did not find that the Tribunal made an error of jurisdiction when it did not consider an integer of his claim.

5    For reasons that will become obvious, it is unnecessary for me to deal in detail with the background of this matter prior to it coming before the primary judge. In short compass, the appellant, a Sri Lankan citizen, arrived in Australia in the middle of 2012. He applied for the Visa in November 2012, which was refused by the delegate in October 2013. This decision, as explained above, led to the proceedings the subject of this appeal.

6    As the primary judge explained in [8] of the primary judgment:

The applicant claimed to have a well-founded fear of persecution by reason of:

a) his Tamil ethnic extraction;

b) the perception that he has an imputed political opinion of being opposed to the Tamil Makkal Viduthalai Pulikal;

c) his membership of a particular social group, that is a Tamil who had sought employment with the government; and

d) his status as a failed asylum seeker.

7    In broad terms, the appellant claimed that Tamils in Sri Lanka continue to suffer a level of violence and discrimination that amounts to serious harm, which is unable to be reduced through relocation or State protection, and is likely to persist. Moreover, the appellant claimed that members of the Tamil Makkal Viduthalai Pulikal (TMVP) had abducted and assaulted him in an attempt to recruit him, and that he escaped and hid in his uncle’s house. He then claimed that members of the Sri Lankan intelligence, Sri Lankan army and the TMVP interrogated and demanded money from his father and that his father received threatening letters. The details are set out in the primary judgment at [9]-[13].

8    As the primary judge then explained at [15]-[22], the Tribunal, after considering the appellant’s evidence, did not accept that the appellant had a well-founded fear of persecution on the basis of his Tamil ethnicity were he to return to Sri Lanka, and specifically rejected the contentions of the appellant that he was abducted, detained and questioned or subjected to subsequent threatening behaviour. As the primary judge correctly observed, the Tribunal expressed that it had some concerns with the appellant’s credibility, pointing to what it considered to be multiple inconsistencies in his evidence.

b    consideration

9    I have already set out at [4] above the sole ground of appeal relied upon by the appellant (which does not differ in any material way from that considered and rejected by the primary judge). Despite directions being made by a Registrar of this Court on 25 July 2017, a copy of which the appellant concedes was sent to the address for service identified in the notice of appeal, the appellant has not provided any written submissions elaborating on why he says the primary judge fell into recognisable error, nor were any oral submissions made at the hearing of the appeal to support the ground of appeal.

10    The insuperable difficulty for the appellant is that, as the primary judge correctly observed, a review of the Tribunal’s decision makes it apparent that it considered all aspects of the appellant’s claim to fear harm on the basis of his ethnic extraction. In particular, the Tribunal considered:

(a)    the appellant’s claims regarding the TMVP, and his endeavours to work for the police force: at [11], [14]-[19], [25]-[44], [48], [52], [54]-[58], [60]-[72] and [77]-[83];

(b)    the appellant’s claims to fear the government, including by reference to his seeking asylum: at [11], [18]-[22], [25], [27]-[32], [46]-[57], [61], [63]-[64], [68] and [72]-[82]; and

(c)    the political, social and security situation for Tamils throughout Sri Lanka: at [21]-[22], [46]­[50], [53], [61], [63]-[64], [70] and [77]-[82].

11    There is no basis for the suggestion that the primary judge fell into error in concluding that the Tribunal did consider the appellant’s fear of harm throughout Sri Lanka by reason of his Tamil ethnicity and that the Tribunal had regard to the evidence before it, including the country information, and found that there was no risk of persecution or real harm on the basis of the appellant’s Tamil ethnicity: see primary judgment at [27].

12    It follows that no error is disclosed.

13    Prior to disposing of the appeal, I should mention one further matter. After I made a number of attempts to elicit from the appellant any oral submissions in support of his claim, he indicated that he had not had the opportunity of obtaining funds to retain legal advice and that he wished to have a further opportunity of obtaining such advice. Although the application was not made in terms, I characterised what was put to me as an application for an adjournment. In substance, the appellant’s contention was that he wished to have another opportunity of re-agitating his case before the Tribunal, presumably with the benefit of having obtained legal advice.

14    No material was put before me which would lead me to a conclusion other than that the appeal is devoid of merit, and that it would be contrary to the case management objectives in Part VB of the Federal Court of Australia Act 1976 (Cth) to prolong this litigation. It is for this reason, together with the fact that the appellant had received notification not only of the hearing today, but also of the interlocutory orders made by the Registrar in July 2017, that I refused (what I characterised as) an adjournment application.

c    conclusion and orders

15    The appeal must be dismissed with costs.

Associate:

Dated:    14 March 2018