FEDERAL COURT OF AUSTRALIA

CRE15 v Minister for Immigration and Border Protection [2017] FCA 607

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is 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

BROMBERG J:

1    The appellant is a citizen of Sri Lanka who arrived in Australia by boat on 22 July 2012. On 27 November 2012 the appellant applied for a Protection (Class XA) visa. That application was refused by a delegate of the first respondent (“Minister”) on 11 October 2013. The appellant then applied to the Administrative Appeals Tribunal (“Tribunal”). On 30 September 2015 the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa. The appellant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia. The subject of this appeal is the primary judge’s dismissal of that application on 14 December 2016. The primary judge’s judgment is published as CRE15 v Minister for Immigration [2016] FCCA 2997.

2    The primary judge’s task was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The task of this Court is to determine whether the primary judge’s judgment is affected by appellable error: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

3    Before the primary judge, the appellant pressed one ground of appeal. The essence of that ground was that the Tribunal constructively failed to exercise its jurisdiction because it failed lawfully to consider a claim made by the appellant or significant evidence in support of that claim. Particulars of that ground of review were set out in four numbered paragraphs. In this appeal, the appellant raised essentially the same ground, the only difference being that the ground now asserts error on the part of the Federal Circuit Court in not finding that the Tribunal had failed to consider the claim made by the appellant before the Tribunal. The ground of appeal is in the following terms:

The Federal Circuit Court at first instance erred in not finding that the Tribunal constructively failed to exercise its jurisdiction, by reason that the Tribunal failed lawfully to consider a claim made by the Applicant to satisfy the criteria for a protection visa under section 36 of the Migration Act 1958 ("the act"), or significant evidence in support of that claim.

Particulars

a.    The applicant made various claims to fear harm in Sri Lanka. In particular, the applicant claimed that, as a Tamil, as (potentially) a failed asylum seeker who had been in a Western country for a long period of time, and as a person who had had certain adverse interactions with Sri Lankan authorities, faced a real chance of being harmed by Sri Lankan authorities on his return to Sri Lanka.

b.     In particular, the applicant claimed that he faced a real chance of being harmed during a process of interrogation that the Sri Lankan authorities would conduct upon his return, whether or not the Sri Lankan authorities ultimately concluded that he was or was not a person of interest due to actual or perceived LTTE connections.

c.    The applicant also claimed that he faced a real chance of being harmed having    regard to country information to the effect that: (i) persons detailed by Sri Lankan    authorities (including "normal" Tamils with no connection to the LTTE) had been tortured for the purpose of extracting false confessions that they had assisted the LTTE; (ii) persons had been tortured by Sri Lankan authorities so as to instill terror in the broader Tamil population and to discourage involvement with the LTTE; (iii)persons had been detained by Sri Lankan authorities on abominable conditions and deprived of basic human rights; (iv) person had been wrongly linked to the LTTE by the Sri Lankan authorities, and only discovered that their friends, acquaintances, work colleagues, employers and even family members were in some way connected to the LTTE when they themselves were detained and interrogated.

d.     The Tribunal failed to consider these claims, or to consider this significant evidence in support of his claims.

4    In both the Federal Circuit Court and before this Court, the Minister accepted that each of the claims particularised in paragraphs (a) to (c) in the ground of appeal were raised by the appellant before the Tribunal. The Minister’s fundamental point is that there is no basis for the contention that any of those claims or significant evidence in support of them were not considered by the Tribunal. The Minister referred to the reasons of the Tribunal and contended that, bearing in mind that the Tribunal’s reasons must be read as a whole, the claims particularised in paragraphs (a) and (b) were addressed by the Tribunal at [45]–[49] of its reasons and that the claims referred to in paragraph (c) were addressed at [33]–[44].

5    The appellant was not legally represented but appeared with the assistance of an interpreter. The appellant made some submissions which sought to address the merits of some aspects of his claim for a protection visa. The submissions failed to address the ground of appeal in this Court and, in particular, why it is that the appellant contends that the Tribunal failed to consider claims made by him or significant evidence in support of those claims.

6    As the appellant was legally represented before the primary judge where the same ground was agitated, I have had regard to the submissions made on the appellant’s behalf before the primary judge. The contention which was there made is set out in the reasons of the primary judge at [36]–[38]. Her Honour’s rejection of that contention is set out at [45]–[67].

7    There is no apparent error revealed in the primary judge’s resolution of the contention raised by the appellant. Nor has anything been otherwise raised by the appellant on the appeal suggestive of any appellable error. Read as a whole, the Tribunal’s reasons demonstrate that each of the particularised claims relied upon by the appellant, and significant evidence in support of them, were considered by the Tribunal.

8    It follows that the appeal must be dismissed. The parties agreed that costs should follow the event. I will make orders dismissing the appeal and requiring the appellant to pay the Minister’s costs of the appeal.

Associate:        

Dated:    1 June 2017