FEDERAL COURT OF AUSTRALIA

ASL15 v Minister for Immigration and Border Protection [2017] FCA 679

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal filed 5 September 2016 is dismissed.

2.    The appellant pay the first respondent’s costs, to be agreed or taxed.

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

REASONS FOR JUDGMENT

REEVES J:

Introduction

1    The appellant has appealed from a decision of the Federal Circuit Court: see ASL15 v Minister for Immigration & Anor [2016] FCCA 2422.

The grounds of this appeal

2    He has relied on two grounds of appeal:

1.    The Federal Circuit Court failed to find that the RRT erred in law and declined its jurisdictions on the basis of grounds and particulars stated below.

2.    The RRT has applied the incorrect test pursuant to section 91R(2) of the Migration Act 1958 Act.

Particulars:

By proceeding to a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant's liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s91R (2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protection & Another [2014] FCA 947 at(30) and (45).

(Errors in original)

The factual background

3    The appellant is a citizen of Sri Lanka. He arrived in Australia on 29 May 2012 as an “irregular maritime arrival”. He is of Tamil ethnicity and is by religious belief a Hindu. On 14 September 2012, he applied for a Protection (Class XA) visa.

4    In his protection visa application, the appellant claimed to fear harm if he were to return to Sri Lanka on the basis of his race, religion, nationality, political opinion, as a supporter of the Tamil United Liberation Front (TULF), and his imputed political opinion, as a supporter of the Liberation Tigers of Tamil Eelam. He also claimed to fear harm due to his membership of particular social groups, including young Tamil males, Tamils from the north or east of Sri Lanka, failed asylum seekers and as an illegal departee from Sri Lanka.

5    In support of his claims, the appellant relied on the following claims. First, he relied on his involvement in his uncle’s political campaign for the TULF in the 2010 elections in his home area of Batticaloa. He claimed his uncle was abducted in 2011 and subsequently fled Sri Lanka. Secondly, he claimed that, in April 2012, two Tamil paramilitary members took him to a location where he was threatened at gunpoint and asked to reveal his uncle’s location. Thirdly, he claimed that he and other young Tamil men were subjected to round ups and forced to clean the local army camp on three occasions. Fourthly, he claimed to have been beaten on two occasions by army officers.

6    In April 2013, after a delegate of the Minister (the first respondent) refused to grant him a protection visa, he applied to the Tribunal for a merits review of that decision.

The proceeding before the Tribunal

7    The appellant attended two hearings before the Tribunal, one on 21 August 2013 and the other on 6 March 2015. On both occasions, he had the assistance of a Tamil interpreter. At those hearings, he provided a number of documents in support of his claims. Following the second hearing, the Tribunal decided to affirm the delegate’s decision.

8    In its decision, the Tribunal did not accept that the appellant was a credible witness. In particular, it found:

(a)    that, while he may have assisted his uncle in the 2010 election campaign, he did not have any real profile as a member or supporter of the TULF;

(b)    that neither he nor his uncle was targeted by members of Tamil paramilitary groups, or by anyone else;

(c)    that he was not physically harmed by members of the Sri Lankan army or forced to do labouring work for it; and

(d)    he did not therefore have a well-founded fear of persecution for a Convention reason if he were to return to Sri Lanka.

9    In reaching these conclusions, the Tribunal relied extensively upon independent country information.

10    The Tribunal therefore rejected the appellant’s core claims, including his claim that there was a risk of serious harm as a result of his ethnicity, his actual or imputed political opinions, or his membership of any social group, should he return to Sri Lanka. It also found that, while he may be detained upon his return to Sri Lanka, that deprivation of liberty would be the result of the operation of a law of general application and it was not discriminatory, nor would it involve systemic and discriminatory conduct within the terms of s 91R(1)(c) of the Migration Act 1958 (Cth) (the Act) and therefore did not involve persecution for a Convention reason. Finally, the Tribunal also found that the appellant did not satisfy the requirements of ss 36(2)(a) or 36(2)(aa) of the Act and he was therefore not a person to whom Australia owed any protection obligations under the Convention.

The decision of the Federal Circuit Court

11    By an application filed in May 2015, the appellant sought judicial review of the Tribunal's decision before the Federal Circuit Court. In that application, he raised one ground of review as follows:

The RRT has applied the incorrect test pursuant to Section 91R(2) of the Migration Act 1958 Act

Particulars

By proceeding to a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant's liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protect & Another [2014] FCA 947 at (30) and (45)

(Errors in original)

It will be noted that this ground of review is identical to the second ground of appeal above.

12    The primary judge provided two separate reasons for disposing of this sole ground of review. First, as the particulars of that ground disclosed, the appellant had relied solely on the reasoning of the Federal Court in WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947 (WZAPN) and the High Court had subsequently found that reasoning to be incorrect: Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610; [2015] HCA 22. Secondly, independent of that reasoning, the Tribunal had found that, if the appellant were to be held on remand in Sri Lanka as a result of his illegal departure, that loss of liberty would not amount to persecution because it would result from the non-discriminatory application of a law of general application. Nonetheless, his Honour looked at the entirety of the Tribunal’s decision and concluded that there was “no other arguable case” of jurisdictional error apparent in it.

13    Accordingly, his Honour dismissed the appellant’s application.

The contentions

14    The appellant did not file any written submissions and when he appeared at the hearing of this appeal, he did not elect to make any oral submissions. In the Minister’s written submissions, he submitted that, for the reasons given by the primary judge, the appellant’s sole ground of appeal did not identify any jurisdictional error in the Tribunal’s decision and therefore did not identify any appealable error in his Honour’s reasons.

Consideration and conclusion

15    In my view the Minister’s submission is plainly correct. While, in form, the appellant’s notice of appeal contains two paragraphs, in substance it raises one ground – that the jurisdictional error the Tribunal made was that identified in the judgment in WZAPN. However, as the primary judge correctly observed (see at [12] above), WZAPN was overruled by the High Court and the subsequent Full Court judgment in SZTEQ, to the contrary effect of WZAPN (SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497; [2015] FCAFC 39), was held to be correct: Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610; [2015] HCA 22 at [5] per French CJ, Kiefel, Bell and Keane JJ. It necessarily follows that the primary judge made no error in recording and acting on these judgments, both of which were binding on him. The appellant’s sole ground of appeal must therefore be rejected and his appeal dismissed. I will so order.

Associate:    

Dated:    19 June 2017