FEDERAL COURT OF AUSTRALIA

CTK15 v Minister for Immigration and Border Protection [2018] FCA 146

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the costs of the first respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA) given on 18 August 2017.

2    The primary judge dismissed an application made on 22 December 2015 for judicial review of a decision of the second respondent (Tribunal) given on 24 November 2015 which affirmed the decision of a delegate of the first respondent (delegate) not to grant the appellant a Protection (Class XA) visa.

3    The appellant is a citizen of Sri Lanka and is of Tamil ethnicity and Hindu religion. He departed Sri Lanka unlawfully on 11 July 2012. He arrived in Australia as an “unauthorised maritime arrival” on 25 July 2012 and applied for a protection visa on 19 November 2012. The delegate refused to grant the protection visa on 6 January 2014.

4    The notice of appeal to this Court contains two specific grounds. The appellant otherwise relies on the grounds raised before the primary judge.

5    The appellant filed no written submissions. He appeared at the hearing of the appeal. In oral submissions, the appellant said he did not really know why the Tribunal refused his application. He said that if he went back to his country he would certainly face persecution. He asked the Court to consider his age. He also said he had health issues.

6    The Minister filed written submissions dated 15 February 2018. His legal representative made brief oral submissions.

7    The first ground concerns poor prison conditions in Sri Lanka and is to the effect that the Tribunal should have held that pain or suffering is intentionally inflicted if a person does an act or omission knowing it is possible that pain or suffering will result. This ground cannot succeed in light of the decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405. I reject this ground.

8    The second ground is to the effect that the Tribunal did not invite the appellant to comment on or respond to the adverse information on which it relied to refuse the appellant’s protection visa application.

9    This was considered by the primary judge at [25] and following. The primary judge said the immediate difficulty was that the ground did not particularise the “information” that it was said the Tribunal failed to put to the appellant for comment.

10    Having considered, at [27], the scope of the obligation in s 424A of the Migration Act 1958 (Cth), the primary judge said there was nothing to indicate that there was any information that the appellant gave to the delegate at the interview which could be described as “information” that the Tribunal considered would be the reason, or part of the reason, for affirming the delegate’s decision. Further, the Tribunal’s subjective views of the evidence before it, its thought processes and its determinations were not “information” for the purposes of s 424A. The primary judge concluded that this ground did not disclose jurisdictional error on the part of the Tribunal. I see no basis for thinking that the primary judge erred in this respect. I reject this ground.

11    The primary judge considered other grounds at [30] and following.

12    As to the ground that the Tribunal should have invited the appellant to a second hearing, the primary judge said, at [32], that the Tribunal’s decision record revealed that the “live” issues that were dispositive of the review were aired at the hearing with the Tribunal and there was nothing before the FCCA to indicate that the Tribunal failed in its relevant obligation in relation to a hearing. At [33], the primary judge said that as the obligation in s 424A was not enlivened, there was no need for the Tribunal to give the appellant any further opportunity to comment on or respond to any “information”. The primary judge dismissed this ground. I see no basis for thinking that the primary judge erred in this respect. I reject this ground.

13    As to the ground that the Tribunal failed to consider the appellant’s claims under the complementary protection criterion, the primary judge said, at [34], that no particulars were provided and the complaint could not be made out because no legal error was apparent on the evidence before the FCCA. At [35], the primary judge referred to the Tribunal’s findings and analysis in relation to complementary protection at [61]-[69] of its reasons. There was nothing in the Tribunal’s decision record to suggest that the Tribunal misunderstood or misapplied the relevant law in relation to its consideration of the complementary protection criterion.

14    Further, the primary judge said, at [37], to the extent that the Tribunal was required to consider matters under the complementary protection criterion, in addition to the matters that it was required to consider under the Refugees Convention criterion, the Tribunal plainly did so.

15    I see no basis for thinking that the primary judge erred in this respect. I reject this ground.

16    As to the ground concerning the Sri Lankan Immigrants and Emigrants Act 1949, and leaving aside the SZTAL ground which is ground 1, the primary judge said, at [41], that the ground possibly sought to complain that the enactment of the Immigrants and Emigrants Act was itself an act within the definition of “significant harm” in s 36(2A) and s 5 of the Migration Act. The Tribunal addressed this issue and found that the Immigrants and Emigrants Act was a law of “general application”. The primary judge said, at [43]:

For the purposes of the complementary protection criterion (s.36(2)(aa) of the Act), I note and respectfully agree with the Minister’s reliance on the reasoning of the Court in BNS15 v Minister for Immigration and Border Protection & Anor [2015] FCCA 2877 at [7], and as (sic) that matter was accepted on appeal (BNS15 v Minister for Immigration and Border Protection [2016] FCA 61 at [13]). I note the Minister’s specific references to those authorities (at [23]-[24] of the Minister’s written submissions) and in my respectful view, what was said there also applies equally in the current circumstances.

17    At [44], the primary judge said that, in any event, the contention that the enactment of the Immigrants and Emigrants Act would constitute “significant harm” was not a claim expressly made or clearly arising in what was presented in the appellant’s case before the Tribunal.

18    The primary judge held that this ground was not made out. I see no basis for thinking that the primary judge erred in this respect. I reject this ground.

19    The appellant has failed to show that the primary judge erred in finding that there had been no jurisdictional error on the part of the Tribunal. The matters raised in oral submissions by the appellant, which I have set out at [5] above, do not go to establishing such errors.

20    The orders I make are that the appeal be dismissed and that the appellant pay the costs of the first respondent, the Minister, as agreed or assessed.

Associate:

Dated:    22 February 2018