FEDERAL COURT OF AUSTRALIA

CFN15 v Minister for Immigration and Border Protection [2018] FCA 169

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

GILMOUR J:

1    I made orders on 23 February 2018 at the conclusion of the hearing of this appeal dismissing it with costs. The following are my reasons for doing so.

2    This is an appeal from the judgment and orders of the Federal Circuit Court delivered on 19 January 2017 in which the primary judge dismissed, with costs, an application to review a decision of the Administrative Appeals Tribunal (AAT) delivered on 31 March 2014: CFN15 v Minister for Immigration [2017] FCCA 75.

3    Both the applicant and the first respondent (Minister) appeared at the hearing of the appeal. The applicant did not file written submissions, but made oral submissions at the hearing with the assistance of a Tamil interpreter. The first respondent made both written and oral submissions.

Background

4    The appellant is a Sri Lankan national who arrived in Australia on 18 May 2012 as an unauthorised maritime arrival. He applied to the Department of Immigration (department) for a Protection (Class XA) visa on 13 August 2012. The delegate conducted an interview with the appellant on 9 August 2012 with the assistance of a Tamil interpreter.

5    He claimed to fear harm on the basis of his Tamil ethnicity, his membership of a particular social group and his real or imputed political opinion.

6    The appellant’s claims, in summary, were that he:

(a)    is Tamil and Hindu;

(b)    worked with his father as a fisherman since completing school;

(c)    was harmed in the past by Sri Lankan authorities because he is Tamil and the Sri Lankan authorities believe he was connected to the LTTE. On different occasions, the Sri Lankan authorities stopped him from fishing, took his catch from him and took his motorcycle; and

(d)    fears that he would be targeted by the Sri Lankan authorities on suspicion of being a collaborator with the LTTE, as a Tamil, and for having departed Sri Lanka illegally to seek asylum overseas. The appellant fears harm in Sri Lanka on the basis of his race, his real and imputed political opinion (as a supporter or member of the LTTE) arising from his race and former residence in a Tamil region, as well as his membership of particular social groups (ethnic Tamils and failed asylum seekers returned to Sri Lanka).

7    The delegate refused the application on 12 October 2012, and the appellant applied to the Administrative Appeals Tribunal (AAT) for review of that decision on 20 November 2012.

The Tribunal’s decision

8    The Tribunal heard the application for review on 31 January 2013, with the appellant appearing by videoconference. The hearing was adjourned, as a result of difficulties with the interpreter, to 25 February 2013 (second hearing). The appellant appeared by videoconference and was represented by a registered migration agent who provided written submissions to the Tribunal on 30 January 2013 and 22 February 2013.

9    At the second hearing the appellant’s migration agent, who was also an accredited interpreter in English and Tamil, raised concerns regarding the accuracy of the interpreted evidence. The Tribunal clarified with the appellant every part of his evidence identified as a concern by the migration agent. Although the appellant was granted further time following the hearing to provide further submissions, he did not do so.

10    The Tribunal’s findings may be summarised as follows:

(a)    There were several inconsistencies in the appellant’s claim. These concerned the appellant’s evidence: when and how many times his motorcycle was taken; when and how many times and in what circumstances fish were taken from him; and his contact with the Sri Lankan Criminal Investigation Department (CID). These inconsistencies were put to the appellant pursuant to s 424AA of the Migration Act 1958 (Cth) (Act). The Tribunal went on to find, as a result of the inconsistencies, that the appellant had fabricated key parts of his claim, which related to past harm, and rejected his evidence in those respects.

(b)    No serious harm, which would amount to persecution, arose from any of the new incidents brought up by the appellant at the second hearing. The appellant had claimed that some Navy personnel had called out to his wife and that at the end of January 2013 people went to his house to register his name for the grama sevaka (village headman). The Tribunal was not satisfied that there was credible evidence of the appellant suffering any psychological harm which would amount to serious harm.

(c)    The appellant did not fall within any of the categories identified by UNHCR as persons who may be likely in need of protection. While the Tribunal accepted that Tamil persons in Sri Lanka may face harassment and discrimination the Tribunal was not satisfied that this would amount to serious harm. The Tribunal accepted that the appellant faced restrictions as a fisherman during the war, but found these did not exist anymore.

(d)    Not all failed asylum seekers were imputed with anti- government or pro-LTTE political opinions. The Tribunal did not accept that the appellant had a real or perceived anti-government profile and, on that basis, found that there was no reason for the Sri Lankan authorities to harm him, nor that he would be imputed with such an opinion solely for his ethnicity as a Tamil.

(e)    The consequences for failed asylum seekers returning to Sri Lanka did not give rise to risk of significant harm. The Tribunal accepted that the applicant, on return to Sri Lanka would be charged under the Sri Lankan Immigrants and Emigrants Act and may face a fine for having departed Sri Lanka illegally. However, the Tribunal considered that this was part of the enforcement of a generally applicable law in Sri Lanka and therefore did not amount to persecution. The Tribunal found, based on country information before it, that bail was routinely given on the accused’s own recognisance, although a family member was also required to provide surety. Also, there was only a remote chance of imprisonment. The Tribunal accepted that the prison conditions in Sri Lanka are generally poor but it was not satisfied that the short term nature of the imprisonment on remand amounted to significant harm. The Tribunal further rejected the appellant’s claim that the appellant drove the boat on which he travelled to Australia and therefore found there was not a real chance that he would be charged and imprisoned for an offence related to people smuggling.

11    The Tribunal therefore found that the appellant had not faced significant harm in the past, nor would he in the future, were he to return to Sri Lanka, for the purposes of s 36(2)(a) of the Act. The Tribunal further found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk that he would suffer significant harm, so as to enliven Australia’s complementary protections obligations: s 36(2)(aa) of the Act.

Federal Circuit Court proceedings

12    The appellant filed an application for judicial review of the Tribunal’s decision on 27 October 2017. The primary judge heard the matter on 14 December 2016, on the basis that leave was granted for an extension of time pursuant to s 477(2) of the Act.

13    The application set out 7 grounds of review. These may be summarised as follows:

(a)    Grounds one and two alleged jurisdictional error and that irrelevant matters were taken into account (and that relevant matters were not).

(b)    Ground three alleged that the hearing was not conducted in a fair and just manner and not according to law.

(c)    Ground four alleged that the hearing and decision were unreasonable.

(d)    Grounds 5 and 6 alleged jurisdictional error for failing to give proper consideration and weight to the evidence and summarily dismissing and discounting the evidence.

(e)    Ground 7 alleged jurisdictional error for misapplying the law, regulations, policy and guidelines in determining whether the appellant met the criteria for a protection visa.

14    The primary judge rejected grounds 1 and 2, in the absence of any particularisation, as not disclosing any jurisdictional error, at [17]-[18].

15    The primary judge considered ground 3 at [20]-[26], concluding that:

(1)    The Tribunal’s decision recorded the fact that the appellant was explicitly informed at hearing that his credibility was in issue, and that it undertook the procedure in section 424AA of the Act in relation to a number of inconsistencies arising from the appellant’s evidence at hearing: at [2].

(2)    The Tribunal was mindful of the issues with interpretation, which were raised by the appellant’s migration agent. This resulted in the adjournment of the first hearing on 31 January 2013 and the conduct of a second hearing on 25 February 2013 at which time the Tribunal satisfied itself that the standard of interpreting was reasonable and that the appellant was able to meaningfully participate: at [24]. The appellant received a fair hearing, having regard to established authority: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [27].

16    The primary judge rejected ground 4 as he was satisfied that the decision of the Tribunal was not so illogical as to be unreasonable, and that the Tribunal properly set out the basis for its conclusions such that there was ‘an evident and intelligible justification’ for its decision: at[28]-[29].

17    The primary judge held that ground 5 amounted to an attempt to engage in impermissible merits review, and rejected ground 6, seeing no basis for concluding that the Tribunal ‘summarily dismissed’ the evidence and finding instead that it had considered the evidence and given reasons for rejecting parts of it.

18    In relation to ground 7, the primary judge found no basis for the assertion that the AAT had misapplied the law.

The Notice of Appeal

19    The appellant filed a Notice of Appeal on 31 January 2017, seeking to appeal from the Judgment and all of the orders of the primary judge.

20    The grounds of appeal are as follows (without alteration):

1.    That there is a jurisdictional error in the Federal Circuit Court Decision

2.    The reason’s provided by the second respondent to the first respondent in support of the second respondent's recommendation that the appellant was not a person to whom Australia had protection obligations were neither logical nor ration (sic).

3.    Further grounds will be provided once legal advice/representation is organised.

21    The Notice of Appeal also annexed certain orders sought by the appellant which do not require to be set out here as they are not relevant to the disposition of the appeal.

22    The appellant did not file an amended Notice of Appeal or any written submissions.

Consideration

23    The task of this Court on appeal is to determine whether the Judgment is affected by appellable error.

24    The Minister, in his submissions, notes that the present case is one in which the Tribunal, once satisfied that a valid application has been made, must review the decision pursuant to s 414 of the Act. The Tribunal must review a decision by exercising all the powers and discretions conferred upon the person who made the decision, as provided for in s 415(2) of the Act. This may be contrasted with a case in which the Tribunal’s only function is to recommend to the Minister whether a person is owed protection obligations so as to invoke consideration of the Minister's power to waive the operation of s 46A(1) of the Act: Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319.

25    In ground 1, the appellant has asserted jurisdictional error without any particulars.

26    The Minister submits that there is no error in the Judgment, including in the primary judge’s consideration of issues arising under the complementary protection criteria in s 36(2)(aa) of the Act: Judgment at [40]-[43].

27    I accept this submission. Insofar as ground 1 seeks to take issue with the primary judge’s reasons, I accept the Minister’s submission that the primary judge was correct for the reasons that his Honour gave, set out at [14]-[18] above. The grounds of appeal do not identify any appellable error in the reasons or conclusions of the primary judge, nor do they identify any jurisdictional error in the decision of the Tribunal.

28    In ground 1, the appellant alleges error by the primary judge in relation to whether the appellant’s return to Sri Lanka would enliven Australia’s complementary protection obligations.

29    The primary judge considered [66]-[67] of the Tribunal’s decision, particularly where the following conclusion is recorded:

The Tribunal is not satisfied that the short-term nature of the imprisonment on remand is serious harm and the Tribunal finds that the appellant would not face a real chance of serious harm if he was held on remand for a short time.

30    The primary judge was satisfied that this finding on its own was sufficient to conclude that the issue arising in the Full Federal Court judgment in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 did not arise in this case: Judgment at [43].

31    I find that the primary judge correctly held that no jurisdictional error is discernible in relation to complementary protection obligations. I note that the Full Court decision in SZTAL was recently upheld by the High Court: SZTAL v Minister for Immigration [2017] HCA 34.

Conclusion and orders

32    For these reasons, the appeal will be dismissed and the appellant ordered to pay the Minister’s costs, to be taxed if not agreed.

Associate:

Dated:    26 February 2018