FEDERAL COURT OF AUSTRALIA

CTI16 v Minister for Home Affairs [2018] FCA 1164

Appeal from:

CTI16 v Minister for Immigration and Border Protection & Anor [2018] FCCA 826

File number:

VID 262 of 2018

Judge:

STEWARD J

Date of judgment:

6 August 2018

Catchwords:

MIGRATIONappeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review – whether the decision of the Federal Circuit Court was affected by jurisdictional error – no jurisdictional error – appeal dismissed

Legislation:

Migration Act 1958 (Cth) s 36

Cases cited:

Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20

Date of hearing:

6 August 2018

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

15

Counsel for the Appellant:

The Appellant appeared in person with the assistance of an interpreter

Counsel for the First Respondent:

Ms P Mitchell

Solicitor for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice, save as to costs

ORDERS

VID 262 of 2018

BETWEEN:

CTI16

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

STEWARD J

DATE OF ORDER:

6 AUGUST 2018

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

Introduction

1    The appellant is a Catholic Sinhalese from Sri Lanka, who arrived on Cocos (Keeling) Island on 11 August 2012. On 28 March 2013, the appellant applied for a Protection (Class XA) visa, assisted by his migration agent. On 26 September 2014, a delegate of the Minister for Immigration and Border Protection (the Minister”) refused to grant the appellant his visa for the purposes of either s 36(21)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”). The appellant sought review of this decision in the Administrative Appeals Tribunal (the “Tribunal”). In September 2016, the Tribunal affirmed the Minister’s decision. The appellant then sought judicial review of that decision in the Federal Circuit Court of Australia. In a judgment delivered on 27 February 2018, that application was dismissed by that court. From that decision, the appellant now appeals to this Court.

Background

2    Following his arrival in Australia, the Department of Immigration and Border Protection (the “Department”), conducted a biodata interview with the appellant, in which he stated that he was seeking protection because of “economic problems”. In a subsequent interview, the appellant claimed fear of persecution from an individual called Raja, arising from an altercation with Raja’s son as well as with some of Raja’s men. The appellant said he feared this man because he has “the power”.

3    In a subsequent visa application, the appellant’s fear of this individual was maintained. The appellant claimed he had received threats from Raja in about July 2012 after an altercation with Raja’s son. He claimed he had received threats from Raja, and feared Raja’s family, the men who worked for Raja and members of the Negombo Municipal Council. He also claimed to feel threatened because of an imputed anti-government political opinion and membership of a group described as those who have witnessed or perpetrated a crime committed by family members of government representatives. The other basis given for his fear was membership of particular social groups, being young Sinhalese men who have been threatened by an influential government representative, “young Sinhalese fishing assistants and failed asylum seekers.

4    The appellant, in a subsequent interview, claimed that the name of the person he feared was incorrect. He then supplied a different name. These changes in his evidence ultimately affected the Minister’s assessment of his creditworthiness. The Minister did not accept that the altercation with Raja’s son had occurred or that Raja was himself, or was the father of, a member of the Negombo Municipal Council.

5    Whilst the Minister accepted that the appellant had an actual subjective fear that his family would be unable to subsist due to economic difficulties, and had an actual subjective fear of ill treatment by Sri Lankan authorities as a failed asylum seeker who had departed Sri Lanka illegally, the Minister did not accept that either fear was well-founded.

6    Before the Tribunal, the appellant pursued his claim of fear. The claims were summarised by the learned primary judge, at [21] of her Honour’s reasons, in the following terms:

a)    the Applicant was involved in a motorcycle accident that then escalated into a physical fight with the son of [Raja], who operated and managed the fish market and who was a member, or the father of a member, of the Negombo municipal council and who was a politician or politically influential and had many thugs working for him as set out in paragraph 83 of the Decision Record;

b)    the Applicant was threatened with harm or his father was unable to work at the fish market due to [Raja]’s threats, which the Tribunal did not accept were made, as set out in paragraph 84 of the Decision Record;

c)    the Applicant’s family home was searched or that his father was told the Applicant could not return to work at the fish market or he would be killed as set out in paragraph 84 of the Decision Record;

d)    the Applicant was or is of any adverse interest to anyone in Sri Lanka as set out in paragraph 85 of the Decision Record;

e)    the Applicant would suffer any serious harm or harm of any kind from [Raja]; [Raja]’s family; the men who work for [Raja]; members of the Negombo Municipal Council and/or the Sri Lankan ruling government party (and its supporters and associated parties), if the Applicant returned to Sri Lanka now or in the reasonably foreseeable future as set out in paragraph 86 of the Decision Record;

f)    the Applicant would be imputed with any anti-government political opinion or membership of the particular social groups “men who have witnessed/perpetrated a crime committed by family members of government representatives” or “young Sinhalese men who have been threatened by an influential government representative” as set out in paragraph 87 of the Decision Record;

g)    [Raja] or his affiliates would stop the Applicant from gaining employment within the fishing industry as set out in paragraph 89 and 90 of the Decision Record;

h)    any issues as a result of the claimed affair with the Applicant’s cousin would amount to serious harm or would preclude the Applicant from finding employment and subsisting as set out in paragraph 90 of the Decision Record; or

i)    the Applicant would suffer serious harm or harm of any kind due to membership of the particular social group “young Sinhalese fishing assistants” if he returned to Sri Lanka now or in the reasonably foreseeable future.

7    The Tribunal had the advantage of seeing and hearing the appellant. It raised with him a number of concerns about his credibility, including contradictory testimony and differences in evidence that he had previously given to the Department. The Tribunal found that the appellant was not a witness of truth, and the Tribunal [was] not satisfied the [appellant had] told the Tribunal the truth in relation to critical aspects of his claims.

8    The Tribunal also consulted the Department of Foreign Affairs and Trade Country Information and other authoritative material concerning the current circumstances in Sri Lanka. Based on that evidence, which was raised with the appellant during the hearing below, the Tribunal was not satisfied that there was a real chance the appellant would suffer persecution on return to Sri Lanka because of his illegal departure from that country or because of his claim of asylum in Australia or for being a failed asylum seeker returning to Sri Lanka. After considering the appellant’s claims, both individually and cumulatively, the Tribunal found that the requirements of ss 36(2)(a) and 36(2)(aa) were not satisfied.

The decision of the Federal Circuit Court

9    The appellant then sought judicial review in the Federal Circuit Court with a single ground of review, which was as follows:

I being the Applicant provided evidence to the tribunal in relation to the harm and abuse suffered by me in my home country in the hands of the offenders. As a result of abuse and harm suffered by me I have genuine fears in returning back to my home country. Even though evidence in support has been provided the Tribunal has disregarded that evidence in giving the decision. Accordingly the Tribunal has erred as a matter of law. Also as a failed asylum seeker I as the applicant would suffer more harm in the hands of the Sri Lankan authorities upon my return. I provided such evidence, which has been disregarded by the Tribunal. Accordingly [the Tribunal] failed to give consideration to the evidence as a matter of law.

10    The learned primary judge rejected this ground of review. Her Honour’s reasons are set out at [24]-[26] as follows:

The Applicant’s ground of review is not particularised, but I agree with the First Respondent’s submission that it can be characterised as raising an allegation that the Tribunal erred by not considering the Applicant’s claims or evidence. This ground cannot be made out. It is very clear when going to the Decision Record that the Tribunal specifically considered and made findings on each and every of the Applicant’s claims and the integers of such claims. Essentially, the Tribunal was not satisfied that the Applicant was “a witness of truth” and the credibility findings made by the Tribunal were clearly open to it on the evidence before it.

Further, with respect to the Applicant’s claim that the Tribunal disregarded evidence, a claim not particularised by the Applicant and therefore essentially meaningless, it is not obvious what evidence it is that the Tribunal failed to regard, let alone that the absence of a consideration of such evidence may have led the Tribunal to commit jurisdictional error. The Tribunal referred to the evidence which was before it and on a fair reading of the Decision Record it considered all such evidence, and raised with the Applicant, as a result of that consideration, those matters of concern to it, in particular, the inconsistencies in the Applicant’s evidence. The Tribunal not only considered relevant country information, but discussed same with the Applicant. There is no suggestion by the Applicant that some other or further country information should have been considered by the Tribunal, being mindful in any event the selection of such material and weight given to it is a matter for the Tribunal.

The Tribunal simply did not accept all of the claims made by the Applicant and the Tribunal was not bound to accept, uncritically, any and all of the claims advanced by the Applicant.

11    For those reasons, the learned primary judge found that the Tribunal’s decision was not vitiated by any jurisdictional error of law.

The Appeal

12    By notice of appeal dated 9 March 2018, the appellant appeals to this Court and relies upon the following ground:

The decision of the Federal Circuit Court is affected by jurisdictional error.

The appellant gave particulars of this ground, which stated that, as he had not received the decision of the Federal Circuit Court, he would file particulars as soon as he had received a copy of the decision. The relief sought by the appellant included orders quashing or setting aside the Tribunal decision, an order that the matter be remitted to the Tribunal for further consideration and an order that the appellant be granted any consequential necessary visa to enable him to remain in Australia. Since the filing of this notice of appeal, the appellant has not sought to amend or add to his grounds of review.

13    By orders made in this Court on 9 May 2018, the appellant was required to file a written outline of submissions no later than 10 business days before the hearing before me. No such submissions have been filed and served. In written submissions filed in this Court on behalf of the Minister, I was urged to dismiss the appellant’s appeal. The Minister, in particular, submitted at [21] and [22]:

The Minister submits that, particularly absent particularisation by the appellant, there is no jurisdictional error apparent in the Reasons. The Reasons instead demonstrate a comprehensive consideration of the procedures and decision of the Tribunal, an analysis of the appellant’s grounds of review, and a comprehensive dismissal of those grounds. Furthermore, the primary judge applied well accepted principles of law in finding that the Tribunal did not err; no error of law in the Reasons is made out. No error can be discerned in the Reasons.

The Minister further submits that, for the reasons advanced before and accepted by the primary judge, no jurisdictional error is apparent in the Tribunal’s decision.

14    Before me, the appellant represented himself with the aid of an interpreter, and submitted that he had not been legally represented in the Federal Circuit Court, that there were new matters he had wanted to raise but that he had been advised that it was now too late to do so. The error alleged in the notice of appeal was not otherwise further elaborated upon. It is regrettable that the appellant could not secure legal representation, either before me or below. However, the appellant has no right to legal representation: Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20 at [27]. The lack of such legal representation does not constitute jurisdictional error of law.

15    In my view, the findings made by the Tribunal about the creditworthiness of the appellant’s case were matters for it to determine and were open to it on the evidence before it. It follows that the learned primary judge was correct to reject the application for review made to the Federal Circuit Court. I otherwise respectfully agree with the submissions made to this Court by Ms Mitchell who appeared for the Minister. The appeal is dismissed with costs as agreed or assessed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.

Associate:

Dated:    3 September 2018