FEDERAL COURT OF AUSTRALIA

CFZ15 v Minister for Home Affairs [2018] FCA 1944

Appeal from:

CFZ15 v Minister for Immigration & Anor [2018] FCCA 1352

File number:

VID 586 of 2018

Judge:

MIDDLETON J

Date of judgment:

30 November 2018

Date of publication of reasons:

4 December 2018

Legislation:

Migration Act 1958 (Cth)

Cases cited:

CFZ15 v Minister for Immigration & Anor [2018] FCCA 1352

NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134

Date of hearing:

30 November 2018

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

No Catchwords

Number of paragraphs:

31

Counsel for the Appellant:

The appellant appeared in person with the aid of an interpreter

Solicitor for the First Respondent:

Ms I Ward of Sparke Helmore Lawyers

Counsel for the Second Respondent:

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

ORDERS

VID 586 of 2018

BETWEEN:

CFZ15

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

MIDDLETON J

DATE OF ORDER:

30 November 2018

THE COURT ORDERS THAT:

1.    The time for filing and serving the notice of appeal be extended to 22 May 2018.

2.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1    On 22 May 2018, the appellant filed a notice of appeal to appeal from the judgment and orders of her Honour Judge Riley (the primary judge) of the Federal Circuit Court delivered on 18 April 2018 and published as CFZ15 v Minister for Immigration & Anor [2018] FCCA 1352. The primary judge dismissed an application for judicial review of a decision of the second respondent (the ‘Tribunal’) to affirm a decision of the first respondent (the Minister), to refuse to grant the appellant a Protection (Class XA) visa (the Visa).

2    On 30 November 2018 I dismissed the appeal, and these are the reasons for that order. I will go straight to the merits of the appeal and treat the notice of appeal as effective.

BACKGROUND

3    The appellant, a citizen of Sri Lanka, arrived in Australia on 1 August 2012 as an irregular maritime arrival.

4    On 11 December 2012, the appellant applied for the Visa. The appellants claims to protection were set out in a statutory declaration enclosed with his application for the Visa, in which he claimed to fear harm as a young Tamil male from the Northern Province of Sri Lanka with perceived links to the Liberation Tigers of Tamil Elam (LTTE), and as a failed asylum seeker.

5    On 25 September 2013, a delegate of the Minister refused to grant the Visa. The delegate did not accept that being of Tamil ethnicity was of itself sufficient to give rise to a real chance of persecution, nor that the appellant had any other personal characteristics which would give rise to a risk of persecution on the basis of his ethnicity. The delegate did not accept that the appellant would be imputed as having any association with the LTTE, and that in light of those findings there was no evidence to suggest that he would be at risk of serious or significant harm as a failed asylum seeker. The Minister’s delegate consequently did not accept that the appellant met the criteria for the grant of the Visa at ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (the ‘Act’).

6    On 17 October 2013, the appellant applied the Tribunal (which was then known as the Refugee Review Tribunal) for review of the Minister’s decision.

7    On 1 April 2015, the appellants representative provided detailed written submissions to the Tribunal.

8    On 24 July 2015, the appellant was invited to attend a hearing before the Tribunal scheduled on 1 September 2015.

9    On 20 August 2015, the appellants representative submitted further submissions and country information, together with a statement of the appellant.

10    On 1 September 2015, the appellant attended the hearing before the Tribunal with the assistance of his representative and a Tamil interpreter. At the hearing the appellant mentioned a number of news reports regarding the treatment of failed Tamil asylum seekers in Sri Lanka. The Tribunal allowed the appellant until 15 September 2015 to provide translations of these articles to the Tribunal, but the appellant did not do so.

TRIBUNAL DECISION

11    On 30 September 2015, the Tribunal affirmed the Minister’s decision.

12    The Tribunal found that on the basis of the appellants own evidence, the appellant had not previously been of any particular interest to authorities: [15]. The Tribunal considered country information (put to the appellant at the Tribunal hearing) which indicated that Tamil citizens who were not members of the LTTE were at low risk of being detained or prosecuted: [23]. The Tribunal found that notwithstanding the appellants claims of ill-treatment in the past, it was not satisfied that the appellants profile and circumstances were such as to result in a real chance of persecution because of any imputed political opinion: [24]. The Tribunal accepted that the appellants parents had been visited by the army since his departure for Australia, and found that the appellant may be questioned upon his return, but found that this would occur in the context of ongoing monitoring and that there was not a real chance that the appellant would be targeted for harm by reason of any imputed political opinion: [26].

13    In considering the appellants claim to fear harm on the basis of his Tamil ethnicity, the Tribunal had regard to independent country information which was put to the appellant at the Tribunal hearing ([31]), and did not accept that simply being a Tamil gave rise to a well-founded fear of persecution from the authorities in Sri Lanka: [30].

14    In considering the appellants claim to fear harm as a young Tamil male from the Northern Province, the Tribunal had regard to country information which indicated that although the Northern Province remains heavily militarised, it had seen some improvements: [40]. The Tribunal found that in light of that information and the appellants evidence that he was not an LTTE member, it was not satisfied that the appellants profile and circumstances were such as to result in a real chance of being persecuted by reason of an imputed political opinion on account of being a young Tamil male from the Northern Province: [41].

15    The Tribunal noted an article referred to by the appellants representative regarding the treatment of fishermen in Sri Lanka (the appellant being a fisherman) and accepted that the appellant had previously had to travel through checkpoints in order to go fishing: [42]. The Tribunal found that even if the checkpoints remained, they did not constitute discrimination amounting to persecution ([43]) and noting the appellants evidence that his father continued to support his family as a fisherman, it was not satisfied that he faced a real chance of persecution on this basis: [43].

16    In relation to the appellants claim to fear harm as a failed asylum seeker, the Tribunal had regard to the appellants representatives submissions ([45]-[49]) and accepted that the appellant had left Sri Lanka without a passport, and was likely to be identified upon his return as a person who had unsuccessfully sought asylum in Australia: [51]. The Tribunal had regard to country information which indicated that in the absence of any anti-government activity, any enquires which the Sri Lankan authorities may make on the appellants return were not reasonably likely to crystallise into a concern that he was a security risk: [52]. The Tribunal found that given the appellants profile and circumstances, it did not accept there was a real chance that he would be targeted for harm by the Sri Lankan authorities as a failed asylum seeker: [54].

17    The Tribunal accepted that the appellant was likely to be charged under the Immigrants and Emigrants Act (Sri Lanka) (the I&E Act) upon his return: [56]. The Tribunal had regard to country information put to the appellant at hearing, as well as the appellants representatives submissions and found that the I&E Act did not have a discriminatory intent or impact: [57]-[59]. The Tribunal found that any brief period which the appellant may be required to spend in jail, or any penalty which might be imposed on conviction, would be the result of non-discriminatory application of a law of general application which did not involve systematic and persecutory conduct pursuant to s 91R(1)(c) of the Act: [59]. The Tribunal noted country information which indicated that in most cases returnees were granted bail on personal recognisance with a family member standing guarantor, and found that there was nothing to suggest that the appellants parents and brother could not do so: [60]. The Tribunal found that in light of country information and the Tribunals findings regarding the appellants association with the LTTE, the chances of him facing any serious harm during any brief stay in remand pending bail would be remote: [62].

18    Having considered the appellants claims individually and cumulatively, the Tribunal found that the appellant did not face a real chance of persecution on return to Sri Lanka for any Convention reason, and that his fear of persecution was not well-founded: [64]. It consequently found that the appellant did not meet the criterion for the grant of the Visa at s 36(2)(a) of the Act.

19    The Tribunal did not accept that there was a real risk that the appellant would suffer significant harm by reason of his Tamil ethnicity, imputed association with the LTTE, or membership of the particular social groups comprising young Tamil males from the Northern Province, Tamil fisherman, or failed asylum seekers: [68]. The Tribunal had regard to the appellants representatives submissions that there was a real risk that the appellant would face significant harm whilst detained on his return as an illegal departee ([69]), but found that although prison conditions in Sri Lanka were generally poor, it did not accept that the appellant would be subject to significant harm as a result of those conditions during the brief period he may spend on remand: [70].

20    Consequently, the Tribunal did not accept that the appellant met the criterion for the grant of the Visa pursuant to s 36(2)(aa) of the Act: [71].

PROCEEDINGS IN THE FEDERAL CIRCUIT COURT

21    On 29 October 2015, the appellant applied for judicial review of the Tribunals decision on two ground:

(1)    the decision of the Tribunal:

(a)    was affected by an error of law; and

(b)    denied the applicant procedural fairness; and

(2)    the appellant had “made an application for assistance through Victorian Legal Aid and [was] waiting for a decision.

22    The primary judge refused the appellants oral application for an adjournment at the hearing. Her Honour noted that the appellant had had about two and a half years to obtain legal representation, that if the appellants family was able to assist him with funds to pay for a lawyer (as the appellant had insisted before the primary judge), he could have organised legal representation ahead of the hearing. Her Honour also commented that it was difficult to believe that the appellant had in fact sought assistance from a lawyer close to the hearing date, noting he was unable to even provide their name: [8]-[11].

23    Turning to the appellants grounds, the primary judge found that the second ground of review was not a proper ground of review and in any event, the appellant had explained to the Court that Victoria Legal Aid had declined to provide him with legal assistance: [31].

24    While noting that the first ground had not been particularised, her Honour had considered the Tribunal’s decision and process closely and had been unable to discern any jurisdictional error: [32]. The primary judge found that the Tribunal had invited the applicant to a hearing (which he attended with the assistance of his migration agent) and had considered all of the appellant’s claims, but that the Tribunal had not accepted that the appellant’s assertion that the circumstances described by him would cause him to face a real risk of serious or significant harm: [33].

25    The primary judge concluded that the Tribunal appeared to have correctly applied the law, had not taken into account any irrelevant considerations, and that its conclusions were rational and based on probative evidence: [34].

NOTICE OF APPEAL

26    The notice of appeal raises the following grounds of appeal:

(1)    The Federal Circuit Court failed to find in respect of the Tribunal that it declined its jurisdiction to the appellant on the basis of the following grounds:

(a)    the Tribunal erred in law, with the error being jurisdictional error, by failing to consider and assess the appellant’s claims of being a young single Tamil male from the Northern Province of Sri Lanka;

(b)    the Tribunal denied the appellant procedural fairness; and

(c)    the Tribunal made an error in law in assessing the criterion in s 36(2)(aa) of the Act.

27    With the exception of ground 1(b) which concerns a denial of procedural fairness, these grounds were not properly raised in the Federal Circuit Court and the appellant required leave to raise them for the first time on appeal: see eg NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134. Nevertheless, I will address the merits of each ground.

28    With respect to ground 1(a), the Tribunal clearly had regard to the appellants claims to be a young Tamil male from the Northern Province of Sri Lanka (see [40]-[41]). The Tribunal considered country information and the appellants own evidence that he was not an LTTE member, finding that there was no real chance of him being persecuted by reason of an imputed political opinion on account of being a young Tamil male from the Northern Province. These findings were open to the Tribunal for the reasons it gave. In my view, no appellable error is established by this ground.

29    As to ground 1(b), the primary judge noted that the appellant was invited to attend a hearing before the Tribunal which he did with the assistance of his migration agent; that the Tribunal considered all of the appellants claims; that the Tribunal correctly applied the law and did not take into account any irrelevant considerations; and that the Tribunals conclusions were rational and based on probative evidence (see [32]-[34]). Ground 1(b) has no substance.

30    With respect to ground 1(c), no particulars have been provided as to how the Tribunal made an error of law in assessing the criterion under s 36(2)(aa) of the Act. The Tribunal had regard to the appellants submissions with respect to there being a risk of significant harm on return to Sri Lanka. However, in light of its antecedent findings, the Tribunal did not accept that there was a real risk that the appellant would suffer significant harm by reason of his Tamil ethnicity, imputed association with the LTTE, or membership of the particular social groups comprising young Tamil males from the Northern Province, Tamil fisherman, or failed asylum seekers: [68]. The Tribunal also dealt with the appellants claim that he would face significant harm separately. It had regard to the appellants representatives submissions that there was a real risk that the appellant would face significant harm whilst detained on his return as an illegal departee ([69]), but found that although prison conditions in Sri Lanka were generally poor, it did not accept that the appellant would be subject to significant harm as a result of those conditions during the brief period he may spend on remand ([70]). The Tribunal consequently did not accept that the appellant met the criterion for the grant of the Visa pursuant to s 36(2)(aa) of the Act: [71]. These findings were open to the Tribunal. No appellable error is established by this ground.

CONCLUSION

31    For the reasons set out above, I order that the time for filing and serving the notice of appeal be extended to 22 May 2018, and that the appeal be dismissed with costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate:

Dated:    4 December 2018