FEDERAL COURT OF AUSTRALIA
DKH17 v Minister for Immigration and Border Protection [2019] FCA 737
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The appellant must pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
FARRELL J
1 The appellant is a citizen of Sri Lanka, originally from the Eastern Province. He is of Tamil ethnicity and of the Hindu faith. He left Sri Lanka by boat and arrived in Australia in August 2012 as an unauthorised maritime arrival.
2 The appellant seeks to appeal from a judgment of the Federal Circuit Court of Australia: see DKH17 v Minister for Immigration and Border Protection [2018] FCCA 3811. The primary judge dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority, made on 9 July 2017, to affirm a decision of a delegate of the Minister refusing to grant him a Safe Haven Enterprise (subclass 790) visa.
3 The appellant’s notice of appeal filed in this Court is as follows:
1. The Federal Circuit Court Judge Smith ought to have found that the Immigration Assessment Authority (IAA) misapplied the real chance test in Minister v Rajalingam (1999) 93 FCR 220.
Particulars
a) The applicant claimed that, following an election in 2011 in which he ran as a candidate, he received threats comprising “four phone calls from an unidentified man over a two-month period and an unsigned letter which was stamped with a tiger logo”.
b) The Immigration Assessment Authority stated that it had “considerable doubts” about this claim, and then found it was not satisfied that the applicant was threatened as he claimed.
c) A fair reading of the IAA's reasons allows the conclusion that the IAA had a real doubt that its findings on this question of fact was correct”. In the circumstances, the IAA was obliged to take into account the possibility that the applicant's claims concerning threats he says he received in 2011 were true. By failing to do so, the IAA misapplied the real chance test: see Minister v Rajalingam (1999) 93 FCR 220.
2. The applicant claimed to fear harm from Sinhalese people generally due to his Tamil ethnicity. The IAA dealt with the claim in its decision at [35]-[37]. The IAA, in dealing with the claim, made findings which did not fully resolve the claim. Specifically, the IAA's conclusions at [37] focus on whether the applicant "has a profile" and whether "the applicant would be targeted".
Particulars
a) However, whether the applicant faces a real chance of serious harm due to Tamil ethnicity is not fully resolved by a finding that the applicant does not have a profile with the Sri Lankan authorities or that the applicant would not be targeted on return to Sri Lanka.
b) Where an applicant makes a claim and the IAA does not properly or fully resolve the claim, this is a jurisdictional error.
c) The Federal Circuit Court Judge Smith failed to hold that it was a jurisdictional error.
4 The appellant filed his application for judicial review in the Federal Circuit Court on 31 July 2017; it set out three grounds which were abandoned by the appellant’s counsel at the hearing before the primary judge on 30 November 2018.
5 The appellant sought leave to rely on an amended application which raised essentially the same grounds as those that the appellant seeks to raise in his notice of appeal. By an affidavit affirmed on 26 November 2018, the appellant sought to explain his reason for proposing to amend his application at that late stage of the proceedings on the basis that after he filed his application in July 2017, he sought to engage a lawyer but could not afford to pay what the lawyer asked as his fee. He explained that while he had permission to work in Australia, he had not been able to do so since April 2018 because of a problem with his eye. He said that “last month”, his family provided money for a lawyer and a person in the Tamil community helped him to try to find a lawyer but he was told that three barristers who were approached were all too busy. He was unable to obtain legal assistance until 26 November 2018 when Mr Zipser of counsel met with him.
6 In considering the question of whether leave should be granted to the appellant to rely on the amended application, the primary judge noted that, on 5 October 2017, a Registrar of the Federal Circuit Court granted leave to the appellant to file an amended application by 21 December 2017, but none was then filed. In considering the explanation for the proposed late amendment given by the appellant, his Honour found that the appellant had not given any satisfactory evidence of his actual finances or sufficient detail of the efforts he had made to obtain legal representation, finding that it appeared that the appellant had done very little. The primary judge did not accept the appellant’s evidence as a reasonable excuse for the failure to comply with the Court’s orders and found that that alone, given the lateness of the application and the fact that the matter had been set down since March 2018, was sufficient to refuse the amendment, relying on Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175.
7 Nonetheless, the primary judge considered the merit of the proposed grounds at [8]-[17] and concluded that neither ground had prospects of success. For convenience, those passages of his Honour’s reasons are as follows:
8. … There are two grounds proposed to be raised. The first is that the Authority failed to consider whether it was wrong: namely, it failed to engage in the speculation required by the real chance test propounded by s.5J of the Migration Act 1958 (Cth) as it now is and as it arose under Article 1A(2) of the Refugees Convention . The applicant relies upon the well-known passage in the judgment of Sackville J in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [60], [62]-[63] and [67].
9. The applicant relies in particular on [29] of the Authority’s reasons, and the following sentence:
…Having regard to the applicant’s limited profile as a TMVP candidate, that he encountered no threats or harassment during the election campaign, and that he did not win a seat, I have considerable doubt that he was contacted and threatened in relation to his candidacy for the TMVP from unidentified people. I am not satisfied that the applicant was threatened as he has claimed. While I accept that he continued to travel between Colombo and Ampara, I consider this was due to his earlier pattern of work and home visitation rather than being in order to avoid detection by the authorities or people opposed to his candidacy for the TMVP.
(Footnote added)
10. The applicant relies upon two words: first, “doubt”; and second, “satisfied”, to argue that the Court should infer that the Authority had some doubt about its finding and that it made a finding on the balance of probabilities.
11. I do not think that that passage gives rise at all to the inferences suggested. It is beyond any real doubt on a proper reading of the Authority’s reasons as a whole, and [29] in particular, and not taking a nitpicking approach to them, that the Authority engaged in a proper analysis of whether there was a real chance of serious harm or significant harm. The expression “considerable doubt” in [29] was in respect of the applicant’s claims not its findings and the lack of satisfaction is not consistent with an inference that there was a balance of probabilities but merely another way of saying that the Authority rejected the claim because it had considerable doubt about it.
12. On a plain reading, the principle explained by Sackville J in Rajalingam does not arguably arise in this case and I consider that the first ground sought to be raised has no prospects of success.
13. The second ground is that the Authority failed to consider a claim made by the applicant that he feared harm due to his Tamil ethnicity. I note initially that this claim, if it be called that, was not in fact made in the applicant’s protection visa application but as a general assertion in his entry interview. Given that the claim as such was not repeated by the applicant in any of his statements or in his evidence given at an interview before the delegate as far as the evidence establishes, I would infer that the claim was abandoned. For that reason it was not a matter that the Authority had to consider.
14. In any event, it is clear from [34]-[37] that the Authority dealt with the claim as made. It said at [34] that “recent reports before the delegate do not support a conclusion that Tamils, including Tamil men from the Eastern Province, are being systematically targeted and subjected to serious harm because of their race and/or area of origin”. That covers any claim raised that relies upon the applicant’s ethnicity. It expressly refers to such and the reference to the report not supporting a conclusion, in my view, can only be read as the Authority accepting what is stated in the report.
15. I note that in the first sentence at [35] the Authority expressly noted the apparent claim made by the applicant to “fear harm from Sinhalese people generally, due to his Tamil ethnicity”. It would be odd having expressly noted it for the Court to infer that it had overlooked the claim and thereby failed to deal with it: see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593.
16. Nevertheless, the applicant submitted that the way in which the Authority purported to deal with the claim was simply by finding that the applicant did not have a profile which would attract serious harm, and he argues that that finding did not deal sufficiently with the claim of harm from Sinhalese people in general. He notes that some of the information before the Authority supported the conclusion that there was societal discrimination against Tamils. Societal discrimination against Tamils is one thing; persecution is potentially quite another, and persecution was dealt with in [34].
17. In light of that, I find that there are no reasonable prospects of the second ground succeeding and that this is another reason for refusing to grant leave.
8 The Court was assisted by an interpreter at the hearing today. The appellant was not legally represented at the hearing nor did he file any written submissions. The appellant made no oral submissions in support of his appeal.
9 The Minister’s counsel relied on submissions filed in accordance with the Court’s timetable. The Minister submitted that the appellant required leave to rely on the grounds in the notice of appeal because leave to rely on essentially the same grounds had been refused in the Court below so that they were new grounds. The Court sought the Minister’s view on whether the true nature of the grounds set out in the notice of appeal was to seek to appeal the primary judge’s decision to refuse leave to rely on an amended application which contained essentially the same grounds. The Minister accepted that on either analysis it would be necessary to consider the merit of the grounds and for the appellant to obtain the Court’s leave.
10 Having carefully considered the primary judge’s reasons and the Authority’s decision record which are in the Appeal Book, the Court perceives no error in the approach taken by the primary judge to the question of whether or not leave to rely on the grounds of the amended application to the Court below should be given or in his Honour’s decision to refuse leave and dismiss the judicial review application. The Court considers that the appellant’s grounds set out in the notice of appeal lack merit for the reasons given by the primary judge and accordingly it would be inappropriate to grant leave to rely on those grounds as new grounds.
11 Accordingly, the appeal should be dismissed with costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. |
