FEDERAL COURT OF AUSTRALIA

CUZ16 v Minister for Home Affairs [2019] FCA 766

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

REVISED FROM THE TRANSCRIPT

MCKERRACHER J:

1    This is an appeal from the decision of the Federal Circuit Court of Australia: CUZ16 v Minister for Immigration & Anor [2018] FCCA 3468. The second respondent, the Immigration Assessment Authority, had affirmed the decision of the Minister’s delegate to refuse to grant the appellant a protection visa.

2    In substance, the ground of appeal focuses on a criminal conviction. The ground of appeal before this Court is:

The primary judge erred in not finding that the [Authority’s] decision was vitiated by jurisdictional error by a constructive failure to conduct the review required by s.473DB of the Migration Act 1958 (Cth), alternatively a failure to extend procedural fairness, by not considering the [appellant’s] claim for protection founded upon the prospect of prosecution in Sri Lanka arising out of the same facts and circumstances as founded the [appellant’s] 2014 conviction in N.S.W. for indecent assault.

3    The first limb of this ground is quite unspecific and not particularised, but the focus of oral submissions was on the second limb. This is, in substance, the same ground which was relied upon by the appellant in the Federal Circuit Court, but expressed somewhat differently.

4    The background of the appellant’s claims, the assessment of the claims and the factual situation are set out in considerable length in the Authority’s decision and to some extent in the relatively brief Federal Circuit Court decision. However, in light of the narrow ground of appeal which is now argued before the Court, it is only necessary to focus on certain limited facts.

BACKGROUND

5    The appellant arrived at Christmas Island, thereby entering Australia on 25 April 2013 as an unauthorised maritime arrival. On 19 June 2014, after his arrival at Christmas Island, he was charged with ‘assault with act of indecency’. After pleading guilty, he was sentenced to an 18 months good behaviour bond on 3 December 2014. That is the conviction which founds the submissions made by the appellant today.

6    There are many other facts set out in the Authority’s decision. It considered the appellant’s claims based upon his involvement with the Liberation Tigers of Tamil Eelam (the LTTE). The Authority accepted that the appellant was a business person who resided in an LTTE controlled area, that he had some past involvement with the LTTE, including basic weapons training for the purposes of sentry duty required of civilians in LTTE controlled areas, and had been involved in the rostering of other shop owners for sentry duty. The Authority also accepted he had had a role in the burial of fallen LTTE combatants and a number of other matters with the LTTE.

7    However, the Authority did not accept that the appellant would face serious harm as a result of having an imputed political opinion as a United National Party (UNP) supporter, as country information suggested that the UNP formed government in 2015. Nor did it accept that the appellant would face serious harm as a result of any imputed political opinion as an LTTE supporter and rejected certain other claims.

8    On the specific appeal point, the Authority did note that on 3 December 2014, the appellant was convicted in Australia of assault with acts of indecency and sentenced to an 18 month good behaviour bond. The Authority found that there was nothing in this history that would leave the appellant to face any real chance of serious harm on return to Sri Lanka in the context of a refugee claim or significant harm in the context of a complementary protection claim.

9    In the Federal Circuit Court, the primary judge noted that the appellant had not claimed to fear harm on account of his criminal history in Australia. The Federal Circuit Court found that, contrary to the appellant’s contention, a claim based on the appellant’s criminal history did not arise in the material before the Authority simply because of the comments made in the delegate’s decision.

10    The Federal Circuit Court also found that, in any event, the Authority did have a real and meaningful engagement with the appellant’s criminal history in Australia insofar as it could have raised any issue and, in circumstances where the appellant did not advance any argument concerning a fear of harm in respect of his Australian criminal history, the Federal Circuit Court held there was no need for the Authority to continue into findings of fact by reference to Sri Lankan law or country information. The Federal Circuit Court found that there was no jurisdictional error in the Authority’s decision.

IN THIS COURT

11    On 4 February 2019, a Registrar of the Court made orders programming this appeal, requiring the appellant to file and serve a written outline of submissions. That did not occur and my associate emailed the parties querying whether the appellant was still pressing the appeal.

12    On 22 May 2019, less than two days prior to the hearing and after the Minister had already filed written submissions, the appellant emailed to inform the Court that he relied on the written submissions filed in the Federal Circuit Court and on his counsel’s oral submissions. He provided a copy of the written submissions and I have those before me and they will be placed on the Court file. I have read the submissions. The transcript is not before the Court, but the appellant has been advised that the written submissions and the primary judge’s judgment are before me and I have had reference to both those matters.

13    In the afternoon of 23 May 2019, on a different topic, the appellant forwarded by email what were described as ‘country information news articles’. Specifically, the email attached two translated news articles about attacks that had occurred in Sri Lanka. The first article was dated 18 January 2019. The second article is undated, but refers to a bomb attack carried out on the ‘21st Easter Sunday’. The second article seems to postdate Easter Sunday of this year, which fell on 21 April 2019. Both articles certainly postdate the Authority’s decision which was made in 2016, but also the primary judge’s decision made in 2018. The articles can have no bearing on the decision of this Court, which is a decision directed to assessing any appealable error in the decision of the primary judge in considering whether the Authority fell into jurisdictional error. Therefore, I uphold the Minister’s objection to those documents.

14    Today, the appellant has stressed in oral argument that his lawyer had made these same arguments related to his criminal record before the Authority. He also says the Department should not have released his criminal record to the Authority. There is no authority cited for the latter submission and, in circumstances where his criminal record was provided by the appellant himself as part of the character section of his protection visa application, it is difficult to see any reason why that material should not be before the Authority as part of the record for its consideration. However, I am satisfied on reviewing the material that no claim as such, and as now formulated, was before the Authority.

15    Even though a reference to the criminal history was raised before the Authority (see [31] and [38] of its reasons), the appellant did not claim to fear harm in Sri Lanka on account of his Australian criminal history and I doubt whether an implied claim to that effect did emerge clearly on the materials.

16    Significantly, the appellant was assisted by a representative, who is a solicitor and migration agent, in making his visa application and in his interview before the delegate. Neither the appellant nor his representative made any written claims or submissions that the appellant feared harm in Sri Lanka because of the prospect that he would be subject to prosecution in Sri Lanka arising out of his conduct in Australia that formed the basis of his Australian conviction. Nor has the appellant previously claimed that he or his representative made any such claim at his protection visa interview with the delegate which was also well after the conviction date. There is no transcript evidence of that interview before the Court to suggest that such a claim was made.

17    Importantly, as the Federal Circuit Court observed, the appellant only mentioned the criminal offence in Australia in response to the character questions on his protection visa application form. Notwithstanding that, the delegate did address any implicit claim by stating in her decision that she had considered the appellant’s Australian criminal history which she described. She went on to say (at [230]):

… There is no information to suggest that the [appellant] is of interest to the Sri Lankan authorities on account of his Australian criminal history. According to Sri Lanka’s Code of Criminal Procedure Act, No. 15 of 1979, section 314 provides that a person will not be liable to be tried a second time for the same offence. Sri Lanka therefore does not support double jeopardy prosecution. Therefore based on the country information, I find that the [appellant] does not have a real risk of significant harm on return to Sri Lanka on account of his Australian criminal history.

(Citations omitted.)

18    It is significant also that the appellant’s representative, in the quite detailed written submissions to the Authority on 7 August 2016, as to why the appellant had a well-founded fear of persecution arising as a result of his political beliefs as a person who supported the LTTE, did not take issue at all with the delegate’s finding that the appellant does not have a real risk of significant harm on return to Sri Lanka on account of his Australian criminal history. Nor did the submissions claim that the appellant had a well-founded fear of persecution if he was returned to Sri Lanka arising from the facts and circumstances giving rise to his Australian criminal conviction.

19    In these circumstances, it cannot be argued for the appellant that there was a claim that the appellant faced a risk of harm from the prospect of persecution in Sri Lanka from the same facts and circumstances that were either expressly made by the appellant or which emerged clearly from the materials. It follows that there was no obligation on the Authority to consider such a claim but, in any event, I am satisfied the Authority did look into the matter and its findings about whether the appellant would face a real chance of serious harm or a real risk of significant harm on the basis of his criminal conviction. The Authority said (at [31] and [38]):

31.    The material before the [Authority], as reflected in the primary decision, indicates that on 3 December 2014 the [appellant] was convicted of assault with acts of indecency and was sentenced to an 18 month good behaviour bond. There is nothing in this history which would lead the [appellant] to facing a real chance of serious harm upon return to Sri Lanka on this account.

…

38.    As noted above, whilst in Australia the [appellant] was convicted of assault with acts of indecency and was sentenced to an 18 month good behaviour bond. There is no basis for believing that the [appellant’s] Australian criminal history will in any way result in the [appellant] facing a risk of serious harm upon return to Sri Lanka on this account.

20    The Authority also examined and discussed s 314 of the Sri Lankan Code of Criminal Procedure Act referred to in the delegate’s decision and the appellant’s representative’s submissions to the delegate.

CONCLUSION

21    In those circumstances, no appealable error is made out in relation to the Federal Circuit Court’s decision and no jurisdictional error is made out in respect of the Authority’s decision. The appeal must be dismissed with costs.

Associate:

Dated:    27 May 2019