FEDERAL COURT OF AUSTRALIA

EMI17 v Minister for Immigration and Border Protection [2019] FCA 1080

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    By notice of appeal filed on 28 December 2018, the appellant appeals from a decision of the Federal Circuit Court of Australia made on 11 December 2018 in EMI17 v Minister for Immigration [2018] FCCA 3975. The appeal is brought under s 24 of the Federal Court of Australia Act 1976 (Cth).

2    In the decision below, the Federal Circuit Court dismissed an application for judicial review of a decision of the second respondent (Authority) made on 13 September 2017 under Part 7AA of the Migration Act 1958 (Cth) (Act) affirming a decision of a delegate of the first respondent (Minister) under s 65 of the Act refusing to grant the appellant a protection visa.

3    For the reasons that follow, I dismiss the appeal.

Incoherent ground of appeal and no appearance from the appellant

4    The notice of appeal states a single ground of appeal: that there was jurisdictional error “due to no following or facts presented”. It is unclear what the ground means. The appellant did not file written submissions prior to the hearing of the appeal and did not make arrangements to appear at the hearing. The relevant procedural history is as follows.

5    While the notice of appeal was filed in the Melbourne Registry of the Federal Court, the appellant’s address for service was given as an address in Perth.

6    On 21 February 2019, the Court made orders for the preparation of the appeal for hearing. One of those orders required the appellant to file and serve a written outline of submissions no later than 10 business days before the hearing date. On 26 February 2019, the Court sent an email to the parties attaching a copy of the order made on 21 February 2019. The email also notified the parties that, in the ordinary course, the matter would be listed between 6 and 31 May 2019 in Melbourne.

7    On 19 March 2019, a solicitor with the Australian Government Solicitor, the solicitors for the Minister, received a telephone call from the appellant, together with an interpreter, in which the appellant stated that he resides in Perth and would not be able to attend the hearing in person. The solicitor advised the appellant that he would need to contact the Court to request an appearance by video link.

8    On 27 March 2019, the appellant sent an email to the Court stating that he was currently residing in Perth and requesting that a video link or telephone facility be arranged so that he could follow the proceeding from the Western Australia Registry in Perth. The Court replied on the same day, noting that the proceeding did not have a hearing date and asked the appellant to raise the request with the Court once a hearing date had been set.

9    On 3 April 2019, the Court sent an email to the parties notifying them that the appeal had been listed for hearing in Melbourne on 9 May 2019 at 10.15am.

10    On 4 April 2019, the Australian Government Solicitor sent an email to the appellant which, amongst other things, noted that the appeal had been listed for hearing on 9 May 2019.

11    On 2 May 2019, the Australian Government Solicitor sent a further email to the appellant which also reminded the appellant that the matter was listed for hearing on 9 May 2019.

12    As noted above, the appellant did not file written submissions in the appeal and did not make any other contact with the Court prior to the hearing.

13    When the matter was called on for hearing on 9 May 2019, there was no appearance on behalf of the appellant. I decided that the hearing should proceed. I considered that the appellant had been afforded an adequate opportunity to file written submissions and make arrangements to attend the hearing by video conference or telephone, but had not taken either step. At the hearing, the Minister relied on his written submissions and did not seek to supplement those with further oral submissions. At the conclusion of the hearing, I reserved my decision.

14    Notwithstanding the decision being reserved, I decided to afford the appellant one further opportunity to be heard on the appeal, either by filing written submissions or seeking an opportunity to be heard orally (whether by attending the Court in person at the Victoria Registry in Melbourne or by video link or telephone from the Western Australia Registry in Perth). The Court emailed the parties informing them that I would provide that opportunity to the appellant. The email requested the appellant, on or before 4pm on Monday, 13 May 2019, to advise chambers by return email whether he wished to be heard on the appeal and, if so, whether the appellant wished to file a written submission or be given an opportunity to be heard orally (whether by attending the Court in person at the Victoria Registry in Melbourne or by video link or telephone from the Western Australia Registry in Perth). The email stated that any written submissions should be filed by 4pm on Friday 17 May 2019 and any further hearing for receipt of oral submissions would be scheduled at a convenient time on Friday, 17 May 2019. The email stated that, subject to the appellant’s response, the Court would either proceed to deliver judgment in the appeal or make orders for the appellant to be heard. Later on 9 May 2019, the appellant replied to the email from the Court stating “Noted with thanks”, thereby acknowledging receipt. However, the appellant’s email did not state whether he wished to make a written or oral submission to the Court.

15    On 14 May 2019, the Court sent a further email to the appellant, copied to the Australian Government Solicitor, asking the appellant to advise the Court by return email whether he wished to be heard on the appeal. The email stated:

If you wish to be heard on the appeal, do you wish to make oral submissions by video link on Friday 17 May 2019?  Alternatively, do you wish to make a written submission by Friday 17 May 2019?

Please provide a response by 12 noon tomorrow, Wednesday 15 May 2019.

16    Nothing further was heard from the appellant. At about 4pm on 15 May 2019, the Court sent a further email to the parties advising them that, since the Court had not heard further from the appellant, the submissions of the parties would be regarded as complete, the Court had reserved its decision and it would notify the parties when judgment was to be delivered.

17    Subsequently, on 17 May 2019, the Court received an email from the appellant as follows:

Your Honour                                     

                                                               VID 1658 / 2018

1. I am the appellant in the above case. Further to my earlier submissions I wish to state the following:

     a. I left Sri Lanka as I had made local enemies who were powerful and had influence over the police and the Sri Lankan armed forces. 

     b. As I feared for my life I took the risky journey by sea to Australia to seek asylum.

     c. Due to the civil war in Sri Lanka the law and order situation took a dive for the worst and there was no civil administration as in the past. 

     d. All power was handed over to the Sri Lankan armed forces under the Prevention of Terrorism Act.

    e. In this situation persons within a local area who were politically powerful were able to influence the Sri Lankan armed forces and persons like me who fell foul of such powerful persons were at risk. 

    f. The same situation yet prevails in Sri Lanka as seen in the recent events of the killing of innocent civilians in churches and the attack on religious minorities and the declaration of a curfew.

   g. All these events has made the law and order situation in Sri Lanka deteriorate and gives little protection to persons in my situation. 

2. I have therefore a well founded fear of returning to Sri Lanka which was not properly examined by the Department of Immigration and the other persons endowed by the law to examine my case on the evidence placed.

3. I therefore appeal that an order be made that a fresh inquiry be constituted to examine my case for the granting of a Protection Visa. 

18    Later that day, the Court informed the parties by email that the Court would receive the appellant’s email of 17 May 2019 as a submission on the appeal, and also asked the Minister to confirm whether the Minister sought an opportunity to reply to the appellant’s submission. Later that day, the Australian Government Solicitor informed the Court by email that the Minister did not wish to reply to the appellant’s submission.

19    The appellant’s email of 17 May 2019 did not shed any further light on the basis of the appellant’s appeal or the nature of the error alleged. The email merely recites the appellant’s claim for protection which was put to the Department. As such, the position remains that the appellant’s notice of appeal contains an un-particularised and incoherent allegation of error. The appeal can be dismissed on that basis alone: SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21]; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; AYE16 v Minister for Immigration and Border Protection [2018] FCA 108 at [37]. Nevertheless, I have reviewed the decisions of the Authority and the Federal Circuit Court. I have had regard to the appellant’s notice of appeal, such as it is, and the appellant’s email of 17 May 2019 and I have considered the Minister’s submissions. I consider that there is no basis to the appeal. My reasons follow.

Background

20    The appellant was born on 25 July 1973 and is a citizen of Sri Lanka.

21    On 17 March 2016, the appellant was invited to apply and applied for a protection visa. The appellant stated in his visa application that he feared harm from a Mr C and his supporters for supporting a Mr B, both being members of the Sri Lanka Freedom Party (SLFP), in provincial council elections. The appellant detailed his claims in a written statement as follows:

(a)    The appellant ran a tailor shop in Anuradhapura and had operated the shop for five years prior to leaving Sri Lanka.

(b)    During the provincial elections, the appellant had supported Mr B and encouraged his customers to do the same. Mr C's supporters were angry and threatened to kill the appellant.

(c)    A week after the election, 15 of Mr C's supporters came to the appellant's house and threatened to kill him. A month later, he was stopped again at gunpoint by Mr C's supporters. Further, on nearly a daily basis, Mr C's supporters threw stones at the appellant's house.

(d)    After this, the appellant and his family moved away for ten months and stayed at a friend's house. While the appellant complained to police, they did nothing. Finally, when Mr C's supporters found out where the appellant was, he went into hiding in Colombo and Wellawaya (the latter being where his parents lived) for one and a half years. In the meantime, the appellant's house was burnt down.

(e)    When the appellant tried to leave to go to Cyprus in 2012, he was recognised by Mr C's supporters as Mr C operated the airport car park, so he couldn't leave. Eventually, the appellant left for Australia.

22    The Minister’s delegate conducted an interview on 8 December 2016.

23    On 25 January 2017, the delegate found that the appellant was only a low level supporter of Mr B and there was no evidence that supported the appellant's assertion that any attacks on him were politically motivated. While the delegate accepted that the appellant might have been subject to general threats and violence at the time of elections, it did not accept that this would continue in the future six years later, particularly as Mr B had passed away. On this basis, the delegate found that the appellant would not face a real chance of serious harm in the reasonably foreseeable future.

24    Even though the appellant left Sri Lanka illegally and would return as a failed asylum seeker, the delegate found that the appellant would not suffer serious harm as a result.

25    Accordingly, the delegate found that the appellant did not have a well-founded fear of persecution based on his political views, as an illegal departee or a failed asylum seeker. The delegate relied substantially on her assessment of the refugee criterion in s 36(2)(a) of the Act in finding that the appellant did not meet the complementary protection criterion in s 36(2)(aa) of the Act.

Authority decision

26    The delegate's decision was referred to the Authority on 30 January 2017 for review under Part 7AA of the Act.

27    On 22 July 2017, the appellant’s representatives provided the Authority with the statement of the United Nations Special Rapporteur on human rights and counter-terrorism dated 14 July 2017 following his official visit to Sri Lanka.

28    On 13 September 2017, the Authority affirmed the delegate's decision not to grant the appellant a protection visa.

29    As a preliminary matter, the Authority determined not to have regard to the information provided by the appellant's representatives pursuant to s 473DD of the Act (Authority reasons at [3] to [4]). While the information was new information for the purposes of the Act, the Authority found that there was no explanation as to why the information constituted credible, personal information about the appellant or if there were any exceptional circumstances that justified its consideration.

30    The Authority went on to set out the background to the appellant's claims (Authority reasons at [5]). The Authority made a number of credibility findings adverse to the appellant based on problems with and inconsistencies in his evidence.

(a)    While the Authority accepted that the appellant was a member and supporter of the SLFP, his evidence about why and what he did did not appear to be based on his own personal experience and his evidence was inconsistent about when threats commenced against him. Further, although he stated Mr B had lost an election in 2008, in fact he had won and been re-elected as Chief Minister of the relevant province (Authority reasons at [13] to [16]).

(b)    The appellant was unable to indicate why he, out of all of Mr B’s supporters, was targeted other than pointing to the allegation that two of his friends who supported Mr B had been murdered by Mr C's supporters (Authority reasons at [17]).

(c)    There were a number of inconsistencies regarding what the appellant stated about the death threats he allegedly received between his written statement and the record of his interview with the delegate (Authority reasons at [18] to [19]).

(d)    There were inconsistencies in the appellant's evidence about whether he moved away and went into hiding, where he went and for how long, and whether he shut down his tailoring business or not (Authority reasons at [20] to [22]). The Authority also did not accept that the appellant's house was burnt down by Mr C's supporters.

31    Based on these findings, the Authority found that the appellant had fabricated the death threats he claimed to have received in 2008, 2010 and 2012 (Authority reasons at [23]). In relation to the appellant's two friends, the Authority considered it implausible that the appellant would not have more information about the circumstances of their deaths and found that there was no link between their deaths and Mr C on this basis (Authority reasons at [24] to [25]). Further, the Authority found the appellant's evidence about Mr C operating the car park at Colombo airport was “far-fetched and lacking credibility” (Authority reasons at [26]).

32    In conclusion, the Authority found that the appellant was a low-level political supporter and accordingly was not known to Mr C's supporters (Authority reasons at [30]). While he may have experienced general harassment around election times, the Authority was not satisfied that he had ever been specifically targeted. In any event, country information indicated that the Sri Lankan political process had become increasingly peaceful and orderly since 2013 (Authority reasons at [31]).

33    The Authority found that, while those with substantial links to the Liberation Tigers of Tamil Eelam (LTTE) or suspected of committing serious crimes had reportedly faced harm, the appellant did not share that profile (Authority reasons at [34]). The Authority also found that, while the appellant would be charged for leaving Sri Lanka illegally, he would only be subject to a fine or detained for a brief period (Authority reasons at [35] to [38]). Further, the relevant laws were laws of general application and their enforcement did not disclose discriminatory effect or intent (Authority reasons at [41]).

34    For these reasons, the Authority concluded that the appellant did not meet the refugee criterion in s 36(2)(a) of the Act (Authority reasons at [42]). The Authority relied substantially on its factual findings and its assessment of the refugee criterion in finding that the appellant did not meet the complementary protection criterion in s 36(2)(aa) of the Act (Authority reasons at [45] to [50]).

Decision of the Federal Circuit Court

35    The appellant had an opportunity to be heard in the Federal Circuit Court on the grounds alleged there (primary judgment at [9] to [10]), in addition to being provided with the opportunity to file written submissions (which he did not do). In the Federal Circuit Court, the appellant alleged that the Authority did not afford him procedural fairness (ground one) or applied the wrong legal test (ground two) (primary judgment at [6]).

36    As to ground 1, the primary judge recorded the appellant’s submission that his claim did not receive proper consideration from the Authority (primary judgment at [9]). It may be that the appellant considered that he ought to have received a hearing before the Authority. However, as the primary judge correctly observed, Part 7AA of the Act does not require the Authority to conduct a hearing or interview the applicant (primary judgment at [8]). Section 473DA stipulates that Division 3 of Part 7AA, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. Section 473DB stipulates that, subject to Part 7AA, the Authority must review a fast track reviewable decision referred to it by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant.

37    While the Authority is empowered by s 473DC to seek additional information, there is nothing to indicate that the Authority acted unreasonably in this case in not exercising that power: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [21] per Gageler, Keane, and Nettle JJ and [86] per Gordon J. The Authority made its decision on the basis of the review material before it and on the issues that were live before the delegate. There is no suggestion that any new information was required. The Authority was not required to get new information pursuant to s 473DC simply because the appellant's credibility was in issue: DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [74].

38    In my view, the primary judge was correct to find that there was nothing to suggest that the Authority did not comply with the requirements of Part 7AA of the Act in conducting the review and to dismiss ground 1.

39    As to ground 2, the primary judge recorded that no submissions were advanced by the appellant on that ground (primary judgment at [12]). The primary judge correctly observed that the Authority’s reasons indicate that the Authority understood its statutory task and the criteria it was bound to consider. The Authority correctly set out the tests for “well­founded fear of persecution” and “real risk of significant harm” and made findings in line with subss 36(2)(a) and (2)(aa) of the Act. Accordingly, the primary judge was correct to dismiss ground 2.

Conclusion

40    The appellant has failed to identify any appellable error on the part of the Court below or any jurisdictional error on the part of the Authority. Accordingly, the appeal should be dismissed with costs.

Associate:

Dated:    12 July 2019