FEDERAL COURT OF AUSTRALIA

FDN17 v Minister for Immigration & Border Protection [2019] FCA 1395

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to rely on the amended notice of appeal.

2.    The appeal be dismissed.

3.    The appellant 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.

REASONS FOR JUDGMENT

JAGOT J:

1    This is an appeal from an order of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority (the IAA) affirming a decision of the Minister’s delegate not to grant the appellant a Safe Haven Enterprise visa (or SHEV): FDN17 v Minister for Home Affairs [2019] FCCA 623.

2    By an oral application made at the beginning of the hearing, the appellant’s counsel sought leave to rely upon an amended notice of appeal which abandoned the form of the appeal as filed and substituted three new grounds which had not been raised before the primary judge or dealt with in the Minister’s submissions. The Minister’s counsel opposed the grant of leave but indicated that she was able to deal with the new grounds orally should leave be granted. She opposed leave on the basis that the application would have the effect of disregarding the hearing in the Federal Circuit Court altogether, transforming what was meant to be an appeal into a first instance hearing, that the application was made extremely late, and that the proposed new appeal grounds lacked merit. I said I would deal with the application for leave in my reasons for judgment and the appeal should be argued as if leave had been granted.

3    Ground 1 concerns the IAA’s reasoning in [23] of its reasons. The IAA said it did not consider it credible that the appellant would be living well, including supporting his family and with money left over, if he earned about 70,000 rupees a year but was paying between 24,000 to 72,000 rupees in extortion. This statement was made in circumstances where the IAA, also in [23], recorded that the appellant said he earned about 70,000 rupees a year and that the Criminal Investigation Department (CID) would demand 2,000 to 3,000 rupees from him once or twice a month. The point the appellant’s counsel made was that nowhere was is said that the appellant in fact paid the extortion money so there was no evidence supporting the IAA’s conclusion that the appellant’s claims lacked credibility.

4    Ground 1 can be disposed of readily. First, even confining attention to [23] of the IAA’s reasons, it was reasonably open to the IAA to infer that the appellant had paid the claimed extortionate demands given that the appellant said the CID would return once or twice a month and ask for 2,000 to 3,000 rupees to ensure his safety and the appellant remained safe at that time. Second, the appellant’s representative sent a submission to the IAA which said that “[w]e are instructed that the applicant was paying a bribe to the CID in exchange for protection”. The IAA was entitled to rely on this statement as evidence that the appellant was meeting the extortionate demands in return for his safety. The IAA’s conclusion in [23] that it was not credible that the appellant could have been making such payments and was still able to live comfortably and support his family was a finding reasonably open on the evidence.

5    The second aspect of ground 1 is equally untenable. The appellant’s counsel submitted that there was no evidence supporting the IAA’s finding that the extortion had continued over six years because all the appellant had said is that after he attended LTTE training in around June 2006 he was targeted by the CID. However, this reference in the appellant’s statement comes between June 2006 and September 2006. It was reasonably open to the IAA to infer that the appellant was claiming to have been targeted by the CID immediately or shortly after his LTTE training in June 2006. For this reason, there was a rational foundation in the material that the appellant claimed to have been subject to extortion over six years, a proposition the IAA found lacked credibility.

6    Ground 2 is dependent on ground 1 succeeding. It was submitted that the IAA erred at [50] of its reasons because it said it was not satisfied the appellant could not return to his former trade as a jeweller given that he was not subject to extortion as a jeweller. For the reasons already given, the IAA did not err in the way proposed in ground 1. It follows that ground 2 of the amended notice of appeal is also misconceived.

7    Ground 3 contends that the IAA did not have regard to one of the appellant’s claims that he would not be able to survive in his previous employment as a jeweller. I disagree. It is evident that at [48] to [51] of the IAA’s reasons it was considering the risk of harm to which the appellant would be subjected if he returned to Sri Lanka and took up his former trade as a jeweller. Implicit within this analysis is the IAA dealing with the appellant’s claim that he would not be able to survive as a jeweller given his other claims, including of extortion. The IAA rejected those claims and was not satisfied that the appellant would experience any harm if he returned to Sri Lanka and his work as a jeweller. That is, the IAA believed the appellant would be able to survive in that capacity.

8    No other grounds of appeal were advanced on the appellant’s behalf. Nothing in the material suggests any error by the Federal Circuit Court. The appellant should be granted leave to rely on the amended notice of appeal and the appeal should be dismissed with costs.

Associate:

Dated:    3 September 2019