Federal Court of Australia

COR16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 269

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The appeal is dismissed.

3.    The appellant is to pay the costs of the first respondent in the fixed sum of $3,588.00.

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

REASONS FOR JUDGMENT

ABRAHAM J

1    The appellant, a citizen of Sri Lanka, arrived in Australia in 2012 as an unauthorised maritime arrival. On 20 August 2015, the then Minister for Immigration and Border Protection (Minister) exercised his discretion under s 46A(2) of the Migration Act 1958 (Cth) (Migration Act), allowing the appellant to make a valid application for a specified visa. On 30 October 2015, the appellant applied for a temporary protection visa. On 14 June 2016, a delegate of the Minister refused the application, and as a fast track reviewable decision, it was referred to the Immigration Assessment Authority (the Authority) for review. On 15 August 2016, the Authority affirmed the decision under review. On 26 May 2020, the Federal Circuit Court dismissed the appellant’s appeal from that decision. This is an appeal from the Federal Circuit Court’s decision.

2    The appellant appeared unrepresented with the assistance of an interpreter, as he did in the Federal Circuit Court.

3    His notice of appeal dated 10 June 2020, identifies only one ground of appeal, namely that the Federal Circuit Court erred when it found that the decision of the Authority was not affected by jurisdictional error. The appellant also stated in the notice that he still relies on the grounds and particulars in his Federal Circuit Court application. Although given an opportunity to do so, the appellant did not file any amended notice of appeal. Nor did he file any written submissions despite the Court’s orders. The appellant made oral submissions at the hearing which were, perhaps unsurprisingly, directed primarily to explaining why he should have been found to be a refugee and seeking to relitigate issues relevant to the factual findings of the Authority. No error was pointed to in the reasons of the Court below.

4    In oral submissions, the first respondent submitted there was no basis to find jurisdictional error established given the ground of appeal made general assertions that were completely unparticularised. In his written and oral submissions, the first respondent addressed the grounds of appeal and submissions in the court below, submitting no error had been established in the primary judge’s reasoning in respect of each.

5    For the reasons below, the appeal is dismissed.

Consideration

6    Given the appellant was unrepresented and the nature of his submission, it is timely to note the limited role of the Federal Circuit Court, and this Court on appeal: see the summary in BRQ18 v Minister for Home Affairs [2019] FCA 319 at [15]-[17]. The Federal Circuit Court could only have disturbed the decision of the Authority under review if that decision was infected by jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [13], per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. This Court’s appellate function is to ascertain whether there is an error in the decision of the Federal Circuit Court. Neither Court has the jurisdiction to consider the factual merits of the Authority’s decision. The issue is not whether this Court or the Federal Circuit Court agrees with the decision.

7    In that context, there is no appeal ground alleging error in the decision of the Court below. A generalised assertion lacking particulars that the Court below erred in failing to find jurisdictional error does not suffice. The lack of particularisation is sufficient in itself to dismiss the appeal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 at [12]. Relying on the grounds that were before the Court below does not assist because that does not identify any error by the primary judge in dismissing those grounds.

8    In any event, there is no error apparent in the reasoning of the Court below dismissing the grounds before it. The reasons of the primary judge are detailed and considered. Having summarised the appellant’s case, and the reasoning of the Authority, the primary judge went on to consider the two appeal grounds.

9    The first ground alleged that the Authority fell into jurisdictional error when it failed to find that the appellant was associated with or seen as a supporter of the Liberation Tigers of Tamil Eelam. The primary judge, being generous to the appellant, addressed this ground from the perspective of an allegation that the Authority had not considered his claims and submissions relating to this issue: at [37]-[46]. This proposition was rejected by the primary judge, concluding at [47]:

If it was intended to be asserted that the Authority failed to have regard to the agent’s submission to it in a manner constituting jurisdictional error, such a claim is not made out. The Authority not only referred to the submission, it also addressed the issues raised in that submission (for example, in considering the claimed fear based on the Applicant’s cousin’s son’s abduction, the location of military camps and of his home village, the UNHCR Guidelines cited by the agent, and the contention that the TNA and LTTE had the same policies).

10    There is no error in that conclusion.

11    However, the first ground read more conventionally challenged a factual conclusion. This is no more than an impermissible merits review: see Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 36-39 per Brennan J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, per Brennan CJ, Toohey, McHugh and Gummow JJ. In this regard, the primary judge correctly concluded at [46]:

It has not been established that the Authority failed to consider whether the Applicant was associated with or seen as a supporter of the LTTE or the TNA in a manner constituting jurisdictional error. In so far as the Applicant takes issue with the Authority’s failure to accept that he was (or would be seen as) such a supporter, he seeks impermissible merits review.

12    The second ground alleged that the Authority breached s 424 of the Migration Act, alleging it did not put relevant material to him. The primary judge dismissed this ground at [51]-[52]:

[51] Section 424 gives the Administrative Appeals Tribunal the power to get information it considers relevant and if it does so, obliges it to have regard to such information. As the First Respondent submitted, this ground is misconceived in that s.424 has no application to review by the Authority of a fast track decision under Part 7AA of the Act. I also note that s.424 of the Act relates to the discretion to get information, rather than a requirement to invite the Applicant to comment on or respond to information (cf. s.424A of the Act).

[52] The Applicant has not identified any particular information the Authority should have put to him for comment, other than the surety issue which is discussed below.

13    There is no apparent error in that reasoning.

14    As explained above, the primary judge’s reasons are considered, and addressed at [55]-[84] other complaints raised by the appellant in submissions, although they were not pleaded as grounds of appeal. The primary judge concluded: first, the Authority did not have a duty to visit the appellant’s home region in Sri Lanka to make inquiries about his claims: at [55]-[59]; second, the appellant had not established any error in relation to his submission the Delegate should have put material to him. That material regarded the possibility that if he were charged upon return to Sri Lanka with illegal departure and pleaded not guilty, a family member might need to post bail or a surety: at [60]-[66]; and third, that the submission that the Authority ought to have conducted a further hearing was misconceived and it was not legally unreasonable for the Authority to exercise its discretion not to obtain new information at an interview. The appellant was on notice of the concerns raised in the Delegate’s decision and had an opportunity to address them, and did not establish that he provided new information to the Authority in his agent’s submissions: at [67]-[84]. Again, there is no apparent error in that reasoning. I note that none of these topics were referred to by the appellant either in his notice of appeal or in the hearing in this Court.

Conclusion

15    The appeal is dismissed.

16    The first respondent sought an order for costs in a fixed sum of $3,588.00, which was supported by evidence. I am satisfied that order ought to be made.

Associate: Lachlan Bellach

Dated:    27 March 2023