Federal Court of Australia

ENB19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 840

ORDERS

THE COURT ORDERS THAT:

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

2.    The application for leave to appeal be dismissed.

3.    The applicant pay the first respondent’s costs fixed in the amount of $3,500.00.

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

REASONS FOR JUDGMENT

GOODMAN J

A.    Introduction

1    The applicant is a citizen of Sri Lanka. On 16 March 2017, he applied for a Safe Haven Enterprise (Subclass 790) visa. On 17 September 2019, a delegate of the first respondent (Minister) refused, pursuant to s 65 of the Migration Act 1958 (Cth), to grant a visa to the applicant. On 20 September 2019, the delegate’s decision was referred to the Immigration Assessment Authority for review and on 21 October 2019, the Authority affirmed the delegate’s decision to refuse the visa and provided its reasons (Reasons, or R) for doing so.

2    On 15 November 2019, the applicant filed an application in the (then) Federal Circuit Court of Australia seeking judicial review of the Authority’s decision. On 20 July 2020, the primary judge heard and dismissed this application under (the since repealed) r 44.12(1)(a) of the Federal Circuit Court Rules 2011 (Cth), on the basis that the applicant was unable to demonstrate an arguable case of jurisdictional error by the Authority: ENB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1968 (J).

3    On 31 July 2020, the applicant filed an application in this Court for leave to appeal from the primary judge’s decision. For the reasons below, leave to appeal should not be granted.

B.    The applicant’s claims for protection

4    The applicant’s claims for protection were set out in a statement provided with his visa application and a supplementary statement. He also addressed those claims in a protection visa interview with the Department of Home Affairs. The Authority (at R[3]) summarised those claims as follows:

•    If returned to Sri Lanka he is afraid he will be subject to serious harm including being arrested, tortured or killed. He is afraid of harm from the Sri Lankan authorities, both the police and military;

•    He has already experienced harassment of himself and his family as the Sri Lankan authorities have repeatedly come to his mother's house and asked about him;

•    He fears that he would be seriously harmed because he gave evidence in court that military forces killed humanitarian workers in 2006, including his cousin. He fears harm from the Sri Lanka government. He gave evidence against the Sri Lankan military. Even though he made his statement against the previous government, three months prior to his SHEV statement the authorities came to his house looking for him; and

•    He fears he will not be safe if returned to Sri Lanka because he gave a statement against the government in relation to his cousin's death, he stopped reporting to the police in breach of his release conditions, and he came to Australia illegally.

C.    The Authority’s decision

5    The decision under review by the Authority was a decision of the Minister (by a delegate) under s 65 of the Act to refuse to grant the visa sought by the applicant. Part of that decision (and thus part of the Authority’s review) was whether the criteria for the grant of a protection visa under s 36 of the Act had been satisfied, and in particular s 36(2)(a) or (aa), which provided:

36 Protection visas – criteria provided for by this Act

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

6    It is apparent from the Reasons that the Authority considered whether the applicant had satisfied the criteria in s 36(2)(a) and (aa).

7    The Authority summarised the applicant’s claims for protection in the terms set out at [4] above.

8    The Authority then set out its factual findings concerning those claims. In the course of doing so, the Authority accepted the applicant’s claim that he was a Tamil of the Hindu faith from the Eastern Province, Sri Lanka (R[4]), but it found a number of his claims for protection were not credible (R[13] to [16]).

9    At R[17] the Authority set out its views as to the credibility of the applicant’s claims for protection:

17.    In assessing the applicant’s evidence I have taken into account the difficulties often faced by applicants for protection, particularly those who some period has passed since they departed their country of origin and that the applicant has indicated he has trouble with his memory. However, the issues identified above go beyond minor errors and discrepancies that could be attributed to factors such as recall problems, misunderstandings in interpreted material, cultural communication issues, or a lack of cohesive narration due to trauma, and show significant credibility problems in the applicant’s evidence. I do not consider the applicant to be a credible or reliable witness. Given his consistent evidence about AR being killed in Muttur, together with the supporting documents, I accept that AR was working for ACLF in Muttur in August 2006 when he and other local Tamil aid workers were killed by the SLA following fighting between the SLA and the LTTE. I also accept his claim that he identified AR’s body and find that he was directed by the magistrate’s court to formally identify AR’s body before the Officer-in-Charge of the Harbour Police. I am prepared to accept that he and his family went to India in 2006, but I do not accept it was for the reasons he claims. I reject as fabrications his claims that he gave evidence in court that the SLA killed AR; that the SLA came to arrest him in 2006; that the Sri Lankan authorities made enquiries about his whereabouts while he was in living in India; that the Sri Lanka authorities were looking for the applicant or he was in hiding from 2010 to 2012; that he attempted to leave Sri Lanka illegally in mid-2012, was intercepted by the SLN, arrested, jailed, charged, taken to court and had to report to the police as a result; and that the Sri Lanka authorities have made enquiries about his whereabouts since he left Sri Lanka in 2012. It follows from rejecting those claims that I am not satisfied that the applicant was of any adverse interest to the Sri Lanka authorities at the time he left Sri Lanka in 2012.

(emphasis added; the references to AR are to the applicant’s cousin)

10    The Authority then divided its consideration into a “refugee assessment”, corresponding with s 36(2)(a) of the Act (R[19] to [44]); and a “complementary protection assessment”, corresponding with s 36(2)(aa) of the Act (R[45] to [52]). Each of these assessments involved a detailed review of the information and material before the Authority, including a review of relevant country information concerning the treatment of Tamil citizens of Sri Lanka during and following the country’s civil war. The Authority also took into account its findings as to the credibility of the applicant’s evidence. Ultimately, the Authority concluded that neither s 36(2)(a) nor s 36(2)(aa) was satisfied (R[52]).

11    In the course of doing so, the Authority set out its assessment of the challenges that the applicant would face upon a return to Sri Lanka. In particular, the Authority found:

39.    DFAT reports that refugees and failed asylum seekers face practical challenges to successfully return to Sri Lanka. Many face difficulty in finding suitable employment and reliable housing, and refugees and failed asylum seekers have reported social stigma from their communities on return. DFAT assesses that returnees may face some societal discrimination upon return to their communities, and that continued surveillance of returnees contributes to a sense of mistrust.

40.    The applicant has many years of job experience having worked as a painter in Sri Lanka and India, worked as a labourer in Sri Lanka, Qatar and Australia, and also worked as a machine operator in Australia. He has completed Year 11 at school and a welding course at a technical college. He has shown himself to be resourceful and generally resilient by adapting to life outside of Sri Lanka in three countries. The applicant will be returning to the Trincomalee area where his immediate family reside. He has remained in contact with his immediate family in Sri Lanka. He does not claim that his family have been unable to subsist in Sri Lanka. Given those factors, I am satisfied that the applicant will be able to re-establish himself in Trincomalee without suffering harm in relation to any housing and employment difficulties that he may initially encounter. I accept that he may face some social stigma on his return as a returned/failed asylum seeker. However, although social stigma, whether in the form of negative attitudes, a level of social isolation or otherwise, may be hurtful, I am not satisfied it amount to significant ill treatment or any other type of harm that may be regarded as serious harm.

…

47.    I accept that, if he returns to Sri Lanka, while re-integrating the applicant may face some level of societal discrimination as a returned Tamil asylum seeker from Australia, in the form of social stigma. As acknowledged above social stigma may at times be hurtful, however, I am not satisfied on the evidence that any hurt he may suffer from social stigma will amount to severe pain or suffering, or pain and suffering that could reasonably be considered as cruel or inhuman in nature. Similarly, while social stigma may be hurtful or harassing but it does not amount to extreme humiliation. I am not satisfied that it amounts to the death penalty, arbitrary deprivation of life or torture. I am not satisfied that any social stigma suffered by the applicant as a returned asylum seeker from Australia amounts to significant harm as defined in ss.36(2A) and 5 of the Act.

D.    The proceeding in the court below

12    The applicant relied on the following grounds of review before the primary judge (as written):

Ground one: Jurisdictional Error: The Immigration Assessment Authority fell into jurisdictional error in reaching its conclusion that the applicant did not face harm by Sri Lankan Arm Forces.

Particulars

1.    The Applicant previously detained by theSri Lankan Arm Forces

2.    The district Jude ordered to realise.un

3.    He was the main witness for his own brother’s death against Arm Forces.

4.    There is fair chance of detained in the Sri Lankan Airport on his arrival.

Ground TWO: Jurisdictional Error. The Authority fell into jurisdictional error by an erroneous Construction of s473DD in that adopted unduly narrow construction of s473DD.

In doing so, it constructively failed to exercise it’s jurisdictional under s473DD

13    The primary judge’s succinct reasoning with respect to the those grounds of appeal was (at J[20] to [22]):

20.    In my view, no arguable case of jurisdictional error arises from the grounds in the application. I agree with the Minister’s submissions concerning those grounds.

21.    Ground one merely expresses disagreement with the Authority’s rejection of his claims to fear harm from the authorities in Sri Lanka, and at its highest, seeks impermissible merits review. Further the applicant claimed, and the Authority accepted, that it was his cousin who was killed not his brother. In any event, to engage in an assessment of the applicant’s claims and eligibility for the visa is not a function of the Court. The Authority’s adverse credibility findings in respect of this aspect of the applicant’s claims were plainly open to it on account of the inconsistencies and deficiencies it identified in the applicant’s evidence. These findings were legally probative to the issue of the applicant’s credibility.

22.    Ground two is misconceived and bears no connection to the Authority’s reasons. As there was no new information before the Authority, it was not required to apply s.473DD of the Migration Act.

14    The primary judge also noted at [23]:

Neither is any arguable case of jurisdictional error apparent to me from my own reading of the Authority decision.

E.    The proceeding in this court

The application for leave and the affidavit in support

15    As noted above, the applicant seeks leave to appeal from the decision of the primary judge. In support of that application, the applicant made an affidavit which included (as written):

…

4.    On 20th July 2020 at 2.15pm before judge Drive at the FederalCircuit court of Australia dismissed my matter and made certain orders.

5.    Annexed marked A, copy of the order.

6.    Annexed marked AB 2, is a copy of the order made by the primary judge

7.    I was self represented before primary judge. Due to Covid 19 I lost the job and financially under affordable to engaged a Lawyer.

8.    On the hearing date, I was told , I will be given any another date. Later the day I was found it was not a correct information.

9.    Primary Judge refused to adjourn my matter because there was no arguable case of jurisdiction by the Authority.

10.    Counsel has reviewed my matter propose new grounds.

11.    I did not wish to have the Application considered without Oral arguments.

12.    I ask the Court to grant relief sought in the Application.

13.    Draft notice of Appeal that complies with rules 36.01 (1) and (2)

14.    I rely on the following grounds to support the Application.

Grounds of Application

1.    The Federal Court failed to find that the authority decision was vitiated by jurisdictional error in that it failed to consider an integer of the Applicant s protection claims, leading to a failure to exercise jurisdiction.

2.    Ground TWO. The Federal Circuit court failed to find that the authorities Failed to exercise it’s powers pursuant to s473CC within the bounds of reasonableness in that it made findings that were not supported by evidence, leading to a decision that was plainly unjust and lacking an evident and intelligent justification.

    Particulars: The Authority noted that the refugees and failed asylum seekers face practical challenges, when they send back to their home countries. They could not find employment, Reintegration. SriLankan Authorities not provide and survival support.

The need for leave to appeal

16    The applicant requires leave to appeal for two reasons.

17    First, the decision of the primary judge under r 44.12(1)(a) of the Rules is interlocutory: r 44.12(2). Accordingly, an appeal from the decision is not to be brought without leave: 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The question whether leave to appeal should be granted turns principally upon whether: (1) the orders of the primary judge are attended by sufficient doubt that re-consideration on appeal is warranted; and (2) substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 (Sheppard, Burchett and Heerey JJ). Those requirements are cumulative and each limb must be satisfied: Rawson Finances Pty Ltd v DCT [2010] FCAFC 139; (2010) 81 ATR 36 at 38 [5] (Ryan, Stone and Jagot JJ).

18    Secondly, the proposed grounds of appeal concern issues not advanced before the primary judge, and as such, leave is required to raise them before this Court: Francuziak v Minister for Justice [2015] FCAFC 162; (2015) 238 FCR 332 at 335 [11] (Siopis, Flick and Katzmann JJ). When determining whether to grant leave for a party to raise arguments not relied upon before a primary judge the Court principally considers the interests of justice: Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 at [34] to [37] (Katzmann, Banks-Smith and Rofe JJ); VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at 598 [46] (Kiefel, Weinberg and Stone JJ) and Francuziak at [11]. The merits (or lack thereof) of proposed new grounds of appeal are a significant consideration in the Court’s determination of whether to grant leave: Khalil at [36], EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 129 at [5] (Rangiah, Stewart and Cheeseman JJ).

Consideration

19    As is apparent, a central factor in considering whether to grant: (1) leave to appeal an interlocutory order; and (2) leave to advance grounds of review not advanced below, is the underlying merits of the applicant’s case. I turn now to consider the merits of the grounds of appeal that the applicant wishes to advance.

20    Those grounds are described in the applicant’s affidavit, which is set out at [15] above. I will treat (as the Minister fairly did) the listed particulars as applying to both proposed grounds.

21    The first proposed ground of appeal is that the Authority failed to consider an integer of the applicant’s protection claim, namely that refugees and failed asylum seekers face practical challenges on return to Sri Lanka, including an inability to find employment and difficulty re-integrating, and that Sri Lankan authorities do not provide any “survival support” to them.

22    I do not accept that it was part of the applicant’s claims for protection that he would face practical challenges of the kind described. Such claims do not appear in the applicant’s statement, his supplementary statement or the delegate’s summary of his interview. Nor does such a claim feature in the summaries of the applicant’s claims set out by the delegate, the Authority or the primary judge.

23    In any event, it is clear that the Authority addressed the practical challenges that the applicant would face upon return to Sri Lanka at R[39] to [40] and [47] (see [11] above).

24    The second proposed ground of appeal is that the Authority failed to exercise its power to review the Minister’s decision within the bounds of reasonableness because it made findings unsupported by evidence, with the result that the Authority’s decision was plainly unjust and lacked an evident and intelligent justification.

25    The only finding identified in this proposed ground of appeal is the finding that refugees and failed asylum seekers face practical challenges when returned to their home countries. As is clear from the paragraphs of the Reasons set out at [11] above, there was an evidentiary basis for that finding in the form of DFAT country information.

26    The Minister’s submissions interpreted the second proposed ground of appeal as referring to the credibility findings made against the applicant. I do not interpret the second proposed ground in that way. In any event, I accept the Minister’s submissions that the Authority’s credibility findings were based on logically probative evidence, being the inconsistencies and implausibility of aspects of the applicant’s evidence. Further, and as found by the primary judge at J[21] (see [13] above), the Authority’s credibility findings were plainly open to it for the reasons it identified.

27    For the reasons set out above, the proposed grounds of appeal lack merit. It follows that: the orders of the primary judge are not attended by sufficient doubt that re-consideration is warranted; I am not satisfied that the refusal of leave to appeal would occasion substantial injustice; and the proposed grounds lack sufficient merit to justify a grant of leave to raise points not raised before the primary judge.

28    I note that an explanation as to why new grounds were not raised below is an important consideration in determining whether leave ought to be granted: VUAX at 598 [46]. The applicant’s affidavit stated that he was unrepresented before the primary judge; and that counsel had reviewed his matter and proposed the new grounds. I accept that evidence as an explanation as to why the grounds now propounded were not raised before the primary judge. However, the absence of merit in the proposed grounds of appeal is determinative of the application for leave to appeal.

Other matters raised by the applicant

29    The applicant’s affidavit (see [15] above) referred to a refusal by the primary judge to adjourn the hearing before him. However, despite the applicant’s evidence that counsel had reviewed his matter and proposed new grounds, the proposed grounds of appeal did not include a challenge to the primary judge’s decision to refuse to adjourn the hearing. No submissions were made on this issue and there is no evidence before the Court of the events surrounding that refusal. Thus, I do not consider this issue further.

30    The applicant made oral submissions that addressed the merits of his protection claims and the challenges he would face if he were to be returned to Sri Lanka. However, as the Minister submitted, consideration of the merits of those claims and of the Authority’s decision concerning those claims is beyond the jurisdiction of this Court. The jurisdiction of the Court below on a judicial review (and thus this Court on appeal), is confined to deciding, by reference to the grounds of review advanced, whether the decision under review was made within the authority conferred by the statute upon the decision-maker: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at 520 to 521 ([29] to [30]) (Kiefel CJ, Gageler, Keane and Gleeson JJ).

F.    Conclusion

31    For the reasons set out above, leave to appeal from the primary decision should be refused.

32    As the applicant has been unsuccessful he should pay the Minister’s costs of the application. The Minister seeks an order that the applicant pay the Minister’s costs fixed in the sum of $3,500. The Court’s discretion with respect to costs is broad and includes the making of a lump sum order for costs. The making of such an order is appropriate in the present case given that: it accords with the Court’s preference for lump sum costs orders (Costs Practice Note at [3.3] and [4.1]; Paciocco v Australia and New Zealand Banking Group Limited (No 2) [2017] FCAFC 146; (2017) 253 FCR 403 at 406 to 407 ([16] to [19]) (Allsop CJ, Besanko and Middleton JJ); it will save the parties the time and costs attendant upon a taxation process; the costs claimed by the Minister appear to be proportionate to the complexity of the issues raised in the proceeding; and the amount sought is less than the amount that could be claimed in a short form bill for an appeal involving a migration decision that is dismissed after hearing ($7,965 as set out in the Federal Court Rules 2011 (Cth), Schedule 3, Item 15.2).

33    I will make orders accordingly.

Associate:    

Dated:    27 July 2023