Federal Court of Australia

DQM17 v Minister for Immigration and Multicultural Affairs [2024] FCA 1333

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs to be agreed or, failing agreement, to be taxed.

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

REASONS FOR JUDGMENT

DOWNES J:

1    This is an appeal from a decision of the (then) Federal Circuit Court of Australia in DQM17 v Minister for Immigration & Anor [2020] FCCA 2249 (primary judgment).

2    The appellant is a Sri Lankan citizen of Tamil ethnicity who entered Australia as an unauthorised maritime arrival in 2012. He applied for a Safe Haven Enterprise (subclass 790) visa (SHEV) on 18 May 2016. The appellant’s claims for protection are based on a fear of harm from Sri Lankan authorities due to his Tamil ethnicity, imputed links (including familial links) to the Liberation Tigers of Tamil Eelam (LTTE), his political involvement in Sri Lanka (including campaigning for the closure of police camps), his illegal departure from Sri Lanka, and his asylum application in Australia.

3    On 24 November 2016, a delegate of the first respondent refused to grant the appellant a SHEV under s 36(2) of the Migration Act 1958 (Cth) (delegate’s decision).

4    As the delegate’s decision is a “fast track reviewable decision” (as defined in s 473BB of the Migration Act), it was referred to the second respondent, the Immigration Assessment Authority (the Authority) pursuant to s 473CA of the Migration Act for review under Pt 7AA of the Migration Act on 30 November 2016.

5    On 27 July 2017, the Authority affirmed the delegate’s decision not to grant the appellant a SHEV pursuant to s 473CC(2)(a) of the Migration Act (Authority’s decision or AD).

6    The appellant sought judicial review of the Authority’s decision. The primary judge dismissed the appellant’s judicial review application with costs on 13 August 2020. That decision is the subject of the present appeal.

7    The appellant’s Notice of Appeal raises new (albeit similar) grounds of appeal that were not advanced by the appellant before the primary judge. For that reason, the appellant requires leave to advance these new grounds of appeal. I have proceeded on the basis that the appellant seeks that leave.

8    For the reasons that follow, leave will not be granted and the appeal will otherwise be dismissed with costs.

The appellant’s material

9    The appellant filed a Notice of Appeal on 8 September 2020 which sets out two grounds of appeal and seeks orders that (inter alia) the orders of the primary judge be set aside and the matter be remitted to the Authority to be determined in accordance with the law.

10    The appellant did not file written submissions. For these reasons, I will treat the appellant’s Notice of Appeal as written submissions.

11    At the hearing of this appeal the appellant made brief oral submissions, including about facts which were not raised with the Authority. However, these submissions concerned the merits of the appellant’s application for protection and did not refer to any error by the primary judge or the Authority, thereby inviting me to engage in impermissible merits review. For that reason, I do not address the appellant’s oral submissions in the reasons that follow.

Leave to advance new grounds on appeal

12    Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so. Some relevant considerations were set out in Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 134 at [23] (Nicholas, Thomas and Downes JJ) as follows:

(1)    whether there is an adequate explanation for the failure to raise the ground below;

(2)    the merits of the proposed ground;

(3)    the “potential vindication of a just outcome” and the gravity of the consequences of the decision not to permit the ground to be advanced;

(4)    any prejudice to the respondent if the new ground is allowed to be advanced;

(5)    whether the new ground raises a matter that could have been met by evidence.

(Citations omitted.)

13    The appellant has not provided any explanation for the failure to raise those grounds of appeal below. This tells against leave being granted.

14    Most significantly, the grounds of appeal set out in the Notice of Appeal are wholly without merit for the reasons that follow. Accordingly, even if leave had been granted, the appeal would have been dismissed for the same reasons.

Ground 1

15    By ground 1 of the Notice of Appeal, the appellant contends:

The learned trial Judge Driver erred in finding that the decision of the Immigration Assessment Authority involved Jurisdictional error, as the Immigration Assessment Authority misconstrued or misapplied the words “risk of harm” and “real chance of serious harm” in the definitions of “serious harm” in Under ss 5J(4)(b) and 91R(1)(b) of the Act. His Honour thereby erred in considering the above (MIBP v WZAPN (2015) at [41-51].).

(Errors original.)

16    The particulars of the Notice of Appeal appear to assert that the Authority failed to consider the appellant’s claims regarding arbitrary deprivation of life and, insofar as I can understand it, an intention on the part of Sri Lankan authorities to cause harm to the appellant.

17    To the extent that I am able to comprehend this ground, the appellant’s contention that the Authority misconstrued or misapplied the definitions of “serious harm”, “risk of harm” and “real chance of serious harm” is without merit and cannot be accepted, such that no error in the primary judgment has been shown.

18    The Authority’s decision plainly evaluates whether the appellant is entitled to a protection visa by reason of the appellant being a refugee: s 36(2)(a) of the Migration Act. In considering whether the appellant is a refugee within the meaning of s 5H of the Migration Act, the Authority applied the test as to whether the appellant had a “well-founded fear of persecution” in accordance with s 5J of the Migration Act. This necessarily involves a consideration of whether the appellant fears persecution involving “serious harm”.

19    Section 5J provides, relevantly, that:

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

…

(4)    If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)    the persecution must involve serious harm to the person; and

(c)    the persecution must involve systematic and discriminatory conduct.

(Emphasis added.)

20    After considering the appellant’s submissions and evidence in detail, the Authority found at AD [39] that the appellant “is not a person that faces a real chance of serious harm by virtue of his Tamil ethnicity, or on account of any actual or imputed LTTE connections, including familial connections”. In making this finding, the Authority necessarily found that the appellant does not face “serious harm” by reason of any risk of arbitrary deprivation of life. There is nothing in the Authority’s decision which indicates that it misconstrued or misapplied the meaning of “serious harm” within the meaning of s 5J(4)(b) of the Migration Act and the appellant was unable to establish otherwise.

21    I note also that, by ground 1 of the notice of appeal, the appellant refers to s 91R(1)(b) of the Migration Act and the decision of Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610; [2015] HCA 22 at [41]–[51], wherein French CJ, Kiefel, Bell and Keane JJ consider this provision. However, s 91R of the Migration Act is no longer in force and that provision was not in force at the time of the Authority’s decision. Therefore, s 91R is not relevant to the present appeal.

22    For these reasons, ground 1 lacks merit and no error has been shown in the primary judgment. Consequently, ground 1 would fail if leave was granted.

Ground 2

23    By ground 2 of the Notice of Appeal, the appellant claims:

His Honour should have found that the “well-founded fear owing being supporter with LTTE through his family connection” whereby the Applicant’s life is under threat, constituted jurisdictional error.

(Errors original.)

24    By the particulars of the Notice of Appeal, the appellant appears to assert that the Authority failed to consider his fear of harm owing to his association with the LTTE as amounting to serious harm.

25    However, the Authority expressly considered the appellant’s claims regarding his connection, including his familial connection, with the LTTE at AD [14]–[39].

26    At AD [26]–[28], the Authority accepted certain of the appellant’s claims in relation to the LTTE, including: his brother’s involvement with the LTTE and subsequent killing; that the appellant was arrested and detained in 1993 in connection with his brother’s profile and that he was physically harmed as a result; that the appellant’s wife’s uncle was in the LTTE; and that members of his wife’s family were arrested and detained in connection with his uncle’s profile. The Authority considered, but ultimately did not accept, other of the appellant’s claims: AD [29]–[35]. It is well established that the Authority is not required to accept, uncritically, all of an appellant’s evidence: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 at [24] (Perry J).

27    Following its consideration of each of these claims, the Authority reached the following conclusions:

[36]    … I am not satisfied that the applicant faces a real chance of serious harm in Sri Lanka due to his late brother's or wife's uncle's prior LTTE involvement.

[37]    … I consider the prospect that the applicant would now, some 10 years later, come to the adverse attention of the Sri Lankan authorities for providing goods to the LHE remote. I am not satisfied that the applicant now faces a real chance of serious harm in Sri Lanka on this basis.

…

[39]    … Given my findings about the profile of the applicant, and having regard to the country information before me, I conclude that he is not a person that faces a real chance of serious harm by virtue of his Tamil ethnicity, or on account of any actual or imputed LTTE connections, including familial connections.

28    These findings plainly demonstrate that, contrary to the appellant’s submission, the Authority did expressly consider the appellant’s fear of “serious harm” owing to his (and his family’s) connection with the LTTE.

29    No error has been shown in the primary judgment. Ground 2 therefore lacks merit and would fail if leave was granted.

Disposition

30    For these reasons, the appellant will not be granted leave to advance the new grounds set out in the Notice of Appeal. As costs should follow the event, the appeal will be dismissed with costs.

Associate:

Dated:    26 November 2024