AAF18 v Minister for Home Affairs

[2019] FCA 739

FEDERAL COURT OF AUSTRALIA

AAF18 v Minister for Home Affairs [2019] FCA 739

Appeal from:

AAF18 v Minister for Home Affairs [2018] FCCA 3168

File number:

WAD 453 of 2018

Judge:

COLVIN J

Date of judgment:

22 May 2019

Catchwords:

MIGRATION - appeal from decision of the Federal Circuit Court dismissing application for review of decision of the Immigration Assessment Authority affirming delegate's decision to refuse safe haven enterprise visa - where no jurisdictional error demonstrated - appeal dismissed

Legislation:

Migration Act 1958 (Cth) s 473DC

Cases cited:

BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; (2018) 261 FCR 35

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Plaintiff M174 /2016 v Minister for Immigration and Border Protection [2018] HCA 16

Date of hearing:

22 May 2019

Registry:

Western Australia

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

10

Counsel for the Appellant:

The Appellant appeared in person with the assistance of an interpreter

Counsel for the First Respondent:

Ms C Taggart

Solicitor for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

WAD 453 of 2018

BETWEEN:

AAF18

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

COLVIN J

DATE OF ORDER:

22 MAY 2019

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant do pay the first respondent's costs of the appeal to be assessed if not agreed.

3.        Order 2 be stayed until 12 June 2019.

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

REASONS FOR JUDGMENT

COLVIN J:

1. The Federal Circuit Court dismissed the claim by the appellant that jurisdictional error attended the decision of the Immigration Assessment Authority to affirm the refusal of his application for a protection visa:  AAF18 v Minister for Home Affairs [2018] FCCA 3168.

2. The Authority was required to conduct a de novo hearing on the material provided which hearing may be conducted without accepting or requesting new information or interviewing the applicant:  BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; (2018) 261 FCR 35 at [18]-[31]. It is a limited form of review conducted by reference to review material that the Secretary is required to give to the Authority: Plaintiff M174 /2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [6]‑[7] and [13]‑[36] (Gageler, Keane and Nettle JJ, Edelman J agreeing). The Authority has a discretionary power to get new information, including by inviting the applicant to give new information in writing or at an interview: s 473DC of the Migration Act 1958 (Cth). The Authority stated that no new information was obtained or received. There is nothing to indicate that there was new information that was sought to be advanced by the appellant before the Authority.

3. The Authority provided reasons that dealt with the two claims that had been made by the appellant in support of his claim to a protection visa, namely his fear of harm because of his history of dealings with a particular Muslim family with political power and his status as a male Tamil who would be a failed asylum seeker if he was returned to Sri Lanka.  On the materials before me these were the only two claims made by the appellant to support his application for a protection visa.

4. Before the primary judge the grounds of judicial review were not particularised.  In those circumstances the primary judge quite properly afforded the appellant (then applicant) an opportunity to explain his complaint.  The primary judge recorded the matters raised in response and dealt with them.  The appellant had also filed three affidavits in the Federal Circuit Court proceedings.  The primary judge also considered each of the matters raised in those affidavits and determined that none of them established jurisdictional error.

5. The appeal notice states that the ground of appeal is 'Jurisdictional error - due to not following the law or the facts presented in the evidence'.  The affidavit of the appellant in support of the application states:

   2.        I believe that the Primary Judge made an error in not allowing my application for the following reasons:

   a.        Did not understand the current situation in Sri Lanka in relation to the government and the Tamil speaking ethnic community to which I belong.

   b.        Did not examine the provisions of the Prevention of Terrorism Act which gives wide powers of arrest and detention to the armed forces with little recourse to the courts of law.

   c.        The recent situation in Sri Lanka of a clash with the ethnic Tamil speaking Muslims clearly indicates the law and order situation which is not conducive to persons like me retuning to Sri Lanka.

   d.        My problems have been with the Muslim community who have shown that they can go to any extent in matters pertaining to law and order.

   e.        The mass media on Sri Lanka points to this in very clear terms.  News paper cutting are attached.

   f.        I have therefore a well-founded fear of returning to Sri Lanka.

6. The press report attached to the affidavit was dated 22 April 2019 and concerned recent Christian church bombings in Sri Lanka.  The Minister objected to the receipt of the press report.  I uphold the objection as the press report was not a matter presented to the Authority.  It is not a matter that could be relevant to a conclusion as to whether there was jurisdictional error affecting the Authority's decision.

7. The appellant appeared on his own behalf and did not file any written submissions.  He was invited to state orally his complaints about the decision of the primary judge and why he said there was error in the way the primary judge reached his decision.

8. The appellant's submissions were to the effect that it was not safe for him to be returned to Sri Lanka and he was scared about going back.  He said that Muslim politicians in Sri Lanka will go to any extent to gain what they want.  He also expressed concerns about recent incidents in Sri Lanka being the church bombings which he said indicated religious conflict.  These were matters that went to the merits of his claim to a protection visa.  However, the merits of his case were not what the primary judge had to decide.  The issue for the primary judge was whether the Authority had made a decision of a kind it was not authorised to make:  see Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [24]‑[25]. Under the Migration Act, the Authority was the last decision‑maker empowered to consider the factual merits of the appellant's claim to a protection visa.  The Authority has power to consider the facts and to weigh up the relevant considerations.  It is not for the courts to take over that role.  When the matter came to the Federal Circuit Court the only question was whether the Authority had exceeded its statutory power.

9. Aside from what was stated in the affidavit, it was not suggested that there was any matter that the primary judge should have addressed, but did not address.  As to the matters referred to in the affidavit, to the extent they seek to raise factual matters that were not before the Authority those matters do not demonstrate jurisdictional error.  The claim that the primary judge made an error by not examining the provisions of the Sri Lankan Prevention of Terrorism Act suffers from two defects.  First, that specific point was not raised before the primary judge.  Second, the Authority did consider the risk of arrest under the Prevention of Terrorism Act for the appellant (see paras 18 and 22).  As to the general claim that there was error by the primary judge in not upholding the judicial review application because of alleged problems with the Muslim community for the appellant, the claim that was made before the Authority concerned dealings with a particular Muslim family with political power and that claim was specifically addressed.

10. Otherwise, for the reasons given by the primary judge there was no jurisdictional error and the appeal must be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin j.

Associate:

Dated:  22 May 2019