AEQ18 v Minister for Home Affairs
[2019] FCA 771
•14 May 2019
FEDERAL COURT OF AUSTRALIA
AEQ18 v Minister for Home Affairs [2019] FCA 771
Appeal from: AEQ18 v Minister for Home Affairs & Anor [2018] FCCA 3475 File number: NSD 2303 of 2018 Judge: LEE J Date of judgment: 14 May 2019 Catchwords: MIGRATION – application for leave to appeal interlocutory orders of the Federal Circuit Court dismissing an application to show cause – protection visa – where primary judge found the Immigration Assessment Authority (Authority) did not fall into error by rejecting new information submitted by the applicant – Sri Lanka – LTTE – leave granted – application dismissed Legislation: Federal Circuit Court Rules 2001 (Cth) rr 44.12(1)(a), 44.12(2)
Federal Court of Australia Act 1976 (Cth) s 24(1A)
Migration Act 1958 (Cth) ss 473CA, 473DD(a), 473DD(b)
Cases cited: AEQ18 v Minister for Home Affairs & Anor [2018] FCCA 3475 Date of hearing: 14 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category Catchwords Number of Paragraphs 18
Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Ms A Wong Solicitor for the First Respondent: Mills Oakley Solicitor for the Second Respondent: The Second Respondent entered a submitting notice save as to costs. ORDERS
NSD 2303 of 2018 BETWEEN: AEQ18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
LEE J
DATE OF ORDER:
14 MAY 2019
THE COURT ORDERS THAT:
1.The application for leave to appeal be granted.
2.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Revised from transcriptLEE J:
This is an application for leave to appeal the interlocutory orders made by the Federal Circuit Court on 28 November 2018 (AEQ18 v Minister for Home Affairs & Anor [2018] FCCA 3475).
The primary judge dismissed an application for an order to show cause pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). Rule 44.12(2) affirms that a dismissal of an application for an order to show cause is interlocutory in nature and hence the applicant requires leave to appeal in accordance with s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
The first respondent (Minister) contended in written submissions that leave ought not be granted because of a failure to identify any sufficient doubt as to the correctness of the decision of the primary judge. In this regard, the application for leave to appeal contains only two grounds. The substance of the grounds presented by the applicant are as follows: (a) that the applicant intends to “still rely upon the grounds and particulars stated in [his] Application before [sic] the Federal Circuit Court”; and (b) that the applicant intends to seek legal advice after he has obtained copies of the transcripts of the hearings below. It follows that neither ground identifies any error by the primary judge and thus, neither ground constitutes a proper ground of appeal.
Despite this, during the course of his oral submissions the applicant identified two grounds of appeal that he wishes to pursue. They are as follows: (a) that the primary judge erred in failing to find that the second respondent (Authority) fell into error in rejecting new information submitted by the applicant; and (b) that the current situation in Sri Lanka means that the applicant, upon his return, will suffer serious harm.
In circumstances where there has been some articulation by the litigant (who is self-represented) of the grounds of appeal that he wishes to pursue, I consider that in the absence of any prejudice to the Minister, leave to appeal ought be granted.
Having granted leave to appeal, it is necessary to deal with the two matters identified by the applicant during the course of his oral submissions. Before doing so, however, it is necessary to say something briefly about the background of this matter, which is set out in far more detail by the primary judge at [1]-[33], and the accuracy of which is not the subject of any dispute in these proceedings.
The applicant lodged an application for a Safe Haven Enterprise Visa (SHEV) on 5 October 2016. He is a Sri Lankan who claims to fear harm arising from his Tamil ethnicity, his imputed pro-LTTE political opinion, and his status as an illegal departee and failed asylum seeker. The applicant attended a SHEV interview on 16 February 2017 and, in a decision dated 3 March 2017, the delegate refused the applicant’s visa application on two grounds: first, on the basis of an assessment of independent country information; and secondly, due to adverse credibility findings. Ultimately the delegate was not satisfied the applicant faced a real chance of serious or significant harm or that the applicant met the refugee or complementary protection criteria.
In accordance with s 473CA of the Migration Act 1958 (Cth) (Act), the matter was then referred to the Authority and, on 20 December 2017, the Authority affirmed the delegate’s decision.
At [4] of the Authority’s Reasons for Decision (Reasons), the Authority identified that a submission had been made to it which referenced two pieces of country information which were not before the delegate.
The Authority found that the information did not relate to the applicant personally and were, in any event, published before the date of the decision of the delegate. Accordingly, the Authority was not satisfied s 473DD(b) of the Act was met.
After noting these matters, the Authority then turned to whether there were exceptional circumstances to justify considering the new information under s 473DD(a) of the Act. In determining this issue, the Authority considered a number of factors, including that the applicant was not represented before the delegate. By a process of orthodox reasoning set out at [5] of its Reasons, the Authority formed the view that it was not satisfied there were exceptional circumstances to justify considering the new information in accordance with s 473DD(a) of the Act.
When the matter came before the primary judge, his Honour noted that no particulars were provided by the applicant to explain how the Authority fell into error in rejecting the new information submitted. However, consistent with what occurred before the Authority, the primary judge concluded at [14] that the submissions made by the applicant to the Authority, which included extracts from two pieces of country information, were not presented by the applicant at his SHEV interview before the delegate on 16 February 2017. The primary judge then noted at [15] that the Authority made a determination under s 473DD(a) of the Act as to whether it should consider the new information presented by the applicant. In reaching its determination, the Authority concluded that it could only consider new information if, after reviewing all the relevant particulars, there were exceptional circumstances to justify such consideration.
The primary judge then went on to conclude at [43], entirely unexceptionally, that he was satisfied that:
The Authority had made such a judgment by considering the content of the new information; the relevance of the information to the applicant’s claim; the applicant’s explanation for why the new information was not provided to the delegate; and whether the information was personal [sic] credible information or of any probative value to the assessment of the applicant’s claims.
As noted above, the primary judge acknowledged that the Authority had provided reasons to support its findings concerning the new information and did not fall into any recognisable error. In those circumstances the primary judge found that ground 1 advanced below could not be made out.
There is nothing about the way in which the primary judge approached the determination of ground 1 which suggests any error at all.
As noted above, the second matter relied upon by the applicant was the fact that the current situation in Sri Lanka means that the applicant, upon his return, would suffer serious harm. As I explained to the applicant during the course of his oral submissions (T3.33), it is not my role to step into the shoes of a decision-maker. The information concerning the current situation in Sri Lanka is not a matter which I can take into account in determining the appeal. Having said that, I explained that it is a matter for the applicant, irrespective of the outcome of this application, as to whether or not he wishes to make representations to the Minister concerning the changed developments in Sri Lanka to the extent he regards them as being relevant to his personal circumstances (T3.34-37).
It is unnecessary to deal with the other matters advanced before the primary judge due to the limited scope of the oral submissions made by the applicant. However, I note that after having carefully reviewed the reasons of both the primary judge (and that of the Authority), there is nothing about the way in which this matter was determined that would suggest error, jurisdictional or otherwise.
In these circumstances, although leave to appeal is granted, the appeal must be dismissed with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate:
Dated: 28 May 2019
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