Afg15 v Minister for Immigration and Border Protection
[2017] FCA 1155
•29 September 2017
FEDERAL COURT OF AUSTRALIA
AFG15 v Minister for Immigration and Border Protection [2017] FCA 1155
Appeal from: AFG15 v Minister for Immigration [2016] FCCA 2202 File number: NSD 1400 of 2016 Judge: PERRAM J Date of judgment: 29 September 2017 Catchwords: MIGRATION – appeal from Federal Circuit Court – whether failure to provide adequate reasons – whether denial of procedural fairness Legislation: Federal Circuit Court of Australia Act 1999 (Cth)
Federal Circuit Court Rules 2001 (Cth)
Cases cited: AFG15 v Minister for Immigration [2016] FCCA 2202 SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Date of hearing: 25 November 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr L Leerdam Solicitor for the First Respondent: DLA Piper Australia ORDERS
NSD 1400 of 2016 BETWEEN: AFG15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
29 SEPTEMBER 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the First Respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
This is an appeal from the Federal Circuit Court which on 2 August 2016 dismissed the Appellant’s claims for judicial review with costs. The Appellant had sought to review a decision of the former Refugee Review Tribunal (‘the Tribunal’) affirming an earlier decision of a delegate of the Minister for Immigration and Border Protection (‘the Minister’) to refuse to grant him a protection visa.
The Appellant is a citizen of Sri Lanka who arrived in Australia on 23 July 2012 as an unauthorised maritime arrival. He applied for a protection visa on 28 November 2012 (although the application appears only to have been received by the Department on or around 19 December 2012).
The essence of the Appellant’s claim for protection was that he had switched his political allegiance in Sri Lanka from the Sri Lanka Freedom Party (SLFP)/People’s Alliance (PA) to the United National Party (UNP). The Appellant, it should be noted, is Sinhalese not Tamil. He claimed that after this switch he had been targeted by PA members for what he had done and that he had been assaulted by them too.
The delegate who considered the application dismissed it. He rejected the Appellant’s account of events as not plausible. This conclusion was based on the delegate’s view that parts of his account were internally inconsistent. He concluded that the Appellant had been a supporter of the SLFP and the PA but did not accept that he had ever been an officer in the UNP.
On review, the Tribunal reached a similar conclusion. It found that one of the documents relied upon by the Appellant was not genuine. Unlike the delegate, the Tribunal concluded that the Appellant had not been a member of any political party. Ultimately, it did not accept that he faced a risk of persecution for a Convention reason. A significant aspect of the Tribunal’s reasoning concerned its acceptance that the Appellant had departed Sri Lanka illegally. It concluded that, in consequence, it was possible that he might be held on his return at Negombo prison and that the conditions at that prison were ‘cramped and uncomfortable’. The Tribunal did not think that that was sufficient to give rise to a complementary protection obligation on Australia.
The Appellant then sought judicial review in the Federal Circuit Court. This claim was summarily dismissed by a judge of that Court at its first return but an appeal from this was allowed by consent on 22 July 2015. The application was eventually heard by a different judge of the Federal Circuit Court on 2 August 2016 and was dismissed.
The Appellant’s case in the Federal Circuit Court was that the Tribunal had failed to deal with his claims for complementary protection. The particulars provided for this ground suggested some confusion on its drafter’s part about the relationship between a claim under the Convention and a claim for complementary protection (related to notions of non-refoulement). However, this is of no moment for present purposes.
The Federal Circuit Court concluded that the ground was not made out because the Tribunal had considered the claim for complementary protection. It declined to delay dealing with the case pending an application for special leave to appeal to the High Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556 (‘SZTAL’). In that case, the Full Court had held that the kind of harm with which a claim for complementary protection was concerned was intentionally inflicted harm, which in turn imports a requirement of ‘actual subjective intention by the actor’ (SZTAL at 578 [59] per Kenny and Nicholas JJ). On this view of matters, the conditions at Negombo prison were irrelevant because any harm suffered there would not have been intentionally inflicted by the Sri Lankan authorities. It therefore dismissed the Appellant’s application.
On appeal to this Court, the Appellant raises three grounds of appeal. First, it is said that the Federal Circuit Court erred in not giving reasons for its decision. This ground fails. The Federal Circuit Court gave concise reasons for its orders orally at the time it announced them. These were subsequently reduced to writing and given the citation AFG15 v Minister for Immigration [2016] FCCA 2202.
Secondly, it was said that the Federal Circuit Court had erred in not providing the Appellant with an opportunity to present his case. However, part of the particularisation of this allegation shows that it is directed at the initial hearing before Judge Street which was reversed on appeal by consent. A more general allegation at [2(b)] of the notice of appeal that the Appellant was not provided with ‘sufficient direction’ by the primary judge founders for want of evidence. This is because the transcript of the proceeding before the Court below was not provided in this Court.
The third ground was that the Court below had not complied with the Federal Circuit Court of Australia Act 1999 (Cth) or the Federal Circuit Court Rules 2001 (Cth). However, it was not explained in what way this was true or why it mattered. Accordingly, there is no argument to reject.
By the time judgment was reserved on the present appeal on 25 November 2016, the High Court had granted special leave to appeal in SZTAL. On 6 September 2017, that appeal was dismissed: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34. That appeal having been dismissed, there is no doubt about the correctness of the decision of the Federal Circuit Court.
The appeal will be dismissed with costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 29 September 2017
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