ANA15 v Minister for Immigration and Border Protection
[2017] FCA 92
•13 February 2017
FEDERAL COURT OF AUSTRALIA
ANA15 v Minister for Immigration and Border Protection [2017] FCA 92
Appeal from: ANA15 v Minister for Immigration [2016] FCCA 2859 File number: VID 1186 of 2016 Judge: PAGONE J Date of judgment: 13 February 2017 Catchwords: MIGRATION – Appeal from Federal Circuit Court of Australia – Protection (Class XA) visa – jurisdictional error – Migration Act 1958 (Cth) s 424A Legislation: Migration Act 1958 (Cth) Date of hearing: 13 February 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 8 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr B Hornsby of Sparke Helmore Counsel for the Second Respondent: The second respondent submits ORDERS
VID 1186 of 2016 BETWEEN: ANA15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PAGONE J
DATE OF ORDER:
13 FEBRUARY 2017
THE COURT ORDERS THAT:
1.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 transcript)PAGONE J:
This is an appeal from a judgment of the Federal Circuit Court upholding a decision of the Refugee Review Tribunal. The appellant is a Sri Lankan citizen who arrived in Australia on 8 July 2012 and applied for a Protection (Class XA) visa on 6 December 2012. The application was refused by a delegate of the Minister on 18 September 2013. An application to the Tribunal to review the delegate’s refusal was rejected on 23 March 2015. An application to the Federal Circuit Court to review the decision of the Tribunal rejecting his application was dismissed by Judge Jones on 21 September 2016. Her Honour recorded in her decision that the applicant was self-represented in that Court but appeared with the assistance of an interpreter. He was self-represented at the hearing today and was assisted by an interpreter.
The appellant’s notice of appeal contains four paragraphs under the heading “Grounds of appeal”, although the fourth paragraph is only a claim of a reservation of right to amend the grounds of appeal when the reasons of Judge Jones became available. It is not clear why the claim for reservation was made because the notice of appeal was dated 6 October 2016 and her Honour’s reasons for judgment had been given on 21 September 2016. In any event, the three paragraphs containing grounds of appeal in the notice of appeal are as follows:
1.The Tribunal accepted that the Applicant would be detained for a brief period but did not assess whether that such detention would result in persecution. The Tribunal clearly not assessed this integer claim and fell into jurisdictional error.
2.The learned judge erred by holding with the Tribunal that the appellant's claim was cumulatively assessed but it was not.
3.The Tribunal erred jurisdictionally by breaching section 424A of the Act. It has not given to the appellant clean particulars pursuant to subsection (1) and acted in haste and refused the application. The Tribunal erred and misconstrued the obligation imposed on the Tribunal under the migration Act.
The appellant filed no affidavit in support of any of these grounds and did not file written submissions before the hearing. He was invited, however, at the hearing to make submissions about each of the grounds in the notice of appeal but made no submissions responsive to any of the grounds in the notice of appeal. He stated, rather, that he had given all of the documents in support of his application, that the documents were all original but that he had been told that they were not accepted. That explanation was not responsive to any of the grounds of appeal and, at best, would invite the Court to undertake a merits review which it is not able to do in an appeal from a decision of the Federal Circuit Court.
The Minster submitted that none of the grounds of appeal in the notice of appeal had been relied upon in the application to the Federal Circuit Court and that they could not now be relied upon without leave of the Court. It is not entirely clear whether the grounds in the notice of appeal to this Court had been raised by the appellant in his application to the Federal Circuit Court when seeking to review the decision of the Tribunal. Her Honour set out in some detail what she understood to be the appellant’s claims but the appellant was invited by her Honour “to forget about those grounds and simply tell the Court why the Tribunal made a mistake”. In the circumstances it is not appropriate to take a narrow view of what had been raised by way of review to the Federal Circuit Court but to consider the grounds as they are contained in the notice of appeal.
The first ground of appeal was said to be that the Tribunal had accepted that the applicant would be detained for a brief period but that the Tribunal had not assessed whether such detention would result in persecution. The contention in this ground is that the Tribunal had fallen into jurisdictional error by not having assessed this integer in the appellant’s claim. It is not clear whether her Honour intended to address this ground in these terms in her reasons, but the Tribunal, contrary to the grounds stated by the appellant, did consider the issue and her Honour, on the application to the Federal Circuit Court, referred to the relevant finding which had supported the Tribunal’s conclusion.
The Tribunal at [47] of its reasons did assess whether the appellant’s period of detention would result in persecution but considered that it would not. At [47] the Tribunal said:
On the basis of the DFAT advice, the Tribunal finds that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he may be held on remand for a brief period usually being less than 24 hours but possibly as long as several days while awaiting a bail hearing. The Tribunal has considered the sources cited in the submissions of the applicant's representative alleging incidents of torture of some persons in police custody, however the Tribunal does not accept on the information before it there to be a real chance that the applicant will face torture, either during his questioning at the airport or during any period he spends on remand. In making this assessment the Tribunal notes DFAT's advice that it is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have returned to Sri Lanka, many of which have been made anonymously by third parties making verification difficult. DFAT notes the thousands of asylum seekers returned to Sri Lanka since 2009 including from Australia, the US, Canada, UK and other European countries and assesses that the risk of torture or mistreatment for the great majority of returnees is low, including for those suspected of offences under the [Immigrants and Emigrants Act 1949].
The Tribunal’s conclusion that the appellant would not suffer persecution during periods in detention may not have been addressed in her Honour’s reasons in those terms, but it is clear that the ground cannot succeed in light of the Tribunal’s reasons at [47].
The second ground of appeal was that her Honour erred by holding that the Tribunal had cumulatively assessed the appellant’s claim. Her Honour expressly considered this issue and concluded at [33] that the Tribunal had both individually and collectively considered all of the appellant’s claims. The Tribunal’s reasons had considered each of the appellant’s claims individually and cumulatively, and the Tribunal concluded at [50] that it did not accept there to be a real chance that the appellant would be targeted for serious harm by Sri Lankan authorities “on the separate or cumulative basis of his Tamil ethnicity, his actual or imputed political opinion, his illegal departure from Sri Lanka or the fact that he has sought asylum in Australia.” Accordingly, this ground cannot succeed either.
The third ground of appeal complains that the Tribunal erred by not having given him clean particulars pursuant to s 424A(1) of the Migration Act 1958 (Cth) (“the Act”) and that it had acted in haste and refused the application. Section 424A(1) of the Act provides that the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment or respond to it.
The notice of appeal did not identify any information or document which the appellant claims fell within the obligation upon the Tribunal under this section. The appellant was invited at the hearing of the appeal in this Court to identify what particulars, information or document he claims he was not given but he was unable to identify any particular that fell within the obligation that had not been supplied to him. When pressed, his only response was that he was unable to remember. Accordingly, there is no foundation to the third ground of appeal either.
The appeal will be dismissed.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate:
Dated: 13 February 2017
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