AVL18 v Minister for Home Affairs

[2019] FCA 706

FEDERAL COURT OF AUSTRALIA

AVL18 v Minister for Home Affairs [2019] FCA 706

Appeal from:

AVL18 v Minister for Home Affairs [2018] FCCA 3946

File number:

WAD 582 of 2018

Judge:

COLVIN J

Date of judgment:

21 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 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

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Date of hearing:

17 May 2019

Registry:

Western Australia

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

12

Counsel for the Appellant:

The Appellant appeared in person with the assistance of an interpreter

Counsel for the First Respondent:

Ms SJ Oliver

Solicitor for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

Table of Corrections
22 May 2019	The 'Date of hearing' on the first page has been amended to correctly read '17 May 2019'.

ORDERS

WAD 582 of 2018

BETWEEN:

AVL18

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	COLVIN J
DATE OF ORDER:	21 MAY 2019

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent's costs assessed in the amount of $6,439.

3.Order 2 be stayed until 31 July 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 appellant was refused a protection visa by a delegate of the Minister.  The decision of the delegate was referred to the Immigration Assessment Authority.  The Authority affirmed the decision to refuse the visa.  The appellant sought review in the Federal Circuit Court.  On such an application the jurisdiction of the Federal Circuit Court is the same as the constitutional writ jurisdiction of the High Court.  Relevantly for present purposes, the appellant had to demonstrate jurisdictional error.  In order to demonstrate error of that kind, it must be shown that the decision that has been made lacks the characteristics necessary for it to be given force and effect by the statute.  It must be a decision of a kind that the Authority was not authorised by the statute to make:  see Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [24]-[25].

2. The primary judge found that the matters raised by the appellant did not establish jurisdictional error.  The appellant now brings an appeal to this Court.  He appears on his own behalf.  In the notice of appeal the grounds are expressed in the following terms:

   a)The IAA failed to consider relevant information;

   a.That the applicant will face persecution and torture by the Sri Lankan authorities.

   b)The Second Respondent ignored relevant material in a way that affected its exercise of power.

   a.The applicant attempted to inform the respondents some integral parts of his claim, the respondents failed to provide him with the opportunity

   c)The first respondent failed to take into consideration the complementary protection criterion under the Migration Act

3. At the hearing, the appellant was given an opportunity to state orally the basis for his appeal.  He was asked to explain the complaints he had about the way the primary judge reached his decision.  Having regard to the terms of ground (b) he was also asked about the information that he says he attempted to provide to the Authority.

4. In the matters referred to by the appellant in oral submissions I did not discern any claim that the primary judge failed to consider a point that the appellant had sought to make.  Nor was there any complaint made that could be described as an alleged failure by the primary judge to find jurisdictional error.  Rather, the focus of the appellant's submissions was on the factual findings made by the Authority.  I would summarise those submissions as making the following broad points.

5. First, the circumstances in Sri Lanka have changed since the decision of the Authority.  There have been bombings of churches and there are problems for Tamil speaking people in the country.  It is not safe for the appellant to be returned to Sri Lanka.

6. Second, the Authority did not know what the position was in Sri Lanka and the country information was not reliable or correct.

7. Third, the Authority should not have found that a photograph of the appellant's father had been digitally altered.  The appellant said he was not a person who would say such false things about his father whatever the circumstances.  I note that this submission appears to relate to a finding by the delegate of the Minister concerning a photograph depicting his father as an amputee.  The finding by the Authority concerning the photograph was that it placed no weight on the photograph.  The Authority did not accept the evidence of the appellant that his father's leg was amputated in the circumstances described by the appellant.  It rejected his claim that he might be imputed with any political association 'from any aspect of his father'.

8. As to ground (b), the appellant could not identify any material that he attempted to provide to the Authority.  He said he was asked whether he wanted to provide further information but he was unable to provide anything else.  It appears that his concern was that the Authority failed to accept the claims that had been made by him.

9. None of the points raised could be characterised as a claim of kind that might demonstrate jurisdictional error in the approach to fact finding.  Importantly, the Authority, when undertaking a review, has been entrusted with the statutory task of evaluating the factual basis for the appellant's claim.  Therefore, it does not exceed its authority if it makes a factual finding with which others may disagree.  Rather, it must be shown that by reason of unreasonableness, illogicality or a failure to engage properly with the fact‑finding task or a failure to address an important claim or some other reason, the approach to fact‑finding lacked the character or quality of decision that the Authority had been authorised to make.  Further, unreasonableness in this context has a particular meaning.  It means a decision where there is a grave factual error that has materially affected the decision.  The test has been described as stringent or expressed in strong terms and the circumstances in which it might be met have been said to be extremely confined or in the realm of the extraordinary:  Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [11] (Kiefel CJ), [52], [70] (Gageler J), [135] (Edelman J). A difference in views as to the factual conclusions that might be reached on the basis of the material before the Authority is not enough. In particular, it is for the Authority to form a view as to the country information.

10. In addition, factual matters that have occurred since the Authority's decision could not be a basis for demonstrating jurisdictional error by the Authority.

11. As to the written grounds, the Authority did consider the claims made by the appellant as to what he would face if sent back to Sri Lanka.  There is no basis to support the claim that the appellant attempted to advance matters to the Authority but was not given an opportunity to do so.  The decision of the Authority is made on the papers.  It is a de novo hearing on the material provided which 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]. There is a discretionary power conferred upon the Authority 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. Nothing was advanced before the primary judge or before me to indicate that statement was incorrect. No ground is raised as to whether that course was legally reasonable. Finally, no claim was made before the primary judge of error concerned with a claim to complementary protection. In any event, the complementary protection claim was considered by the Authority.

12. It follows that no error has been demonstrated in the decision of the primary judge and the appeal should be dismissed with costs.  The Minister sought costs assessed according to scale if the appeal was dismissed and I see no reason why that should not occur.  The appellant submitted that he would need time to pay any costs liability.  I will grant a stay of the costs order until 31 July 2019.  Within that time the appellant can either arrangement payment or bring any further application in relation to time to pay.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.

Associate:

Dated:       21 May 2019