AVX17 v Minister for Immigration and Border Protection
[2018] FCA 829
•16 May 2018
FEDERAL COURT OF AUSTRALIA
AVX17 v Minister for Immigration and Border Protection [2018] FCA 829
Appeal from: AVX17 v Minister for Immigration and Anor [2017] FCCA 2656 File number: NSD 1999 of 2017 Judge: LOGAN J Date of judgment: 16 May 2018 Catchwords: MIGRATION – appeal from Federal Circuit Court – real chance test – Migration Act 1958 (Cth) s 5J(1)(b) – additional grounds of appeal raising issues not raised below – grant of leave necessary to permit raising new grounds of appeal – grounds of appeal so general to be meaningless. Held – leave not granted – appeal dismissed. Legislation: Migration Act 1958 (Cth) ss 5J(1)(b), 46A Cases cited: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Coulton v Holcombe (1996) 162 CLR 1
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe (1999) 197 CLR 510
Date of hearing: 16 May 2018 Date of last submissions: 8 May 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the Respondents: Mr P Knowles Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
NSD 1999 of 2017 BETWEEN: AVX17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
16 MAY 2018
THE COURT ORDERS THAT:
1.Leave to the appellant to raise Grounds 4 and 5 in the notice of appeal filed on 16 November 2017 be refused.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of and incidental to the appeal, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
LOGAN J:
The appellant is a citizen of Sri Lanka. He arrived in Australian waters by boat in September 2012. He is therefore termed under our law as an “unlawful maritime arrival”. Though the appellant was initially interviewed by an officer of the then Department of Immigration and Citizenship on 26 January 2013, it was not until 8 December 2015, that he was invited on behalf of the Minister for Immigration and Border Protection (Minister) to apply for a protection visa. That invitation was the result of the Minister’s having exercised his power under s 46A of the Migration Act 1958 (Cth) so as to permit the appellant to make a visa application. This he did on 3 February 2016.
The appellant applied for a visa known as a Safe Haven Enterprise visa (Subclass 790). In essence, the basis for his claim was that as a Tamil from an area of Sri Lanka once controlled by the Liberation Tigers of Tamil Eelam (LTTE) he feared harm on return, from the Sri Lankan authorities. Greater detail in respect of the basis of his claim is to be found in para 5, appeal book pp 404 and 405 of the reasons of the Immigration Assessment Authority (Authority).
On 6 September 2016, a delegate of the Minister refused the appellant’s visa application. The appellant then sought the referral of that decision to the Authority by the Minister. On 13 February 2017, that Authority decided to affirm the decision of the Minister’s delegate not to grant the appellant a visa.
The appellant then applied to the Federal Circuit Court for the judicial review of the Authority’s decision. On 31 October 2017, that court dismissed with costs that judicial review application as it had come to be amended. The appellant had the benefit before that court of legal representation. The amendments made to the judicial review application inferentially reflected that benefit.
The appellant now appeals to this Court against the Federal Circuit Court’s order of dismissal. The grounds of appeal are these:
First Ground of appeal
1.The country information before the Immigration Assessment Authority (IAA) indicated that up until at least 2012 the Sri Lankan authorities abused the Tamil population and the Sri Lankan government was repressive towards the Tamil population. The country information also indicated that, more recently, the situation for Tamils in Sri Lanka has eased and improved. However, the fact that the security situation has improved does not, without more, mean that Tamils do not face a real chance of persecution. The IM reasoned that, because the security situation for Tamils in Sri Lanka has eased and improved, the applicant’s fear of persecution was not well-founded. This reasoning process involves an error in applying the ‘real chance test’, which is a jurisdictional error. Federal Circuit Court Judge Street failed to hold that it was a jurisdictional error.
Second Ground of Appeal
2.The IAA did not consider the situation for the applicant into reasonably foreseeable future on his return to Sri Lanka. This involved an error in applying the ‘real chance test’ as explained in Minister v Wu Shan Liang (1996) 185 CLR 259. The Federal Circuit Court Judge Street failed to hold that it was a jurisdictional error.
Third Ground of Appeal
3.The IAA accepted nearly all of the applicant’s claims concerning past events other than that the CID continued to visit the family home following the applicant’s departure from Sri Lanka in August 2012 to enquire about the applicant. The IM did not accept this last claim on the balance of probabilities. It had a real doubt that its finding concerning this claim was correct. In the circumstances, the IM was required to consider (but failed to consider) the possibility that the alleged past event (that the CID continued to visit the family home monthly following the applicant's departure from Sri Lanka in August 2012 to enquire about the applicant) might have occurred. The IM’s failure to do so involved a contravention of the principle explained in Minister v Rajalingam (1999) 93 FCR 220 which is a jurisdictional error. Federal Circuit Court Judge Street failed to hold that it was a jurisdictional error.
The Fourth Ground of Appeal
4.The IAA committed jurisdictional error when it failed to deal with accepted facts and whether these enhanced the risk to the applicant. Federal Circuit Court Judge Street failed to hold that it was a jurisdictional error.
The Fifth Ground of Appeal
5.The IAA committed jurisdictional error when it found that by virtue of the applicant’s departure the applicant would not be of interest to the wide range of authorities and paramilitaries who would harm the applicant. The finding is irrational and/or illogical. Federal Circuit Court Judge Street failed to hold that it was a jurisdictional error.
The first three grounds of appeal take up the grounds of review set out in the amended application before the Federal Circuit Court. They allege that the learned primary judge ought to have upheld those particular grounds. Grounds 4 and 5 in the notice of appeal seek, insofar as they are comprehensible, to raise issues which were not raised before the Federal Circuit Court. Because they were not raised in the court below, a grant of leave would be necessary in order to permit them to be raised in this Court: see Coulton v Holcombe (1996) 162 CLR 1 at 7.
One factor to consider in relation to the granting of leave is whether the ground concerned is at least arguable. So some assessment of their merits has to be made in any event. Further, whether to grant leave also entails a question as to whether the respondents would suffer any prejudice.
The Minister is the only active party respondent. As might be expected, the Authority has filed a submitting appearance.
I shall address each of the grounds of appeal in turn.
It may be accepted that in deciding the appellant’s eligibility for the visa which he sought, it was necessary for the Authority to decide whether, if he were returned to Sri Lanka, there was a real chance that he would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The reference in s 5J(1)(b) of the Act to “real chance” takes up an approach evident in respect of the assessment of claims under the Refugees Convention, described by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 and Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 572 (Guo).
Regard to the Authority’s reasons, at paras 17 to 20 in particular, discloses that the Authority did more, in determining whether the appellant faced a real chance of persecution as claimed, than just look to material going to an improved security situation in Sri Lanka. The Authority expressly considered the appellant’s individual circumstances as well as those of his family.
The statement by the learned primary judge at para 23 that, “The Authority did not determine the applicant had a well-founded fear solely by reference to the improved security situation in relation to the applicant’s fear as a Tamil and by reason of a suspected LTTE connection,” is correct in the sense of an appreciation that the conclusions reached by the Authority were multi‑factorial and not based on a conclusion as to the improved security situation alone.
While the Minister accepted that it may be insufficient in some cases in applying the real chance test just to look to an improved situation if returned to a visa applicant’s prior country, that is not this case. Ground 1 is founded on a misunderstanding or misreading of the Authority’s reasons. The foundation for Ground 1 does not exist when those reasons are examined. Accordingly, Ground 1 has no merit.
Ground 2 also suffers from a deficiency in its foundation. It is not the case that the Authority failed to look additionally to the foreseeable future as well as the circumstances of the appellant immediately on return to Sri Lanka. So much is clear from para 18 of the Authority’s reasons, where one finds express reference to the alternative of foreseeable future. It is to be remembered in respect of the reasons of an administrative body, such as the Authority, that they are not to be read narrowly with an eye for error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 279 (Wu Shan Liang). I therefore consider, and for like reasons to those given by the learned primary judge, that Ground 2 (which takes up the second judicial review ground), has no merit.
Ground 3 also has a deficiency in its foundation. It may be accepted that, in circumstances where the Authority, or another reviewing body such as the Administrative Appeals Tribunal, or, for that matter, the Minister and his delegates, are left in some doubt as to whether to accept particular claimed factual circumstances, the assessment of a visa application of this kind should be undertaken by taking into account the possibility, even if inclined not to accept an asserted factual position, that that inclination might be wrong. As to this, reference might be made to Wu Shan Liang, Guo and also Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe (1999) 197 CLR 510.
The Authority member was alive to this need in those instances where she entertained a doubt. So much is apparent from para 15 of the Authority’s reasons in relation to the Authority’s approach to whether or not the CID in Sri Lanka had an interest in the appellant in the aftermath of the civil war and also in 2012. Other conclusions on matters of fact by the Authority do not demonstrate this kind of doubt. They are affirmative findings, which carried with them no requirement additionally to consider the alternative, based on a possibility of error in a primary finding of fact. For these reasons, there is no substance in Ground 3 in the notice of appeal.
That then leaves the two grounds, 4 and 5, which seek to raise issues not raised before the Federal Circuit Court.
Ground 4 is cast at a level of generality such that it is devoid of meaningful content. The appellant did not give any particularity to it in the course of his oral submissions. Those submissions, both in respect of Ground 4 and other grounds, amounted to nothing more than an assertion that if he went back to Sri Lanka he would be harmed. Whilst I do not doubt the genuineness of that sentiment, such an assertion seeks, impermissibly, to have the Court embark on an assessment of the factual merits of his visa claim. It is not within the jurisdiction of the Court to do that. Because Ground 4 is not reasonably arguable, the better course, in my view, is to refuse leave to raise Ground 4.
Ground 5 does have particularity to it. It is not, though, a ground which, in my view, is reasonably arguable. To establish that ground, it would be necessary to demonstrate that the Authority’s decision was unreasonable or that, having regard to the Authority’s reasons, it was illogical or irrational: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] – [132]. To establish unreasonableness, the appellant would, in effect, have to establish that the conclusions reached by the Authority were not reasonably open on the material before the Authority. But the Authority has, at some length and in considerable detail, explained, by reference to material which supports that explanation, why it is that the Authority was not satisfied in respect of the claimed fear of persecution and, for that matter, why it was that no complementary protection obligation arose. Further, the Authority has done this, when one reads the reasons fairly, as Wu Shan Liang requires, in a logical and rational way. It is just not arguable that the Authority’s decision is unreasonable, irrational or illogical. In these circumstances, the appropriate course, in my view, is to refuse leave to argue Ground 5 also.
The result, therefore, is that the appeal must be dismissed.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 6 June 2018
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