CCD16 v Minister for Immigration and Border Protection
[2018] FCA 343
•26 February 2018
FEDERAL COURT OF AUSTRALIA
CCD16 v Minister for Immigration and Border Protection
[2018] FCA 343
Appeal from: CCD16 v Minister for Immigration [2017] FCCA 392 File number: NSD 401 of 2017 Judge: RARES J Date of judgment: 26 February 2018 Legislation: Federal Court of Australia Act1976 (Cth) Part VB
Migration Act 1958 (Cth) ss 36, 473DD
Convention relating to the Status of Refugees
Cases cited: CCD16 v Minister for Immigration [2017] FCCA 392
Coulton v Holcombe (1986) 162 CLR 1
Date of hearing: 26 February 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 15 Counsel for the Appellant: Mr B Zipser Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Mills Oakley ORDERS
NSD 401 of 2017 BETWEEN: CCD16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
26 FEBRUARY 2018
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
(REVISED FROM THE TRANSCRIPT)RARES J:
The appellant filed a notice of appeal on 22 March 2017 from the decision of the Federal Circuit Court to refuse his application for Constitutional writ relief from the decision of the Immigration Assessment Authority given on 1 July 2016 that affirmed the Minister’s delegate’s decision not to grant the appellant a protection visa: CCD16 v Minister for Immigration [2017] FCCA 392.
The appellant was represented by counsel before the Federal Circuit Court, but by different counsel on the appeal.
The draft amended notice of appeal
In his written submissions filed on 16 February 2018, the appellant’s current counsel abandoned all the grounds of appeal filed on 22 March 2017 and propounded a completely fresh draft amended notice of appeal that raised three new grounds. In those written submissions, the appellant accepted that there was no merit in the grounds originally raised and, having looked at the matter in the appeal book, I agree.
The new grounds sought to agitate a complaint about the way in which the Authority approached its task. During the course of argument, it became clear that there was no merit in either of the first two grounds on their face.
The first new ground had asserted that the Authority, in considering whether the appellant had been entitled to a protection visa under s 36(2)(aa) of the Migration Act 1958 (Cth) in accordance with Australia’s complementary protection obligations, had failed to deal properly with a claim that the appellant faced a real risk of extortion were he to be returned to Sri Lanka, the country of his citizenship. However, on examination, the Authority’s reasons carefully dealt with, and affirmed, the delegate’s decision that found that the appellant was not at risk of extortion by reason of any matter that he claimed, either for the purposes of his claims under s 36(2)(a), namely, those arising under the Refugees Convention, as amended by the Act, or for the purposes of the complementary protection ground (s 36(2)(aa)).
The second ground was that, after his interview with the delegate in February 2016, the appellant had a conversation with his mother in which he became aware of new material that he did not disclose to the delegate prior to him making his decision on 19 May 2016.Instead the appellant only wrote to the Authority on 15 June 2016, informing it of the new material that he had learned from his mother about which, he said, he knew “nearly two months before 19 May 2016”. The appellant wanted to argue that, somehow, this information fell within the purview of s 473DD(b)(ii) of the Act, as being credible personal information. However, it was not credible personal information that “was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims” because, by his own admission, he knew of this information before the Minister referred the delegate’s decision to the Authority for review. Indeed, the information was known to the appellant two months before the delegate gave his decision. Accordingly, the second new ground is hopeless, too.
The third new ground contended that in making its decision, the Authority had had regard to information in some material that was before the delegate, but had come to a different view about the appellant’s credibility in respect of matters that were not material for the purposes of the ultimate decision of either the delegate or the Authority. Those matters were the delegate’s finding in substance that, in January 2010, the appellant had been subject to an extortion attempt by a paramilitary group known as the TMVP (Tamil Makkal Viduthalai Pulikal) that supported the Government.
The delegate found that, at the time of his decision, the United Nations High Commissioner for Refugees had not listed people who were perceived to be wealthy as amongst the profiles that it considered at risk. The delegate accordingly found that there is no “real chance of persecution for the reason claimed”, even though he had accepted that the TMVP had been responsible for the extortion attempt on the appellant in January 2010.
The delegate also found that the appellant did not face a real chance of persecution or serious harm if he returned to Sri Lanka on account of any of his claims, including, but not limited, to his membership of particular social groups.
In the review, the Authority did not accept that the TMVP had been responsible for the extortion attempt in January 2010. But, it did accept that an attempt to extort money from the appellant had occurred at that time. However. it also found that, at the time of the review in 2016, as had the delegate, that there was no real risk that the appellant would suffer substantial or significant harm for the purposes of s 36(2)(a) or (aa) from the TMVP, other paramilitary groups or the men who had previously tried to extort him.
In those circumstances, if leave to amend were granted, there is no substantive basis on which any of the proposed new grounds could succeed.
As the Minister pointed out, the appellant requires leave to advance new grounds of appeal, that were not the subject of consideration in the court below. In Coulton v Holcombe (1986) 162 CLR 1 at 7, Gibbs CJ, Wilson, Brennan and Dawson JJ said:
To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise.
The new grounds sought to be advanced involve only questions of law, the resolution of which would not depend on any different evidence than was before the trial judge. Nonetheless, it is relevant to the grant of an amendment to assess whether the grounds proposed to be raised have merit and whether it is in the interests of justice to grant the amendment in the context of the overarching purpose of the civil practice and procedure provisions in Part VB of the Federal Court of Australia Act1976 (Cth).
In my opinion, the lack of any substantial merit in the proposed new grounds has satisfied me that I should not permit the notice of appeal to be amended as sought by the appellant.
Conclusion
Since the appellant has abandoned the grounds originally proposed, the appeal must be dismissed with costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 15 March 2018
0
2
3