CDF16 v Minister for Immigration and Border Protection

[2017] FCA 1351

FEDERAL COURT OF AUSTRALIA

CDF16 v Minister for Immigration and Border Protection [2017] FCA 1351

Appeal from:	CDF16 v Minister for Immigration & Anor [2017] FCCA 2038
File number:	NSD 1435 of 2017
Judge:	ROBERTSON J
Date of judgment:	17 November 2017
Legislation:	Migration Act 1958 (Cth)
Date of hearing:	17 November 2017
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	18
Counsel for the Appellant:	The Appellant appeared in person with the aid of an interpreter
Solicitor for the First Respondent:	Ms N Johnson of Mills Oakley

ORDERS

NSD 1435 of 2017

BETWEEN:

CDF16

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	17 NOVEMBER 2017

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1. The appellant is a male of Tamil ethnicity, and a Hindu. He is in his early thirties. His home village is Udappu in the North West Province of Sri Lanka. He is married and has one young son. His wife and child are living in Udappu with her parents. The appellant primarily worked as a fisherman in Udappu and for limited periods of time on the east coast of Sri Lanka, mainly in Trincomalee. He arrived in Australia as an unauthorised maritime arrival on 16 July 2012.

2. This appeal is from the whole of the judgment of the Federal Circuit Court of Australia given on 1 August 2017 at Sydney.

3. Having first extended time under s 477(2) of the Migration Act 1958 (Cth), that Court dismissed, with costs, the application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) given on 20 June 2016, affirming the decision not to grant the appellant a Protection (Class XA) visa.

   The notice of appeal

4. The sole ground of appeal is as follows:

   His Honour erred in not finding that the Tribunal failed to consider an integer of the applicant’s claims to the Tribunal.

5. This ground is uninformative and there is greater utility in proceeding by reference to the corresponding ground of the grounds that were before the Federal Circuit Court. Those grounds were as follows:

   1.The Tribunal erred in failing to consider each integer of the claims of the Applicant

   Particulars

   a.   The Tribunal failed to consider the claim of the applicant that he is a witness to “grease devil” phenomenon as a tool of intimidation used by the Sri Lankan Army

   b.   At [36] the AAT had noted the claim that the Grease Men were assaulted by the applicant and pursued to the local Army Camp;

   c.   The RRT (sic) had failed to consider what implication his status as a witness to the local Army camp hosting grease devils

   2.The RRT (sic) failed to comply with ministerial direction 56 in contravention of section 499(2A) of the Migration Act 1958 (Cth)

   Particulars

   a.The AAT failed to take into account the PAM3 protection visas complementary protection guidelines when it made a finding on whether the treatment that applicant would face on being detained in Sri Lanka was degrading treatment or punishment or was cruel or inhuman treatment

   The Tribunal’s decision

6. The Tribunal explained, at [17]-[24], what a grease man or grease devil was. According to the submission made by the appellant’s solicitors to the Tribunal on 31 January 2014, grease men or grease devils were men disguised as devils covered in grease who were committing violent crimes and targeting rural Tamil communities to deliberately instill fear in the inhabitants. It was widely believed the grease men were linked to the Sri Lankan Army (SLA).

7. The Tribunal considered the appellant’s claims in that respect as follows:

   153.The applicant also claimed that he would be imputed with anti-government or pro LTTE opinions because he and his friend Seelan chased a group of greasemen into an army camp in August 2011 and asked the village head to complain about the criminal conduct to the leader of the camp. The Tribunal accepts that the person known to the applicant as Mankumar made threats against him at that time and that the appellant moved to Trincomalee to avoid any further conflict with Mankumar. The Tribunal accepts that in 2011 tensions between the army and the Tamil ethnic population were high, that there were heighted (sic) community tensions and attacks on security authorities due to these attacks and that Mankumar may have immediately responded to the applicant’s involvement in the incident and complaint in the way outlined by the applicant. However the country information suggests the attacks and community counter responses died later in 2011.

   154. The Tribunal notes that the applicant claims he left Udappu for his safety in 2011 the left his wife, his child and parents living in Udappu and they have continued to live there since that time without apparent difficulty or problems with the Sri Lankan authorities or Mankumar. He could not explain why Mankumar did not harass or questions (sic) members of his family if he had a continuing interest in the applicant. He claims he had no further contact with his friend Seelan after he left Udappu in 2011 and since his departure from Sri Lanka has not made any obvious enquiries about whether Mankumar is still living in Udappu, whether the army base is still located in Udappu and whether the applicant has contacted anyone else involved in the greaseman incident.

   155. Whilst the incident may have been a source of concern for the applicant in 2011 and Mankumar may have responded to the incident as claimed the Tribunal does not consider that the applicant continued to be concerned about the ongoing ramifications of the incident. His conduct in not seeking further information, or satisfactorily explaining why he did not do so, is not consistent with his claim that he currently fears harm from Sri Lanka authorities or Mankumar arising from the 2011 incident.

   156 Further the Tribunal does not accept that the complaint in 2011 about the criminal conduct of persons suspected of being associated with the SLA (the greasemen) would lead authorities to the conclusion that the applicant was an LTTE supporter or had anti-government opinions. The applicant and his friend Seelan were simply responding to a break in at his aunt’s home and whilst the Tribunal accepts the SLA commonly acted with some impunity in Tamil areas leading them to abuse their power, it does not accept that the applicant’s conduct during the relatively minor incident would lead to any ongoing problems, particularly after a period of 5 years and the significant political change which took place in Sri Lanka in January 2015.

   157. As set out earlier in this decision the Tribunal does not accept that Mankumar came to the applicant’s former home in Trincomalee Province in 2012 and it does not accept he has any ongoing interest in the applicant.

   Proceedings in the Federal Circuit Court

8. The judge of the Federal Circuit Court first summarised the appellant’s claims, as follows.

9. The appellant’s first claim was that he was detained and beaten by soldiers in 2006. His second claim was that the SLA and the Criminal Investigation Department were interested in him because in 2011 he had identified a grease man who was connected to, and protected by, the army.  The appellant also made a number of more general claims including that he would be harmed because: (i) he was a young Tamil male; (ii) he was a fisherman from the north and northeast of Sri Lanka; (iii) he had sought protection in Australia; and (iv) he had left Sri Lanka illegally by boat.

10. The primary judge concluded at [10] that the first ground failed.  The primary judge said the Tribunal referred to the claim, as acknowledged in particular ‘b’ to the ground, and also explained in some detail, from [152]-[156] of its reasons, why it did not accept that the incident upon which the appellant relied would give rise to any real risk of future harm.  The reasoning and findings in those paragraphs dealt with the claim relied upon by the appellant in his application. For that reason, the primary judge concluded, the Tribunal did not fall into the error asserted in ground 1 of the application.

11. The primary judge also concluded that the second ground failed. His Honour noted that the appellant had not identified anywhere the relevant part of the PAM3: Refugee and Humanitarian – Refugee Law Guidelines (Guidelines) which he said the Tribunal failed to take into consideration. Leaving that to one side, there appeared to be two insuperable difficulties with this ground. The first was that the Tribunal referred expressly to its obligation under s 499 of the Migration Act in respect of Ministerial Direction No. 56: see [209] of the Tribunal’s reasons. Secondly, and in any event, the difficulty for the appellant was that the obligation to consider the matters in the Guidelines only arose in respect of what the Tribunal considered relevant: it was not enough for the appellant to show no express consideration of any part of the Guidelines in order to establish a breach of s 499(2A) of the Migration Act. The appellant must also show that the Tribunal considered those parts of the Guidelines were relevant to the review. He had not done that. There was nothing on the material to suggest that the Tribunal thought any aspect of the Guidelines was relevant and yet failed to consider it.

    The submissions of the parties

12. The appellant filed no written submissions. In oral submissions, the appellant said nothing going to establish error on the part of the primary judge or as to an integer which the Tribunal failed to consider. For example, the appellant submitted that although there had been a change of government in Sri Lanka, it was a Sinhalese government and he would face problems from the agents of the government or from the government if he returned to Sri Lanka.

13. The Minister submitted the appellant had not identified what integer of his claims the Tribunal allegedly failed to consider. In the absence of particulars to make this assertion meaningful, ground 1 had no proper basis and could not succeed. To the extent this ground sought to agitate the same complaint made in the first ground of the Application in the Federal Circuit Court, the appellant had failed to identify any error in the reasons of the primary judge for rejecting this ground.

14. To the extent the appellant sought to raise a ground not raised at first instance, the appellant required leave to raise it now. In determining whether to grant leave to raise a new ground, a relevant factor, the Minister submitted, was the merit of the ground sought to be raised. The first respondent opposed leave being granted on the basis that it was not in the interests of justice to allow the ground to be argued and determined for the first time  on  appeal  where  the  appellant  had  not  demonstrated it  would  have  any reasonable prospect of success.

15. The Minister submitted the appellant had failed to demonstrate any error in the reasons of the primary judge, or any jurisdictional error on the part of the Tribunal. The Minister submitted the appeal ought to be dismissed with costs.

    Consideration

16. In my opinion, the Tribunal did not fail to consider each integer of the claims of the appellant and there was no error on the part of the primary judge in so concluding. The Tribunal set out the claims at [26] and following, particularly at [35]-[39] and [51]-[54]. At [61] the Tribunal noted the appellant’s statement that apart from Mankumar, no one else in Sri Lanka made any threats to harm him at any time after the 2011 grease man incident. The Tribunal also found, at [150], that it did not accept that the grease men incident would give the appellant a profile which would subject him to a real chance of serious harm for reasons of imputed anti-government opinions or a perception that he was an LTTE member or supporter. The Tribunal returned to this issue at [153] and concluded the attacks on community counter responses died out later in 2011. Again, at [155], the Tribunal returned to the issue of whether the appellant currently feared harm from Sri Lankan authorities or Mankumar arising from the 2011 incident: it concluded that he did not.

17. In my opinion, the reasons of the Tribunal show that it did not fail to consider the appellant’s claims. No error in this respect was made by the primary judge. No jurisdictional error on the part of the Tribunal has been made out.

    Conclusion and orders

18. The appeal is dismissed, with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:        17 November 2017