CDW18 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

CDW18 v Minister for Home Affairs [2019] FCA 270

Appeal from: CDW18 v Minister for Home Affairs & Anor [2018] FCCA 2334
File number: NSD 1671 of 2018
Judge: THAWLEY J
Date of judgment: 28 February 2019
Catchwords: MIGRATION – appeal from decision of Federal Circuit Court of Australia dismissing amended application for judicial review of decision of Immigration Assessment Authority – whether the Authority failed to assess the risk of harm in the reasonably foreseeable future when considering whether the applicant faces a “real chance” of persecution – whether the Authority erred in departing from the findings of the delegate without exercising the discretion in s 473DC(3) of the Migration Act 1958 (Cth)
Legislation: Migration Act 1958 (Cth) ss 5(1), 5J, 65, 473CC, 473DC
Cases cited:

AIE15 v Minister for Immigration and Border Protection [2018] FCA 610

DGZ16 v Minister for Immigration and Boarder Protection [2018) 258 FCR 551

Minister for Immigration and Boarder Protection v CRY 16 (2017) 253 FCR 475

Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441

NAHI v Minister for Immigration [2004] FCAFC 10

Plaintiff M174/2016 v Minister for Immigration and Indigenous Affairs and Another (2018) 353 ALR 600

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152

SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572

VWFW v Minister for Immigration [2006] FCAFC 29
Date of hearing: 28 February 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 50
Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter
Counsel for the Respondents: Mr J Kay Hoyle
Solicitor for the Respondents: HWL Ebsworth Lawyers

ORDERS

NSD 1671 of 2018
BETWEEN:

CDW18

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

THAWLEY J

DATE OF ORDER:

28 FEBRUARY 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

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


REASONS FOR JUDGMENT
(Revised from Transcript)

THAWLEY J:

  1. On 22 August 2018, the Federal Circuit Court of Australia dismissed with costs the appellant’s application for judicial review.  On this appeal, the appellant must demonstrate the Federal Circuit Court erred.

  2. The appellant had applied to the Federal Circuit Court for judicial review of a decision of the Immigration Assessment Authority dated 27 March 2018.  The Authority had affirmed a decision of a delegate of the first respondent (Minister), dated 29 August 2017, not to grant the appellant a Safe Haven Enterprise visa pursuant to s 65 of the Migration Act 1958 (Cth).

  3. The appellant was a “fast track applicant” within the meaning of s…

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Details
Case
[2019] FCA 270
Decision Date

CaseChat Overview and Summary

CDW18 v Minister for Home Affairs is an appeal against the decision of the Federal Circuit Court of Australia, which dismissed an amended application for judicial review of a decision made by the Immigration Assessment Authority (IAA). The appellant, a Catholic Tamil from northern Sri Lanka, sought to argue that the IAA had failed to properly assess the risk of harm in the reasonably foreseeable future when considering whether the appellant faced a “real chance” of persecution, and that the IAA erred in departing from the findings of the delegate without exercising the discretion in s 473DC(3) of the Migration Act 1958 (Cth). The appellant's claims were based on an imputed association with the Liberation Tigers of Tamil Ealam (LTTE) and his Tamil ethnicity, due to relatives’ involvement with the LTTE, the similarity of the appellant’s last name to the last name of an LTTE leader, questioning of the appellant by the authorities and the danger to Tamils generally in Sri Lanka.

The primary legal issue before the court was whether the IAA had properly assessed the risk of harm in the reasonably foreseeable future when considering whether the appellant faced a “real chance” of persecution, and whether the IAA had erred in departing from the findings of the delegate without exercising the discretion in s 473DC(3) of the Migration Act 1958 (Cth). The court considered the Authority's reasons for its decision, and found that the Authority had not had any real doubt about its findings. The court rejected the grounds for appeal, finding that they lacked sufficient merit. The court also rejected grounds one and two, and concluded that the appeal must be dismissed.

The court found that the appellant did not have sufficient merit to warrant leave to argue grounds three and four, and that the Authority's reasons were sufficient to show that it did not have any real doubt about its findings. The court held that the appeal was dismissed, and that the appellant pay the first respondent's costs as agreed or assessed. The court found that the appellant's circumstances did not warrant a departure from the ordinary rule that the successful party in litigation is entitled to an order for their costs. The court ordered that the appeal be dismissed, and that the appellant pay the first respondent's costs as agreed or assessed.

Orders

Orders of the court

1. The appeal be dismissed.

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

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

Background

Background to the litigation

The appellant requires leave to argue grounds three and four. It is not necessary for the purposes of this appeal to repeat the relevant principles applicable to whether leave should be granted. It is sufficient for present purposes to record that leave is not granted if the ground lacks merit. BACKGROUND The appellant’s claims were summarised by the Minister in the following way:The appellant, who comes from northern Sri Lanka and identifies as a Catholic Tamil, claimed to fear harm based on an imputed association with the Liberation Tigers of Tamil Ealam (LTTE) and his Tamil ethnicity. The bases of those claimed fears were the adverse attention of the Sri Lankan authorities due to relatives’ involvement with the LTTE, the similarity of the appellant’s last name to the last name of an LTTE leader, questioning of the appellant by the authorities and the danger to Tamils generally in Sri Lanka … It was not contended that this summary was inaccurate, and having reviewed the appellant’s claims as recorded in the decisions of the Minister and the Authority (set out below), it is apparent that this summary is accurate and sufficient for present purposes. The Authority’s decision was summarised by the Minister in the following way (footnotes omitted):The IAA’s reasons are [relevantly] set out at [15]-[32] of the Decision. [The appellant does not challenge the IAA’s findings on new information or on complementary protection.] The IAA accepted that the appellant’s cousin was a member of the LTTE who died in combat, his brother-in-law was also a member of the LTTE who left Sri Lanka in 2005 and his uncle assisted the LTTE. Relevantly, the IAA then made the following findings:(a)the appellant provided vague answers to the Delegate when questioned about his harassment. It found the claim that he had been locked up in the Vavuniya police station to be implausible as the appellant failed to mention the claim in his statements. The IAA considered the claim had been fabricated in response to the Delegate’s direct question;(b)it rejected the claim that the authorities were still interested in him because he had the same name as an LTTE leader. The country information indicated that the LTTE leader was dead. However, it did accept that he was taken to an SLA camp three times and questioned because of the similarity in the names but found that as the LTTE leader had died in 2009 the appellant would not be of adverse interest;(c)it rejected the appellant’s claim to have been kidnapped three times; the appellant’s evidence was vague. It rejected the claim that he would not know how many times he had been kidnapped or that he would fail to mention these incidents because he had forgotten them;(d)it did not accept that the appellant could fail to mention in his statement of claims about being forced to go into hiding, moving from place to place and living with his sister in order to avoid being kidnapped if such a claim were true. The IAA found that the appellant had fabricated this claim. He did not mention being interrogated or being accused of assisting the LTTE;(e)the IAA did not accept that the appellant had attended Martyrs Day celebrations. He gave inconsistent evidence about where he had attended the celebrations and had provided no independent evidence to substantiate his attendance. Bearing in mind the other findings concerning the applicant’s fabricated evidence, the IAA was not satisfied that the appellant had attended the celebrations as claimed. The IAA accepted that various members of the appellant’s extended family were members of the LTTE and that he came from an area that had been under LTTE control. It considered country information that suggested a lessening of the difficulties experienced by the Tamil population. The IAA noted that close relatives of high-level LTTE members may be subject to monitoring. Although the SLA would have monitored and harassed the appellant from time to time, the IAA did not accept that he was detained by the police, kidnapped, questioned or interrogated, required to go into hiding or attended Martyrs Day celebrations. The IAA found that there was no credible evidence to indicate that the appellant would be perceived as having a role in the LTTE.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Authority’s reasons, in particular at A[26] to A[29], show that the Authority did not have any real doubt about its findings. It follows that this ground cannot succeed.CONCLUSION I would not grant leave to raise grounds three and four on the appeal because they lack sufficient merit for the reasons identified earlier. I have rejected grounds one and two. Accordingly, the appeal must be dismissed.COSTS The Minister applied for his costs of the appeal. The appellant indicated that he is not working, that he is ill, and that he does not have the capacity to meet a costs order. The Court is sympathetic to the appellant’s circumstances, however the ordinary rule is that the successful party in litigation, absent some good reason, is entitled to an order for their costs. The reasons advanced by the appellant for not making a costs order in the Minister’s favour do not alter that result. Accordingly, the appeal is dismissed with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.