CEY16 v Minister for Immigration and Border Protection
[2018] FCA 492
•1 March 2018
FEDERAL COURT OF AUSTRALIA
CEY16 v Minister for Immigration and Border Protection [2018] FCA 492
Appeal from: CEY16 v Minister for Immigration & Anor [2017] FCCA 293 File number: NSD 303 of 2017 Judge: RANGIAH J Date of judgment: 1 March 2018 Catchwords: MIGRATION – appeal from Federal Circuit Court – refusal to grant protection visa – appeal dismissed Legislation: Migration Act 1958 (Cth) s 36(2) Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405Date of hearing: 1 March 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr T Galvin of Minter Ellison Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 303 of 2017 BETWEEN: CEY16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
1 MARCH 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
RANGIAH J:
This is an appeal from a judgment of the Federal Circuit Court of Australia dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 10 July 2016. The Tribunal affirmed the decision of a delegate of the first respondent to refuse the appellant the grant of a protection visa.
The appellant is a citizen of Sri Lanka who arrived in Australia on 29 June 2012. He applied for a Protection (Class XA) visa on 5 November 2012. A delegate of the Minister refused to grant the protection visa on 9 December 2013. The appellant then applied for review of that decision to the Tribunal. He appeared before the Tribunal on 17 September 2015 to give evidence and present arguments.
Before the Tribunal, the appellant claimed that his father had suffered harm in Sri Lanka at the hands of the police and Sri Lankan army. The appellant also claimed that he had been beaten by police and that police had come to his father’s home asking if his father knew of any people-smuggling activities in the area. His father decided to send the appellant to Australia because he feared that the appellant would be harmed for no reason. The appellant also claimed that after he arrived in Australia, his father had been kidnapped by police and detained because they wanted to know why the appellant had been sent to Australia and who was involved in smuggling him.
The Tribunal received written submissions from the appellant’s representative dated 7 March 2014, 25 September 2015 and 8 February 2016. The Tribunal affirmed the delegate’s decision, on 10 July 2016. In its decision record, the Tribunal specifically noted that it had received the written submissions.
The Tribunal was not satisfied that the appellant was a witness of truth. It identified a number of concerns it had about the appellant’s credibility. In particular, the Tribunal was concerned about changes in the appellant’s evidence concerning the allegations of past harm and inconsistencies in his evidence. The Tribunal did not accept that any of the incidents of past harm alleged by the appellant had actually occurred. The Tribunal did not accept the appellant’s claim that he will be at risk of harm from the authorities or Sinhalese people because of his profile or because he is Tamil or for any other reason.
The Tribunal also found that the appellant did not have a well-founded fear of persecution as a failed asylum seeker or because he departed Sri Lanka illegally. The Tribunal therefore found that the appellant did not satisfy either the refugee criterion or the complementary protection criterion under s 36(2) of the Migration Act1958 (Cth).
The appellant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. The appellant relied on the following ground of review:
(1)the Tribunal fell into jurisdictional error in failing to consider all integers of the claim.
Particulars
a.The Tribunal failed to consider post-hearing submissions made by the applicant’s agent on 25 September 2015 and 8 February 2016.
The primary judge held that the Tribunal did not err in the manner alleged in the ground of the application. His Honour noted that the Tribunal’s reasons expressly referred to the post-hearing submissions. It was apparent that the Tribunal had addressed the matters contained in those submissions dealing with additional country information. It was apparent that the Tribunal had engaged intellectually with those submissions. Accordingly, the ground of the application was not made out.
The primary judge also held that the appellant’s contentions made in oral submissions, to the effect that the Tribunal’s adverse credibility findings were based solely on his being unable to recall particular dates and that he wanted to put further material to the Tribunal, did not establish jurisdictional error. Therefore, the primary judge dismissed the application.
In this Court, the notice of appeal sets out precisely the same ground of appeal as was relied on in the application to the Federal Circuit Court. The appellant has not attempted to demonstrate any error in the findings of the primary judge as to that ground. His Honour was clearly correct. The ground must fail for the reasons given by the primary judge.
In oral submissions, the appellant said that he had got dates mixed up when he was being interviewed, suggesting that this affected the question of his credibility. This seems to be an attempt by the appellant to challenge the credibility findings made by the Tribunal. The submission does not raise any allegation of jurisdictional error and cannot succeed: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405.
The appellant also said that his father had been arrested again on 21 November 2017 and detained until 5 December 2017. However, that cannot affect any issue to be decided in this Court. The Court’s role is limited, relevantly, to deciding whether there has been any error by the primary judge. While that may involve considering whether there was jurisdictional error on the part of the Tribunal, the Court has no power to make a decision as to whether the appellant should be granted a protection visa on the basis of new information supplied by the appellant.
For these reasons, the appeal must be dismissed. The appellant will be ordered to pay the first respondent’s costs of the appeal.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 11 April 2018
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