CLI15 v Minister for Immigration and Border Protection

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FEDERAL COURT OF AUSTRALIA

CLI15 v Minister for Immigration and Border Protection [2016] FCA 1223

Appeal from: CLI15 v Minister for Immigration & Anor [2016] FCCA 650
File number: NSD 499 of 2016
Judge: BURLEY J
Date of judgment: 14 October 2016
Catchwords:

MIGRATION – appeal from Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal – Tribunal affirmed decision not to grant the appellant a Protection (Class XA) visa – whether the Administrative Appeals Tribunal failed to comply with ss 424A and 424AA of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal failed to consider fully the complementary protection obligations owed to the appellant

ADMINISTRATIVE LAW – role of the Court to decide whether decision was invalid by reason of jurisdictional error – role of the Court not to consider factual merits of Tribunal’s decision
Legislation:

Federal Court of Australia Act 1976 (Cth) s 24

Migration Act 1958 (Cth) ss 36, 424A and 424AA

Cases cited:

CLI15 v Minister for Immigration & Anor [2016] FCCA 650

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123

Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609

SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415

SZTMC v Minister for Immigration and Border Protection [2015] FCA 1282

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549
Date of hearing: 12 August 2016
Date of last submissions: 17 August 2016
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 49
Counsel for the Appellant: The Appellant appeared in person
Solicitor for the First Respondent: Ms P M Blackadder of Sparke Helmore Lawyers
Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs

ORDERS

NSD 499 of 2016
BETWEEN:

CLI15

Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

BURLEY J

DATE OF ORDER:

14 OCTOBER 2016

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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


REASONS FOR JUDGMENT

1         INTRODUCTION

[1]

2         BACKGROUND

[8]

2.1      The Visa application and the Delegate’s decision

[8]

2.2      The Tribunal

[9]

2.3      The FCCA

[17]

3         THE APPEAL

[20]

4         CONCLUSIONS AND DISPOSITION

[48]

BURLEY J:

1.               INTRODUCTION

  1. This is an appeal from the judgment and orders of the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The Tribunal had affirmed a decision of a delegate of the first respondent…

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Details
Case
[2016] FCA 1223
Decision Date

CaseChat Overview and Summary

The Federal Circuit Court of Australia considered an appeal from the Federal Circuit Court of Australia, which had dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT). The appellant, a citizen of Sri Lanka, applied for a Protection (Class XA) visa, which was refused by the Delegate. The AAT upheld the Delegate's decision after two hearings. The appellant's appeal focused on whether the AAT erred in its consideration of sections 424A and 424AA of the Migration Act 1958 (Cth) and whether it failed to fully consider the complementary protection obligations owed to the appellant.

The court assessed whether the AAT made a jurisdictional error in its decision-making process. It noted that the role of the court was not to re-evaluate the merits of the AAT's decision but to determine if there was a failure to properly consider relevant legal principles. The court examined the AAT's handling of the appellant's claims regarding his ethnicity, threats from a creditor, and the potential consequences of his return to Sri Lanka. The AAT's detailed examination of the appellant's claims and its findings based on the evidence presented were scrutinised to ascertain whether they adhered to the required legal standards.

The court concluded that the AAT's decision-making process was sound and that it appropriately applied the relevant legal provisions. The findings made by the AAT were deemed to be supported by the evidence and logical in their conclusions. Consequently, the court dismissed the grounds of appeal, affirming the AAT's decision. The court's reasoning centred on the AAT's thorough analysis of the appellant's claims and its proper application of the Migration Act.

The final orders of the court were that the appeal be dismissed with costs, emphasising the court's stance that the AAT's decision was lawful and correctly reached. The dismissal of the appeal with costs underscored the court's view that the appellant's grounds for appeal were unfounded.

Orders

Orders of the court

1. The appeal be dismissed with costs.

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

Background

Background to the litigation

For the reasons set out below, I have concluded that the appellant’s grounds of appeal have not been made out, and that the appeal should be dismissed with costs.2. BACKGROUND2.1 The Visa application and the Delegate’s decision The appellant is a citizen of Sri Lanka who arrived in Australia as an irregular maritime arrival on 13 August 2012. He applied for the Visa on 1 July 2013. On 24 March 2014, the Delegate refused the application.2.2 The Tribunal The appellant appeared before the Tribunal on two different occasions. A first hearing was conducted on 13 March 2015 during which the appellant gave evidence and presented arguments. The Tribunal member conducting that hearing ceased to be available prior to the delivery of any decision and accordingly, a second hearing was conducted on 15 October 2015 in order to give a fresh hearing to the appellant before a different Tribunal member. The appellant again appeared and was represented by a migration agent and gave evidence. Both Tribunal hearings were conducted with the assistance of an interpreter in the Tamil/English languages. The Tribunal rejected the appellant’s claims and affirmed the Delegate’s decision not to grant the appellant a protection visa. The Tribunal’s analysis proceeded in three substantive parts. The first was to consider the appellant’s claim that he was a Tamil. The Tribunal recorded in its decision that at the first and second hearings the appellant was questioned about his ethnicity. The Tribunal accepted that the appellant speaks Tamil but noted that at the first hearing before the Tribunal he said that he spoke Sinhalese equally well. The Tribunal questioned him about his ethnicity and put to him that he was Sinhalese, not Tamil. Ultimately the Tribunal found; that the appellant’s parents were Sinhalese; that his father had recorded him to be Sinhalese on his birth certificate; that that he had a Sinhalese name; and that his wife and children are Sinhalese. On the basis of these findings, the Tribunal concluded that the appellant is Sinhalese and not Tamil. The second part concerned the appellant’s claim was that he would be killed by R if he returned to his hometown. The basis for his fear was that he had failed to repay R a debt of several million rupees that he had advanced to enable the appellant to start a prawn farming business. The appellant claimed that since 2002 R had threatened to kill the appellant on about 20 occasions. The Tribunal rejected the claim that R threatened to kill the appellant because of debt, or would do so in the future, as incredible, citing numerous reasons why the version of events offered by the appellant was inconsistent or implausible. The Tribunal’s decision record identifies multiple occasions on which the Tribunal suggested to the appellant that his version of events was inconsistent or implausible. It rejected his claim that he would be at risk from R if he were returned to Sri Lanka. The third part addressed the appellant’s claim that if he was returned to Sri Lanka as a failed asylum seeker who had left Sri Lanka illegally, he would be persecuted or suffer serious harm. The Tribunal recorded that when asked at the first hearing what he thought would happen on his return, the appellant said that he did not think that there would be any problems, but that he would have lost respect because things had not worked out for him in Australia, the appellant would then become depressed, be treated as an outcast and, although he would find work, it would take him to time to recover.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I find that there was no error in the approach taken by the Tribunal. It follows that I agree that the primary judge was correct to reject this ground of appeal. Accordingly, I dismiss Ground 2.4. CONCLUSIONS AND DISPOSITION Both of the grounds of appeal have been rejected for the reasons set out above. The appeal should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.