CNH16 v Minister for Immigration and Border Protection
[2018] FCA 866
•8 June 2018
FEDERAL COURT OF AUSTRALIA
CNH16 v Minister for Immigration and Border Protection [2018] FCA 866
Appeal from: CNH16 v Minister for Immigration & Anor [2017] FCCA 2845 File number: NSD 1939 of 2017 Judge: STEWARD J Date of judgment: 8 June 2018 Legislation: Migration Act 1958 (Cth) s 473DE Date of hearing: 16 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 10 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 1939 of 2017 BETWEEN: CNH16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
STEWARD J
DATE OF ORDER:
8 JUNE 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed with 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
STEWARD J:
INTRODUCTION
The appellant is an ethnic Tamil from Sri Lanka who arrived in Australia in September 2012 and subsequently applied for a Safe Haven Enterprise visa on 9 October 2015. On 12 July 2016, a delegate of the first respondent (the “Minister”) refused to grant that visa. The matter was then referred to the second respondent (the “IAA”), which then affirmed the Minister’s decision. An application for judicial review was made to the Federal Circuit Court of Australia. That application was dismissed on 20 October 2017. From that decision, the appellant now appeals to this Court.
BACKGROUND
The claims made in support of the appellant’s case were identified by the primary judge (at [3]) as having been summarised by the IAA in its decision. It is useful to set out those claims again:
ŸOn 28 September 2006 in Jaffna he was arrested by the [Sri Lankan Army (SLA)] on suspicion of having links with the Liberation Tigers of Tamil Eelam (LTTE) and taken to an abandoned house, detained for two days, tortured and threatened with being buried alive. He was blindfolded, taken to Jaffna police station and held for five days. A case was filed against him and he was released from jail, but asked to stay in Jaffna until the court case was resolved.
ŸHe reported this to the International Committee of the Red Cross (ICRC) and the Human Rights Commission (HRC), his court case occurred after three months and he was released. He lost his job because he was in jail and considered a suspicious character.
ŸHe returned to Batticaloa, married, then moved to Welimada, a Sinhalese area. During this time two of his friends from Batticaloa went missing and are still untraceable. The Government announced in August 2010 that people who moved to Batticaloa had to register. After he registered, his arrest in Jaffna came out and people threw stones at his house at night. He sent his wife and son to Periyaporathevu and he continued to stay in the shop where he worked.
ŸIn February 2011 he moved to Periyaporathevu to his wife's house. The same month he tried to leave Sri Lanka illegally but the boat broke down and they were saved by fisherman. After the incident the SLA came to his house to inquire about him leaving the country illegally and if he was smuggling weapons for the LTTE.
ŸOne day he was travelling in a friend's autorickshaw, was stopped at a checkpoint and the SLA took his registration papers and confiscated the vehicle. They hit him, said they knew what illegal activities he was involved in, reminded him about his two friends who were missing and untraceable and warned that the same thing could happen to him.
ŸThe next day he went to his local [Tamil National Alliance (TNA)] member, who was standing in an upcoming election, for help to recover his papers and the vehicle. He was told if he wanted assistance he had to help canvass for the party and he agreed. After this two unidentified people came looking for him at his home, he wasn't there and they told his mother that he should not work for the TNA or there would be a funeral in the house. He got scared and decided to leave Sri Lanka.
ŸHe fears he will be tortured and killed by the SLA and the Government if returned. He fears the SLA suspect him of LTTE involvement because of the incident in Jaffna and the later incident with the boat.
ŸAs a single, male, 35 year old, Tamil from the east, failed asylum seeker who left Sri Lanka illegally, provided assistance to the TNA and who previously had a failed attempt to leave Sri Lanka in 2011, he will be closely scrutinised on return at the airport and his history will be discovered. He will be detained for additional questioning and suffer serious harm.
Significant features of the appellant’s distressing experience in Sri Lanka, which the IAA accepted as true were:
(1)the serious harm inflicted on the appellant by the Sri Lankan Army (the “SLA”) in 2006;
(2)the fact that two of his friends had gone missing;
(3)the fact that whilst leaving Sri Lanka illegally he was met by two soldiers who let him go with a warning; and
(4)the fact that if he returned to Sri Lanka he may face some level of societal discrimination.
However, based on the evidence before it, the IAA did not accept, by reason of certain inconsistencies in the evidence, that:
(1)stones were thrown at his home by people or that he was on a wanted list;
(2)the SLA knew of his illegal departure;
(3)the SLA visited him at his home to question him about his previously illegal attempted departure;
(4)he was of adverse interest to Sri Lankan authorities (this finding was based on both country information and the appellant’s travel to and from Sri Lanka between 2010 and 2012);
(5)he faced a real chance of persecution as a Tamil male from the east of Sri Lanka or due to any perceived links to the Liberation Tigers of Tamil Eelam (the “LTTE”); and
(6)any fine imposed by the Sri Lankan Immigration and Emigration Act 1949 by reason of his having left Sri Lanka illegally would amount to significant harm.
FEDERAL CIRCUIT COURT OF AUSTRALIA
In his application for judicial review to the Federal Circuit Court of Australia, the appellant relied on three grounds. The first ground was that the IAA had failed to consider his claim for protection. This was rejected by the primary judge, who found that the IAA had in fact plainly considered that claim.
The second ground was that the appellant had not been invited to the hearing or to comment on adverse information. The primary judge rejected this ground and reasoned as follows (at [10]-[11]):
The second ground is in effect that the Authority made its decision without inviting the applicant to a hearing, or to comment on or respond to, adverse information. The difficulty with this ground is that in effect it does not take into account the scope of the review provided for under pt.7 AA. Section 473DB of the [Migration Act 1958 (Cth) (the “Act”)], which falls in that Part, provides subject to the part, that the Authority must review the decision without accepting or requesting new information and without interviewing the applicant. This is to be contrasted with other review Tribunals, such as that covered by pts.5 and 7 of the Act.
Other provisions of pt.7AA are also pertinent, including s.473DA, which provides that div.3 of pt.7 AA is an exhaustive statement of requirements of the natural justice hearing rule. That provision has been construed in a number of decisions in this Court to mean that there is no obligation to afford procedural fairness, other than what is contained in the express provisions referred to in that section. There may be room to doubt the extent of those authorities, at least in respect of the operation of s.473DD of the Act, but there is nothing that I can see in the facts of this case that would have required, at risk of jurisdictional error, the Authority either inviting the applicant to a hearing, or to give the applicant particulars of any adverse information which it had in the material before it. For those reasons I would reject ground 2.
I note that this was not a case where the IAA had regard to any new information, thus giving rise to disclosure obligations under s 473DE of the Migration Act 1958 (Cth).
The third ground was that the IAA had failed to consider the appellant’s claim arising under the Sri Lankan Immigrant and Emigrant Act 1949. The primary judge found that the IAA had considered the impact of this Act, and otherwise dismissed this ground as impermissible merits review.
NOTICE OF APPEAL
The grounds in the notice of appeal filed in these proceedings were as follows:
1. The [IAA] decision and the Federal Circuit Court judgement be quashed
2. To determine my case according to law
3. A new IAA review
[Errors in original]
The appellant was, before me, self-represented. He filed no submissions. Having heard from the Minister’s counsel, he made two submissions, through an interpreter, as follows:
(1)First, that he had misunderstood the legal system operating in this Court, and the limits placed upon its jurisdiction. He asked for additional time to find a lawyer to present his case. It may be accepted that the appellant may have misunderstood the role of this Court in hearing appeals from the Federal Circuit Court.
(2)Secondly, that the United Nations has stated that threats to life continue in Sri Lanka. It was contended that the country information before the IAA had wrongly focussed on Colombo, and did not consider the position in the Sri Lankan countryside where problems continue. The appellant fears that he will be tortured if he is returned to Sri Lanka.
I have carefully reviewed all the material before me, including the decision of the IAA and of the primary judge, as well as the grounds of review. For the reasons given by the primary judge, with whom I respectfully agree, the appeal must be dismissed. The matters raised before me by the appellant do not require a contrary decision to be reached. The appellant’s second submission went to the merits of his case which I cannot review. As to the first submission, I am also not satisfied that there is a proper basis for giving the appellant more time. No basis for seeking an extension of time was presented.
The order of the Court is that the appeal be dismissed with costs as agreed or as assessed.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward. Associate:
Dated: 8 June 2018
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