CNO16 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 1257
•23 October 2023
FEDERAL COURT OF AUSTRALIA
CNO16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1257
Appeal from: CNO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 58 File number: VID 118 of 2022 Judgment of: SNADEN J Date of judgment: 23 October 2023 Catchwords: MIGRATION – appeal from the Federal Circuit and Family Court of Australia (Division 2) – where primary judge dismissed application for judicial review of a decision by the Administrative Appeals Tribunal – whether court failed to investigate a question of law – whether tribunal failed properly to consider appellant’s submissions – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 35, 36, 438
Convention Relating to the Status of Refugees, opened for signature on 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Cases cited: CNO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 58
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
NAGV and NAGW of 2022 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 38 Date of hearing: 28 August 2023 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr C Orchard of Sparke Helmore Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
VID 118 of 2022 BETWEEN: CNO16
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
23 OCTOBER 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of the appeal, fixed in the sum of $5,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
The appellant is Sri Lankan. He arrived in Australia by boat in April 2013, having departed Sri Lanka unlawfully. On 14 June 2013, he made an application under the Migration Act 1958 (Cth) (hereafter, the “Act”) for what is known as a protection visa (hereafter, the “Visa Application”).
On 17 December 2014, a delegate of the first respondent (the “Minister”—then the Minister for Immigration and Border Protection) refused to grant the Visa Application on the basis that the appellant was not a person to whom Australia owed protection obligations (that decision is referred to hereafter as the “Delegate’s Decision”).
On 29 December 2014, the appellant lodged with the Refugee Review Tribunal (hereafter, the “RRT”) an application for review of the Delegate’s Decision (hereafter, the “Review Application”). On 1 July 2015, the second respondent (hereafter, the “Tribunal”) assumed the functions of the Refugee Review Tribunal and continued the review of the Delegate’s Decision. On 18 July 2016, the Tribunal affirmed the Delegate’s Decision (that affirmation is referred to hereafter as the “Tribunal’s Decision”).
The appellant then applied to the Federal Circuit Court of Australia (the “FCCA”, which has since become the Federal Circuit and Family Court of Australia (Division 2)—hereafter, the “FCFCOA”) for judicial review of the Tribunal’s Decision. On 9 February 2022, the FCFCOA dismissed that application with costs (the “Judicial Review Application”): CNO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 58 (the “FCFCOA Judgment”; Judge Lucev).
By notice dated 23 February 2022 and filed on 4 March 2022, the appellant appeals from the entirety of the FCFCOA Judgment. For the reasons that follow, the appeal must be dismissed with costs.
THE APPELLANT’S CLAIM TO PROTECTION
Relevantly to this appeal, the appellant made the following claims in relation to his Visa Application, namely that:
(1)he began supporting the Sri Lankan United National Party (hereafter, the “UNP”) in 2009, working closely with two UNP members of parliament;
(2)he participated politically by organising meetings, creating banners, providing funding for and putting up posters, providing food, and lending his vehicles for campaign work;
(3)he had been made the UNP Chief Organiser for four localities;
(4)after the 2010 election, four friends with similar histories of political involvement went missing and were assumed to be dead;
(5)he fled his parental home in 2010;
(6)men in white vans had visited his parents’ home looking for him, had damaged the house and threatened his parents with death;
(7)the men visited his parents’ home on four more occasions, each time threatening his parents with death;
(8)a friend with a similar history of political involvement had also had his house visited and damaged by men in white vans;
(9)while in Colombo, he was followed by a white van and shot at;
(10)he had received news that a friend of his had been killed by the driver of the Chairman of the local council, a member of the Sri Lankan Freedom Party;
(11)he feared being killed by members of the Sri Lankan Freedom Party and the Sri Lankan authorities on the basis of his position as UNP Chief Organiser and financier;
(12)the state cannot protect him; and
(13)he cannot relocate as previous attempts to do so had failed.
THE STATUTORY FRAMEWORK
The Act establishes a class of visas known as “protection visas”: the Act, s 35A. It is not controversial that the Visa Application was an application for such a visa. In order that it might succeed, the appellant needed to satisfy the criteria identified in what was, at the time, s 36(2) of the Act, as read with s 36(2A) and (2B). Together, those provisions read (relevantly) as follows:
36 Protection visas—criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
…
(2A)A non‑citizen will suffer significant harm if:
(a)the non‑citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non‑citizen; or
(c)the non‑citizen will be subjected to torture; or
(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
The reference to “protection obligations” in s 36(2)(a) was apt to describe refugees within the meaning of art 1 of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954), as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (together, the “Refugees Convention”): NAGV and NAGW of 2022 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161, 176 [42] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ; Kirby J agreeing on a narrower footing). Article 1A of the Refugees Convention provides as follows:
Article 1
DEFINITION OF THE TERM “REFUGEE”
A.For the purposes of the present Convention, the term “refugee” shall apply to any person who:
…
(2)…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it…
THE TRIBUNAL’S DECISION
The appellant’s submissions to the Tribunal included that:
(1)although the UNP now has greater control over Sri Lanka, the appellant and his family had continued to face ongoing issues, and there was still a real chance that he would be targeted by opposition supporters who would want to limit or bring to an end the UNP’s control;
(2)although the UNP held minority government, it was impossible accurately to predict the outcome of the next election, and it was possible that opposition thugs would continue to target UNP members with a view to regaining control of Sri Lanka;
(3)the authorities in Sri Lanka were not capable of providing adequate protection;
(4)he may face persecution as a failed asylum seeker from the west, and would face increased chances of being detained upon his return and then be either killed or imprisoned indefinitely; and
(5)during his interview with the Department, the appellant’s credibility may have been affected due to his past experiences making him anxious and nervous.
At the hearing before the Tribunal, the appellant expanded on his claims as follows, namely:
(1)the businesses given to the appellant by his father had been closed in part due to the appellant’s political problems;
(2)the appellant’s father used to have a connection to the UNP;
(3)the appellant’s vehicles were used to transport ministers to rallies;
(4)the appellant booked reservations for venues, organised decorations and received UNP ministers, spending a lot of personal money;
(5)the appellant organised rallies;
(6)the appellant did not hold a UNP membership card or badge because he had money and was close to the ministers;
(7)people in white vans had gone to the appellant’s parents’ house on a further six occasions prior to him leaving Sri Lanka;
(8)while living in Colombo, he was shot at from a vehicle;
(9)at times, he would return to his village to visit his parents and stay a night, including on one occasion returning home to retrieve a driving licence and medical certificate;
(10)thugs went to his parents’ house in late 2015 and made threats from outside the gate, asking whether the appellant had returned to Sri Lanka;
(11)he no longer had any interest in the UNP, did not intend to have any future involvement in politics and no longer supported UNP members of parliament;
(12)UNP opponents might think that he is returning to Sri Lanka because he is still interested in supporting the UNP;
(13)if he were to return to his home village, people would think that he had made a lot of money in Australia and was returning to assist UNP member of parliament, Mangala Samaraweera, which would lead them to kill him;
(14)he has no fears about his treatment at the airport or upon his return home in relation to having left Sri Lanka illegally or as a failed asylum seeker; and
(15)if he returned to Sri Lanka, he would be financially lost—back to zero—and would have to establish himself again.
The Tribunal found some of the appellant’s claims to be far-fetched, unconvincing or implausible, and it had significant doubts about the credibility of some of his claims of political involvement. In its written reasons for its decision, it expressed a number of unfavourable views, including that:
(1)the appellant’s support for the UNP did not extend past January 2010;
(2)the appellant’s evidence regarding the alleged disappearance of friends was vague and gave rise to doubts about the veracity of the claim;
(3)the Tribunal did not consider the appellant’s claims about visits from “thugs” to be credible;
(4)the Tribunal did not accept that the appellant was shot at in Colombo because of his past support for the UNP;
(5)the Tribunal did not accept that the appellant’s friend’s death was linked to his political opinion; and
(6)as a low-level activist of the UNP, the appellant did not face a real chance of serious harm or a risk of significant harm.
The Tribunal concluded that the prospect of the appellant being harmed in electoral- or political-related violence, especially given his avowed intention not to be involved in politics in the future and the fact that six years had elapsed since his low-level involvement ceased, was so low as to be considered remote or insubstantial. On that basis, it found that there was not a real chance or a real risk of the appellant being harmed by opponents of the UNP. The Tribunal held that the appellant would be returning to a country where the UNP was in power and to a location where there was substantial support for the UNP—and, as such, he would be able to express his political opinion and continue to support the UNP in the future, should he wish to do so.
The Tribunal addressed the appellant’s claims that he would be financially lost upon his return to Sri Lanka. While it accepted that it may take some time for the appellant to re-establish himself, it did not consider that that would present significant economic hardship sufficient to threaten his capacity to subsist or otherwise amount to serious harm. It also concluded that the appellant held no concerns about his treatment on return to Sri Lanka as a failed asylum seeker, and that, while he would be charged under Sri Lankan law due to his unlawful departure from Sri Lanka, the chances were remote that the appellant would spend more than a very short period remanded in custody awaiting bail.
Having regard to all of the circumstances that it considered, both individually and collectively, the Tribunal found that the appellant did not have a real chance of subjection to serious harm in Sri Lanka arising from his limited, low-level political activity, his actual or imputed political opinions, his status as a failed asylum seeker, his status as a returnee who left Sri Lanka unlawfully, or for any other reason. It concluded that he did not have a well-founded fear of persecution, and that there were not substantial grounds for believing that there was a real risk that he would suffer significant harm upon being removed from Australia to Sri Lanka.
THE FCFCOA JUDGMENT AND THE PRESENT APPEAL
The appellant sought judicial review in what was then the FCCA. The application proceeded on two grounds, neither of which feature in the grounds of appeal now before this court. Specifically (if somewhat baldly), the appellant maintained that:
1. the [Tribunal] did not afford [him] procedural fairness; and
2. the [Tribunal] applied the wrong legal test.
The Minister raised the possibility of a further jurisdictional error, being a failure by the Tribunal to disclose to the appellant the existence of a certificate issued under s 438 of the Act (hereafter, “the Certificate”).
Before the FCCA, the appellant made no submissions concerning the jurisdictional errors that he alleged. Rather, he submitted that:
(1)the government of Sri Lanka had changed since 2016;
(2)he was not permitted to vote in the Sri Lankan elections in 2019; and
(3)his human rights would be violated in Sri Lanka,
and otherwise made generalised submissions concerning the circumstances he had faced, or would face, in Sri Lanka.
It is not necessary to set out the reasons of the FCFCOA (as it had then become). If the Tribunal Decision was attended by jurisdictional error as is alleged, then the appeal should be allowed; and, if it was not, then the appeal should be dismissed. Either way, the court’s focus must fix upon the Tribunal’s Decision.
The present appeal proceeds on two grounds, namely (errors original):
1.…the order [of the FCFCOA], which is based on the application has a question of law and it should be investigated; and
2.[the appellant] provided lot of information and supporting documents for the Visa application [which] was not considered properly and was not granted a fair order.
There is no apparent connection between the present grounds on appeal and the grounds that were advanced before the FCFCOA. The appellant therefore requires leave to agitate the above grounds on appeal: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588, 598 [46] (Kiefel, Weinberg and Stone JJ). I shall return to that issue momentarily.
SUBMISSIONS AND HEARING
After being initially adjourned due to the non-appearance of an interpreter, the appeal was heard on Monday, 28 August 2023. Both parties filed written submissions ahead of the hearing and made oral submissions at it (the appellant with the assistance of an interpreter).
Before turning to the two grounds upon which the appellant moves, it is necessary to address the Minister’s observation that the Tribunal failed to disclose the Certificate. It should be observed that the Tribunal made no reference to the Certificate, and that the material covered by the Certificate was mere identity information. The Minister submits, correctly, that the Certificate could not have had any bearing on the appellant’s case. The learned primary judge was, therefore, correct in finding (as his Honour did) that the failure by the Tribunal to disclose the existence of the Certificate, or the information that it contained, gave rise to no “realistic possibility that the Tribunal’s decision would have been different” had it been so disclosed, and so could not have had any bearing on the Tribunal’s determination: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 445-446 [49] (Bell, Gageler and Keane JJ).
GROUNDS OF APPEAL
The appellant’s written submissions can be distilled into a number of key points.
First, the appellant claims that, as an active supporter of the UNP, he had made many enemies from whom he has received death threats, that his family is well-known and that he has been treated as a traitor, resulting in a loss of security, even at his home. The appellant submits that he had become so scared that he moved to another area of Sri Lanka; and was scared of making even more enemies such that he left the country. He claims that, if he was returned, there is a risk that he would be subjected to torture and harm.
Second, the appellant claims that, owing to their fear of being harmed by his enemies, his family was forced to sell property in order to survive, and that his family would not be able to support him were he to return to Sri Lanka. That being so, he maintains that the Tribunal was wrong to say that he did not face a real chance of serious harm on account of being financially lost.
Third, the appellant maintains that sufficient evidence was supplied to the Tribunal to demonstrate that he would suffer significant harm if removed to Sri Lanka. He submits that he provided only truthful, convincing and consistent information, and therefore the Tribunal fell into error by concluding that Australia did not owe any protection obligations in respect of him.
Fourth, the appellant states that, were he to return to Sri Lanka, he would be questioned at the airport due to his being a returnee and a failed asylum seeker. He maintains that the police would detain him for up to a few days, and that he would have to pay a fine that is beyond his financial means.
Fifth, the appellant says that, having been away from Sri Lanka for so long and without support from his family, it would take some time to re-establish himself, and that he would suffer emotional hardship threatening his capacity to subsist.
Finally, the appellant claims that, having lived in Australia for some 10 years without any hope or anyone near him, he is suffering from mental stress and depression.
During oral submissions, the appellant claimed that his case had been dismissed because of “…the location of [his] residence”, and that proper consideration had not been given to “that location part”. Respectfully, it is not clear what the appellant meant by that.
Considering the appellant’s first ground of appeal, it is not clear what question of law the appellant submits ought to have been, but was not, addressed by the FCFCOA. From the tenor of the submissions, it was apparent that the appellant’s view is, very simply, that the Tribunal was wrong to dismiss his claim for protection.
As such, the appellant’s submissions appear to have been more focussed upon his second ground of appeal, namely that the Tribunal and the FCFCOA did not properly consider the information that the appellant had supplied in support of his Visa Application. The appellant maintains that he is at risk due to his political connections or his political activism (or both), that the Tribunal ought to have accepted as much, and that its failure to do so reflects that he was “not given a fair order”.
The appellant’s present challenge, of course, is to establish that the Tribunal’s Decision was a product of jurisdictional error. A court reviewing a decision for jurisdictional error must be cautious not to be drawn into impermissible merits review: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, 636 [96] (Crennan and Bell JJ). It would not be enough for the appellant to persuade the court that the Tribunal had come to a different view than what others might favour. Instead, it is incumbent upon the appellant to show that the decision that the Tribunal made was not one that it was authorised by statute to make, either because it took into account something that it was obliged not to, failed to take a relevant consideration into account, or committed some other error of jurisdiction.
Having looked closely at the Tribunal’s decision, it is apparent that it correctly addressed all of the factors that it was bound to consider, and did not consider factors that it was obliged to ignore. All of the conclusions to which it was drawn were conclusions that were open on the evidence that was presented. It may well be understood why the appellant is unhappy with the conclusions that were reached; but there can be no suggestion that any of them was beyond what the Tribunal had jurisdiction to decide.
Even looking beyond the written and oral submissions that the appellant advanced in support of his first ground of appeal, I have been unable to identify any question of law that ought to have been, but was not, properly considered.
The appellant appears to ask the court to review the Tribunal’s Decision on its merits. That was not the function of the FCFCOA on judicial review, nor is it this court’s function on appeal. I discern no jurisdictional error of the kinds to which either ground of appeal appears to be directed, and no related error on the part of the learned primary judge.
DISPOSITION
To the extent that the appellant requires leave to advance his grounds, leave must be refused for want of merit. The grounds themselves should otherwise fail for the same reason.
The appeal should and will be dismissed. The Minister sought an order for costs fixed in the amount of $5,000. That sum is reasonable and proportionate to the nature and complexity of the appeal, and I shall order that the appellant pay costs fixed at that level.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Dated: 23 October 2023
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