CNR17 v Minister for Immigration
[2018] FCCA 2683
•12 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CNR17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2683 |
| Catchwords: PRACTICE AND PROCEDURE – Show cause hearing – generic grounds – did not raise propositions of fact or law – applicant failed to establish jurisdictional error – applicant sought merits review – application summarily dismissed. |
| Legislation: Migration Act 1958, ss.36(2)(a), 36(2)(aa) Federal Circuit Court Rules 2001, r 44.12 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 AQN15 v Minister for Immigration & Anor [2016] FCA 571 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 BHK15 v Minister for Immigration and Border Protection [2016] FCA 569 BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 Craig v State of South Australia (1995) 184 CLR 163 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 Kirk & Anor v Industrial Court of New South Wales & Anor (2010) 239 CLR 531 Minister for Immigration and Citizenship v Li and Anor (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 MZARG v Minister for Immigration and Border Protection [2018] FCA 624 Siddique v Minister for Immigration and Border Protection [2014] FCA 1352 Spencer v Commonwealth of Australia (2010) 241 CLR 118 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 SZTTW v Minister for Immigration and Border Protection [2014] FCA 837 WZATH v Minister for Immigration and Border Protection [2014] FCA 969 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| Applicant: | CNR17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1228 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 12 September 2018 |
| Date of Last Submission: | 12 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 12 September 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | Mills Oakley Lawyers |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Mills Oakley Lawyers |
ORDERS
The application filed 9 June 2017 is dismissed.
The applicant to pay the first respondent’s costs in the sum of $3 606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1228 of 2017
| CNR17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
By order of a registrar of this court made on 23 January 2018 this case was ordered to go forward under the show cause procedure prescribed by r 44.12 of the Federal Circuit Court Rules.
Under the show cause procedure, a judge is empowered to make a wide variety of orders. If persuaded that the applicant has not raised an arguable case for the relief the applicant seeks, it is open to a judge to summarily dismiss the entire proceeding. But the power to summarily dismiss a proceeding is not to be exercised lightly, as was held in Spencer v Commonwealth of Australia[1] and as the Full Court of the Federal Court of Australia held in AMF15 v Minister for Immigration and Border Protection.[2] Further, it has been held that even if I took the view that an applicant has not demonstrated an arguable case on a judicial review application for the issue of constitutional writs, I nevertheless possess a residual discretion to not summarily dismiss the proceeding. The decisions in SZTTW v Minister for Immigration and Border Protection[3] and in Siddique v Minister for Immigration and Border Protection[4] make good that proposition.
[1] (2010) 241 CLR 118
[2] [2016] FCAFC 68
[3] [2014] FCA 837
[4] [2014] FCA 1352
In this case the applicant applied to this court on 9 June 2017 for judicial review of a decision of the Immigration Assessment Authority made on 12 May 2017 pursuant to which the Immigration Assessment Authority (“IAA”) affirmed the delegate’s decision not to grant the applicant the protection visa he sought. His application for review contained two grounds of review. First, he said the IAA erred in law by making a decision not taking into account relevant information. There were errors in the original but that was the substance of his first ground of review. Second, he said the IAA ignored relevant material in a way that affected its exercise of powers. No particulars were given of those grounds so it was not possible to tell on what matters of fact or law the applicant based his two grounds of review. The applicant failed to provide an amended application or submissions in accordance with the registrar’s orders. A growing line of authority has held that a court is entitled to dismiss an application for judicial review where the grounds are so general that they are meaningless. That list includes WZATH v Minister for Immigration and Border Protection,[5] BHK15 v Minister for Immigration and Border Protection,[6] AQN15 v Minister for Immigration & Anor,[7] WZAVW v Minister for Immigration and Border Protection,[8] CNN15 v Minister for Immigration and Border Protection,[9] BYM16 v Minister for Immigration and Border Protection,[10] MZARG v Minister for Immigration and Border Protection,[11] and DQQ17 v Minister for Immigration and Border Protection.[12]
[5] [2014] FCA 969
[6] [2016] FCA 569
[7] [2016] FCA 571
[8] [2016] FCA 760
[9] [2017] FCA 579
[10] [2018] FCA 326
[11] [2018] FCA 624
[12] [2018] FCA 784
The applicant is a male Sri Lankan citizen who entered Australia as an unauthorised maritime arrival on 28 August 2012. On 30 October 2013 he applied for a protection (class XA) visa. It was invalid. On 28 September 2015 the applicant was invited to apply for a safe haven enterprise visa which he did on 30 May 2016. His claims were recorded in two statutory declarations, made one 31 July 2013 and the other made 30 May 2016. He elaborated on his claims when on 15 November 2016 he was interviewed by the minister’s delegate. The delegate refused the safe haven visa on 20 March 2017. The delegate’s decision was referred to the IAA on 23 March 2017. The applicant provided a written submission to the IAA on 10 April 2017.
The statutory declaration made 30 May 2016 was substantially similar to the applicant’s statutory declaration made on 31 July 2013. In essence, the applicant asserted as follows –
a)he was a Sri Lankan citizen from Trincomalee District, Eastern Province, Sri Lanka;
b)he claimed to fear harm by reason of a real or implied association with the Liberation Tigers of Tamil Eelam (“LTTE”), by reason of his being a young male from the east and by reason of his being a failed asylum seeker who departed Sri Lanka illegally;
c)the applicant’s sister joined the LTTE and married an LTTE soldier who was detained by authorities but released after a bribe had been paid;
d)in May 2006 the applicant’s cousin was abducted in a van so the applicant relocated to a place with his sister and her husband;
e)the applicant fled to India in July 2006 and at about the same time the applicant’s father was arrested on suspicion of involvement in a bomb blast then beaten before being released;
f)in August 2009, at the end of the civil war, the applicant’s cousin was released and the applicant returned to Sri Lanka after which he worked as a fisherman but he was abused and assaulted by members of the Sri Lankan Navy while fishing and had fish taken from him;
g)the authorities attempted to use him as an informant;
h)in or around November 2011 the applicant travelled to Malaysia by reason of there being a spike in abductions in his area;
i)from July 2012 unidentified men began visiting the applicant’s family’s home asking about the applicant’s travel history and his time in India, and the applicant feared these men were members of the Criminal Investigation Department; and
j)the applicant departed Sri Lanka for Australia on 6 August 2012.
At the interview with the delegate, the applicant raised an additional claim that his brother-in-law paid a bribe so as to arrange the applicant’s travel to Malaysia.
In the IAA
After the delegate refused to grant the applicant the safe haven visa that he sought, the applicant’s matter was referred to the IAA which affirmed the delegate’s decision on 12 May 2017. The more important aspects of the IAAs reasoning were as follows –
a)in paragraph 35 of its reasons the IAA found that the applicant did not have any profile by reason of real or suspected links with the LTTE including his association with his sister and her husband;
b)in paragraph 26 of its reasons the IAA did not accept that the applicant travelled to Malaysia because he feared harm but rather the IAA said that he travelled on a genuine passport and was able to depart and to re-enter Malaysia without unusual interest from the authorities and the applicant’s claim that he bribed authorities was a recent invention;
c)in paragraph 12 of its reasons the IAA took into account that the applicant’s brother-in-law was not arrested or charged by reason of his LTTE profile nor was there evidence that the applicant’s sister or other family members were the subject of harassment or detention on account of the applicant’s brother-in-law’s profile;
d)in paragraph 13 of its reasons the IAA found that the applicant’s father was not subjected to further questioning by authorities after his release;
e)in paragraph 14 of its reasons the IAA accepted that the applicant’s sister joined the LTTE in 1990 and met her future husband and that the applicant’s brother-in-law was detained but the IAA was not satisfied that the applicant’s sister or brother-in-law were or would be of any interest to Sri Lankan authorities by reason of their purported LTTE involvement;
f)in paragraph 15 of its reasons the IAA found there was no evidence the applicant’s cousin was kidnapped or tortured by reason of any links with the LTTE and so the IAA was not satisfied the applicant would have any profile arising from his relationship with his cousin;
g)in paragraph 17 of its reasons the IAA found that there was no evidence that the applicant or his family had been approached, warned or threatened by any person in connection with an abduction and the IAA was not satisfied there was a real chance the applicant would face serious harm arising from this incident if he were to return to Sri Lanka;
h)in paragraph 21 of its reasons the IAA stated that the applicant may face some harassment from the Sri Lankan Navy while he was working as a fisherman but any such harassment would not amount to serious harm;
i)in paragraph 22 of its reasons the IAA found that any past harassment was opportunistic based on the applicant’s living in proximity to the navy camp rather than being targeted towards him individually and in any event, the harassment occurred over five years prior to the IAA hearing in this case;
j)in paragraph 23 of its reasons the IAA said the applicant did not face a real chance of serious harm by reason of the applicant’s interaction with authorities during which he was asked questions;
k)in paragraph 26 of its reasons the IAA concluded that the applicant’s claim that his brother-in-law was required to pay a bribe so that the applicant could depart for Malaysia was a recent invention and the IAA was not satisfied the applicant went to Malaysia in 2012 because he feared harm;
l)in paragraphs 28 and 29 of its reasons the IAA found it implausible that in 2012 unidentified men came to the applicant’s home and questioned him and in paragraph 30 of its reasons the IAA concluded that the applicant was subjected to routine questioning at the airport and the applicant was not of any particular adverse interest;
m)in paragraph 37 of its reasons the IAA referred to the 2012 UNHCR Guidelines to the effect that the harassment of Tamils had decreased under the Sirisena Government;
n)in paragraph 46 of its reasons the IAA considered that the applicant did not face a real chance of serious harm for being Tamil and it considered there was no evidence that Tamil Hindus faced a real chance of serious harm on the basis of their religion, citing country information;
o)between paragraphs 49 and 55 of its reasons the IAA addressed the applicant’s status as an illegal departee from Sri Lanka and it concluded the applicant would be questioned, charged for contravening the Immigrants and Emigrants Act (“Sri Lanka”) and fined, that such a fine could be paid by instalments, it did not constitute serious harm and even if the applicant were imprisoned under that Act, such imprisonment did not amount to serious harm and the Act’s provisions were not discriminatory;
p)in paragraph 59 of its reasons the IAA said the applicant did not satisfy s 36(2)(a) of the Migration Act (“Act”); and
q)in paragraphs 66 and 67 of its reasons, the IAA said the applicant did not satisfy s 36(2)(aa) of the Act.
In the upshot the IAA affirmed the delegate’s decision not to grant the applicant the visa he sought.
The grounds of review in this court
As mentioned earlier, the applicant relied on generic grounds to support his application for judicial review. Neither raised propositions of fact or law that enabled me to ascertain whether, and if so how, the IAA fell into jurisdictional error. Applying conventional conceptions of jurisdictional error prescribed by such authorities as Craig v State of South Australia[13] and Minister for Immigration and Multicultural Affairs v Yusuf,[14] it was not possible from the applicant’s grounds or from a reading of the IAA’s decision to conclude that the IAA fell into jurisdictional error because it –
a)identified a wrong issue;
b)asked itself a wrong question;
c)ignored relevant material;
d)relied on irrelevant material; or
e)in some instances, made an erroneous finding or reached a mistaken conclusion.
[13] (1995) 184 CLR 163
[14] (2001) 206 CLR 323
Of course, those criteria are not exhaustive as it is neither necessary nor possible to mark the meets and bounds of jurisdictional error, as was held in Kirk & Anor v Industrial Court of New South Wales & Anor.[15]
[15](2010) 239 CLR 531
It must be kept uppermost in mind that the applicant has the onus of establishing jurisdictional error, as the High Court held in SZATV v Minister for Immigration and Citizenship.[16] In my view, the applicant failed in that regard. Further, it seemed to me that the IAA in fact gave proper, genuine and realistic consideration to the applicant’s claims, as it was required to do by the holding in Minister for Immigration and Citizenship v SZJSS.[17] In my view the IAA’s conclusions were supported by an evident and intelligible justification of the merits of the applicant’s claims, as that concept was canvassed in Minister for Immigration and Citizenship v Li.[18] Put differently and in the words adopted in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs,[19] the IAA gave active intellectual consideration to the applicant’s claims.
[16] (2007) 233 CLR 18
[17](2010) 243 CLR 164
[18] (2013) 249 CLR 332
[19] (2003) 216 CLR 473
I detected no jurisdictional error in this case. In my view the application should be dismissed under r 44.12 of the Federal Circuit Court Rules. Further, in the exercise of the residual power I possess to not dismiss this application summarily, I decline to exercise that power as I am persuaded that there is no merit in either ground advanced.
Conclusion
Today I asked the applicant to tell me in his own words what the tribunal did wrong. He said the IAA did not consider his point of view. He cited in support that the IAA did not believe the applicant’s version about his brother. He said the IAA did not look at matters from the applicant’s perspective. In my view, that did not tell of the existence of jurisdictional error.
Instead, he implored me not to dismiss this proceeding because it would end in his being returned to Sri Lanka where he would face harm. In making that submission he was in reality asking me to engage in an impermissible merits review – a task expressly forbidden on the hearing of a judicial review application by such authorities as Chan Yee Kin v Minister for Immigration and Ethnic Affairs,[20] Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[21] Attorney-General (NSW) v Quin,[22] Australian Broadcasting Tribunal v Bond.[23] I decline to accede to his request to engage in a merits review.
[20] (1989) 169 CLR 379
[21] (1996) 185 CLR 259
[22] (1990) 170 CLR 1
[23] (1990) 170 CLR 321
I dismiss this proceeding and order the applicant to pay the minister’s costs in the sum of $3 606.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 20 September 2018
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