CSF17 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

CSF17 v Minister for Home Affairs [2019] FCA 569

Appeal from: CSF17 v Minister for Home Affairs & Anor [2018] FCCA 2611
File number: NSD 1714 of 2018
Judge: KERR J
Date of judgment: 29 April 2019
Catchwords:

PRCACTICE AND PROCEDURE – application for leave to adduce fresh evidence on appeal – where Appellant has not complied with r 36.57(1) of thee Federal Court Rules 2011 (Cth) – where leave refused to advance ground of appeal that proposed evidence supports – no utility in granting leave to adduce fresh evidence – leave refused

PRACTICE AND PROCEDURE – application for leave to amend grounds of appeal – where Appellant self-represented before primary judge – where First Respondent would suffer no prejudice if leave granted – consideration of merits of proposed grounds – where proposed grounds of appeal have insufficient prospects of success – leave refused

MIGRATION – application for judicial review of a decision of the Federal Circuit Court of Australia dismissing application for review of a decision of the Immigration Assessment Authority (IAA) – where  IAA affirmed a decision of a delegate of the First Respondent (Delegate) refusing the Appellant a visa – whether IAA erred in adopting an unduly narrow interpretation of s 473DD of the Migration Act 1958 (Cth) – whether IAA erred in refusing to consider information provided within 16 days of the Delegate’s decision – where no explanation for the delay in providing information provided – where IAA considered both limbs of s 473DD – appeal dismissed

Legislation:

Federal Court of Australia Act 1976 (Cth) s 27

Migration Act 1958 (Cth) ss 5H(1), 36(2)(a), 36(2)(aa), 473DD

Federal Court Rules (Cth) r 36.57(1)

Cases cited:

Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2013] FCAFC 29; 296 ALR 465

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

BRA16 v Minister for Immigration and Border Protection [2018] FCA 127

CSF17 v Minister for Home Affairs & Anor [2018] FCCA 2611

Han v Minister for Home Affairs  [2019] FCA 331

Kassem v Minister for Home Affairs [2019] FCA 244

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252

Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Sami v Minister for Immigration and Citizenship [2013] FCAFC 128; 139 ALD 1

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588

Date of hearing: 27 March 2019
Date of last submissions: 29 March 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 90
Counsel for the Appellant: Mr G Foster
Solicitor for the Appellant: Sentil Solicitor & Barrister
Solicitor for the First Respondent:
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Details
Case
[2019] FCA 569
Decision Date

CaseChat Overview and Summary

CSF17, the Appellant, brought an appeal against the Minister for Home Affairs, the First Respondent, seeking judicial review of a decision by the Federal Circuit Court of Australia (FCCA) which dismissed an application for review of a decision by the Immigration Assessment Authority (IAA) to affirm a delegate's refusal of the Appellant's application for a visa. The Appellant, a Tamil national from Sri Lanka, had claimed to be a refugee due to past persecution and a fear of future persecution if returned to Sri Lanka. The Appellant sought to adduce fresh evidence and amend the grounds of appeal, but these applications were refused. The Appellant also argued that the IAA had erred in its interpretation of section 473DD of the Migration Act 1958 (Cth) and in its refusal to consider new information submitted within the statutory timeframe.

The court had to determine whether the Appellant had complied with the procedural requirements set out in rule 36.57(1) of the Federal Court Rules 2011 (Cth) for adducing fresh evidence on appeal and whether the proposed evidence had utility. The court also had to consider if granting leave to amend the grounds of appeal would prejudice the First Respondent and whether the proposed grounds of appeal had sufficient prospects of success. Additionally, the court examined whether the IAA erred in its interpretation of section 473DD and in its refusal to consider new information submitted within the statutory timeframe.

The court found that the Appellant had not complied with the procedural requirements for adducing fresh evidence on appeal, and there was no utility in granting leave to adduce fresh evidence. The court also found that the First Respondent would not suffer any prejudice if leave to amend the grounds of appeal was granted. However, the proposed grounds of appeal did not have sufficient prospects of success. In relation to the IAA's interpretation of section 473DD, the court found that the IAA did not materially misstate or misunderstand the UNHCR Guidelines, and the IAA had considered both limbs of section 473DD. The court held that the IAA's reasoning was not legally unreasonable, and the Appellant did not meet the requirements for refugee status under section 5H(1) of the Migration Act.

The appeal was dismissed, and the Appellant was ordered to pay the First Respondent's costs as agreed or assessed. The court's decision emphasised the importance of following procedural requirements and the limited circumstances in which fresh evidence or amendments to grounds of appeal may be considered. The court also highlighted the need for decision-makers to consider relevant information and apply the law correctly.

Orders

Orders of the court

1. The application for leave to adduce fresh evidence on appeal be dismissed.

2. The application for leave to amend the grounds of appeal be dismissed.

3. The appeal be dismissed.

4. The Appellant pay the First Respondent’s costs as agreed or assessed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The relevant passage of the IAA’s reasoning is as follows:19UNHCR’s 2012 Guidelines for assessing the eligibility of Sri Lankans for asylum state note [sic] that given the degree of control exercised by the LTTE over the Northern and Eastern Provinces during the conflict, everyone living there necessarily had contact with the LTTE and its civilian administration. UNHCR assessed in 2012 that there was no longer a presumption of a requirement for protection simply for reason of being of Tamil ethnicity and a prior resident of areas of the country previously under the control of the LTTE, although some Tamils remained at risk of harm because of particular past connections with the LTTE. There is no more recent evidence before me to suggest that there are risks for a wider range of people than those identified by the UNHCR in 2012 as potentially requiring protection; indeed, the weight of recent country information indicates that due to the easing of the security situation and the election of a new government in 2015, the risk of harm faced by the Tamil population – depending on individual circumstances – has decreased. …(Emphasis added.) I accept that the IAA did not explicitly recite the list of people having profiles that would “expose individuals to treatment which may give rise to a need for international refugee protection” as set out at 27 of the UNHCR Guidelines. However, I take the words “people … identified by the UNHCR in 2012 as potentially requiring protection” at [19] of the IAA’s decision as a reference to that list of categories of persons at 27 of the UNHCR Guidelines, especially given that, in the preceding sentence, the IAA acknowledged that “some Tamils remained at risk of harm because of particular past connections with the LTTE”. In my view, the fact that the IAA did not explicitly include or summarise that list does not give rise to an inference that it did not actively engage with that information as it might affect the potential risk a person in the Appellant’s position would face. I am reinforced in that conclusion given that the IAA then went on to set out the classes of persons identified by the more recent 24 January 2017 DFAT report as at risk. I accept the general submissions advanced by the Minister that the use to which country information is put is a matter for the IAA on the basis of NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. However, I do not accept that that principle would shield a decision from being set aside if the IAA had relied upon a material misstatement or misunderstanding of country information. In the present case, I do not consider the IAA to have materially misstated or misunderstood the UNHCR Guidelines. I accept the Minister’s submission that the Court should not accept that the Appellant falls within the category of “former LTTE combatant or cadre”. The Appellant never claimed to have fought on behalf of the LTTE (or any other militant organisation), only to have been forced to undertake a period of training.

Decision

Reasons for decision

The Appellant’s claims as summarised in the Delegate’s decision are as follows:•He is a Tamil from Trincomalee.•He was approached to join and fight with the Tamil Eelam Liberation Organisation (TELO) when he was about 17. A month later he left his area and would travel between Batticaloa and Colombo as his mother had arranged for him to leave. He was doing this when around June 1990 he was caught by the Sri Lankan Army (SLA) at Trincomalee. He and many others were accused of being LTTE. The others were all lined up and killed but, being at the end of the line, he escaped before he was killed. He was rescued and resumed travelling between Batticaloa and Colombo. •In 1991 he went to Qatar because it was not safe in Sri Lanka. He returned in 1996 for three months. The Sri Lankan navy base was close to his house. Navy officers saw him and asked questions about where he had been. They threatened him because he was Tamil and must therefore be involved in the LTTE.•Shortly after he left for Singapore and then Saudi Arabia.•In 2001 naval officers set his father on fire because he was Tamil. His father died. His wife and her family also had problems with the forces. •He returned to Sri Lanka in 2009. He bought a van and a truck and used to deliver wholesale vegetables to shops. He drove all around Sri Lanka. •Around 2010 he was delivering vegetables from Dambulla to Trincomalee. Police stopped him at a checkpoint, forced him out of the car and told him to unload all the vegetables. He resisted, telling them the war was over, there was no need for this. The police threatened to shoot him if he did not comply, so he did. He was targeted because he was Tamil; Sinhalese drivers were able to pass. •At a big checkpoint at Mankulan on the Jaffna road the police put cartridges in the back of his lorry when he went to register his documents. His assistant observed this and told him. He approached someone about the matter who reported it to someone higher up. This person told him to shut up, broke his SIM card, told him to go and not to come back or there would be problems. •He was often followed by police who did not want him to drive throughout Sri Lanka but remain in Trincomalee. This was because they knew he had money and would often demand money or liquor from him. If he refused they threatened to kill him. They would abuse him for being Tamil. •He had a shop near Trincomalee. Every day the police would come to take money and steal goods. His family were scared of the police and said nothing. He went to the police station and made a complaint to the police chief who spoke to the officers he accused. They said he was lying. Because the majority of police are Sinhalese they did not believe him.•Because he attempted to make a complaint he was arrested by police and put in gaol and threatened he would be murdered for speaking out. He was friendly with one of the officers and he got him out that day. The officer advised him it was not safe to remain in Sri Lanka.•In 2015 he was able to buy his wife a motorcycle to allow her to run errands but his wife said it is dangerous for her to have a motorbike because it draws unwanted attention from the police.•Since coming to Australia, he has received threats from the police. On 24 December 2012 the police came to his home and asked his wife where he was. She told them he was in Qatar. They said she was lying and they would make enquiries.•They will continue to go after him because he is a Tamil perceived to have money and who owned a successful business. Because he has been away a long time, they would think he had earned a lot of money. But they may target him because of his past suspected support for the LTTE. •Recently the navy came to his house and asked about him. His house is close to the naval base and they know who lives in the area. They would know who he is because he owned a shop and had money.•If he returns he will be subjected to imprisonment, torture and death from the authorities, including the police and navy. •He will also experience problems as a failed asylum seeker because the authorities detain and question people about where they were and what they were doing. He will be perceived to have let the country down and to have been speaking against the government because he left.•He departed Sri Lanka without his passport. The Second IAA Decision

Ratio Decidendi

Legal Principle Established

The IAA considered whether the Appellant was a refugee for the purposes of s 5H(1) of the Migration Act 1958 (Cth) (the Migration Act) (at [11]-[40]) and concluded that the Appellant did not meet the requirements of that section and consequently did not satisfy s 36(2)(a) of the Migration Act. The IAA then considered whether the Appellant satisfied the complementary protection provisions contained in s 36(2)(aa) and concluded that, as there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the Appellant would suffer significant harm. FCCA Decision Before the primary judge, the Appellant relied on a single ground of review that took issue with the IAA’s reasons for having rejected new information submitted by the Appellant by his 18 September 2017 submissions. That ground as advanced before the primary judge is set out at [24] of the primary judge’s reasons as follows (unaltered):1. The IAA adopted an unduly narrow construction of s473DD by confining its determination of the new information to whether or not the applicant provided an explanation in accordance with the Practice Direction 1. At [6] - [8] the IAA reasoned that s failure to provide an explanation was determinative of the matters set out in s473DD. In doing so, it constructively failed to exercise its jurisdiction under s473DD.2. Particularsa. On 11 January 2017 the delegate refused the applicant’s protection visa application;b. On 29 May 2017 the first IAA affirmed the delegate’s decision;c. The applicant sought judicial review of the IAA decision and on 24 August 2017, by consent, the Court quashed the decision of the first IAA and remitted the matter for redetermination according to law;d. The applicant provided a submission dated 18 January 2017 to the second IAA;e. The 18 January 2017 submissions contained new information that:i. On 25 December 2016 the applicant’s nephew’s motorbike was broken and he was beaten by the CID;ii. During the attack the applicant's nephew was told that member of “their family” should not be doing business;iii. The CID also asked the applicant’s whereabouts;iv. The CID had also approached the applicant’s wife and demanded that she pay them money. She did not do so and the applicant believes that was why his nephew was attacked;v. A Tamil man who was returned to Si Lankan from Australia was goaled for 5 days and the CID has demanded 10 Lakhs for his release;vi. No explanation why the applicant could not have provided to the delegate before the decision;f. There were only 18 days (over the Christmas/New Year break) between the nephew being attacked on 25 December 2016 and the delegate making the decision on 11 January 2017. The submission dated 18 January 2017 reveals the applicant’s intention to give the new information to the delegate but the delegate made the decision first. This reasoning by the IAA is also legally unreasonable.