CTD17 v Minister for Home Affairs
[2018] FCA 1786
•14 November 2018
FEDERAL COURT OF AUSTRALIA
CTD17 v Minister for Home Affairs [2018] FCA 1786
Appeal from: Application for leave to appeal: CTD17 v Minister for Immigration & Anor [2018] FCCA 1548 File number: NSD 1095 of 2018 Judge: RARES J Date of judgment: 14 November 2018 Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Migration Act 1958 (Cth) s 36
Federal Circuit Court Rules 2001 r 44.12
Cases cited: Bienstein v Bienstein (2003) 195 ALR 225
Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Date of hearing: 14 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 19 Counsel for the Applicant: The Applicant appeared in person assisted by an interpreter Solicitor for the First Respondent: Mr J McGovern of Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1095 of 2018 BETWEEN: CTD17
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
14 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $1756.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RARES J:
This is an application for leave to appeal from a decision of the Federal Circuit Court to refuse the applicant Constitutional writ relief in respect of the decision of the Immigration Assessment Authority made on 31 May 2017 to affirm the Minister’s delegate’s decision to refuse the applicant a protection visa. His Honour dismissed the application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 on the basis that the applicant had failed to show an arguable case for relief and ordered the applicant to pay the Minister’s costs: CTD17 v Minister for Immigration [2018] FCCA 1548. That decision was interlocutory and, accordingly, the applicant needs leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
In his application for leave to appeal, the applicant said that he had stated his grounds of appeal and the particulars for them in his application in the Court below. In substance, he sought to argue, were leave to appeal granted, that the decision of the Authority should be set aside on the same grounds as he put to the trial judge.
Background
The applicant is a citizen of Sri Lanka who arrived here in 2012. The Authority obtained new information from the Department of Foreign Affairs and Trade (DFAT) in a country report dated 24 January 2017 that was published only after the delegate had made the decision to refuse to grant the visa on 2 November 2016. The Authority considered that there were exceptional circumstances that justified it considering the 2017 DFAT report.
The Authority found that the applicant had been born in Colombo but had lived in Batticaloa since 1995. It accepted his claim that, between 1995 and 1999, he had been questioned about links to the Liberation Tigers of Tamil Eelam (LTTE) and beaten when the army and paramilitary groups conducted regular round-up exercises. It found that the appellant operated a tailoring business and had provided tailoring services for LTTE members in the area in which he lived. However, the Authority, having accepted that persons, particularly in the applicant’s position, could have difficulty recollecting events, found that inconsistencies in his claimed accounts of his experiences of harm and subsequently having hid with relatives after 1999, caused it not to be convinced that his claims were genuine. It rejected his claims that:
·he had been harassed by soldiers who had demanded that he provide them with outfits without payment and threatened him if he did not comply;
·the Karuna group had demanded money from him, and, when he did not pay, had informed the Criminal Investigation Department (CID) of his past work for the LTTE; and
·the CID had then threatened to make a case against him if he did not pay the money.
The Authority found that the applicant had fabricated those claims in an attempt to enhance his protection claims. Because it had not accepted his accounts of previous mistreatment, it did not accept that he was of any ongoing interest to the authorities or the Karuna group in Sri Lanka. The Authority did not accept that, since the applicant’s departure to Australia, the CID had visited his family home, asked his wife about his whereabouts, or that soldiers drove past the home frequently on the lookout for him. It did not accept his claim that in 2016 people, who may have been from the Karuna group, had stopped his daughter, scared and threatened her by asking about his whereabouts.
The Authority found that the level of support that the applicant had provided to the LTTE during the civil war was low and indicative of that of ordinary Tamils living in LTTE controlled territory, and, by reason of this, he would not be imputed as an LTTE supporter on the basis of the work he had done, were he to return to Sri Lanka. The Authority accepted that because the applicant had lived close to an army camp he might have concerns about that. It did not accept that he was of adverse interest to the army when he departed Sri Lanka and was not satisfied that by living in close proximity to an army camp there was a real chance that he would face harm in Sri Lanka in the foreseeable future. As I have noted, it was not satisfied that his claims of past extortion and harm from the Karuna group and CID were credible and rejected those claims.
The Authority accepted that the applicant had departed Sri Lanka illegally and had claimed asylum, and that he may be perceived as a wealthy Tamil businessman were he to return. It gave considerable weight to the improved security situation in Sri Lanka, and the diminishing role of paramilitary groups that was revealed in country information, in assessing whether the applicant faced a real chance of harm in the foreseeable future on the basis of being a wealthy businessman. It found that, first, the country information did not support such a finding and, secondly, any chance was remote that, as a wealthy businessman, he would be subject to extortion and be harmed.
It accepted that because he had left Sri Lanka illegally and was a failed asylum seeker, he would be subjected to standard procedures, regardless of his ethnicity, religion or any other the basis on which he was involuntarily returned, when being processed at the airport in Colombo. It found that he would not be subjected to any relevant mistreatment as a failed asylum seeker, having regard to, among other matters, the country information and the assessment process which was the same as that considered in Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610. It found that there was no evidence before it that the applicant’s status as a failed asylum seeker would bring him to adverse attention on return to Sri Lanka, or that there was any chance that he would face harm on that basis. Because of its findings on the Refugee Convention grounds and the fact that any detention and treatment in Sri Lanka while he was dealt with as a failed asylum seeker would not be of a kind that could be classified as significant harm as defined in ss 36(2A) and (5) of the Act, Australia did not owe the applicant any complementary protection obligations.
The proceeding below
The six grounds on which the applicant relied before the trial judge were as follows:
1. IAA made a jurisdictional Error;
2. These are the relevant factors, which IAA and the Dept of Immigration and Border protection did not take into consideration
3. They not even take into consideration , Applicant family had lengthy involvement with karuna cadres
4. His wife frequently harassed and torched by SriLankan Arm forces.
5. IAA did not consider he was previously assaulted and his brother was beaten to death by SriLankan Arm forces.
6. His children unable go to school because of Karuna Cadre harassements (errors in original)
His Honour noted that the applicant had made oral submissions to him, but that he had not been able to identify, beyond the grounds in his application, what he thought was wrong with the Authority’s decision. The applicant submitted to his Honour, as he repeated to me, that he did not want to go back to his country and that he was having health and other difficulties.
His Honour considered whether any of the grounds could point to a jurisdictional error. Ground five claimed that his brother had been beaten to death by the Sri Lankan Armed Forces. Before me, the applicant claimed that his brother-in-law had also been killed three months ago. The trial judge correctly found that the Authority’s reasons did not deal with any assertion about the death of his brother, and there was no material before his Honour to suggest that the applicant had made such a claim that the Authority had overlooked.
His Honour found, correctly, that the Authority had considered the applicant’s claim that the Karuna group had sought to extort money from him and that it had stopped his daughter, scared and threatened her by asking about his whereabouts. He also found that the applicant had not claimed before the delegate or the Authority that his wife had been frequently harassed by the Sri Lankan Army. His Honour found, correctly, that the Authority had rejected any claims that the applicant’s wife had been harassed or subjected to mistreatment by the Sri Lankan authorities.
Next, his Honour pointed out that the Authority in fact had accepted the applicant’s claim to have been beaten during the round-up exercises that occurred between 1995 and 1999, but that it rejected the applicant’s claims of subsequent mistreatment. The trial judge pointed out that a minister of the Uniting Church had made a submission to the delegate on 30 August 2016 that stated that the applicant’s mother, sister and brother had been threatened because of him. His Honour reviewed the applicant’s claims as he had made them during the period from when he first applied for a protection visa and found that, prior to the review by the Authority, he had not made any reference or claim that his brother had died. His Honour pointed out the Authority expressly considered that letter in the context of the applicant’s claims and recorded that he had claimed to have hidden for a period at his brother’s house. His Honour noted that the Uniting Church minister had also written that the applicant should be available to his family, and his three young children in order to protect and provide for them with his then growing tailoring business but that he was unable to go back. However, neither the letter nor anything else before the Authority had raised any claim that the applicant feared harm because his children could not attend school.
As his Honour pointed out, the Authority was not required to consider claims that the applicant had not raised expressly or that arose as a clearly articulated argument or claim relying on established facts: cf: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 22 [68] per Black CJ, French and Selway JJ. He found that the Authority had engaged with the claims that the applicant had made in the process leading up to and including the review and the Authority ultimately found that he had not established a claim for protection under s 36(2)(a) or (aa) of the Act.
The trial judge found that the Authority’s findings were reasonably open to it for the reasons it gave. His Honour concluded that, in essence, the applicant’s case was one of disagreement with the Authority’s findings and was an attempt to engage in merits review but it did not reveal any arguable case that the Authority had made a jurisdictional error in the way in which it determined to affirm the delegate’s decision not to grant the applicant a protection visa. For those reasons, his Honour summarily dismissed the application with costs.
The application for leave to appeal
Before me, the applicant advanced similar arguments to those he put to his Honour. Accepting that it is very difficult for a lay person, whose first language is not English, to begin to grapple with what might be described as a jurisdictional error, the applicant effectively asked me to consider the fact that recently there has been a change in the political situation in Sri Lanka and his brother-in-law has been killed. He told me that he was depressed and did not feel he could speak about his case because of his condition.
An applicant for leave to appeal must establish that the decision in question is attended with sufficient doubt to warrant the grant of relief and that substantial injustice would result from a refusal of leave: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.
I have reviewed the Authority’s reasons and the trial judge’s reasons, in light of the grounds in the applicant’s application below, that he wishes to re-agitate if leave to appeal were granted, to see whether there was any other arguable basis on which it might have made a jurisdictional error. However, I am unable to see that there is any reasonable argument open to the applicant to challenge the Authority’s decision, or to suggest that the trial judge made any error in summarily dismissing his claim for judicial review.
I am of opinion that there is no reason to doubt the correctness of his Honour’s decision summarily to dismiss the application below, nor am I persuaded that there is any injustice that would result from a refusal of leave to appeal. For these reasons, I dismiss the application for leave to appeal with costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 20 November 2018
0