CTH18 v Minister for Home Affairs

[2019] FCA 734

FEDERAL COURT OF AUSTRALIA

CTH18 v Minister for Home Affairs [2019] FCA 734

Appeal from:

CTH18 v Minister of Home Affairs & Anor [2018] FCCA 3903

File number:

NTD 2 of 2019

Judge:

WHITE  J

Date of judgment:

16 May 2019

Catchwords:

MIGRATION – appeal against the dismissal of an application for judicial review in the Federal Circuit Court (FCC) of a decision by the Immigration Assessment Authority (IAA) to affirm a decision to refuse to grant the Appellant a Safe Haven Enterprise (Subclass 790) visa – matters raised by the Appellant go to the underlying merits of the application – no recognised ground of jurisdictional error – no error identified in the FCC or IAA’s reasons – appeal dismissed.  

Legislation:

Migration Act 1958 (Cth) ss 5J, 36(2)

Cases cited:

Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1

Date of hearing:

16 May 2019

Registry:

Northern Territory

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

23

Counsel for the Appellant:

The Appellant appeared in person with the assistance of an interpreter

Counsel for the First Respondent:

Ms A Clark

Solicitor for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

NTD 2 of 2019

BETWEEN:

CTH18

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	WHITE  J
DATE OF ORDER:	16 MAY 2019

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The Appellant is to pay the costs of the First Respondent of and incidental to the appeal fixed in the sum of $3,500.

3.When the transcript of today’s hearing is produced, the Appellant’s name is not to be used and the pseudonym “CTH18” be used in place of his name

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

EX TEMPORE REASONS FOR JUDGMENT

WHITE J:

1. The appellant is a national of Sri Lanka who arrived at Christmas Island on 25 April 2013 as an unauthorised maritime arrival.  On 9 May 2016, he was invited to apply for a Temporary Protection (Subclass 785) visa or a Safe Haven Enterprise (Subclass 790) visa (SHEV).  The appellant lodged an application for a SHEV on 23 June 2016.  A delegate of the Minister refused that application on 17 July 2017.  That decision was affirmed by the Immigration Assessment Authority (the IAA) on 8 May 2018. 

2. The appellant then sought judicial review of the IAA’s decision in the Federal Circuit Court (the FCC).  He was unsuccessful: CTH18 v Minister of Home Affairs & Anor [2018] FCCA 3903.

3. The appellant now appeals to this Court against that judgment. 

4. In support of his application for a SHEV, the appellant claimed to have a well-founded fear of persecution and to be entitled to complementary protection pursuant to s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). He said that he had a well-founded fear of persecution by reason of his Tamil ethnicity, because his brother had a high profile as a member of the Liberation Tigers of Tamil Eelam (LTTE), because his father had been murdered by Sri Lankan authorities and, because if he is returned to Sri Lanka, he would be regarded as a failed asylum seeker.

5. The IAA rejected the appellant’s claims to have a well-founded fear of persecution.  It regarded many of the appellant’s claims as untruthful.  In particular, the IAA noted that the appellant had given inconsistent accounts as to his brother’s association with the LTTE; had given inconsistent accounts as to when, and the circumstances in which, his father had died; and had provided a non-genuine death certificate for his father in support of his claims.  The IAA rejected the appellant’s claims that his brother had been a member of, or involved with, the LTTE and rejected as fabrications his claims that his father had been placed in a camp in Sri Lanka in 1992, that he had been held in the camp from 1995 to 2011, that his father had been tortured and beaten and that the Sri Lankan Army had murdered, or otherwise been responsible for the death of, his father. 

6. Despite those adverse credibility findings, the IAA considered in some detail the evidence relied upon by the appellant in support of his claim to have a well-founded fear of persecution as defined in s 5J of the Act. It also considered in some detail the appellant’s claim that he would be subject to a real risk of significant harm if he returned to Sri Lanka. It found that neither of those claims was established.

7. The appellant was unrepresented in the FCC, as he was on the appeal to this Court.  His application for judicial review in the FCC contained a single ground, namely:

   The final decision made by IAA is unsatisfactory.

8. Contrary to the appellant’s apparent understanding as indicated by this ground, it was not the role of the FCC to engage in a review of the merits or otherwise of the IAA’s decision.  Instead, the role of the FCC was to consider whether the decision of the IAA was affected by jurisdictional error. 

9. The concept of jurisdictional error has been elaborated in a number of decisions and, in particular, in the decision of the High Court of Australia in Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 176‑180. It was summarised recently by Kiefel CJ and Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [24]:

   Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it.  To describe a decision as "involving jurisdictional error" is to describe that decision as having been made outside jurisdiction. …

   (Citations omitted)

10. Jurisdictional error may take various forms which it is not necessary presently to attempt to enumerate. 

11. Because the appellant’s application in the FCC did not identify any recognised ground of jurisdictional error, it would have been open to the FCC judge to dismiss the application on that account.  Despite that, the FCC judge invited submissions from the appellant on the question and, in addition, reviewed the IAA decision himself.  His Honour concluded that he was unable to identify any error by the IAA, noting that its decision rested, essentially, on its adverse assessment of the appellant’s credibility. 

12. The appellant’s Notice of Appeal to this Court contains a single ground:

    1.The primary judge erred in failing to find that the decision of the Immigration Assessment Authority (IAA) was affected by an error of law.

13. The Notice of Appeal did not identify any particular error of law.  As an error of law affecting the jurisdictional validity of a decision may take various forms, neither the Court nor the respondent should have to speculate as to what may be alleged. 

14. On the hearing of the appeal, the appellant provided a two page letter addressed to the Presiding Judge.  In that letter, the appellant referred to having lived in Sri Lanka until the age of 15 and, then to having left to go to India as a refugee, and to having lived in India for 23 years, before leaving to commence the journey to Australia.  He referred to his family living in a refugee camp in India.  He claimed not to have citizenship status in either Sri Lanka or India. 

15. Next, the appellant referred to the data breach in February 2014, resulting in the disclosure, for a short period, of the names of persons who have sought asylum in Australia.  This was a new claim, as it had not been made to the delegate, to the IAA, or in the FCC. 

16. Next, the appellant claimed that the Sri Lankan Government has his record and that he would face threats if he returned to Sri Lanka.  The appellant referred to the absence of any family in Sri Lanka able to support him and also said that he would not be able to support his family in India if he is imprisoned in Sri Lanka. 

17. Lastly, the appellant referred to the recent bomb blasts in Sri Lanka and submitted that it would not be safe for him to return to Sri Lanka. 

18. The appellant elaborated some of those matters in his oral submissions.  In addition, he proffered explanations for the inconsistencies in the accounts which he has given concerning his brother’s association with the LTTE and concerning his father’s death.  The appellant emphasised that what he is telling the Court about those matters now is the truth. 

19. On my assessment, each of the matters which the appellant raises go to the underlying merits of his application for a SHEV.  They do not indicate an error of law or any other form of jurisdictional error which should have been recognised by the FCC Judge.  In effect, the appellant wishes this Court to engage in a review of the merits of his application for a SHEV.  As I explained to the appellant during the hearing, that is not the function of this Court, nor was it the function of the FCC. 

20. In relation to the claim that the appellant does not have citizenship, I note that the IAA accepted that he is a national of Sri Lanka.  That is the finding which I recorded at the commencement of these reasons.  The appellant was born in Sri Lanka and lived there for 15 years.  He also produced to the IAA his Sri Lankan birth certificate.  There is no basis, therefore, on which this Court could conclude that the IAA made some error of law in making the finding that the appellant is a national of Sri Lanka. 

21. In addition to considering the matters which the appellant advanced in his submissions, I have reviewed the FCC decision and the IAA decision. I have not been able to identify any error of law, let alone one capable of constituting jurisdictional error. On the contrary, the IAA’s reasons indicate that it had addressed itself appropriately to the legal elements of the appellant’s claims, both under s 36(2)(a) and under s 36(2)(aa) of the Act. This means that the appellant has not established any basis upon which this Court could find that the FCC Judge has erred.

22. It cannot be said that the IAA erred in law in not considering the effect of the February 2014 data breach, as that was not a claim which the appellant had advanced before the delegate or before it.

23. For these reasons, the appeal is dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

Associate:

Dated:       22 May 2019