DFU16 v Minister for Immigration - [2020] FCCA 1376

FEDERAL CIRCUIT COURT OF AUSTRALIA

DFU16 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1376

Catchwords:
MIGRATION – Protection (class XA) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider a claim – whether the Tribunal made illogical findings – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.7.01

Migration Act 1958 (Cth), ss.5, 36, 46, 476

Migration Regulations 1994 (Cth), regs.1.05A, 1.12, 2.07

Cases cited:

BYR17 v Minister for Immigration & Border Protection [2018] FCA 1324

Minister for Immigration & Citizenship v SZMDS [2010] HCA 16

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1
SZTAD v Minister for Immigration & Border Protection [2014] FCA 1256

Applicant:

DFU16

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2351 of 2016

Judgment of:

Judge C. E. Kirton QC

Hearing date:

1 August 2018

Date of Last Submission:

1 August 2018

Delivered at:

Melbourne

Delivered on:

3 June 2020

REPRESENTATION

Counsel for the Applicant:

Mr M. Guo

Solicitors for the Applicant:

Carina Ford Immigration Lawyers

Counsel for the First Respondent:

Mr J. Maloney

The Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
A copy of the Applicant’s amended written submissions dated 1 August 2018 be treated as filed in Court.
The Application, as amended on 13 July 2018, be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2351 of 2016

DFU16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By way of an amended application filed on 13 July 2018 (Amended Application), the Applicant seeks review of a decision of the Second Respondent (Tribunal) dated 10 October 2016. The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) to not grant the Applicant a Protection (class XA) visa (Visa).
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (Act). The materials before the Court include the Amended Application, an affidavit of Carina Ford affirmed on 13 July 2018, a Court Book numbering 234 pages, an outline of submissions from the Applicant dated 13 July 2018 (Applicant’s Submissions), the Applicant’s Amended Written Submissions, dated 1 August 2018 and submissions from the Minister dated 25 July 2018 (Minister’s Submissions). The Court has also closely reviewed the transcript of the hearing that took place before the Court.

Background

The Applicant is a citizen of Sri Lanka. He arrived in Australia on 9 August 2012[1]. On 10 December 2012, the Applicant applied for the Visa (Visa Application)[2].…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 1376
Decision Date: 3 June 2020

CaseChat Overview and Summary

This matter came before Judge C. E. Kirton QC of the Federal Circuit Court of Australia. The applicant sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed a delegate's decision to refuse the applicant a Protection (class XA) visa. The applicant contended that the Tribunal had failed to consider a crucial aspect of his claim and had made illogical findings in its assessment of his evidence.

The central legal issues before the Court were whether the Tribunal had committed jurisdictional error by failing to adequately consider the applicant's claims regarding his fear of persecution by members of the EPDP, and whether the Tribunal's findings of fact were so illogical as to constitute such an error. Specifically, the Court was asked to examine the Tribunal's assessment of the applicant's account of being approached by EPDP members, the alleged tearing down of EPDP posters, and subsequent threats and harm.

The Tribunal, having heard oral evidence from the applicant and reviewed his written submissions, accepted that the applicant had been approached by EPDP members and threatened. However, the Tribunal found it implausible that the EPDP would have photographed the applicant removing posters and then waited to confront him later, rather than doing so at the time. Consequently, the Tribunal did not accept the applicant's claim that he was harmed for removing posters, nor that the EPDP demanded a specific sum of money and threatened his life. The Tribunal reasoned that the EPDP's actions, such as releasing the applicant without a deadline for payment and not pursuing him further, suggested their threats were not serious. The Tribunal also noted the absence of mention of the alleged poster incident in the applicant's statutory declaration. Based on these findings, the Tribunal was not satisfied that the applicant had established a well-founded fear of persecution by the EPDP. The Court found no jurisdictional error in the Tribunal's reasoning or findings.

The application was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 10 October 2016, the Tribunal affirmed the Delegate’s Decision not to grant the Applicant the Visa (Tribunal’s Decision)[9].[9] CB 216-229. The Tribunal’s Decision is found at Court Book pages 216 to 229. The Court notes that the Minister’s Submissions at [13]-[19] accurately summarise the Tribunal’s Decision. The Court adopts those submissions, with some alterations, as follows. The Tribunal noted that the Applicant appeared before the Tribunal on 12 May 2016 to give evidence and present arguments. The Applicant was represented at the hearing and an interpreter was present[10]. It was further noted that the Applicant and some family members lodged a Refugee and Humanitarian (Class XB) visa (XB Visa) application in Colombo around 2 February 2011. The Tribunal outlined the Applicant’s evidence that he did not recall making any specific protection claims at the interview for the XB Visa, and that he did not know why it was refused[11].[10] CB 217, at [3]-[4].[11] CB 217, at [7]. The Tribunal then summarised the Applicant’s claims as made in his Visa Application, and detailed the content of a statutory declaration dated 10 December 2012 and the written submission dated 7 August 2014 provided to the Tribunal by the Applicant’s migration agent[12].[12] CB 217-218, at [9]-[11]. The Tribunal then turned to consider the Applicant’s claims in relation to the EPDP. The Tribunal detailed the Applicant’s oral evidence in relation to this claim[13]. The Tribunal stated:17. The Tribunal accepts the applicant was approached by EPDP members whilst driving past their camp near Jaffna town in early July 2012, beaten, had a gun pointed at his head, and threatened as claimed. The applicant’s oral evidence to the Tribunal about this incident was spontaneous, detailed and consistent with his written claims to the Department. The applicant has claimed they threatened and harmed him because he had torn down EPDP posters from the front of his house a few days prior, and had ‘evidence’ in the form of a photograph on their phone. However, the Tribunal finds it implausible that EPDP members would have happened to be near the applicant’s house when he removed the posters (or others who then gave the photograph to them) and photographed him doing so, yet did not confront him at the time, nor later, but waited until they chanced upon him when he was driving past their camp a few days later. For these reasons the Tribunal does not accept the applicant’s claims to have removed EPDP posters from the front of his house and it follows that it does not accept that he was harmed and threatened by EPDP members for this reason. It is unclear why the EPDP harmed the applicant, and sort to extort him, but given country information indicates that paramilitary groups have been (and continue to be) involved in criminal activity (referenced below), the Tribunal is of the view that they were motivated to make some money.18. The Tribunal is willing to accept that EPDP members may have tried to get some money from the applicant, possibly because they knew his father was in Australia as claimed, however for the reasons that follow the Tribunal is not satisfied that they were serious in their extortion attempt nor that they planned to carry out their threats. That is because they let the applicant go (returning his motorbike keys) without providing any deadline in which he had to pay the money, only stating that he should have the money the next time they saw him. Yet the next time they purportedly did see him – a few days later on his way to Jaffna again - they did nothing. The applicant said at hearing this was because he stopped outside the library in Jaffna where there was a lot of people. Whilst that may have been the case, the applicant told the Tribunal that the EPDP men who were following him left after he stopped at the library and gave no indication that they tried to find him again. The Tribunal also notes in this regard that the applicant made no mention of this incident - that is having two EPDP members following him on his motorbike - at all in his statutory declaration he provided to the Department. Given these concerns the Tribunal does not accept the applicant’s claims that the EPDP demanded LKR 1 million from him and threatened to kill him if he did not pay. Given this finding the Tribunal also does not accept the applicant’s claims that EPDP members visited the family looking for him two or three times following this incident and before they moved to Vavuniya in early 2013, or that during one of those visits they tried to strangle his brother and also brought the army with them, as claimed.[13] CB 218-219, at [14]-[16].

Ratio Decidendi

Legal Principle Established

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