FMO17 v Minister for Home Affairs
[2019] FCA 762
•23 May 2019
FEDERAL COURT OF AUSTRALIA
FMO17 v Minister for Home Affairs [2019] FCA 762
Appeal from: FMO17 v Minister for Immigration and Anor [2018] FCCA 3501 File number: WAD 604 of 2018 Judge: MCKERRACHER J Date of judgment: 23 May 2019 Date of publication of reasons: 24 May 2019 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia – where the primary judge identified no jurisdictional error in the decision of the Immigration Assessment Authority (IAA) – where the IAA affirmed the decision of a delegate of the Minister to refuse the appellant a protection visa – where no identifiable error on the Authority’s consideration of the facts Legislation: Migration Act 1958 (Cth) ss 36(2A) Date of hearing: 23 May 2019 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Ms A Ladhams Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondents: The Second Respondent submits to any order of the Court, save as to the question of costs ORDERS
WAD 604 of 2018 BETWEEN: FMO17
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
23 MAY 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
REVISED FROM THE TRANSCRIPTMCKERRACHER J:
This is an appeal from the decision of the Federal Circuit Court of Australia: FMO17 v Minister for Immigration and Anor [2018] FCCA 3501. The appellant is a citizen of Sri Lanka. The primary judge dismissed the appellant’s application for judicial review of a decision of the second respondent, the Immigration Assessment Authority.
BEFORE THE AUTHORITY
In that decision, the Authority affirmed the decision of the Minister’s delegate to decline to grant the appellant a protection visa. The basis of the protection sought by the appellant was that he claimed to fear harm from the Sri Lankan authorities, as a result of an imputed political opinion as a supporter of the United National Party (the UNP) and for being implicated as a people smuggler.
The facts are set out in very considerable length in the Authority’s decision and, to a lesser degree, in the decision of the Federal Circuit Court. It is unnecessary to repeat all of those facts, though I will highlight a few.
First, the Authority accepted that the appellant’s father was politically active and supported the UNP. But the Authority was not prepared to conclude that the appellant’s father had a profile that would have attracted threats or attacks from political opponents or which would have resulted in an attack on the appellant. The Authority did not accept that the appellant had experienced harm in the past because of his father’s activities and was not satisfied that he would face a real chance of serious harm on return to Sri Lanka.
The Authority did accept that the appellant had left Sri Lanka illegally and that as a result he may be subject to arrest and interrogation by the Sri Lankan authorities on his return. The Authority took into account country information about the treatment of Sri Lankans who had been in the same position and concluded that the appellant did not face a real chance of persecution from the authorities due to his unlawful departure, nor was the Authority satisfied that the appellant faced a real chance of persecution from the authorities as a result of being a failed asylum seeker.
BEFORE THE FEDERAL CIRCUIT COURT
The appellant sought judicial review in the Federal Circuit Court. The first ground raised in that Court was that the Authority, in determining that he was not a person who was at a real risk of significant harm pursuant to s 36(2A) of the Migration Act 1958 (Cth), took into account an irrelevant consideration, namely, that the charges laid or prosecution would be the result of a law of general application. The second ground was that the Authority applied the wrong test in determining whether s 36(2A) of the Act was made out by impermissibly shifting the inquiry to whether or not the law of general application applied to the appellant before making a finding as to whether the appellant satisfied s 36(2A) of the Act.
Those grounds were prepared at a time when the appellant was represented by counsel. That representation ceased. Prior to the hearing in the Federal Circuit Court, the appellant filed an affidavit, which raised, in substance, additional grounds. In that affidavit, he said relevantly:
(1)He sought a remedy on the basis of jurisdictional error because the Authority failed in its duty to examine in a proper manner the evidence produced.
(2)The Authority had failed to examine the country situation in Sri Lanka and the documents produced by the appellant under the normal rules of evidence.
He identified specific paragraphs of the Authority’s decision.
The Federal Circuit Court dismissed the application after addressing the grounds in the application, the affidavit and submissions which were presented orally by the appellant from the bar table. The Federal Circuit Court concluded that the submissions made from the bar table were, in substance, an invitation for the Federal Circuit Court to engage in merits review, which it did not have the power to do. Nothing said gave rise to any jurisdictional error. The Federal Circuit Court also went on to reject ground 1 and ground 2, to which I have referred. Those two grounds are not pursued on this appeal.
BEFORE THIS COURT
What is pursued on the appeal by the appellant is a single ground of ‘jurisdictional error on the part of the Authority due to not following the facts which were presented to it’. In essence, this was a new ground which was not expressly raised below before the Federal Circuit Court, but the Minister, while pointing out that leave would be necessary to advance this ground, accepts that it overlaps, in substance, with the grounds raised in the appellant’s affidavit, which were before the primary judge.
In the course of oral hearing before me today, the appellant has made the point that he was unable to get legal representation. He said that lawyers told him his case was not strong enough. Counsel for the Minister and I explained that it was necessary for him to show jurisdictional error in the Authority’s decision, which the Federal Circuit Court failed to recognise. Counsel explained, in a manner which I endorsed to the appellant, the nature of jurisdictional error. The appellant was expressly invited to identify any error of law or jurisdictional error or to expand upon his ground of appeal in order to identify an error which could support his appeal. He did not raise any error in the course of his oral submissions.
I accept the submissions for the Minister that the Federal Circuit Court was correct in finding that the adverse findings made by the Authority were open to it on the material before the Authority and dispositive of the appellant’s claims, including those findings referred to in the appellant’s affidavit. A careful reading of the decision of the Authority makes it clear that there was no doubt that the Authority had considered fully the appellant’s claims for protection, including those set out in his statutory declaration, in the interviews with Departmental officers and in his post-interview submissions to the delegate.
The Authority was entitled to accept or reject or give such weight to the evidence which was before it as it considered to be appropriate in the circumstances. The Authority’s reasons were clear. It was clear that on the evidence before the Authority the contentions for the appellant could not be accepted. There was nothing illogical or irrational in the approach which the Authority took. It is true that the appellant provided the delegate one country information report, being a statement from a United Nations Special Rapporteur on human rights and counter-terrorism. But it is clear that the Authority also had regard to that report, referring to it in its reasons on several occasions.
The Authority also had regard to country information considered by the delegate. That course was open to the Authority and no error of any description is demonstrated in relation to the Authority’s approach or the consideration of that approach by the Federal Circuit Court.
In those circumstances, as there was no appealable error in the Federal Circuit Court’s reasons, the appeal must be dismissed with costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 24 May 2019
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