MZART v Minister for Immigration and Border Protection
[2018] FCA 240
•23 February 2018
FEDERAL COURT OF AUSTRALIA
MZART v Minister for Immigration and Border Protection [2018] FCA 240
Appeal from: MZART v Minister for Immigration and Border Protection & Anor [2017] FCCA 63 File number(s): VID 89 of 2017 Judge(s): O'CALLAGHAN J Date of judgment: 23 February 2018 Catchwords: MIGRATION – application for leave to amend notice of appeal – new grounds of appeal not raised in Federal Circuit Court proceedings – whether proposed new grounds sufficiently meritorious – whether adequate explanation provided as to why grounds not argued previously – application to leave to amend notice of appeal rejected – appeal dismissed Legislation: United Nations Convention Relating to the Status of Refugees. Opened for signature 28 July 1951. ATS 5 art 1(2) (entered into force 22 April 1954) Cases cited: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 Date of hearing: 23 February 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 23 Counsel for the Appellant: Appellant appeared in person Counsel for the First Respondent: Ms X Teo Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
VID 89 of 2017 BETWEEN: MZART
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
23 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The appellant’s application to amend the notice of appeal dated 10 February 2017 be refused.
2.The appeal be dismissed.
3.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.
REASONS FOR JUDGMENT
(Revised from transcript)O’CALLAGHAN J:
These reasons for judgment were made ex tempore at the hearing on 23 February 2018 and accompany the orders set out above.
The appellant appeals from a decision of the Federal Circuit Court of Australia made on 2 February 2017 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (then called the “Refugee Review Tribunal”) (the Tribunal) that was given in January 2015. The Tribunal affirmed a decision of the delegate of the Minister made on 12 July 2013 refusing to grant to the appellant a Protection (Class XA) visa (the protection visa).
The appellant is a citizen of Sri Lanka. The appellant’s application for a protection visa was made in November 2002 after he arrived in Australia on 29 June 2012. The appellant made a number of claims both in his application for a protection visa and before the Tribunal.
Those claims are sufficiently summarised in contentions filed in the Federal Circuit Court on behalf of the Minister for Immigration and Border Protection (the Minister), which provide that the appellant’s claims were as follows:
(1)The appellant claimed that he and his father were fishermen.
(2)The appellant claimed he had experienced harassment and assault from the Sri Lankan authorities and local villagers by reason of his Tamil ethnicity. He claimed that he was suspected of involvement with the Liberation Tigers of Tamil Eelam, or “LTTE”, by reason of his ethnicity and was harassed for this reason.
(3)The appellant claimed the authorities would often stop him and ask him for identification and ask him whether he was a supporter of the LTTE.
(4)The appellant claimed that he had been harassed while undertaking commercial fishing, sometimes to a point that interfered with his ability to work. He claimed Sinhalese fishermen were not subject to the same questioning and interference.
(5)The appellant further claimed the army would regularly send patrols to visit Tamil houses. The army visited the appellant’s home four to five times a month and asked to see his identification and questioned him about his involvement with the LTTE.
(6)The appellant claimed that his father was a fisherman and had travelled to Kallarai, north of Udappu, to fish in March 2012. The appellant says that, in May 2010, his father contacted him by phone and said Sinhalese fishermen threatened him and told him to stop fishing. The appellant also said that a friend of the appellant’s father telephoned the appellant and told him his father had been bashed by the army and the Criminal Investigation Department. His father had been left by the side of the road and told to kneel. The appellant did not hear from his father. After a week, the appellant attempted to report the matter to the local police. He was told to come back with an interpreter. He did so, and then was told to report the incident to the army. The appellant was frightened and did not report the matter further.
(7)The appellant claimed that approximately one week after attempting to report his father’s disappearance to the police, seven or eight people came to the appellant’s family home. The appellant believed that they were “army people” and fled. He remained with close relatives until he left to come to Australia. The authorities continued to visit his home looking for him.
(8)At the hearing before the Tribunal, the appellant also claimed that four or five years before his father’s disappearance, two of his father’s close friends were killed by the Sri Lankan Army on suspicion of being involved with the LTTE.
The Tribunal found most of the appellant’s evidence to be implausible. It found his account of events to be vague and lacking in detail, and it did not accept that the appellant was a credible witness. Indeed, the Tribunal found that the appellant had fabricated his protection claims: see, in particular, paragraphs [47] to [50] of the Tribunal’s reasons.
As a result of the Tribunal’s findings that it did not accept the vast majority of the appellant’s protection claims, and that those claims were fabricated, the Tribunal found, at paragraph [51] of its reasons, that there was no real chance that the appellant would be seriously harmed on account of the alleged incidents in the reasonably foreseeable future, and that his fear of persecution was not well-founded.
The appellant then appealed to the Federal Circuit Court. He raised two grounds of review. It is not necessary to consider those grounds of appeal or the manner in which the Federal Circuit Court dealt with them because those grounds are not pursued in this Court. The Federal Circuit Court dismissed the application for judicial review.
The appellant then appealed to this Court and seeks to agitate three new grounds of appeal. Those grounds are as follows:
(1)The Tribunal accepted that the appellant would be detained for a brief period but did not assess whether that such detention would result in persecution. The Tribunal clearly did not assess this integer claim and fell into jurisdictional error.
(2)The learned judge erred by holding with the Tribunal that the appellant’s claim was cumulatively assessed, but it was not.
(3)The Tribunal erred jurisdictionally by breaching section 424A of the Migration Act. It has not given to the appellant clear particulars pursuant to subsection (1) and acted in haste and refused the application. The Tribunal erred and misconstrued the obligation imposed on the Tribunal under the Migration Act.
Proposed ground of appeal 4 reads as follows:
(4)The appellant reserves his right to amend the grounds of appeal when the reasons of the learned judge’s decision come to hand.
In the course of the hearing I asked the appellant, who appeared in person with the benefit of an interpreter, whether he had anything that he wished to add to his grounds of appeal or otherwise say in support of his appeal. He replied:
I do not have anything to say apart from what is in my application.
As I noted earlier, each of the proposed grounds of appeal sought is new. Accordingly, the appellant requires leave to rely on them. Such leave will, generally, only be granted if the following criteria are satisfied:
(1)the new ground clearly has merit;
(2)the appellant provides an adequate explanation for not raising the point below; and
(3)there is no real prejudice to the respondent in permitting the new ground to be agitated: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [48].
The appellant has not explained why these grounds were not raised before, and that, in itself, means that the application to raise the grounds should be refused.
The Minister does not point to any prejudice if leave to raise the grounds were given, but does submit that leave should not be given because the grounds have no merit. For the following reasons, I accept that submission.
As to the first ground of appeal, it is, in my view, abundantly clear that, contrary to what is sought to be asserted in proposed ground of appeal 1, the Tribunal did assess whether the brief period of detention contemplated may result in persecution. The Tribunal did so, expressly, at paragraph [99] of its reasons. Further, it is clear from paragraphs [9], [10], [12] and [13] of the Tribunal’s reasons that the Tribunal properly understood the requirements of the convention relating to the status of refugees.
As the Tribunal recorded in paragraphs [9], [10], [12] and [13], there are four key elements to the definition of a “refugee” in the United Nations Convention Relating to the Status of Refugees namely:
(1)an applicant must be outside his or her country;
(2)an applicant must fear persecution, which must involve serious harm to the applicant and systematic and discriminatory conduct;
(3)the persecution which the applicant fears must be for one or more of the reasons enumerated in the convention definition, namely: race, religion, nationality, membership of a particular social group or political opinion; and
(4)an applicant’s fear of persecution for a convention reason must be a well-founded one.
At paragraph [97] of the Tribunal’s reasons, under the heading “Cumulative consideration as a failed Tamil asylum seeker who departed illegally from Sri Lanka”, the Tribunal said this:
97. The Tribunal does not accept that the applicant would be imputed with a dissident political opinion as a result of leaving Sri Lanka illegally and/or applying for asylum. The Tribunal finds that the applicant does not face a real chance of serious harm in Sri Lanka as a member of the particular social groups of either failed asylum seekers returning to Sri Lanka or Tamil failed asylum seekers or persons who have left illegally [emphasis added].
It is clear from paragraph [99] of the Tribunal’s reasons that in its cumulative assessment of the appellant’s claims, the Tribunal had regard, among other things, to the four key elements of the convention definition of “refugee”. In particular, it is clear from paragraph [99] that the Tribunal did assess whether the brief period of detention referred to in proposed ground of appeal 1 would result in persecution.
Paragraph [99] of the Tribunal’s reasons reads as follows:
The Tribunal has considered the applicant’s claims cumulatively. That is whether a young Tamil male fisherman from Udappu, who has had his identity checked on occasion, whose father’s friends may have been killed in 2006 who has left Sri Lanka illegally and subsequently sought asylum in Australia, faces a real chance of persecution on return to Sri Lanka and finds that even when the claims are considered cumulatively, there is no real chance that the applicant would be persecuted for a Convention reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.
Accordingly, in my view, proposed ground of appeal 1 is bound to fail and I refuse the application for leave to amend the notice of appeal to include it.
I also refuse leave to the appellant to amend the notice of appeal to include proposed grounds for appeal numbered 2 and 3 because they, too, are without merit.
Ground 2 is that the Tribunal did not cumulatively assess the appellant’s claims. However, it is clear beyond argument that it did so at paragraphs [97] to [103] of the Tribunal’s reasons.
I will not grant leave to amend to include proposed ground 3 because it is meaningless. In the absence of any statement as to what clear particulars the appellant has in mind, the claim about not having been given them is hollow and without foundation. To the extent that ground 3 alleges that the Tribunal acted in haste and refused the application, that is not a ground of jurisdictional error and is without foundation in any event. Further, the final sentence of proposed ground 3, namely that the Tribunal erred and misconstrued the obligation imposed on the Tribunal under the Migration Act 1958 (Cth) is meaningless.
Accordingly, the court will order that:
(1)The appellant’s application to amend his notice of appeal to include proposed grounds of appeal 1, 2 and 3, be refused.
(2)There being no other ground of appeal sought to be advanced or any other submission made in support of the appeal, the appeal will be dismissed.
(3)The appellant pay the first respondent’s costs to be assessed or agreed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate:
Dated: 23 February 2018
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