CDW17 v Minister for Immigration and Multicultural Affairs

Federal Court of Australia|2024-11-06|Before: Bromwich J

The applicant is a citizen of Sri Lanka. He entered Australia at Cocos (Keeling) Islands in November 2012 without a visa. He is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.

On or about 21 April 20161 the applicant made an application for a protection visa after the Minister exercised the power in s 46A(2) of the Migration Act to lift the bar in s 46A(1), which had until that time prevented him from applying for a protection visa. The applicant claimed to fear harm on the basis of his Muslim religion and his involvement in an incident where he fought against armed thugs who threatened people in or around a mosque in his village in September 2011.

On 11 November 2016 the applicant attended an interview with an officer of the Minister's Department to discuss his claims for protection.

On 9 January 2017 a delegate of the Minister made a decision not to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act. AUTHORITY DECISION

The Authority accepted, based on country information, that a clash occurred in Dikwella in September 2011 involving both Sinhalese and Muslims. However, the Authority did not accept that the applicant was personally involved in this incident as he had claimed. The Authority considered the applicant's evidence regarding his role in the incident to be 'vague, confusing and unconvincing', and it identified a number of inconsistencies between his evidence at his arrival interview and his evidence in his protection visa interview. The Authority also rejected the applicant's claim that he was threatened by the mob, gangs or thugs who were involved in the September 2011 clash, finding that the applicant's claimed threat lacked detail, was vague and implausible.

After considering country information, including a Department of Foreign Affairs and Trade report, the Authority found that the applicant would not face any harm as a returnee, or as someone who sought asylum in Australia. The Authority further found that the anticipated treatment the applicant would face upon return to Sri Lanka for breaching the Immigrants and Emigrants Act 1949 (Sri Lanka) would not amount to serious harm and, in any event, the law was one of general application, which would not be applied in a discriminatory manner. The Authority concluded that the applicant did not meet the definition of a refugee in s 5H(1) of the Migration Act and, therefore, did not meet the requirements of s 36(2)(a).

The Authority also found that the applicant did not meet the complementary protection criteria in s 36(2)(aa) of the Migration Act as there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that he would face significant harm. The complementary protection finding was largely based on the findings of fact made by the Authority in considering the applicant's claims against the refugee criteria in s 36(2)(a) of the Migration Act. PROCEEDINGS BEFORE THIS COURT

The applicant commenced proceedings in this Court by way of an application filed on 19 May 2017. The application was filed within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act. The application raises the following two grounds:

The Immigration Assessment Authority did not afford me procedural fairness
The Immigration Assessment Authority applied the wrong legal test.

On 6 December 2017 a Registrar of this Court made an Order to progress this matter to hearing. Pursuant to the Order, the applicant was required to file any amended application, supplementary court book and written submissions 28 days before the hearing. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions on 15 March 2022 in accordance with the Order.

The matter came before me for hearing on 29 March 2022. The applicant was self-represented, with the assistance of an interpreter in the Tamil and English languages. The Minister was represented by Mr Jonathan Hoyle of counsel. …

In making its decision, the Authority needed to determine whether the applicant met the refugee criteria in s 36(2)(a) of the Migration Act or the complementary protection criteria in s 36(2)(aa) of the Migration Act. The Authority correctly summarised the relevant tests in relation to the refugee criteria at [6] and [7] of its reasons. The Authority also correctly summarised the relevant tests in relation to the complementary protection criteria at [31] and [32] of its reasons. There is nothing in the Authority's reasons to indicate that these tests were not correctly applied.

In considering the refugee criteria, the Authority considered whether the applicant had a well-founded fear of persecution as it was required to do and the Authority's decision turns largely on its findings of fact that the applicant would not face harm as a result of the 2011 incident because he was not involved in it. In relation to the applicant's claims to face harm as a Muslim, the Authority considered country information about the level of threats to Muslims in Sri Lanka and found on the evidence before it that there was no real chance of the applicant being harmed as a Muslim now or in the reasonably foreseeable future.

The Authority also made findings in relation to the applicant's claims that he would face harm as a returnee from the west and for breaching the Immigrant and Emigrants Act. The Authority carefully considered the treatment that the applicant would face as a result of breaching the Immigrants and Emigrants Act and found that it would not give rise to conduct amounting to serious harm. The Authority also found that the Immigrants and Emigrants Act is a law of general application which is not applied in a discriminatory manner. Accordingly, the application of the Immigrants and Emigrants Act did not involve systematic and discriminatory conduct, as required by s 5J(4)(c) of the Migration Act.

In relation to the complementary protection criteria, the Authority acknowledged that the real chance and real risk tests involve the same standard, which is consistent with the High Court authority in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19. The Authority relied on the findings that it made in relation to the refugee criteria as the basis for its finding in relation to complementary protection. It was open to the Authority to do this. The Authority also considered, when assessing whether the applicant met the complementary protection criteria, the treatment that the applicant would likely face at the airport when he returns to Sri Lanka and found that this treatment would not meet the definition of significant harm in s 36(2A) of the Migration Act.

The notice of appeal dated 11 April 2022 and filed on 14 April 2022 contains two grounds:
Applicant thinks the order, which is based on the application has a question of law and it should be investigated.
Applicant has provided lot of information and supporting documents for the Visa application. Applicant believes this information was not considered properly and not granted a fair order.
The primary judge also addressed an issue raised only by the Minister in discharge of model litigant obligations as set out in some detail by her Honour in the primary judgment at [35]-[50]. That issue potentially arose from the decision of the High Court in ABT17 v the Minister [2020] HCA 34; 269 CLR 439, on the topic of when it was necessary to invite an applicant referred to the Authority to an interview to assess demeanour for itself. There is no reason to reproduce any part of her Honour's reasons because that issue was not raised, and does not otherwise arise, in this appeal. It is recorded for completeness. There was no demeanour issue in this case or anything of that kind producing what the High Court described as an "information gap".
I turn to the grounds of appeal. In NWWJ v the Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 32 at [7], it was observed in relation to unparticularised grounds of appeal the following: … there was no reason to think that the immigration detention of the applicant was unconstitutional, and no other reason apparent from the circumstances as to why it would be unlawful. The applicant had not adduced sufficient evidence to put the lawfulness of his detention in issue. Hence there was no serious case to be tried on that basis to support any injunction preventing the applicant's removal from Australia.
It follows that a court may dismiss an appeal if the grounds are unparticularised and do not disclose an error. In this case, I am unable to detect any error on the part of the primary judge, nor, for that matter, on the part of the Authority. Nothing provided by the appellant by way of his notice of appeal has identified any such error. He has not made any submissions identifying any such error. His understandable position is simply that he cannot go back to Sri Lanka and therefore wants to be given a visa. However, as I explained to him during the course of the hearing, this Court cannot make any decision about whether or not to grant him a visa. In all of these circumstances, there is no alternative but for the appeal to be dismissed with costs. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.

Associate: Dated: 13 November 2024

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