CFG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appeal is dismissed.
2. The appellant pay the respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMBERG J: 1 The appellant appeals from a decision of the Federal Circuit Court of Australia delivered on 12 December 2018 and published as CFG17 v Minister for Immigration [2018] FCCA 3664. By that judgment the primary judge dismissed the appellant's application for judicial review of a decision made by a delegate of the respondent ("Minister") to refuse to grant the appellant a Protection (Subclass XE-790) visa. The delegate also concluded that the appellant is an "excluded fast track review applicant" because he had made a claim for protection in the United Kingdom that was refused by that country. Consequently, the delegate's decision was not reviewable by the Immigration Assessment Authority under Part 7AA of the Migration Act 1958 (Cth). 2 The appellant is a Sri Lankan Muslim Tamil from eastern Sri Lanka who arrived in Australia in November 2012. 3 The claims made by the appellant are summarised at [4]-[6] of the primary judge's reasons. The primary judge has also summarised the delegate's finding at [7]-[19] of his Honour's reasons. As the appellant's grounds of appeal are of limited scope, it is not necessary to repeat a summary of the claims and findings other than in so far as that becomes necessary to address the appellant's grounds of appeal. 4 The appellant was granted leave to file an Amended Notice of Appeal. The grounds of the appellant's appeal are as follows (errors in original): Ground one His Honor erred in failing to find that the Delegate made a jurisdictional error of procedural fairness. Particulars Respondent failed to ask questions to extract information about the paramilitaries approaching the Applicant and the dangers faced by the applicant leading to persecution as there was a claim in the material before delegate. Ground two His Honor erred in failing to find that Delegate made a jurisdictional. Particulars Respondent failed to deal with a material claim of the Applicant, an extortion claim made by the Applicant regarding paramilitary. Ground three His Honour erred in failing to find that the Authority made a jurisdictional error by not applying well-founded fear test regarding extortion claims. Particulars Respondent failed to apply well-founded fear test as an implicit extortion claim was not dealt with. 5 The appellant was legally represented on the appeal and both written and oral submissions were received. 6 It was contended for the appellant that the delegate had not dealt with, or fully dealt with, a claim of extortion by "criminal and paramilitary groups" said to have been made by the appellant. The appellant contended that such a claim was explicitly raised by the appellant in the appellant's application for the visa in the following observations: Furthermore it is useful to mention that there are many underworld figures ruling in the Ottamavadi and valachchenai areas under the guise of political henchmen, paramilitary operators (mercenaries). … I have been on several occasions accosted by them and requested for my vehicle to be released for political propaganda and other uses, for which I had vehemently refused on the grounds that this is "my family bread and butter: and that I cannot part with them". During this period when I had travelled to Colombo on a rent-a-car hire, an unidentified gang of two on a motorcycle and armed with pistols had come to my home on a search operation and enquiring after me. On another date, when I was at home, they once again came in civilian clothing to my home with arms. Suspecting foul play, my father had told them that I was away, and in the meanwhile, I escaped from the rear entrance of my house. 7 In the oral submissions made by the appellant, the following further observations from the appellant's visa application were relied upon (errors in original): During this period, I had telephoned my father on many occasions, and who prevailed upon me to remain in the UK. Since on several occasions armed gangs had visited our house and demanded for my rent-a-car vehicle and which business was run by my wife under the supervision and guidance of my father. It is indeed opportune to mention here that my father is a highly respected civilian and social worker in our village, and as a result, my family had commanded the respect, affection and security of the villagers. In this backdrop, any outside threats directed at my family was obstructed with the intervention of the villagers. 8 Furthermore, in his oral submission, the appellant contended that the claim he had raised of extortion by criminal or paramilitary groups was a free standing claim. That is, it was a claim of harm from paramilitary groups unconnected with other claims made by the appellant that he feared harm (including from paramilitary groups) as a result of his perceived connection with the Liberation Tigers of Tamil Eelam ("LTTE"). 9 The appellant contended that the delegate failed "to delve into" the claims raised by him regarding paramilitary groups. It was said that the failure included, but was not limited to, who had approached the appellant, from which paramilitary group, for what purpose did they want the appellant's vehicle and what they would have done to the appellant if he had consistently denied to oblige them. The written submission then said that the appellant contends "that there might have been an extortion claim overlooked by the Delegate". 10 The written submission also said that that had the delegate asked further questions about the approaches of the paramilitary groups, the appellant would have received a favourable decision. It was then contended that the delegate had a duty to deal with the whole of the appellant's case. Contentions to the same effect were made orally without the appellant's legal representative referring the Court to any authority in support of the appellant's contention that the delegate had an obligation or duty to inquire.