EMI17 v Minister for Immigration and Border Protection

Federal Court of Australia|2019-07-12|Before: O'Bryan J

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

Introduction 1 By notice of appeal filed on 28 December 2018, the appellant appeals from a decision of the Federal Circuit Court of Australia made on 11 December 2018 in EMI17 v Minister for Immigration [2018] FCCA 3975. The appeal is brought under s 24 of the Federal Court of Australia Act 1976 (Cth). 2 In the decision below, the Federal Circuit Court dismissed an application for judicial review of a decision of the second respondent (Authority) made on 13 September 2017 under Part 7AA of the Migration Act 1958 (Cth) (Act) affirming a decision of a delegate of the first respondent (Minister) under s 65 of the Act refusing to grant the appellant a protection visa. 3 For the reasons that follow, I dismiss the appeal.

Background 20 The appellant was born on 25 July 1973 and is a citizen of Sri Lanka. 21 On 17 March 2016, the appellant was invited to apply and applied for a protection visa. The appellant stated in his visa application that he feared harm from a Mr C and his supporters for supporting a Mr B, both being members of the Sri Lanka Freedom Party (SLFP), in provincial council elections. The appellant detailed his claims in a written statement as follows: (a) The appellant ran a tailor shop in Anuradhapura and had operated the shop for five years prior to leaving Sri Lanka. (b) During the provincial elections, the appellant had supported Mr B and encouraged his customers to do the same. Mr C's supporters were angry and threatened to kill the appellant. (c) A week after the election, 15 of Mr C's supporters came to the appellant's house and threatened to kill him. A month later, he was stopped again at gunpoint by Mr C's supporters. Further, on nearly a daily basis, Mr C's supporters threw stones at the appellant's house. (d) After this, the appellant and his family moved away for ten months and stayed at a friend's house. While the appellant complained to police, they did nothing. Finally, when Mr C's supporters found out where the appellant was, he went into hiding in Colombo and Wellawaya (the latter being where his parents lived) for one and a half years. In the meantime, the appellant's house was burnt down. (e) When the appellant tried to leave to go to Cyprus in 2012, he was recognised by Mr C's supporters as Mr C operated the airport car park, so he couldn't leave. Eventually, the appellant left for Australia. 22 The Minister's delegate conducted an interview on 8 December 2016. 23 On 25 January 2017, the delegate found that the appellant was only a low level supporter of Mr B and there was no evidence that supported the appellant's assertion that any attacks on him were politically motivated. While the delegate accepted that the appellant might have been subject to general threats and violence at the time of elections, it did not accept that this would continue in the future six years later, particularly as Mr B had passed away. On this basis, the delegate found that the appellant would not face a real chance of serious harm in the reasonably foreseeable future. 24 Even though the appellant left Sri Lanka illegally and would return as a failed asylum seeker, the delegate found that the appellant would not suffer serious harm as a result. 25 Accordingly, the delegate found that the appellant did not have a well-founded fear of persecution based on his political views, as an illegal departee or a failed asylum seeker. The delegate relied substantially on her assessment of the refugee criterion in s 36(2)(a) of the Act in finding that the appellant did not meet the complementary protection criterion in s 36(2)(aa) of the Act.

Authority decision 26 The delegate's decision was referred to the Authority on 30 January 2017 for review under Part 7AA of the Act. 27 On 22 July 2017, the appellant's representatives provided the Authority with the statement of the United Nations Special Rapporteur on human rights and counter-terrorism dated 14 July 2017 following his official visit to Sri Lanka. 28 On 13 September 2017, the Authority affirmed the delegate's decision not to grant the appellant a protection visa. 29 As a preliminary matter, the Authority determined not to have regard to the information provided by the appellant's representatives pursuant to s 473DD of the Act (Authority reasons at [3] to [4]). While the information was new information for the purposes of the Act, the Authority found that there was no explanation as to why the information constituted credible, personal information about the appellant or if there were any exceptional circumstances that justified its consideration. 30 The Authority went on to set out the background to the appellant's claims (Authority reasons at [5]). The Authority made a number of credibility findings adverse to the appellant based on problems with and inconsistencies in his evidence. (a) While the Authority accepted that the appellant was a member and supporter of the SLFP, his evidence about why and what he did did not appear to be based on his own personal experience and his evidence was inconsistent about when threats commenced against him. Further, although he stated Mr B had lost an election in 2008, in fact he had won and been re-elected as Chief Minister of the relevant province (Authority reasons at [13] to [16]). (b) The appellant was unable to indicate why he, out of all of Mr B's supporters, was targeted other than pointing to the allegation that two of his friends who supported Mr B had been murdered by Mr C's supporters (Authority reasons at [17]). (c) There were a number of inconsistencies regarding what the appellant stated about the death threats he allegedly received between his written statement and the record of his interview with the delegate (Authority reasons at [18] to [19]). (d) There were inconsistencies in the appellant's evidence about whether he moved away and went into hiding, where he went and for how long, and whether he shut down his tailoring business or not (Authority reasons at [20] to [22]). The Authority also did not accept that the appellant's house was burnt down by Mr C's supporters. 31 Based on these findings, the Authority found that the appellant had fabricated the death threats he claimed to have received in 2008, 2010 and 2012 (Authority reasons at [23]). In relation to the appellant's two friends, the Authority considered it implausible that the appellant would not have more information about the circumstances of their deaths and found that there was no link between their deaths and Mr C on this basis (Authority reasons at [24] to [25]). Further, the Authority found the appellant's evidence about Mr C operating the car park at Colombo airport was "far-fetched and lacking credibility" (Authority reasons at [26]). 32 In conclusion, the Authority found that the appellant was a low-level political supporter and accordingly was not known to Mr C's supporters (Authority reasons at [30]). While he may have experienced general harassment around election times, the Authority was not satisfied that he had ever been specifically targeted. In any event, country information indicated that the Sri Lankan political process had become increasingly peaceful and orderly since 2013 (Authority reasons at [31]). 33 The Authority found that, while those with substantial links to the Liberation Tigers of Tamil Eelam (LTTE) or suspected of committing serious crimes had reportedly faced harm, the appellant did not share that profile (Authority reasons at [34]). The Authority also found that, while the appellant would be charged for leaving Sri Lanka illegally, he would only be subject to a fine or detained for a brief period (Authority reasons at [35] to [38]). Further, the relevant laws were laws of general application and their enforcement did not disclose discriminatory effect or intent (Authority reasons at [41]). 34 For these reasons, the Authority concluded that the appellant did not meet the refugee criterion in s 36(2)(a) of the Act (Authority reasons at [42]). The Authority relied substantially on its factual findings and its assessment of the refugee criterion in finding that the appellant did not meet the complementary protection criterion in s 36(2)(aa) of the Act (Authority reasons at [45] to [50]).

Decision of the Federal Circuit Court 35 The appellant had an opportunity to be heard in the Federal Circuit Court on the grounds alleged there (primary judgment at [9] to [10]), in addition to being provided with the opportunity to file written submissions (which he did not do). In the Federal Circuit Court, the appellant alleged that the Authority did not afford him procedural fairness (ground one) or applied the wrong legal test (ground two) (primary judgment at [6]). 36 As to ground 1, the primary judge recorded the appellant's submission that his claim did not receive proper consideration from the Authority (primary judgment at [9]). It may be that the appellant considered that he ought to have received a hearing before the Authority. However, as the primary judge correctly observed, Part 7AA of the Act does not require the Authority to conduct a hearing or interview the applicant (primary judgment at [8]). Section 473DA stipulates that Division 3 of Part 7AA, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. Section 473DB stipulates that, subject to Part 7AA, the Authority must review a fast track reviewable decision referred to it by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. 37 While the Authority is empowered by s 473DC to seek additional information, there is nothing to indicate that the Authority acted unreasonably in this case in not exercising that power: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [21] per Gageler, Keane, and Nettle JJ and [86] per Gordon J. The Authority made its decision on the basis of the review material before it and on the issues that were live before the delegate. There is no suggestion that any new information was required. The Authority was not required to get new information pursuant to s 473DC simply because the appellant's credibility was in issue: DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [74]. 38 In my view, the primary judge was correct to find that there was nothing to suggest that the Authority did not comply with the requirements of Part 7AA of the Act in conducting the review and to dismiss ground 1. 39 As to ground 2, the primary judge recorded that no submissions were advanced by the appellant on that ground (primary judgment at [12]). The primary judge correctly observed that the Authority's reasons indicate that the Authority understood its statutory task and the criteria it was bound to consider. The Authority correctly set out the tests for "wellfounded fear of persecution" and "real risk of significant harm" and made findings in line with subss 36(2)(a) and (2)(aa) of the Act. Accordingly, the primary judge was correct to dismiss ground 2.

Conclusion 40 The appellant has failed to identify any appellable error on the part of the Court below or any jurisdictional error on the part of the Authority. Accordingly, the appeal should be dismissed with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Bryan.

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