MZAQW v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs, except for the costs of the hearing on 10 May 2017. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 The appellant appeals from the decision of the Federal Circuit Court of Australia given on 14 November 2016. The Federal Circuit Court dismissed an application for review of a decision of the Refugee Review Tribunal made on 23 December 2014 affirming a decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa. The appellant was unrepresented at the hearing in this Court but appeared with the assistance of an interpreter in the Tamil language. 2 The appellant is a Sri Lankan citizen who arrived in Australia by boat in June 2012 as an unlawful non-citizen. He applied for the visa on 3 December 2012 claiming to be a refugee on the basis of his ethnicity as a Tamil, his actual or imputed political opinion as a person opposed to the Sri Lankan government, and his membership of the particular social group "failed asylum seeker returning from the west". 3 The appellant, at the hearing of the appeal, sought to review the correctness of the decision that had been made against him, but it was explained to him at the hearing that the appeal did not permit a review of the merits. The notice of appeal contained the following grounds: 1. The Tribunal accepted that the Applicant would be detained for a brief period but did not assess whether that such detention would result in persecution. The Tribunal clearly not assessed 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 Act. It has not given to the appellant clean 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. 4. The appellant reserved his right to amend the grounds of appeal when the reason for the learned judge's decision come to hand. Each of these grounds were directed to the merits of the decision of the Tribunal. None of the grounds sought to be raised in this appeal were raised in the appeal from the Tribunal to the Federal Circuit Court and the appellant requires the Court's leave to raise them on the appeal: see Basnet v Minister for Immigration and Border Protection [2015] FCA 510, [17]. The Minister, however, does not oppose leave being granted to the appellant (if it were sought) but submits that they should be dismissed because they are without merit and are insufficiently particularised to succeed. 4 The first ground of appeal submits that the Tribunal failed to assess an integer required to be assessed in considering his application, namely, whether the appellant's detention for a brief period would result in persecution. The reasons of the Tribunal, however, clearly show that the Tribunal did consider these matters but decided them adversely to the appellant. The Tribunal found at [87] that the appellant's short remand pending charge and bail "will not itself constitute systemic and discriminatory conduct or that it will amount [to] serious or significant harm". At [90] the Tribunal found that it did "not consider that the remanding of the applicant on return to Sri Lanka constitutes systematic or discriminatory conduct as stated in s 91R(1)(c) of the Act". At [91] the Tribunal found "the chances remote [that] the applicant will be targeted and harmed or seriously harmed for any reason advanced in the context of a very brief stay in remand pending jail". At [93] the Tribunal found that the appellant "faces no real chance of serious harm now or in the reasonably foreseeable future due to his illegal departure, taken alone or in combination with his or other accepted circumstances". Accordingly, the first ground of appeal that the Tribunal clearly did not assess an integer has no foundation. 5 The second and third grounds of appeal failed to identify any error made by the learned judge or by the Tribunal. Both grounds of appeal are expressed in broad terms without identifying any error able to be evaluated. Neither ground is capable of succeeding. Further, a reading of the decision of the Tribunal shows that the Tribunal complied with the requirements in ss 424AA and 424A of the Migration Act 1958 (Cth). 6 The fourth ground in the notice of appeal does not identify any ground but seeks to reserve a right to amend the grounds of appeal when the reasons of the judge's decision came to hand. Those reasons have come to hand and no amendment to the grounds has been made. 7 Accordingly, the appeal will be dismissed. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.