CGS15 v Minister for Immigration and Border Protection [2018] FCA 806

FEDERAL COURT OF AUSTRALIA

CGS15 v Minister for Immigration and Border Protection [2018] FCA 806 Appeal from: CGS15 v Minister for Immigration & Anor [2017] FCCA 2734

File number: VID 1226 of 2017

Judge: RANGIAH J

Date of judgment: 16 May 2018

Catchwords: MIGRATION – refusal of protection visa – appeal dismissed

Legislation: Migration Act 1958 (Cth) ss 36(2) and 91R(1)(c)

Date of hearing: 16 May 2018

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 25

Counsel for the Appellant: The Appellant did not appear

Solicitor for the Respondents: Ms C Symons of DLA Piper

Counsel for the Second Respondent: The Second Respondent filed a submitting notice

ORDERS VID 1226 of 2017

BETWEEN: CGS15 Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: RANGIAH J DATE OF ORDER: 16 MAY 2018

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. 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.

EX TEMPORE REASONS FOR JUDGMENT

RANGIAH J: 1 This is an appeal against a judgment of the Federal Circuit Court of Australia delivered on 23 October 2017. The Federal Circuit Court dismissed the applicant's application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) given on 14 October 2015. The Tribunal had affirmed a decision made by a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant the appellant a Protection (Class XA) Visa. 2 There has been no appearance by the appellant at the hearing of the appeal, even after the matter was stood down in case he was running late. I am satisfied that the appellant has been notified of the time, date and place of the hearing. I consider that it is appropriate to proceed to consider the appeal on the basis of the material before the Court. 3 The appellant is a citizen of Sri Lanka. He arrived in Australia in 2012 and applied for a Protection Visa. The Minister's delegate refused the grant of the visa on 2 August 2013. 4 The appellant applied for review of the delegate's decision to the Tribunal. On 14 October 2015, the Tribunal affirmed the delegate's decision. The Tribunal's assessment of the applicant's claims was as follows. 5 First, the Tribunal accepted that in 1990, the appellant and his family had been displaced from their home due to conflict and that, in 1994, their hut had been burned to the ground. However, the Tribunal found that as these incidents had occurred a long time ago, the risk of the appellant being harmed in the future on the same basis was remote. 6 Second, the Tribunal accepted that the appellant had provided security and other assistance to a Member of Parliament and that there had been an incident in 2004 when the applicant was attacked and injured while putting up political posters. There was also a subsequent incident where the attackers said that they would kill the appellant. The Tribunal found, however, that the chances of harm in the future on the basis of the appellant's imputed political opinion was remote because the appellant no longer supported any political party and the events had occurred a long time ago. 7 Third, the Tribunal found that, contrary to the appellant's claims, he had not been the subject of harassment by police in his home town due to his family being suspected of being supporters of the Liberation Tigers of Tamil Eelam (LTTE). The Tribunal found such claims to be implausible and far-fetched. 8 Fourth, the Tribunal accepted that the appellant had been employed by his brother at a garage and that police would take equipment and not return it, or return the equipment damaged. However, this did not constitute serious harm to the appellant, who was merely an employee. The Tribunal rejected as implausible the appellant's claim that a police officer had knocked out one of his teeth on one occasion. The Tribunal found that the appellant was not a member of a particular social group consisting of business owners with various attributes as he was not in fact a business owner. 9 Fifth, the Tribunal accepted that in 2012, the applicant had been accused by army officials of working illegally and had been slapped while his cousin was beaten. He had been detained for a day-and-a-half before he was allowed to go home. However, the Tribunal found that as the appellant had continued to reside in his home area without any adverse interest from the police, the chances of the appellant being harmed by the police in the future were remote. 10 Sixth, the Tribunal found that based on country information and his individual circumstances, the appellant did not face a real chance of persecution because of his Tamil ethnicity or Muslim religion. 11 Seventh, based primarily on country information, the Tribunal found that the appellant did not face a real chance of persecution as a failed asylum seeker if he returned to Sri Lanka. 12 Eighth, based on country information and the appellant's individual circumstances, the Tribunal found that while he faces a short term of detention upon his return to Sri Lanka as he had left Sri Lanka illegally, it was not satisfied that this would be persecution for a Convention reason and was not systemic or discriminatory conduct as required by s 91R(1)(c) of the Migration Act 1958 (Cth). Further, it did not amount to significant harm under s 36(2A) of the Act. 13 Ninth, the Tribunal considered the appellant's claims cumulatively and found that he did not face a real chance of persecution in the reasonably foreseeable future for any Convention-related or other reason. 14 The Tribunal was not satisfied that the appellant met the criteria in ss 36(2)(a) or 36(2)(aa) of the Act. Accordingly, it affirmed the delegate's decision. 15 The appellant sought review of the Tribunal's decision before the Federal Circuit Court. He relied on the following grounds: (1) The Tribunal fell into jurisdictional error by not assessing my integer claims cumulatively being a Tamil Muslim with a political persuasion and suspected with LTTE involvements. (2) The Tribunal fell into jurisdictional error by not assessing my claim against my religion being a Muslim. (3) The Tribunal accepted that I have suffered serious harm and significant harm in the past due to my work as a politician but then applied the wrong test and found that the chances of such harm happening to me in the reasonably foreseeable future is remote (paragraph 32 of its decision at CB 257). (4) The Tribunal accepted that I was physically assaulted by Sinhalese men outside a cinema and threatened with death due to my political work but did not assess whether this could happen again in the event of my return to Sri Lanka and thereby failed to assess this integer claim. ( paragraph 31 of its decision at CB 257). (5) The Tribunal accepted the 2012 incident but did not assess whether the harm suffered by me in that incident would amount to serious and/or significant harm to trigger protection obligation (paragraph 42 at CB 258 & 259) and thereby fell into jurisdictional error. (Errors in the original.) 16 As to the first ground, the primary judge found that the Tribunal had specifically considered the appellant's claims cumulatively. 17 As to the second ground, his Honour found that there was no error in the way the Tribunal assessed the appellant's claim to fear harm because of his Muslim religion. His Honour held that the preference given by the Tribunal to particular country information was a matter for the Tribunal, and the fact that the Tribunal might prefer certain information over other information was not an indication of error. 18 As to the third and fourth grounds, the primary judge found that the Tribunal had explained the reasons why the episodes of past harm on account of political activity did not provide a basis for forming a view that there was a real risk of serious harm. His Honour held that it was open for the Tribunal to conclude as it did, and that it was not apparent that the Tribunal had applied the wrong test when considering the risk of future harm or in concluding that the risk of future harm was remote. 19 As to the fifth ground, the primary judge found that the Tribunal had considered the appellant's claims in respect of the 2012 incident and that the ground, in effect, sought merits review. The Tribunal had decided that as the appellant had not been the subject of police attention after the incident, the chances of him being seriously or significantly harmed were remote. His Honour found that there was no error in this aspect of the Tribunal's reasoning. 20 Before this Court, the appellant's notice of appeal relies upon the following grounds: 1. The learned judge erred in holding that the Tribunal has assessed my integer claim singularly and cumulatively of being a Tamil Muslim with antigovernment political persuasion and suspected with LTTE involvement. 2. The learned judge erred in holding that the Tribunal's finding that I will not face serious harm in the future even though the Tribunal accepted that I have suffered serious harm in the past was an incorrect interpretation of the law. 3. The Tribunal has not assessed my claim cumulatively being a Young Tamil of Muslim faith from the North of Sri Lanka with perceived political opinion against the State. It is a jurisdictional error not to assess the appellant's claim cumulatively. The learned judge erred in holding that this claim was assessed and thereby the Tribunal fell in to jurisdictional error. 4. The appellant reserves his right to amend the grounds of appeal once the reason of the learned judge comes to hand. 21 As I have said, the appellant did not appear at the hearing. Neither has he filed any written submissions. Accordingly, the grounds of appeal must be determined in accordance with the claims made on their face. 22 The appellant's first ground appears to allege that the Tribunal failed to assess individually or cumulatively his claims to fear harm because he is a Tamil Muslim with anti-government political persuasion who was suspected of LTTE involvement. The Tribunal did consider these claims individually. It held that it was not satisfied that he was suspected of involvement with the LTTE. It follows that the Tribunal was not obliged to include any suspected involvement with the LTTE in the mix when considering his claims cumulatively. It did include his claims to fear harm as a Tamil Muslim and on the basis of his imputed political persuasion in its cumulative assessment. Neither the primary judge nor the Tribunal made the error alleged. 23 As to the third ground, there was no specific claim advanced to the Tribunal of a claim to fear harm as a "young" Tamil of Muslim faith. The Tribunal did consider the appellant's claim to fear harm as a Muslim. It included that matter in its cumulative assessment of his claims. The Tribunal also considered his claim to fear harm as a Tamil from the north of Sri Lanka. As I have said, the Tribunal considered imputed political opinion as part of its cumulative consideration of the appellant's claims. Therefore the third ground cannot succeed. 24 As to the second ground, the Tribunal concluded that the appellant had suffered serious harm in the past as a result of several incidents or matters that it accepted had occurred. The fact that these incidents had occurred provided support for the appellant's claims that they might occur again or that he might face serious harm in the future. However, the Tribunal found, for various reasons, that it was unlikely that the appellant would suffer serious harm in the future. For example, in respect of its finding that the appellant had been attacked while putting up political posters, the Tribunal found that he was unlikely to suffer serious harm or any harm in the future because he no longer supported any political party and because of the time that had passed since the incident. That reasoning was open to the Tribunal. It does not demonstrate any incorrect interpretation of the law. 25 I am not satisfied that the appellant has made out any of the grounds of appeal. Therefore, the appeal must be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.