AXL17 v Minister for Immigration and Border Protection (No 1) [2019] FCA 774

FEDERAL COURT OF AUSTRALIA

AXL17 v Minister for Immigration and Border Protection (No 1) [2019] FCA 774 Appeal from: AXL17 v Minister for Immigration [2018] FCCA 2077

File number(s): NSD 1459 of 2018

Judge(s): MARKOVIC J

Date of judgment: 27 May 2019

Date of hearing: 27 May 2019

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 9

Counsel for the Appellants: The First and Second Appellants appeared in person on behalf of all Appellants

Solicitor for the First Respondent: Mr S Valliappan of DLA Piper Australia

Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS NSD 1459 of 2018

BETWEEN: AXL17 First Appellant

AXM17 Second Appellant

AXN17 (and another named in the Schedule) by their litigation representative AXL17 (the First Appellant) Third Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: MARKOVIC J DATE OF ORDER: 27 MAY 2019

THE COURT ORDERS THAT:

1. The interlocutory application filed on 10 May 2019 be dismissed. 2. The first and second appellants pay the first respondent's costs of the interlocutory application, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

MARKOVIC J: 1 On 10 May 2019 the appellants filed an interlocutory application seeking an order that their appeal be reopened and that they be permitted to rely on a "Proposed New Additional Ground of Appeal" which was set out in a document titled "Proposed Amended Notice of Appeal from the Federal Circuit Court of Australia" (Proposed Amended Notice of Appeal). 2 By way of background, the appellant's appeal was listed for hearing before me on 28 February 2019. At the conclusion of the hearing of the appeal I made orders granting leave to the appellants to file and serve a further amended notice of appeal including a ground articulated in oral submissions at the hearing, and permitting both the first respondent (Minister) and the appellants to file submissions in relation to that proposed new ground. That was done. The appellants filed and served their further amended notice of appeal and further submissions were filed by the parties. Subject to those matters, judgment was reserved at the conclusion of the hearing of the appeal. 3 The appellants now seek to raise a further new ground in the Proposed Amended Notice of Appeal, which is in the following terms: 1. The change of the new information in the country information the Administrative Appeals Tribunal's (hereinafter referred to as "the Tribunal") decision has become legally unreasonable. (See Australian Retailers Association v Reserve Bank 2005 FCA 1707 at [457]-[459]). Particulars a) The change of security and human rights situation and the prevailing violence due to bomb attacks in Sri Lanka in recent weeks and the new information of the country information the Administrative Appeals Tribunal's decision has become legally unreasonable. (See Australian Retailers Association v Reserve Bank 2005 FCA 1707 at [457]-[459]). b) According the above new information as there is a material change in the appellants' circumstances (including the children) which occurred after the Minister made a decision under s 65 of the Migration Act 1958 as the significant and rapidly deteriorating conditions emerging in the appellants' country of claimed of protection, such as a change in the political and/or security landscape. The above material changes in the appellant's claims if they were to return to Sri Lanka is crucial in assessing the appellants genuine fear of persecution. c) The Sri Lankan Police and the Armed Forces are totally engaged in the operation against the Islamic subversive elements in a continuing battle in the whole of the Sri Lankan Island and it is unrealistic to believe the Sri Lankan Police would give protection to the 3rd and 4th appellants (children) at present or in the near future. Substantial number of the victims of the Easter Sunday (21 April 2019) bomb attacks in Sri Lanka were children. d) Unwillingness to seek protection will be justified for the purposes of Article 1A(2) of the Refugee Convention where the state fails to meet the level of protection which citizens are entitled to expect according to "international standards" (See MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [27]-[29]). e) The joint judgment in S152/2003 refers to the obligation of the state to take "reasonable measures" to protect the lives and safety of its citizens, including an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system or a reasonably effective police force and a reasonably impartial system of justice, indicating that the appropriate level of protection is to be determined by international standards, such as those considered by the European Court of Human Rights in Osman v United Kingdom (1998) 29 EHRR 245. 4 The appellants rely on an affidavit affirmed by the first appellant in support of their application to reopen their appeal. In that affidavit the first appellant relevantly deposes to the following matters: 6. The change of security and human rights situation and the prevailing violence due to bomb attacks in Sri Lanka in recent weeks and the new information of the country information the Administrative Appeals Tribunal's decision has become legally unreasonable. (See Australian Retailers Association v Reserve Bank 2005 FCA 1707 at [457]-[459]). 7. According the above new information as there is a material change in the appellants' circumstances (including the children) which occurred after the Minister made a decision under s 65 of the Migration Act 1958 as the significant and rapidly deteriorating conditions emerging in the appellants' country of claimed of protection, such as a change in the political and/or security landscape. The above material changes in the appellant's claims if they were to return to Sri Lanka is crucial in assessing the appellants genuine fear of persecution. 8. The Sri Lankan Police and the Armed Forces are totally engaged in the operation against the Islamic subversive elements in a continuing battle in the whole of the Sri Lankan Island and it is unrealistic to believe the Sri Lankan Police would give protection to the 3rd and 4th appellants (children) at present or in the near future. Substantial number of the victims of the Easter Sunday (21 April 2019) bomb attacks in Sri Lanka were children. 9. Unwillingness to seek protection will be justified for the purposes of Article 1A(2) of the Refugee Convention where the state fails to meet the level of protection which citizens are entitled to expect according to "international standards" (See MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [27]-[29]). 10. The joint judgment in S152/2003 refers to the obligation of the state to take "reasonable measure" to protect the lives and safety of its citizens, including an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system or a reasonably effective police force and a reasonably impartial system of justice, indicating that the appropriate level of protection is to be determined by international standards, such as those considered by the European Court of Human Rights in Osman v United Kingdom (1998) 29 EHRR 245. 5 This morning the appellants made submissions in support of the application to reopen the appeal, which were in similar terms to the evidence set out above. The appellants submitted that the Court should permit them to reopen their case and to file the Proposed Amended Notice of Appeal and rely on the ground therein for the following reasons: (1) the current security and human rights situation in Sri Lanka is poor because of the recent bomb blasts occurring in April 2019; (2) as a result of those events many countries, including Australia, have declared Sri Lanka as an unsafe country for tourists to travel to; (3) the Sri Lankan police are looking into the bombings and therefore are unable to protect the appellants; (4) children in Sri Lanka are not going to school and recently bombs have been found near a school; (5) the country has declared a state of emergency, which has been extended; and (6) the situation in Sri Lanka is uncertain and the first and second appellants' two children, who are the third and fourth appellants, have been studying in Australia for the past five years and the current situation in Sri Lanka is not secure and will affect the children's future. 6 The Minister opposes the application to reopen the case and rely on the Proposed Amended Notice of Appeal. The Minister submitted that this claim and the material underpinning it was not before the Tribunal and, given its timing, could not have been before the Tribunal. Accordingly, the Minister submitted that the claim is not relevant to this proceeding and is incapable of establishing jurisdictional error in the Tribunal's reasons. 7 That is so. The claim that the appellants now seek to agitate relies on recent events. Those events were not the subject of any claim that was raised and that was considered by the Administrative Appeals Tribunal (Tribunal). 8 The role of this Court on appeal is limited to a review of the decision of the Federal Circuit Court of Australia (Federal Circuit Court) and a consideration of whether any appellable error arises in that decision. In turn, the Federal Circuit Court's role is to consider, on an application for judicial review, whether there is any error in the decision of the Tribunal. That can only be done on the basis of the material, evidence and claims that were before the Tribunal. As the claim included in the Proposed Amended Notice of Appeal was not before the Tribunal, it is not possible for this Court to permit the appellants to rely on it here. This is not a forum for merits review, but for appellate review. 9 For that reason, I cannot accede to the application and make the orders sought by the appellants. In those circumstances, the interlocutory application filed on 10 May 2019 should be dismissed. As the appellants have been unsuccessful, the first and second appellants should pay the Minister's costs of the interlocutory application as agreed or taxed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.