AIC16 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: MORTIMER J
• Judgment Date: 17 April 2019
• Neutral Citation: [2019] FCA 531
• Date: 17 April 2019

FEDERAL COURT OF AUSTRALIA

AIC16 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2019] FCA 531

Appeal from:	AIC16 v Minister for Immigration & Anor [2018] FCCA 885
File number:	VID 371 of 2018
Judge:	MORTIMER J
Date of judgment:	17 April 2019
Catchwords:	MIGRATION – appeal from decision of Federal Circuit Court affirming decision of Refugee Review Tribunal to refuse protection visa – whether jurisdictional error in Tribunal’s approach to fact-finding – whether Tribunal failed to discharge statutory task – whether Tribunal made “formulaic” conclusions in sense described in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 – no error in Tribunal reasoning – appeal dismissed
Legislation:	Migration Act 1958 (Cth) s 5(1)
Cases cited:	AIC16 v Minister for Immigration & Anor [2018] FCCA 885 AIC16 v Minister for Immigration and Border Protection [2018] FCA 1178 ASB17 v Minister for Home Affairs [2019] FCAFC 38 AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405 W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379; 67 ALD 757
Date of hearing:	13 February 2019
Date of last submissions:	12 March 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	63
Counsel for the Appellant:	Mr D Robinson
Counsel for the First Respondent:	Mr A Aleksov
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Counsel for the Second Respondent:	The second respondent filed a submitting notice, save as to costs

ORDERS

		VID 371 of 2018
BETWEEN:	AIC16 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	MORTIMER J
DATE OF ORDER:	17 april 2019

THE COURT ORDERS THAT:

1. The appellant have leave to rely on the amended notice of appeal filed on 7 November 2018.

2. The appeal be dismissed.

3. The appellant pay the first respondent’s costs of the appeal, including reserved costs, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

4. Within 7 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the costs referred to above.

5. In the absence of agreement, the matter of appropriate lump sum figures for the first respondent’s costs be referred to a Registrar for determination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1. By orders made on 7 August 2018, the appellant was granted an extension of time in which to file a notice of appeal in this proceeding, and leave to file an amended notice of appeal by 21 September 2018: see my decision in AIC16 v Minister for Immigration and Border Protection [2018] FCA 1178. In my reasons for that decision, I set out the background to the appellant’s claims for protection, and the process undertaken by the then Refugee Review Tribunal (now the Administrative Appeals Tribunal) to consider and review those claims. I do not repeat that information here, unless necessary to deal with the grounds of appeal.

2. I also ordered that the appellant be referred for pro bono legal assistance. It took considerably longer than anticipated to secure pro bono representation for the appellant. Once pro bono counsel was retained, a proposed amended notice of appeal was filed together with submissions on behalf of the appellant on 7 November 2018.

3. Most of the grounds in the amended notice of appeal relate to challenges to the Tribunal’s fact-finding. I deal with those grounds as a group. Those are grounds 1, 2, 5 and 6, which I refer to in these reasons as “the fact-finding grounds”.

4. The appellant further contends the Tribunal failed to address and consider the “cumulative risk” and/or the appellant’s individual circumstances by failing to consider “the significance of his coming afresh to the attention of the authorities” upon his return to Sri Lanka, with the consequence that the Tribunal constructively failed to perform its statutory task. That is ground 3.

5. There is also a challenge to the Tribunal’s use of “formulaic” conclusions in its reasoning relating to the risk of harm faced by the appellant as a result of the prison conditions likely to be experienced by him if he were returned to Sri Lanka and, as the Tribunal found may occur, detained for a short period of time. That is ground 7.

6. Ground 4 of the amended notice of appeal was not pressed by the appellant on the appeal.

7. The Federal Circuit Court’s decision on the appellant’s judicial review application is reported as AIC16 v Minister for Immigration & Anor [2018] FCCA 885. The appellant was unrepresented before the Federal Circuit Court and did not advance any developed grounds of review. The Federal Circuit Court considered the Tribunal decision and satisfied itself, appropriately given the appellant was unrepresented, that there was no jurisdictional error apparent in the Tribunal’s reasons. It accordingly dismissed the appellant’s judicial review application. Any error in the Federal Circuit Court’s orders, if established, will arise from the new arguments put on behalf of the appellant for the first time on appeal.

8. However, for the reasons set out below, I have found there are no such errors, and the appeal must be dismissed. That outcome is not to devalue the thorough and comprehensive arguments put on behalf of the appellant before this Court by pro bono counsel. The appellant has had the benefit of having arguments put on his behalf to a high standard, and the Court has been greatly assisted in discharging its task on appeal. The Court expresses its gratitude to counsel for the appellant.

Resolution of the fact-finding grounds

9. The appellant fled Sri Lanka in May 2012. His claim for protection, based principally on his Tamil ethnicity, was said by him to stem particularly from an incident outside a shop in a town in the north-west of Sri Lanka a few months before he fled, during which he had a confrontation with a man who turned out to be an army officer. He claimed to have been assaulted by this man. When the appellant and his family found out that man was an army officer, the appellant claimed his uncle had encouraged him to go to the army camp to apologise. The purpose of going to the army camp was one of the issues on which the Tribunal found the appellant gave inconsistent accounts. The appellant claimed he continued to experience harassment (including violence) from this army officer, and it was this harassment, and his fear of its escalation, which had caused him to flee Sri Lanka.

10. The appellant also claimed to fear harm on return to Sri Lanka on a number of bases stemming...