CHB16 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judge: REEVES J
• Judgment Date: 12 July 2019
• Neutral Citation: [2019] FCA 1089
• Date: 12 July 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089

Appeal from:	CHB16 v Minister for Immigration & Anor [2017] FCCA 2685
File number:	VID 1161 of 2017
Judge:	REEVES J
Date of judgment:	12 July 2019
Catchwords:	MIGRATION – appeal from a judgment of the Federal Circuit Court – where the primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) – where the appellant had been refused a protection (class XA) visa – whether the Tribunal failed to consider an integer of the appellant’s claim – whether the Tribunal failed to consider a claim that clearly arose from the materials – no jurisdictional error found – application dismissed
Legislation:	Migration Act 1958 (Cth) Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) Federal Circuit Court Rules 2001 (Cth) ; Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) Protocol Relating to the Status of Refugees 1967 (the Protocol), opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Cases cited:	Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 CHB16 v Minister for Immigration & Anor [2017] FCCA 2685 CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177 Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211; [2012] FCAFC 147 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; [2019] HCA 3 Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610; [2015] HCA 22 Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287; [2013] FCAFC 161 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137; [2003] FCAFC 120
Date of hearing:	20 February 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	71
Counsel for the Applicant:	Mr M Hosking with the assistance of an interpreter
Counsel for the First Respondent:	Mr R Knowles
Solicitor for the First Respondent:	Mills Oakley
Counsel for the Second Respondent:	The Second Respondent filed a Submitting Notice

ORDERS

		VID 1161 of 2017
BETWEEN:	CHB16 Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	12 July 2019

THE COURT ORDERS THAT:

1. The notice of appeal filed 4 September 2018 is dismissed.

2. The appellant pay the first respondent’s costs of and incidental to the appeal to be taxed failing agreement.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1. This is an appeal from a judgment of the Federal Circuit Court delivered on 6 September 2017 (see CHB16 v Minister for Immigration & Anor [2017] FCCA 2685 (CHB16)). The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal), the second respondent, which affirmed a decision of a delegate of the Minister for Immigration and Border Protection, the first respondent, not to grant the appellant a Protection (class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

THE FACTUAL CONTEXT

2. The appellant is a Sri Lankan citizen who came to Australia on 18 July 2012 as an unauthorised maritime arrival. He applied for a protection visa on 15 January 2013. He claimed to have been harmed by, and to fear future harm from, a variety of groups on the basis of his Tamil ethnicity, an imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (the LTTE), as a failed asylum seeker who applied for protection in Australia and due to his illegal departure from Sri Lanka.

3. On 3 February 2014, the Minister’s delegate refused the appellant’s application. In her reasons, the delegate accepted that the appellant was a Sri Lankan citizen, noted his mental health condition and concluded that, while as a Tamil he may have experienced discrimination and harassment during the civil war in Sri Lanka, she did not accept that the appellant was, or would be, of any interest to the Sri Lankan authorities, or others in Sri Lanka, should he return there, whether on suspicion of LTTE involvement or otherwise.

THE TRIBUNAL’S DECISION

4. On 25 February 2014, the appellant applied to the Refugee Review Tribunal, as the Tribunal then was, for a merits review of the delegate’s decision. On 10 May 2016, the Tribunal conducted a hearing at which the appellant gave evidence and was represented. That hearing was conducted with the assistance of an interpreter.

5. Subsequent to the hearing, the appellant’s representative provided additional written submissions and medical reports to the Tribunal which were directed to establishing that the appellant was, and had been, suffering from depression and post-traumatic stress disorder (PTSD).

6. The claims that the appellant made to the Tribunal and its conclusion with respect to those claims were conveniently summarised in the primary judge’s reasons as follows (CHB16 at [9]–[13]):

9. The Tribunal identified the [appellant’s] claims, including that his brother had been abducted and not found at paragraphs [24] to [27] of the Tribunal decision. At paragraph [28] the Tribunal rejected those claims on the grounds, amongst others, that they were:

... vague, lacking in details and at times inconsistent with his written claims.

10. At paragraph [47] [sic – [48]] of the decision the Tribunal made findings that it did not accept that the [appellant] had faced a real chance of serious harm on the basis of an imputed political opinion as a Tamil, a failed asylum seeker or as a result of his time spent in Australia or because he was from the eastern region of Sri Lanka.

11. The Tribunal also considered the claims in relation to mental health concerns and did so at paragraphs [8] to [15] of the decision. The Tribunal accepted that the [appellant] had suffered from mental health conditions including depression linked to PTSD which affected his ability to concentrate.

12. In relation to a claim that the [appellant] faced persecution as a member of the social group of returned failed asylum seekers, the Tribunal considered country information and at paragraph [69] accepted that upon return to Sri Lanka, the [appellant] is likely to face questioning at the airport as to his activities during the time he had been abroad. The Tribunal found that as a result of his Tamil ethnicity, he may also face questioning about any links that he...