FEDERAL COURT OF AUSTRALIA

CWO16 v Minister for Immigration and Border Protection [2018] FCA 522

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted to amend the Notice of Appeal.

2.    The appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    The Appellant is a citizen of Sri Lanka.

2    He applied for a Temporary Protection (subclass 785) visa in September 2015. In very summary form, the Appellant claimed to fear persecution by reason of (inter alia) being a supporter of the Tamil National Alliance. He maintained that he had received death threats and had been threatened with a gun by persons who attended his home in June 2012 demanding his motorcycle. He fled Sri Lanka in August 2012.

3    The application for a temporary protection visa was refused in July 2016 by a delegate of the Minister for Immigration and Border Protection (the “delegate”). The application was referred to the Immigration Assessment Authority (the “Authority”) in July 2016. In September 2016, the Authority affirmed the decision not to grant the protection visa.

4    An application to review the Authority’s decision was then filed in the Federal Circuit Court of Australia. In March 2017, that Court dismissed that application: CWO16 v Minister for Immigration and Border Protection [2017] FCCA 599.

5    A Notice of Appeal was then filed in this Court in April 2017.

6    The appeal was heard on 21 February 2018. The Appellant appeared unrepresented and was assisted in advancing submissions by an interpreter; the Respondent Minister was represented by Counsel.

7    The appeal is to be dismissed with costs.

The grounds of appeal as filed & as amended

8    The Notice of Appeal as filed set forth the sole Ground of Appeal as follows (without alteration):

Ground 1

1.    The Federal Circuit Court Judge committed a legal error in dismissing my case. The Judge failed to consider all of the grounds that was raised and failed to consider arguments put forward by my representative.

Particulars

a.    Reasons for dismissing my application is yet to be published, therefore I am unable to formulate grounds of appeal.

b.    More details will be provided once reasons for dismissing my case is published.

The “grounds that [were] raised” referred to in the Notice of Appeal were the following “grounds” as amended before the Federal Circuit Court (again without alteration):

Ground 1

The IAA failed to put the applicant on notice that an integer of the applicant’s claim that was accepted by the delegate would not be accepted by the IAA. See: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63.

Ground 2

The IAA failed to put the applicant on notice that an important piece of documentary evidence (i.e. a complaint card issued by the Human Rights Commission of Sri Lanka) that was before the delegate and impliedly accepted by the delegate would not be given weight by the IAA [15].

Ground 3

Considering claims that were not made / put forward by the applicant would indicate the decision maker (the IAA in this instance) merely copied and pasted contents in a decision making template or another decision.

Ground 4

The IAA committed error by failing to afford the applicant an opportunity to explain inconsistencies in his evidence and by failing to ask the applicant to expand upon and explain aspects of his account which it considered open to doubt.

Particulars were provided in respect to each of these “Grounds.”

9    The sole Ground of Appeal as set forth in the Notice of Appeal as filed in April 2017 was without substance. The primary Judge addressed and resolved each of the “grounds” relied upon in his reasons for decision, namely at the following paragraphs:

Ground 1:    at paras [27] to [30].

Ground 2:    at paras [31] and [32].

Ground 3:    at paras [33] and [34].

Ground 4:    at paras [35] to [38].

10    But the Appellant sought to amend his Ground of Appeal to rely upon two claimed errors at paras [32] and [33] of the reasons for decision of the Federal Circuit Court.

11    Leave to amend was not opposed by Counsel for the Respondent Minister. Each of the asserted errors related to arguments previously addressed and resolved by the Federal Circuit Court Judge.

12    The first proposed Ground of Appeal sough to be raised substantially replicated Ground 2 of the application as it was before the Federal Circuit Court; the second proposed Ground of Appeal substantially replicated Ground 3 as it was before the Federal Circuit Court.

Paragraph 32 – the Human Rights Commission card

13    In undertaking its review, the Authority identified the “review material” that it took into account. Part of that “material” was a card issued by the Human Rights Commission of Sri Lanka. In identifying that card and in assessing the “weight” to be given to it, the Authority wrote as follows:

The review material includes documents the applicant provided in support of his claims, including:

…

•    a card from the Human Rights Commission of Sri Lanka (“HRC”) recording the applicant made a complaint on 12 June 2012 that he was threatened. I note the applicant made no claims he made a complaint to the HRC in his TPV statement. He also did not discuss making a complaint to the HRC during the TPV interview, but I note too the delegate did not ask him about that. I consider if the applicant genuinely made a complaint to the HRC, he would have raised that in his TPV statement. I am not persuaded the HRC card is a credible document and I put no weight on it. Again, I am mindful about the prevalence of fraudulent documents in Sri Lanka.

14    These findings were the subject of Ground 2 as amended when the proceeding was before the Federal Circuit Court. In resolving that Ground, the Federal Circuit Court Judge concluded as follows:

Ground Two

[31]    In relation to ground 2, Mr Hodges [solicitor for the Applicant] submitted that there had been no questioning of the applicant by the delegate about the Human Rights Commission card. Mr Hodges submitted that in circumstances where the delegate had not questioned the applicant about the Human Rights Commission card, the Authority erred by failing to put the applicant on notice that the complaint card and its contents would not be given weight.

[32]    It was a matter for the Authority to determine what weight to give the evidence adduced before it in the conduct of the review. For the same reasons as given in relation to ground 1, Part 7AA in the conduct of the review does not require the Authority to identify to the applicant that it proposed to give no weight to the Human Rights Commission card. I reject the submission that the delegate impliedly accepted that the card was genuine. It is not necessary for the delegate or for the Authority to refer to all pieces of evidence adduced in relation to the review. Ground 2 fails to make any jurisdictional error.

15    The fundamental difficulties with the argument, be it the argument as advanced before the Federal Circuit Court or this Court on appeal, are threefold, namely:

    there is no basis upon which it could be maintained that the delegate had “impliedly accepted” the Human Rights Commission card as being presumably a genuine document – the reasons for decision of the delegate simply making no reference to the card;

    there was no requirement upon the Authority to either put the now-Appellant “on notice” as to the use to which it may put any particular piece of evidence during its deliberations (or indeed to even refer to any particular piece of evidence: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46], (2003) 236 FCR 593 at 604 per French, Sackville and Hely JJ) or to put the now-Appellant “on notice” as to the potential “weight” to be given to the Human Rights Commission card, that being generally a matter for the decision-maker to determine (cf. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J) and not a matter to be determined by a reviewing court (cf. SZRTN v Minister for Immigration and Border Protection [2014] FCA 303 at [81] to [82], (2014) 141 ALD 395 at 408 to 409 per Katzmann J); and

    the function entrusted to the Authority was to review the decision of the delegate and not the reasons given by the delegate. Whether or not the delegate had made reference to the Human Rights Commission card, the statutory function entrusted to the Authority was to make “a fresh decision and was not restricted to the correction of error in relation to the issues considered by the delegate”: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [39] and [68] per Robertson, Murphy and Kerr JJ.

16    The argument is without substance and should be rejected.

17    No appellable error is discernible in the reasons for decision of the primary Judge.

Paragraph 33 – the consideration of claims not made

18    The other amended Ground of Appeal as advanced before this Court was the counterpart to Ground 3 when the proceeding was before the Federal Circuit Court.

19    That Ground related to the consideration given by the Authority to a matter which formed no part of the basis upon which the Appellant claimed to fear persecution.

20    The part of the Authority’s reasons which gave rise to the argument was the following:

Tamil born in Eastern province

19.    I accept the applicant is a Tamil, born in Eastern province and that he has lived and worked in areas which was once under the control of the LTTE. He told the delegate neither he nor any member of his family had any connection to the LTTE.

20.    The DFAT country and thematic reports indicate that the overall situation for Tamils in Sri Lanka has improved since the end of the civil conflict in 2009. There have been improvements in the security situation in the North and the East since the end of the conflict, however military and security forces continue to have presences in these regions. DFAT advises that the monitoring and harassment of Tamils in these areas has decreased under the new government. Politically, the new government has taken a more proactive approach to human rights and the issue of reconciliation than previous governments. The DFAT country report further states there is a moderate level of societal discrimination against Tamils still present in Sri Lanka, but there is no evidence of official laws or policies that discriminate based on ethnicity or language, including in the context of access to education, employment and housing. Both DFAT and the most recent UNHCR guidelines assess that Tamil civilians who live in former LTTE areas in the North and East, including Tamils that provided low level support to the LTTE or who had family members that are former members of the LTTE, may be monitored by Sri Lankan authorities, but are at a low risk of being detained or prosecuted.

21.    I am not satisfied on the evidence before me the applicant’s limited connection to the LTTE would be such that the applicant would have a profile which would bring him to the attention of the Sri Lankan authorities. I reach that conclusion having regard to the information in the DFAT reports and UNHCR Guidelines in the referred material regarding the Sri Lankan authorities not imputing every Tamil with a pro-LTTE political opinion and that the Sri Lankan authorities have sophisticated intelligence gathering techniques. I am mindful too of the information that people with significant links to the LTTE may still face a real chance of harm, if returned to Sri Lanka.

22.    For the above reasons, I am not satisfied the applicant faces a real chance of serious harm from the Sri Lankan authorities for an imputed pro-LTTE or anti-Sri Lankan government political opinion and/or because of his age, he is a Tamil, he was born in Eastern province, he worked in Northern province, and/or because he lived in an area of Sri Lanka that was once under LTTE control, now or in the reasonably foreseeable future, if he returns to Sri Lanka.

(Footnotes omitted.)

21    The Federal Circuit Court Judge resolved this argument when it was before him as follows:

Ground Three

[33]    In relation to ground 3, it was open to the Authority to take into account a potential claim arising on the papers, given the applicant’s Tamil ethnicity. It was open to the Authority to consider whether the applicant would be imputed to have an LTTE connection. I do not accept that the reference in paragraph 21 of the Authority’s reasons to whether the applicant had an LTTE connection gives rise to any proper basis to find that the Authority engaged in the exercise of copying and pasting in the decision-making process.

[34]    On the material before the Court, the Authority’s reasons reflect an orthodox approach to the determination of the review and reflect a real and genuine consideration of the applicant’s claims. I reject the submission that the finding of the Authority did not relate to the applicant. I reject the submission that there was any copying or pasting by the Authority in relation to the potential for the applicant to have an LTTE connection. No jurisdictional error as alleged by ground 3 is made out.

22    Some reservation is to be expressed in resolving this argument and the submission that the Authority may have impermissibly “copied and pasted” reasons for decision in some other case and inappropriately applied those reasons to the Appellant. The matters addressed by the Authority formed no part of the claim being made by the Appellant. The consideration given to this issue in such circumstances seems rather curious. But the explanation for this part of the reasons for decision of the Authority seems to be anchored in the fact that the Minister’s delegate addressed the potential relevance of the LTTE when considering the country information which was taken into account. Although the written submission made to the Authority in response to the delegate’s decision did not cavil with such consideration as was given by the delegate to the potential relevance of the LTTE, the better inference to be drawn is that the Authority was merely considering this matter as part and parcel of the review function it was undertaking. The Authority, of course, “was not restricted to the correction of error in relation to the issues considered by the delegate to be determinative” (CRY16 [2017] FCAFC 210 at [68] per Robertson, Murphy and Kerr JJ) but was entrusted with the responsibility to make a fresh decision. In doing so in the present proceeding, the Authority was simply considering for itself the potential relevance of the LTTE. No inference, moreover, should be drawn that the Authority had merely “copied and pasted” material of potential relevance to another application and applied it to the circumstances of the Appellant.

23    This further Ground of Appeal is thus also rejected. No appellable error is discernible in the reasons for decision of the primary Judge.

Conclusions

24    There was no substance to the argument that the Federal Circuit Court failed to consider the grounds of review relied upon. The Ground of Appeal as set forth in the Notice of Appeal as filed was without substance and quite properly abandoned.

25    Leave to amend the Grounds of Appeal should be granted to re-agitate error on the part of the Federal Circuit Court Judge as to the manner in which he resolved two of the four grounds previously relied upon before that Judge. But no appellable error is discernible as to the manner in which those two Grounds were resolved.

26    The appeal should be dismissed.

27    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    Leave is granted to amend the Notice of Appeal.

2.    The appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent.

Associate:    

Dated:    17 April 2018