FEDERAL COURT OF AUSTRALIA

CGN15 v Minister for Immigration and Border Protection [2017] FCA 1035

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    This is an appeal from the Federal Circuit Court of Australia. The appellant appeals from orders and judgment of the Federal Circuit Court: CGN15 v Minister for Immigration & Anor [2017] FCCA 318 .

BACKGROUND

2    The appellant is a citizen of Sri Lanka. On 19 December 2012, the appellant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (as the Department then was). On 10 December 2013, a delegate of the Minister for the Department refused the grant of the visa.

3    On 17 December 2013, the appellant lodged with the Refuge Review Tribunal (as the Tribunal then was) an application for review of the delegate's decision. On 23 October 2015, the Tribunal affirmed the decision under review.

4    On 10 November 2015, the appellant filed an application to show cause in the Federal Circuit Court.

5    The appellant claimed to fear harm on the basis of his Tamil ethnicity and imputed political opinion. The appellant specifically claimed that:

(a)    during the 1980's the Liberation Tigers of Tamil Eelam (LTTE) controlled the area in which his family lived. Due to fighting, the appellant's family fled to India in 1984 where they lived for three years;

(b)    upon returning in 1987, his brother joined the LTTE and the appellant never saw him again;

(c)    the fact that his brother had joined the LTTE caused a lot of problems for the appellant's family. Government soldiers attended the family home. The family subsequently returned to India between 1989 and 1991;

(d)    in 2006, he was detained by the Sri Lankan Army (SLA) for six days. During that time he was questioned about the LTTE and beaten;

(e)    from 2004 until his departure from Sri Lanka he was detained and questioned by the SLA on approximately 10-15 occasions. On those occasions he was detained from anywhere between a few hours to a day and was beaten;

(f)    in the 2009 election he supported a candidate for the Tamil National Alliance (TNA), including handing out flyers;

(g)    in March 2011, he supported a TNA candidate in local council elections and approximately three months after the election was warned against distributing flyers, threatened him and advised he was being monitored. The appellant moved and stopped work after receiving the threats and left Sri Lanka approximately twelve months later;

(h)    the Sri Lankan government was supporting Singhalese fishermen from out of the area to fish in the appellant’s area resulting in fish stocks being depleted and livelihoods being impacted. Concerns were raised with the media. Furthermore, the Navy, who gave out the fishing licence required to fish in the area, forced them to do unpaid labour at least once a week in order to obtain a fishing ID; and

(i)    in January 2015, four to five Criminal Investigation Department (CID) officers attended the appellant's house asking where he was.

TRIBUNAL'S DECISION

6    The Tribunal accepted that the appellant was a Tamil fisherman from Mannar. Although the appellant would be required to obtain a fishing licence from the Department of Fisheries, the Tribunal did not accept that the appellant would continue to have the problems with the Navy that he claimed to have had in the past.

7    The Tribunal accepted that the appellant’s brother joined the LTTE in 1987 and, because government soldiers went to his home, the appellant and his family moved to India between 1989 and 1991. The Tribunal also accepted that the appellant’s brother died in 2009 and the Sri Lankan authorities were aware of this.

8    The Tribunal accepted that the appellant handed out flyers for TNA candidates in the 2010 and 2011 elections. The Tribunal also accepted that the appellant departed illegally and would be charged under the Immigrants and Emigrants Act of Sri Lanka and may be briefly detained. The Tribunal, however, found that such process was the result of a non-discriminatory law of general application.

9    The Tribunal accepted that upon return to his home his arrival would be verified by the CID or police within a few days.

10    The Tribunal rejected the claim that the appellant had been forced to do unpaid labour for the Sri Lankan Navy and that the appellant would not be able to make a living as a fisherman if returned to Sri Lanka.

11    Significantly, the Tribunal did not accept that there was a real chance that the appellant would be rounded up, detained and beaten because of his Tamil ethnicity if returned to Mannar or that after the end of the war his family had problems because his brother had joined the LTTE.

12    The Tribunal also rejected the claims that:

(a)    the appellant had been threatened because of his support for the TNA or that he would be threatened, harmed, killed or otherwise persecuted for reason of his support of Tamil political parties if returned to Sri Lanka;

(b)    Sri Lankan authorities had been looking for the appellant prior to his departure or had been looking for him at any time since;

(c)    there was a real chance that the appellant would be persecuted as a Tamil; and

(d)    the appellant fell within any of the categories identified to be at a risk of harm from authorities.

13    The Tribunal did not accept that there was a real chance that the appellant would be persecuted because he would be returning as a failed asylum seeker or because of any political opinion which he may be perceived as holding or because he was Tamil.

14    In considering the complementary protection criterion, the Tribunal relied on its previous factual findings. The Tribunal did not accept that spending up to a fortnight in gaol on remand amounted to significant harm as defined in s 36(2A) of the Migration Act 1958 (Cth) or that there was any intention to inflict such treatment.

IN THE FEDERAL CIRCUIT COURT

15    The application to show cause, filed on 10 November 2015, advanced three grounds of review, as follows:

(1)    Jurisdictional error.

(2)    Bias based on conscious or unconscious prejudice by ignoring relevant material.

(3)    Identifying a wrong issue or a wrong question.

16    In respect of ground one, the primary judge held that the ground was an unparticularised assertion of error and that the failure to particularise the ground was sufficient basis for it to be dismissed.

17    In regards to ground two (bias), the primary judge held that the appellant had made no attempt to comply with the requirement that the serious allegation of bias be firmly and distinctly made and clearly proven. His Honour also held that the ground was an unparticularised assertion of jurisdictional error. The primary judge held that there was no evidence that the Tribunal member had a pre-existing state of mind which disabled him from undertaking any proper evaluation of the relevant materials before him or that a fair-minded lay observer might reasonably apprehend that the Tribunal may not have brought an impartial mind to the resolution of the question to be decided.

18    On ground three (the wrong question), the primary judge held that the Tribunal had turned its mind to the appellant's claims and had not identified a wrong issue based on a wrong question or asked itself a wrong question. His Honour held that the Tribunal had made findings in relation to the appellant's claims, evidence and material in a very detailed manner, set out and referred to relevant country information, correctly identified the relevant law and had drawn conclusions reasonably open to it on the evidence and materials before it. The primary judge referred to a letter that had been tendered at the hearing and considered the grounds of review advanced by way of that letter, treating them as additional grounds 4-9. The letter was relevantly in these terms (as reproduced in his Honour’s reasons at [17]):

3)    My submission is that as my brother was a member of the LTTE I will be targeted as a failed asylum seeker returning to Sri Lanka with perceived connections with the LTTE.

4)     I fear that I will be arrested under the Prevention of Terrorism Act and suffer human rights abuses at the hands of the armed forces of Sri Lanka.

5)    The situation in Sri Lanka as far as the Tamils are concerned is far from satisfactory.

6)    The Second Respondent followed the Ministerial Direction number 56 to use the DFAT material in a manner which went against the principles of a fair assessment of the country situation in relation to persons like me and thereby fell into Jurisdictional Error.

7)    I submit the following documents in furtherance of my application:

a)    Document marked I – article by Bruce Haigh a former diplomat.

b)    Document marked II – An extract from the Oakland Institute of the USA entailed [sic]: The Long Shadow of WA – The Struggle for Justice in Post War Sri Lanka

c)    Document marked III – An extract a report entitled: Information Report: Sri Lanka October 2016 submitted by Nalliah Suriyakumaran, father Pan Jordon, A Ratnakanthan, Chris Slee and Michael Cook.

8)    At present I have a well-founded fear of returning to Sri Lanka of fear of persecution.

(Transcribed from Exhibit 1 without amendment).

19    His Honour held that ‘ground four’ did no more than repeat the substance of an essential part of the appellant's case before the Tribunal and that the Tribunal had considered, and made findings in relation to that claim. It was held that the ground sought impermissible merits review and did not establish jurisdictional error in the Tribunal's decision.

20    In relation to ‘ground five’, the primary judge held that the appellant had made no claim with respect to the Prevention of Terrorism Act 1979 (Temporary Provisions) Act 1979 (Sri Lanka) and, therefore, the Tribunal made no jurisdictional error with respect to any claim not made. Further, it was unnecessary for the Tribunal to have regard to that legislation as it would not apply to the appellant.

21    His Honour held that ‘ground six’ did not assert jurisdictional error and that, in any event, the Tribunal had carefully considered the situation of the appellant upon return. The primary judge held that the ground was a further request for impermissible merits review.

22    In considering ‘ground seven’, his Honour held that the Tribunal was entitled to have regard to its choice of particular country information, that the country information relied upon was appropriate and that the Tribunal was obliged to have regard to the DFAT reports pursuant to Ministerial Direction No 56 by reason of s 499 of the Act.

23    In respect of ‘ground eight’, the primary judge held that the documents referred to in the ground were not admissible and they post-dated the Tribunal decision and therefore the ground could not be made out.

24    His Honour held that ‘ground nine’ was a further unparticularised assertion that could not succeed and constituted an invitation for the Court to conduct impermissible merits review.

25    The primary judge dismissed the application.

IN THIS COURT

26    There is a single ground of appeal, namely:

Jurisdictional error - by not following the law, and facts presented in evidence.

27    ‘Ground two’ is effectively particulars of ground 1:

In this regard, reference is made to the following paragraphs of the judgment delivered on 28th of February 2017: II, III, VI, iii, IV, 20, 24, 27 and 39.

28    On the hearing before me, the appellant appeared in person, assisted by an interpreter. The appellant produced a letter with annexures in support of his appeal, but made no other submissions in support of any suggestion of error on the part of the Federal Circuit Court or the Tribunal.

29    The Minister opposed receipt of the letter as evidence on the appeal and observed that the attachments to the letter constituted hearsay information received well after the date of the decision of the Tribunal. The appellant did not press the matter, but I treated the contents of the letter as being written submissions in support of the appeal. The letter was to the following effect:

…

1.    I appear without a lawyer and with no legal advice.

2.    I only got the assistance of my ethnic Association to translate the needed documents and evidence from English into the Tamil language.

3.    I have already made my submissions that the First and Second respondent in dealing with my case made the following errors:

a)    Not following a fair process in making the decision.

b)    Ignoring materials and documents relevant to my case.

c)    Relying on materials not relevant.

d)    Incorrectly interpreting the law and regulations.

e)    Thereby reaching an unreasonable decision.

4.    My appeal is that your Honour examines the questions of law in relation to the granting of a Protection Visa under the Migration Act 1958 and also the examples of Jurisdictional Error.

5.    I submit herewith the following documents whose content was relevant at the time my case was decided:

a)    Annual Report of the Amnesty International on Sri Lanka 2016 / 2017.

b)    Documents Report on the UN concerns on the continuing torture in Sri Lanka.

c)    A report by James Bennett entitled: Tamil Asylum Seekers Facing Torture in Sri Lanka.

d)    A report by the UN Special Rapporteur on the continuing torture in Sri Lanka.

6.    My case should not be tried as one of a merits review but as one where the tribunal had not exercised its proper function, especially in relation to the Prevention of Terrorism Act presently operational in Sri Lanka.

7.    I fear to return to Sri Lanka as a young Tamil with perceived links with the LTTE and whose family was suspected in this regard.

…

30    As counsel for the Minister submitted, there is nothing in this further correspondence which raises any particularised error on the part of the Federal Circuit Court or the Tribunal. To the extent that it purported to seek to apply to raise new grounds, (which in terms did not), any necessary leave was opposed. The appellant did not seek leave and did not respond to those submissions.

31    I am not persuaded that any submissions in the letter add any weight to the material which has already been closely considered.

CONSIDERATION

32    The task of the Federal Circuit Court was to determine whether the Tribunal's decision was affected by jurisdictional error and the task of this Court is to determine whether the judgment of the Federal Circuit Court is affected by appealable error.

33    Although an appeal to this Court is an appeal by way of rehearing, it remains necessary to demonstrate an error in the judgment appealed from. As the Full Court explained in Rawsthorne v Minister for Immigration & Citizenship (2013) 140 ALD 524 per Cowdroy, Katzmann and Farrell JJ (at [27]) an appeal by way of rehearing is not an opportunity to revisit the decision of the Tribunal. Save for exceptional cases, the task of a court on an appeal by way of rehearing is to correct error on the part of the primary judge.

34    The ground of appeal does not identify any appealable error in the judgment of the Federal Circuit Court nor does it demonstrate any jurisdictional error in the Tribunal's decision. Further, to the extent that the appellant seeks to re-agitate the arguments advanced before the primary judge, the appellant has not identified any error in the primary judge's clear findings on the evidence.

35    No jurisdictional error is disclosed in the Tribunal's assessment of the material before it. The applicant has not otherwise established an appealable error on the part of the primary judge.

CONCLUSION

36    The appeal must be dismissed with costs.

Associate:

Dated:    1 September 2017