FEDERAL COURT OF AUSTRALIA

WZASX v Minister for Immigration and Border Protection [2017] FCA 1415

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the costs of the first respondent, 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:

THE ISSUES

1    In this appeal, the appellant draws attention to two matters. The first is that, without any criticism by the appellant of the primary judge, the delay between the initial hearing and subsequent reasons was extensive. The appellant, drawing on statistics which are unchallenged by the Minister for Immigration and Border Protection points to inadequacy of resources, particularly judicial support. Secondly, the appellant points to an omission by the primary judge to refer to certain oral submissions made in the course of the application for judicial review from the decision of the Administrative Appeals Tribunal. The delay, accompanied by the failure to refer to the particular submission, the appellant says, indicates a failure to take into account a central argument advanced by the appellant and, therefore, constitutes an appellable error. The difficulty with the argument, however, is that, while both the delay and the failure to refer to the oral submission may be accepted as being correct in argument, the particular oral submission had no bearing upon the ground of judicial review being advanced before the Court. It is frequently the case, particularly with litigants in person in immigration appeals, that matters are raised, which are not necessarily applicable either to the issues directly under consideration by virtue of the grounds of appeal or review or the legislative limitations. It is not necessary, possible or a requirement in circumstances where oral submissions travel quite beyond the pleaded grounds of appeal or review to examine and rule upon every point orally raised.

BACKGROUND

2    The appellant is a 24 year old citizen of Sri Lanka, born on 20 March 1993. He contends he illegally departed Sri Lanka by boat and in April he arrived at the Cocos (Keeling) Islands. He was taken to Christmas Island as an ‘undocumented Irregular Maritime Arrival’. On 15 September 2012, an Immigration Advice and Application Assistance Scheme (IAAAS) provider interviewed the appellant and assisted him with lodging a protection (class XA) visa application. It was supported by a declaration made by the appellant. Subsequently, a delegate of the Minister, with the assistance of a Tamil language interpreter, interviewed the appellant in relation to his protection visa application. Later in November 2012, the delegate concluded that Australia had no protection obligations to the appellant and refused to grant him a protection visa.

3    In the next month, the appellant lodged an application for review of the delegate’s decision by the Refugee Review Tribunal (as the Tribunal then was).

4    The appellant was represented before the Tribunal on 8 March 2013 by a representative who provided submissions to the Tribunal in support of his protection claims. In this particular appeal, it is important to pay some regard to the content of those claims as advanced at this time. Annexed to the appellant’s written submissions, which were provided to the Tribunal on 7 March 2013, were copies of the his Sri Lankan passport’s bio-data page, the death certificate of the appellant’s brother and a Sydney Morning Herald newspaper article dated 8 December 2012. The following day, the appellant attended a Tribunal hearing, together with his representative, and gave evidence in support of his protection claims. The transcript of the content of the Tribunal hearing was annexed to an affidavit, which was admitted as evidence by consent on the appeal.

5    Subsequently, on 21 June 2013, the Tribunal affirmed the decision of the delegate. The appellant then lodged an application for judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia. The grounds of the application in the Federal Circuit Court were as follows:

1.    JUDICIAL ERROR

2.    THE TRIBUNAL DID NOT FOLLOW THE LAWS OF NATURAL JUSTICE

3.    THE TRIBUNAL WAS BIASED IN ITS DECISION

THE REASONS STATED ABOVE WILL BE SUBMITTED IN DUE COURSE ON THE BASIS OF DOCUMENTS WHICH WILL BE FILED IN COURT.

6    By an affidavit affirmed on 21 July 2014 (approximately a year after filing the application for judicial review), the appellant provided particulars of the grounds of the application and attached extracts from the Prevention of Terrorism Act 1979 (Temporary Provisions) Act 1979 (Sri Lanka).

7    The first hearing in the Federal Circuit Court took place on 11 August 2014 and the appellant provided written submissions which attached an article regarding comments by the Minister and an Amnesty International Public Statement dated 26 June 2014. About a year later, on 17 July 2015, the appellant provided further written submissions at a subsequent Federal Circuit Court hearing.

8    On 29 March 2017, the primary judge dismissed the application. In April 2017, the appellant appealed to this Court by notice of appeal containing a sole ground of appeal to this effect:

1.    The learned Federal Circuit Court Judge fell into error in dismissing the Appellant's application for a constitutional writ, alleging jurisdictional error for a failure to consider a claim made by the Appellant, by failing to engage with the Appellant's submission that suspicion had fastened upon the Appellant specifically because Sri Lankan Tamil fisherman [sic] operating in the de facto LTTE capital during the civil war were assumed to be weapons-traffickers.

9    Particulars to this were added. I will come to this ground shortly.

IN THE FEDERAL CIRCUIT COURT

10    The reasons of the primary judge traverse the background above and more. In particular, the primary judge focused on the content of the Tribunal’s decision, which I will do also, having regard to the particular question of the suggested failure to take into account the suspicion that fishermen were assumed to be ‘weapons-traffickers’.

11    The primary judge noted that the Tribunal had found the appellant to be an unreliable witness, who appeared to exaggerate and fabricate his evidence. The Tribunal concluded the appellant was not a person of any interest to the Sri Lankan authorities and that he had fabricated his claim that he was pursued and beaten by the Criminal Investigation Department (CID). The primary judge did note, however, that the Tribunal accepted:

(a)    that it was plausible that the appellant’s father and older brother travelled to a particular fishing place for the fishing season in 1993 and his older brother may have died in a bombing attack that took place at that time during the conflict between the Sri Lankan Army (SLA) and the Liberation Tigers of Tamil Eelam (LTTE); and

(b)    that some time after that there may have been enquiries made by the CID about whether the appellant’s older brother had any involvement with the LTTE.

12    However, his Honour noted that the Tribunal:

(a)    did not accept that the CID would have continued to follow up on subsequent enquiries, especially in light of the appellant’s brother’s death certificate;

(b)    rejected the appellant’s claim that the CID did not see his brother’s death certificate because they were torturing his mother;

(c)    rejected the appellant’s claim that the CID returned to question his parents in mid-2010 or December 2011 or that he and his father were beaten during this time because they did not tell the CID where his brother was;

(d)    rejected that the appellant was targeted by the CID and needed to go into hiding;

(e)    in response to a submission from the appellant’s migration agent, found that based on country information, the Sri Lankan authorities targeted particular Tamil profiles and were not inclined to expend their limited resources on trying to target all Tamils. The Tribunal found that having investigated the appellant and being aware of his brother’s death, the authorities moved on and did not harass or harm the appellant after that;

(f)    found that the appellant had provided no evidence that either he or his brother were members of the LTTE and that in light of his unreliability as a witness, the Tribunal was not satisfied of this fact and the appellant had not put forward any evidence of links with anyone else who had been a member of the LTTE;

(g)    found that the appellant may be subject to discrimination on the basis of his Tamil ethnicity, but he would not face persecution;

(h)    found that the appellant may have departed Sri Lanka in contravention of legislation and that he may be charged and detained briefly and then bailed on return, but this would not constitute significant harm;

(i)    undertook a cumulative assessment of the appellant’s claims and found that his fear of persecution for reasons based on the Convention Relating to the Status of Refugees (entered into force 22 April 1954) was not well-founded now or in the reasonably foreseeable future and had regard to the appellant’s personal character, country information and the individual claims he had made; and

(j)    considered whether the appellant was owed complementary protection under the complementary protection provisions of the Migration Act 1958 (Cth), but it was not satisfied that his circumstances gave rise to substantial grounds for concluding that as a necessary and foreseeable consequence of being returned to Sri Lanka there was a real risk he would suffer significant harm.

13    Before the primary judge there were three grounds of judicial review referred to above (at [5]).

14    His Honour also noted the further hearing on 17 July 2015 (about 11 months after the first hearing) where the appellant had handed up a letter addressed to the Federal Circuit Court which contained further written submissions.

15    Although the first ground before the primary judge simply alleged judicial error, his Honour said that the context of the materials subsequently filed indicated that it was obviously intended to allege ‘jurisdictional error’ in the Tribunal decision. That material included the appellant’s July 2014 affidavit of which his Honour cited the following passages (at [9]):

…

II.    The [Tribunal member] failed to exercise his proper jurisdiction by not examining the implications of my of the death of my brother and the presence of my family at … [Fishing Place] in the Eastern Province of Sri Lanka as seen in paragraph 19, 20, 21, 22, 23 and 24 of the [Tribunal] Report.

III.    The [Tribunal] did not examine the real situation of the Tamils in Sri Lanka and the plight of asylum seekers returning to Sri Lanka. Reliance was only placed on the reports submitted by the Department of Foreign Affairs and Trade of the government of Australia. No attention was paid to independent reports of the situation in Sri Lanka by human rights organizations like Amnesty International and Human Rights Watch. Reference is made in this regard to paragraph 25 of the [Tribunal] Report in this regard.

IV.    The [Tribunal] failed to examine the contents and the implications of Sri Lanka’s Prevention of Terrorism Act. This Act was mainly enacted to oppress the Sri Lankan Tamil revolt and if I am forcibly returned to Sri Lanka the provisions of this Act will be applicable to me.

…

(Transcribed from the 31 July 2014 Affidavit without amendment).

16    His Honour also referred to the appellant’s written submissions (at [10]):

In the [appellant’s] August 2014 Submissions the [appellant], relevant to the issue of jurisdictional error, submitted that:

IV.    The [Tribunal] did not access the real situation of the ongoing human right abuses in Sri Lanka. Document marked B issued by Amnesty International on the 26th of June 2014 [“2014 Amnesty International Statement”] indicates the situation in Sri Lanka at present and at the time the [Tribunal] heard my case …

V.    The [Tribunal] relied mainly on the report of the Department of Foreign Affairs and Trade in assessing the situation of human right abuses in Sri Lanka.

VI.    I submit that Sri Lanka is a terror state and that I will be subject to the provisions of both the Immigration and Emigration Act and the Prevention of Terrorism Act if I am forcibly returned to Sri Lanka.

17    His Honour was conscious that what was put by the appellant when seeking judicial review was that the Tribunal failed to exercise jurisdiction because it failed to have regard to relevant material, or failed to consider claims that he had made. His Honour referred to the law in relation to such assertions and then examined the critical paragraphs of the Tribunal decision, noting the following (at [16]-[21]):

16.    The [appellant] asserts a failure to properly exercise jurisdiction by the Tribunal by reason of a failure to examine the implications of the death of the [appellant’s] brother and the presence of his family at the Fishing Place in the Eastern Province of Sri Lanka as seen at CB 230 at [19]-[24].

17.    At CB 230 at [19] the Tribunal sets out the [appellant’s] claimed birthplace. The Tribunal examined the documentary evidence and accepted that claim: CB 244 at [82]. No jurisdictional error, or error of any kind, arises on the basis of this claim which was accepted by the Tribunal.

18.    At CB 230 at [20] the Tribunal sets out the [appellant’s] claim that in March 2009 his older brother and father travelled to the Fishing Place in the Eastern Province of Sri Lanka for the fishing season, and that at that time there was conflict between the SLA and the LTTE. The [appellant] gave evidence in support of this claim at the Tribunal hearing. The Tribunal examined this claim and accepted that it was plausible that the [appellant’s] brother died in the bombing attack as described by the [appellant]: CB 244 at [82]-[83] and CB 245 at [89].

19.    At CB 230 at [21] the Tribunal sets out the [appellant’s] claim that at the end of a day’s fishing an airstrike was being conducted at the Fishing Place and that the [appellant’s] father was able to get to a bomb shelter and survived, but the [appellant’s] brother could not get to the bomb shelter and was killed. The Tribunal considered the evidence concerning the bombing attack in which the [appellant] alleges his father and brother were caught up, and clearly accepted that it occurred, and that the [appellant’s] brother had been killed: CB 244 at [82]-[82] and CB 245 at [89]. The Tribunal went on to expressly refer to the death of the [appellant’s] brother and the existence of the [appellant’s] brother’s death certificate in the context of enquiries that the [appellant] says were subsequently made by the CID as to his brother’s whereabouts: CB 244 at [83].

20.    At CB 230 at [22] the Tribunal sets out the [appellant’s] claim that in approximately April 2009 after his brother’s death three CID officers visited his home and spoke to his father, accusing the dead brother of LTTE involvement, and that in approximately the middle of 2010 the CID visited the [appellant’s] family home again to question the [appellant’s] parents as to his brother’s whereabouts. At CB 230 at [23] the Tribunal sets out the [appellant’s] claim that in December 2011 the CID again visited his family home and questioned the [appellant], beat him and his father, and threatened to kill them if they did not reveal the [appellant’s] brother’s whereabouts.

21.    The claims set out at CB 230 at [22] and [23] were considered by the Tribunal at CB 244 at [83] where the Tribunal said as follows:

The Tribunal accepts that sometime after the death of … [the appellant’s brother], there may have been inquiries made by the … [CID] who visited the [appellant’s] home and spoke to his father about whether … [the appellant’s brother] had been involved with the LTTE. The Tribunal does not accept that the CID would have continued to follow up with subsequent inquiries as to … [the appellant’s brother’s] whereabouts especially in light of the existence of a death certificate for … [the appellant’s brother]. Based on the unreliability of the [appellant’s] evidence, it does not accept his claim that the CID did not see … [the appellant’s brother’s] death certificate because they were torturing his mother. The Tribunal rejects the [appellant’s] claim that the CID again returned to visit and question the [appellant’s] parents in mid-2010, or in December 2011 where he claims the CID beat him and his father and claimed if they did not tell them where … [the appellant’s brother] was they would kill them. Based on the [appellant’s] lack of credibility as a witness, the Tribunal finds the [appellant] created this story for the purposes of his protection application. The Tribunal also considers the [appellant’s] claim that he did not seek medical treatment after the purported beating also weakens his claim that he was beaten.

18    The Court was satisfied that the Tribunal’s reasons demonstrated that it considered the claims made by the appellant concerning his brother’s death and the enquiries, investigations and beatings by the CID alleged by the appellant to have occurred following his brother’s death in 2009 through to December 2011. His Honour noted (at [22]) (citations omitted):

… In this context it is also relevant to note that the Tribunal, having considered the profile of persons who might be suspected of LTTE involvement, found that there was no evidence that either the [appellant] or his brother were members of the LTTE, and that the only evidence before the Tribunal was that his brother was killed at the Fishing Place and that the Sri Lankan authorities continued to inquire as to whether the [appellant’s] brother was a member of the LTTE. …

19    His Honour continued (citations omitted):

… In this regard, having regard to its findings as to the unreliability of the [appellant] as a witness, the Tribunal was not satisfied that the [appellant’s] brother was a member of the LTTE or that he continued to be perceived to be a member of the LTTE, and was satisfied that the [appellant] was not of any interest to the Sri Lankan authorities by reason of any purported close links with persons suspected of certain links with the LTTE, and found that the [appellant] did not face a real chance of serious harm for reason of an imputed political (pro-LTTE or anti-government) opinion.

20    The primary judge then closely examined the other matters reviewed by the Tribunal, including country information and Department of Foreign Affairs and Trade (DFAT) reports, and considered those matters in the context of the complaints by the appellant as to a failure to give proper consideration to his contentions. After listing all the material examined by the Tribunal, his Honour was satisfied (at [31]) that the Tribunal had regard to the ‘full gamut’ of the independent country information which it cited. He examined in detail the conclusions drawn by the Tribunal from that information. The primary judge was satisfied in those circumstances that it was not the case the Tribunal had placed reliance only on reports submitted by DFAT, nor was it the case that no attention was paid to reports from Amnesty International and Human Rights Watch. Those reports were referred to by the Tribunal, as were the DFAT reports and numerous other independent country information reports, in the Tribunal’s setting out of the independent country information to which it subsequently said it had regard.

21    The primary judge then turned to an assertion that the Tribunal did not have regard to the ‘real situation’ in Sri Lanka as dealt with in the appellant’s claims, specifically a failure to have regard to the content of the 2014 Amnesty International Statement, published on 26 June 2014, concerning war crimes. The primary judge concluded that the reliance on the 2014 Amnesty International Statement did not assist the appellant as it post-dated, by eight months, the Tribunal decision and was not before the Tribunal for consideration. Further, it was very general in its content and did not purport to be indicative of the current position in Sri Lanka, otherwise set out in the comprehensive reports and other country information relied upon by the Tribunal. His Honour noted, and it does not appear to be in dispute, that it was not open on an application for review to criticise the Tribunal for not examining material which could not be before it. His Honour then turned to consider the circumstances if the appellant was to return to Sri Lanka and his assertion as to the failure to consider the contents of the relevant legislation.

22    The primary judge, in relation to ground 2, concluded that as the review application was a matter to which s 422B of the Migration Act applied, the Tribunal was not required to afford the appellant ‘normal’ procedural fairness beyond the provisions of the Migration Act, but, in any event, he was unable to discern any breach of procedural fairness or natural justice (at [43]).

23    In relation to ground 3, the Court addressed and rejected an allegation of bias, noting (at [47]-[48]):

47.    The Tribunal Decision shows that the Tribunal properly raised various concerns about the [appellant’s] case with the [appellant], and, as set out above in relation to procedural fairness: see [42] above, canvassed relevant issues in accordance with its obligations under the Migration Act. The opportunity afforded to the [appellant] to make submissions before the Tribunal hearing, and the Tribunal’s questioning of the [appellant] at the Tribunal hearing, demonstrate that the Tribunal gave the [appellant] the opportunity to persuade the Tribunal to the requisite degree of satisfaction in relation to his claims. In relation to these matters, the Tribunal Decision does not demonstrate pre-judgment on the part of the Tribunal, nor does it give rise to a reasonable apprehension of pre-judgment by the Tribunal.

48.    The [appellant] alleges bias in relation to comments attributed to the former Minister for Immigration and Border Protection. Assuming that the statement allegedly made by the Minister was made by him, it does not assist the [appellant]. There is no evidence that the Tribunal was aware of the statement, or that it influenced the Tribunal in any way. The statement is undated and it is therefore unclear as to whether it was issued before or after the date of the Tribunal Decision. The mere assertion of bias by the [appellant] does not establish bias, and the onus is on the [appellant] to put before this Court cogent evidence capable of distinctly and clearly proving bias. The [appellant] has not done so in relation to the comments attributed to the Minister and any affect they may have had on the Tribunal. In those circumstances, the allegation of bias in relation to the Minister’s comments influencing the Tribunal is not made out.

24    Further submissions, which, as discussed, were contained in a letter that was handed up at the the further hearing in July 2015, go a little closer to the point which is raised on this appeal. The primary judge outlined the submissions contained in a letter from the appellant, where his Honour said (at [51]):

51.    The Applicant’s July 2015 Submissions are comprised of a letter addressed to the Court which was tendered at hearing on 17 July 2015, and which relevantly makes the following submissions:

Under section 36(2)(b) of the Refugee Convention I sought the status of a refugee under Article 1 of the Convention, and that defined under 1A(2).

The facts of my case proves that as a Tamil in Sri Lanka and belonging to the social group by the fact that I was a fisherman and a suspicion that on the basis of my political opinion of seeking self-determination for Tamils living in Sri Lanka I have a well-founded fear that I will be persecuted if I return back to Sri Lanka, which is my country of birth.

Tamils living in my village travelled to the Northern Province of Sri Lanka for fishing, and therefore were suspected of having connections with the LTTE who fought for a separate state for Tamils in Sri Lanka.

If a person was not found to meet the refugee criterion his case can be examined on the basis that if he or she returns to the country where person fled he or she will fact significant harm, under the Complementary Protection Criterion.

I submit that my case should be examined under this criterion

As a Sri Lankan Tamil I will face significant harm as the Provisions of the Prevention of Terrorism Act of 1979 and the Immigration and Emigration Act no 20 of 1948 and its amendments will be applied as I am a failed asylum seeker who is now forced to return to Sri Lanka.

I have therefore a well-founded fear of returning to Sri Lanka.

25    His Honour concluded (at [52]):

The [appellant’s] July 2015 Submissions do not establish jurisdictional error in the Tribunal Decision because:

a)    they seek to re-argue the merits of matters considered by the Tribunal contrary to the principles flowing from Wu Shan Liang;

b)    for reasons set out above:

i)    the provisions of the I & E Act were considered by the Tribunal: see [39] above; and

ii)    it was unnecessary for the Tribunal to consider the provisions of the POT Act in the circumstances of this case: see [40] above; and

c)    the Tribunal did consider the [appellant’s] claim under the complementary protection provisions of the Migration Act: CB 247-248 at [97]-[98] and [100]-[101], and did so being aware of the relevant law with respect to the complementary protection criteria which it set out at CB 229-230 at [16]-[18].

THE APPELLANT’S CONTENTIONS

26    The appellant says that the issues arising in the appeal are:

(a)    whether the Federal Circuit Court was required to consider the appellant’s submissions;

(b)    whether the Federal Circuit Court did consider the appellant’s oral submissions made on 11 August 2014, that in substance, the Tribunal had misunderstood the centrality of the appellant’s claim that suspicion had fastened upon the appellant and his family because:

(i)    they were Tamil fishermen from Udappu;

(ii)    who were targeted by the Sri Lankan air force;

(iii)    while at sea, off the coast of Mullivaikkal (the LTTE capital);

(iv)    in the final days of the civil war;

(v)    whilst the LTTE defended Mullivaikkal; and

(vi)    which had been cut off by Sri Lankan land forces (and therefore suspected to LTTE weapons traffickers);

(c)    whether a delay of 961 days between the hearing at which the oral submissions occurred and the publication of the Federal Circuit Court’s reasons for decision, in the absence of any explanation or justification for the delay, or anything displacing the possibility that the oral submission was overlooked, is destructive of any beneficial assumption that the oral submission was taken into account; and

(d)    whether there was a denial of procedural fairness.

27    In relation to the delay contention, the appellant understandably argues that a delay of some 2.5 years between oral hearing and publication of reasons without explanation is extraordinary. Although the circumstances in which delay of itself will vitiate decisions are rare, delay can contribute to jurisdictional error or make a decision unsafe, or it can be indicative of one of the recognised heads of jurisdictional error. The appellant relies on NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470, where Gummow J said (at [33]):

By their amended notice of appeal in the Full Court, the appellants asserted that the decision of the [Tribunal] was beyond power (and thus outside the protection of s 474 of the Act … because the [Tribunal] had not bona fide exercised its power, had denied the appellants procedural fairness, and otherwise had not validly exercised its power pursuant to Pt 7 of the Act. Delay itself was not advanced as productive of jurisdictional error; rather, it was treated in the appellants' case as indicative of one or more of the established heads of jurisdictional error.

28    In the same decision, Gleeson CJ said (at [10]):

In a case of failure to give a hearing when a hearing is required, the person complaining of denial of procedural fairness does not have to demonstrate that, if heard, he or she would have been believed. The loss of an opportunity is what makes the case of unfairness. The appellants in this case do not have to demonstrate that the Tribunal's assessment of them probably would have been more favourable if made reasonably promptly. What they have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the Tribunal's capacity to make a proper assessment of their sincerity and reliability. The procedures required by the Act were designed to give the appellants a reasonable opportunity to state their claims and to have those claims competently evaluated. If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk. The delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal's capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims by the Tribunal.

29    That was a case, of course, not of judicial review but, as the appellant acknowledges, one where the decision turned, in part, upon the Tribunal’s view of the appellant’s credibility drawn from the appellant’s evidence. The delay in question in that case was the delay of the Tribunal (391 days). The Tribunal’s delay there was variously described by the plurality as being extraordinary, exceptional, very exceptional or extreme. Similarly, in Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, the Full Federal Court described (at [75]) a delay of 17 months or 527 days between reservation of judgment and judgment delivery as being ‘grossly inordinate’.

30    These observations are not to criticise the learned primary judge, but, as stated in NAIS, per Callinan and Heydon JJ (at [161]), are rather to make a point about ‘the sufficiency of the resources and the number of people to do the work [which] depend upon the funds which governments are prepared to expend on them’.

31    Expectation Pty Ltd was a case involving judicial delay, as opposed to delay by a tribunal. A unanimous Full Court said (at [74]):

The problem [of delay] is not restricted to fading memory. A judge who comes to make an inordinately delayed decision will inevitably be subjected to great pressure to complete and publish the judgment. A conscientious judge could not but feel that pressure. It is almost inevitable that there will also be some form of external pressure — whether from the parties, the management of the Court, the press or parliamentarians. That pressure could well unconsciously affect the process of decision-making and the process of giving reasons for decision. The decision that is easiest to make and express will have great psychological attraction. As was recently said by the Western Australian Court of Appeal in Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 136 LGERA 16, in the course of a valuable review of the significance of delay in the delivery of judgments (at [31]):

“ … a long delay can give rise to disquiet … because of the suspicion, on the part of the losing party, that the task may have become too much for the trial Judge and that he or she had been unable, in the end, to grapple adequately with the issues.”

32    It is quite apparent, given the statistics relied upon from public reports, and the correctness of which were accepted by the Minister, that the case workload in the Western Australian Registry of the Federal Circuit Court is extreme. It is under resourced. The statistics make this clear, but do not require recitation. As noted by Allsop CJ in Tattsbet Limited v Morrow (2015) 233 FCR 46 (at [2]):

I wish only to add the following additional comments. First, the delay in the production of the decision was, with respect to the judge, unfortunate: over 20 months from final submissions. The practical realities of life as a judge may mean, sometimes, a degree of delay in decision-making. Pressure and volume of other judicial work, complexity and size of the particular decision-making task at hand, a lack, sometimes, of useful assistance from litigants or the profession, and illness or incapacity are but examples of reasons for delay. Some of the reasons may rest in point of fault; some in point of technique. The burdens on judges in a busy trial court can be enormous. Some reasons may be the responsibility of the Court itself, if too much work is given to a judicial officer without any, or adequate, time or facility to undertake reserved judgments. But systems must be made to cope. Whatever the cause of any particular delay (and there was no explanation available here), its consequences must be examined with an eye to the fair administration of justice. I agree with Jessup J that it has been demonstrated here that the delay affected, or can be seen as apparently affecting, the decision-making in question. Generally, some apparent operative effect of the delay is required for appellable error to be shown: Monie v Commonwealth [2005] NSWCA 25; (2005) 63 NSWLR 729 as discussed in MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417; (2012) 191 LGERA 292 at [11]. The conclusion as to the true reason for Ms Morrow’s termination was sparsely put. After such a long period, without any evidence in the judgment that the consideration and conclusion were made at a time reasonably proximate to the hearing, and without expressed careful consideration of all the evidence, the conclusion should be seen as flawed. It also had the effect of being, on its face in terms of expression, a contingent finding with the problems involved with such: Wade v Burns [1966] HCA 35; (1966) 115 CLR 537 at 555; and see Tarabay v Leite [2008] NSWCA 259 at [34]- [35].

33    The reasoning of the Full Court in Expectation Pty Ltd (at [71]-[72]) also propounded the proposition that it is incumbent upon a primary judge, in a case of serious delay, to put beyond question his or her reasons that the delay has not operated unfairly against a litigant:

71    In the normal course, statements made by a trial judge of a general assertive character can be accepted as encompassing a detailed consideration of the evidence. However, where there is significant delay, such statements should be treated with some reserve. After a significant delay, a more comprehensive statement of the relevant evidence than would normally be required should be provided by the trial judge in order to make manifest, to the parties and the public, that the delay has not affected the decision.

72    In cases not affected by delay, an appellate court is entitled to assume that the mere failure to refer to evidence does not mean that it has been overlooked or that other forms of error have occurred. However, where there is significant delay, no favourable assumptions can be made. In such circumstances, it is up to the trial judge to put beyond question any suggestion that he or she has lost an understanding of the issues. Where there is significant delay, it is incumbent upon a trial judge to inform the parties of the reasons why the evidence of a particular witness has been rejected. It is necessary for the trial judge to say why he or she prefers the evidence of one witness over the evidence of other witnesses (Hadid v Redpath (2001) 35 MVR 152 at [34] and [53]).

34    This statement of principle has been cited with approval in many cases since: Johnson Diversey Australia Pty Ltd v Ferenczfy [2013] SASCFC 59 per Gray, Sulan, and White JJ; Terry v Leventeris (2011) 109 SASR 358 per Gray, Sulan, and Vanstone JJ; Haros v Linfox Australia Pty Ltd (2012) 219 IR 177 per Gray, Marshall, and Bromberg JJ. In any event, it binds this Court.

35    The appellant also submits that where there are many other cases of a similar kind, there is also the risk of confusing cases with similar facts. The appellant relies on NAIS where Gummow J noted (at [92]) ‘It is a commonplace of decision making that the peculiarities of individual cases may be erased from the memory by later similar cases’. Moreover, the appellant argues that in cases of asylum-seekers seeking Australia’s protection, delay can be particularly destructive: NAIS per Kirby J (at [100]).

36    In an application of the relevant principles to the present circumstances, counsel for the appellant points to the fact that the appellant, on 22 July 2013, filed in the Federal Circuit Court an application for judicial review describing handwritten ‘grounds’, which on their own were legally inadequate. They alleged judicial error, a failure to follow the laws of natural justice and an allegation of bias. That they were legally inadequate was not surprising, as the appellant spoke no English, had no understanding of applicable procedure and was, at that point, without legal assistance. His last complete year of schooling was year 10.

37    This was followed by the appellant filing, on 31 July 2014, an apparently identical affidavit, attaching a document, para 2 of which stated, by way of apparent clarification and argumentation of the ‘nature justice’ ground, that:

The [Tribunal member] failed to exercise his proper jurisdiction by not examining the implications of my of the [sic] death of my brother and the presence of my family at Mullivaikkil in the Eastern Province of Sri Lanka as seen in paragraph 19, 20, 21, 22, 23 and 24 of the [Tribunal] Report.

38    These paragraphs of the Tribunal’s reasons, counsel for the appellant says, describe the appellant’s claims that in March 2009, his father and brother travelled to Mullivaikkal for the fishing season while there was a conflict between the SLA and the LTTE. His father and brother had finished their fishing and had landed their boat when they came under fire from the air. The brother was killed in the bombardment and about a month later and, then again one year later, CID officers came looking for the brother and made accusations of involvement with the LTTE. One year later, CID, again, visited the family home and questioned the appellant about his brother’s whereabouts, beat him and his father and threatened the appellant. The appellant then went into hiding, during which time the CID came again to look for the brother, prompting the appellant’s father to arrange the appellant’s passage to Australia.

39    Counsel contends that it is tolerably clear that the appellant was trying to articulate a proposition that the Tribunal had overlooked the significance of the father and the brothers’ activities at Mullivaikkal. However, at that stage, his complaint ‘remained somewhat Delphic’.

40    However, on 11 August 2014, when the matter was called on for hearing and the primary judge invited the appellant to make any oral submissions, the following exchange was recorded in the transcript:

…

HIS HONOUR:        All right. If I can turn to the [appellant]. This is your application for judicial review of a decision of the [Tribunal], affirming a decision of a delegate of the Minister, to refuse you a protection visa.

INTERPRETER:    Yes

HIS HONOUR:        You have filed an application and affidavits in support of the application. What submissions do you want to make to the court in support of your application?

INTERPRETER:    In my case the tribunal did not consider certain things. They considered that I’m Tamil by ethnicity, they considered that, but, however, they failed to consider that I’m a fisherman, who – a fisherman in my village [Udappu], because I’ve been working as a fisherman six months when the problem – at the place where there’s a problem and six months where there is a place where there is no problem so they failed to consider that I was a fisherman.

HIS HONOUR:        Yes.

INTERPRETER:    And also I have certain written submissions that I would like to submit to the court.

HIS HONOUR:        Yes. All right. Mr Gerrard, have you seen these?

Mr GERRARD:    I received them about half an hour ago, which is sufficient, your Honour.

HIS HONOUR:        Yes. All right. I will mark the written submissions as exhibit B.

HIS HONOUR:        All right. Is there anything else that the [appellant] wishes to say in support of his application?

INTERPRETER:    The tribunal failed to consider a few matters. That before the problem there was no army but we were fisherman and we working [sic] in the area where there is a problem. However, after the problem resolved, they have set up the camp, army camp-army camp in my village so because they have set up the army camp in my village, so they are now consider [sic] all those who are Tamil fisherman are closely related to LTTE where they are helping the LTTE and also helping the LTTE to transport the weapons from one place to another place. Because of this suspicion ground, they are threatening and looking for my father, my brother and for me.

HIS HONOUR: Yes.

…

INTERPRETER:    And this is what I tried to say to the court [Tribunal] because my matter was not seen properly and examined properly because if I return back to my country there will definitely be a biggest problem [sic] because the army camp is set up near to – in our village so I’m kindly requesting the court to give me a new [Tribunal] for me …

41    There was a subsequent hearing, as noted, on 17 July 2015, but as the appellant says, the purpose of that hearing was to provide an opportunity for the parties to make submissions on the relevance, if any, of the High Court’s decision in Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610.

42    The topic in bold (in [39] above) was repeated in a letter from the appellant to the primary judge in which the appellant sought:

permission to place my oral submissions by having an English translation as I am not competent to state what I have in Mind in a legal and proper manner, as I do not have any legal representation in this case to speak on my behalf.

43    The appellant went on to say:

The facts of my case proves that as a Tamil in Sri Lanka and belonging to the social group by the fact that I was a fisherman and a suspicion that on the basis of my political opinion of seeking self-determination for Tamils living in Sri Lanka I have a well-founded fear that I will be persecuted if I return back to Sri Lanka, which is my country of birth. Tamils living in my village travelled to the Northern Province of Sri Lanka for fishing, and therefore were suspected of having connections with the LTTE who fought for a separate state for Tamils in Sri Lanka.

(emphasis added)

44    The appellant submits, but for the oral submission made on 11 August 2014, it may not have been apparent why, on the appellant’s case, being a Tamil fisherman from Udappu was so significant. Had that link been supplied more clearly, it could have provided an explanation for the Tribunal’s disbelief that the Sri Lankan authorities would be interested in the appellant simply by family association.

45    The submission was not just an abstraction. The appellant says there was a concrete basis in the evidence to which the Tribunal had referred in passing, but the real significance of which the Tribunal did not appreciate or develop. (Although I note that the passage the appellant refers to was in fact made by the delegate and not the Tribunal.) The delegate had noted specific country information that:

While Udappu is nowhere near the frontlines of the civil war, the conflict nevertheless reaches into every aspect of life. As Tamils, the fishermen are automatically treated by the security forces as supporters of the LTTE and suspected of smuggling. Heavy restrictions have been placed on their fishing activities, leading to a loss of income. Locals are subject to constant harassment by police and military personnel who conduct frequent sweeps through the village. Over the past year, several people have been murdered or abducted – in all likelihood by military-sponsored death squads that have killed or ‘disappeared’ hundreds throughout the island.

46    There was also the contemporaneous reference that:

June 2006: Fifteen persons, including a woman who is resident of an eastern province, were taken into custody in a search in Udappu. Fishing huts were also searched by the police and soldiers of the Sri Lankan army. Most of the arrested had been employed in the fishing huts.

47    One of the difficulties I raised with counsel in the course of the appeal was that there appears to be no evidence of the matters stated before the primary judge from the bar table by the appellant. They are simply assertion. Nonetheless, as the appellant observes, nowhere in the primary judge’s reasons is to be found any reference or acknowledgment to the appellant’s oral submission that suspicion had fastened upon the appellant and his family because, ‘as fishermen from Udappu, they were suspected of weapons smuggling for the LTTE’. As counsel for the appellant fairly submits, an oral submission was self-evidently vulnerable to being forgotten or crowded out by the written materials. But counsel submits that in the circumstances of an unexplained 961 day delay between the substantive hearing of 11 August 2014 and the publication of his Honour’s reasons on 29 March 2017, it is not safe to assume that his Honour did take them into account, although not specifically referring to them.

48    Counsel argues that the appellant’s oral submission was meaningful in its context. The appellant was doing the very best he could to explain himself. It could have supplied an additional dimension to some of the evidence otherwise found unpersuasive by the Tribunal and supplied a rational explanation for why the authorities might have maintained an interest in the appellant and raised the possibility of why the authorities might have disbelieved that the brother was in fact deceased. More fundamentally, the appellant was entitled, counsel submits, to a proper, genuine and realistic consideration of his case and submission. As Gleeson CJ pointed out at [10] in NAIS:

in a case of failing to give a hearing when a hearing is required, the appellant does not have to demonstrate that if heard, he would have been successful. The loss of an opportunity is what makes the case one of unfairness.

CONSIDERATION

49    Clearly there can be no dispute that there was substantial delay in delivery of reasons in this matter. Even if the unchallenged statistics on which counsel for the appellant very fairly relied were to reveal an exaggerated picture, it is difficult to resist the inference that serious delay is an inevitable consequence of inadequate resources.

50    It is appropriate therefore to infer in favour of the appellant, whether it be the case or not, that the oral submission about suspicion attaching to certain fishermen as being weapons traffickers was not taken into account and was probably overlooked.

51    That is not necessarily the end of the matter, however.

52    It is significant, in my view, that NAIS was concerned with a decision directed to credit, specifically to the demeanour of a witness on two occasions, long separated in time, each occasion being required to be related and compared with the other, together with a considerable volume of written material. In contrast, in the present circumstance, a decision of the Federal Circuit Court concerned the judicial review of a decision of the Tribunal. The Court was not required or permitted to weigh and assess oral evidence or to make credibility findings in relation to the evidence of witnesses.

53    In Expectation Pty Ltd, relied upon by the appellant, the Full Court (Carr, Emmett, Gyles JJ) observed (at [69]) that the delay between taking evidence and making a decision is not, of itself, a ground of appeal, unless the judge could no longer produce a proper judgment or the parties were unable to obtain from a decision the benefit which they should. Delay of itself does not, taken alone, indicate that a trial is miscarried or that a verdict is in any manner unsafe. However, the Full Court said where there is a significant delay in giving judgment, it is incumbent upon an appellate court to look with special care at any finding of fact challenged on appeal.

54    This is not, however, a finding of fact challenged on appeal. This Court, as an appellate court from the Federal Circuit Court, is not concerned with any findings of fact by a trial judge based on oral testimony of witnesses. The task for the Federal Circuit Court was to determine whether the decision of the Tribunal involved jurisdictional error in the manner alleged in the application for review, or in some other obvious manner. The approach I would take on the authorities, given the delay, is that if the bare contentions, that is, submissions made by the appellant about suspicion of fishermen, could reasonably fall within the grounds of review before the Federal Circuit Court and, in turn, could be discerned in any way from the material before the Tribunal, a conclusion may be reached that there was a failure to consider a submission which ought to have been considered. This is to be contrasted with a peripheral submission, not anchored in any relevant ground of appeal or review.

55    In my view, the question may be fairly answered by examining the issue of whether the suspicion of such fishermen was squarely raised in all of the material before the Tribunal. If the Tribunal overlooked that submission, then there may be appellable error in the Federal Circuit Court failing to recognise such a failing on the part of the Tribunal.

56    The more particularised grounds of complaint of judicial error were contained in the supporting affidavit of the appellant when before the Federal Circuit Court as an applicant stating:

The [Tribunal member] failed to exercise his proper jurisdiction by not examining the implications of my of the [sic] death of my brother and the presence of my family at Mullivaikkil in the Eastern Province of Sri Lanka as seen in paragraph 19, 20, 21, 22, 23 and 24 of the [Tribunal] Report.

57    Turning to the Tribunal decision record of 21 June 2013, the paragraphs to which the appellant refers are the following:

19.    In his application for a protection visa which he submitted to the Department, the [appellant] claims he was born in Chilaw, Puttalam District, Sri Lanka in 1993.

20.    He claims that in March 2009 his older brother Suresh and his father travelled to Mullivaikkal in the eastern province of Sri Lanka for the fishing season. He claims that in that area at the time there was conflict between the Sri Lankan Army (SLA) and the Liberation Tigers of Tamil Eelam (LTTE).

21.    The [appellant] claims that at the end of one day after Suresh and his brother had finished their fishing and had landed their boat, planes approached and dropped bombs over Mullivaikkal. He claims that while his father was able to get to a bomb shelter, Suresh was not and he died in the bombing.

22.    The [appellant] claims that about one month after this incident, that is in approximately April 2009, three officers from the Criminal Investigations Department (CID) visited his home and spoke to his father and made an accusation that Suresh had been involved with the LTTE. He claims that about one year alter that visit, that is approximately mid-2010, the CID visited the family home again to question the [appellant’s] parents about Suresh's whereabouts.

23.    The [appellant] then claims that in December 2011 the CID again visited the family home and questioned the [appellant]. He claims that the CID beat the [appellant] and his father. He claims that if they did not tell them where Suresh was they would kill them.

24.    He claims that from then, his father took the [appellant] into hiding for 2 to 3 months and during this time the CID again visited his home and asked for the [appellant’s] whereabouts. He claims that he then fled Sri Lanka. He arrived at Christmas Island as an undocumented irregular maritime arrival on 17 May 2012.

58    In addition to this material recorded by the Tribunal, and to which the appellant points, the appellant also stated in support of his protection visa application three reasons as to why he thought he would be harmed or mistreated if he returned to Sri Lanka. They were:

(a)    a fear of harm by reason of his ethnicity as Tamil;

(b)    a fear he would be harmed or mistreated for reasons of his imputed political opinion, namely, his brother was suspected of being an LTTE member and, as such, he was imputed with this anti-government opinion; and

(c)    a fear he would be harmed or mistreated for reasons of his membership to a particular social group, namely, failed Tamil asylum seekers. ([20], [21] and [23] of his statement in support.)

59    So far, it may be seen from this material that the appellant made no claim at any time that he was at risk of persecution because he was a Tamil fisherman and that Tamil fishermen are all suspected of helping the LTTE to transport weapons. This claim was neither made in specifics, nor on a fair and generous reading, made in a general sense.

60    As noted, before the Tribunal the appellant did have the benefit of a representative, Ms Allanah McGuire, who provided submissions to the Tribunal in support of his protection claims. Once again, those submissions referred to the three visits alleged to have been conducted by the CID to the appellant’s home in April 2009, mid-2010 and December 2011. More detail was provided about the nature of those visits. Again, however, in relation to the issue of whether the appellant had a well-founded fear of persecution for reasons of his race (Tamil) and/or imputed political opinion (pro-LTTE), the submission made no reference to the suspicion of such fishermen as being weapons traffickers. Rather, the submission stated that in all the circumstances, the Tribunal should accept that the appellant was at risk of persecution on return to Sri Lanka by reasons of his race and the pro-LTTE political opinion attributed to ethnic Tamils.

61    Indeed, despite the considerable detail advanced before the Tribunal and on other occasions before the Tribunal, the appellant at no stage raised the question of being entitled to a persecution claim on the basis of belonging to such a group being involved with weapons trafficking. In fact it was the country information unearthed by the Tribunal that alluded to this possibility in a general sense (see above at [45]-[46]). But the appellant had not contended it was a persecution factor for him.

62    The full transcript of the hearing before the Tribunal, as translated, has been produced. At the hearing before the Tribunal on 8 March 2013, once again, a fair reading does not reveal any claim raised by the appellant before the Tribunal that he feared persecution because as a Tamil fisherman the authorities believed he had helped the LTTE by transporting weapons for them. The clear emphasis of his claims before the Tribunal was that he feared persecution by reason of his political opinion and having regard to the three visits allegedly made by the CID to his home, seeking information about his brother who had been killed in March 2009. Further, the appellant stressed that the government think that Tamil people who died in the wartime will be LTTE and their family members will be viewed as having certain links to the LTTE. Therefore, because of his brother, he claimed that the government would think that he was affiliated with, or was a member of, the LTTE. He said that the CID said that his mother and father were LTTE. There is no reference to Tamil fishermen being suspected of being weapons traffickers.

63    There was a further opportunity afforded by the Tribunal member who asked the appellant whether there was any other reason or whether the reasons he advanced were the only reason he feared returning to Sri Lanka, in response, the appellant stated ‘that is my reason’.

64    There is a complete account of the material put before the Tribunal. On a fair reading of all of that material, on no occasion has the appellant directly or indirectly, through his representative, made a claim to fear persecution on the basis that as a Tamil fisherman he would be suspected of assisting the LTTE to traffic weapons or that he was a weapons trafficker in his own right, and that he would therefore be considered to be an LTTE supporter, leading to the fear of persecution on the basis of imputed political opinion or being a member of a social group of Tamil fishermen, all of whom were suspected of being weapons trafficking.

65    The Tribunal cannot be in error by failing to consider a claim that is not put squarely before it. Taking that, even at its highest, to be the substance of the contention advanced before the Federal Circuit Court, it could never have succeeded. There was absolutely no occasion for the primary judge to enquire as to the credibility or plausibility of the assertions made for the appellant. His only enquiry on this key point was whether the appellant had demonstrated jurisdictional error on the part of the Tribunal by failing to take into account a matter it should have taken into account. While the primary judge did not refer to this particular matter, it was not a matter raised before the Tribunal and, therefore, it was not a matter which the Tribunal could be required to consider. The Tribunal did not fall into error by not considering a matter which was not raised. Although the primary judge did not allude to this matter in his reasons, even if he had alluded to it, it could not have led to a different outcome. As the Tribunal at no time fell into jurisdictional error, the primary judge’s conclusion was correct and no appellable error, despite serious delay, has been demonstrated in the particular circumstances of this case.

CONCLUSION

66    For those reasons, the appeal must be dismissed with costs. Despite this outcome, the Court greatly appreciates the most helpful assistance of Mr Crowley, acting as pro bono counsel.

Associate:

Dated:    29 November 2017