FEDERAL COURT OF AUSTRALIA

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant do 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

COLVIN J:

1    The appellant arrived on Cocos Island by boat in 2012. He claimed to be from the Mannar District, Northern Province of Sri Lanka. His application for a protection visa was refused by a delegate of the Minister on 24 November 2016. On 17 July 2017, the Immigration Assessment Authority affirmed the decision not to grant the applicant a protection visa. An application for judicial review to the Federal Circuit Court was dismissed. The appellant now appeals to this Court.

2    The appellant appeared in person. He was assisted by an interpreter who speaks Tamil and English. In his notice of appeal his sole ground of appeal was expressed as 'jurisdictional error - due to not following the law or facts presented in the evidence'. A ground expressed in this form does not comply with the Rules which require the notice of appeal to state briefly but specifically the grounds relied upon: r 36.01(2) of the Federal Court Rules 2011 (Cth).

3    In written submissions, the Minister's response to the ground was:

Without further particularisation, the appellant's ground of appeal is vague and meaningless and does not disclose any jurisdictional error on the part of the IAA or appellable error by the primary judge. Further, this ground appears to be expressed in terms of error committed on the part of the IAA rather than any error said to have been committed by the primary judge. Such an approach is to be 'firmly rejected' as it would 'impermissibly reduce the proceeding before the Federal Circuit Court to a "preliminary skirmish"'.

The primary judge's decision to dismiss the application is not attended by any, let alone, sufficient doubt or error. For this reason, the appeal ought to be dismissed with costs.

(footnotes omitted, original emphasis)

4    The consequence of a failure to particularise a general claim of jurisdictional error has been considered in a number of migration cases. In WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35], Gilmour J refused an application for an extension of time to file a notice of appeal in respect of a decision of the Federal Circuit Court. The application was made by a litigant in person. One proposed ground that was sought to be raised was expressed as 'Federal Circuit Court judge erred, by failing to properly consider Refugee Review Tribunal … fell into jurisdictional error'. His Honour found that failure to particularise a ground of review was sufficient basis for it to be dismissed, citing WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] which was said to be upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.

5    In WZATH v Minister for Immigration and Border Protection, Siopis J upheld the decision of the Federal Circuit Court in that case, but expressed no view about the statement made below that the failure to particularise a ground of review was a sufficient basis for it to be dismissed. Significantly, in that case the Federal Circuit Court judge, despite stating the general proposition that a failure to particularise a ground was sufficient for it to be dismissed, then went on to give consideration to the grounds for review 'as best [as the Court] can in the absence of particulars'.

6    Nevertheless, the proposition was applied by Gilmour J in CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [21] and was recently cited in MZARG v Minister for Immigration and Border Protection [2018] FCA 624 at [25].

7    It is a proposition that appears to be often applied in the Federal Circuit Court in the manner quoted by North J in Singh v Minister for Immigration and Border Protection [2016] FCA 156 at [11]. See, as recent examples: Sidhu v Minister for Immigration and Border Protection [2018] FCCA 1043; CXK17 v Minister for Immigration and Border Protection [2018] FCCA 1041; and AZX16 v Minister for Immigration and Border Protection [2017] FCCA 2494.

8    The consequences of a failure to particularise a ground will depend upon the circumstances. Where a legally represented party has been afforded an opportunity to remedy the failure to comply then it is to be expected that the ground would be dismissed for failure to comply with the Rules and without any consideration as to whether there may be underlying merit.

9    However, it will rarely be appropriate to dismiss an appeal ground (or a review ground) in a migration case for lack of particularisation where, as here, the appellant (applicant below) seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground. Also, the Court is greatly assisted in these cases by the Minister's discharge of responsibilities as a model litigant in drawing the attention of the Court to any matters known to the Minister through informal communications or consideration of the relevant materials as being underlying concerns that the appellant seeks to raise.

10    Further, in these cases, a submission by counsel appearing for the Minister that a decision under appeal is not attended with any doubt, or sufficient doubt or error must reflect the independent judgment of counsel after considering all of the materials in performance of counsel's paramount duty to the Court. It is not to be based upon the lack of particularisation of grounds by an appellant who is appearing in person.

11    Notwithstanding the form in which the written submissions were expressed, the matter proceeded on appeal by affording the appellant an opportunity to make oral submissions identifying matters of concern in relation to the approach by the Federal Circuit Court to the decision by the Immigration Assessment Authority reviewer. The Minister submitted that there was no appellable error as the Federal Circuit Court judge had dealt with the matters raised by the appellant on his application for review (notwithstanding that they were expressed in general terms) and had done so correctly and nothing was raised orally to demonstrate jurisdictional error by the assessor. For the following reasons, I uphold that submission.

The nature of the appellant's claim

12    The appellant's claim in support of his protection visa application was that he feared that he would be abducted or arrested, detained and tortured by the Sri Lankan Navy if he returned to Sri Lanka. He said that his cousin was beaten by the Navy. When the Navy came to take away his cousin, his father and other people intervened and prevented them. After that his father was travelling to Colombo and disappeared. His cousin later died of his injuries from the beating. These events happened in April 2012.

13    The Immigration Assessment Authority reviewer accepted that the appellant's father and others had intervened and that the Navy officers who were present had left without taking the cousin and had said there would be consequences. The reviewer accepted that the appellant's father had disappeared after that and a missing person report had been filed in Colombo. However, the reviewer found that there was no evidence other than the appellant's personal belief to suggest that the Navy was involved in the disappearance. The reviewer found that the appellant had exaggerated, embellished and fabricated matters to support his claims and gave reasons for those views.

14    After considering country information, the reviewer found, in summary, that the appellant did not have any connections with and was not a supporter of the Liberation Tigers of Tamil Eelam (LTTE), had not been involved in any incidents with the Sri Lankan authorities, had never been sought or questioned by the Navy and his family had not been questioned about his whereabouts by the Navy, would not be perceived as having links with LTTE or imputed political views that would mean that the Sri Lankan authorities would have any adverse interest in the appellant and he did not face a real chance of persecution as a young Tamil man from the north if he returned to Sri Lanka.

15    The reviewer went on to consider the consequences for returning Sri Lankans who had left the country illegally and had sought asylum in another country. The reviewer also made a separate assessment concerning complementary protection. The reviewer concluded that the appellant did not face a real risk of significant harm.

The application to the Federal Circuit Court for judicial review

16    The application to the Federal Circuit Court sought to invoke its jurisdiction under s 476 of the Migration Act 1958 (Cth). Relevantly, for present purposes, that required the appellant to demonstrate jurisdictional error in the decision by the Authority. However, in substance, the application to the Federal Circuit Court sought merits review. It made general claims that there were errors in the proper assessment of evidence, conclusions reached without considering all available evidence, conclusions based on conjectures, error in findings about the credibility of the appellant as a witness and conclusions about the situation prevailing in Sri Lanka pertaining to young Tamils like the appellant.

17    The appellant sought to rely upon two additional articles, not before the Authority, which were said to point to the real situation in Sri Lanka.

18    The first article was a press release dated 14 July 2017 (a few days before the Authority published its decision). The second was an article from The Diplomat magazine dated 21 July 2017 (also after the Authority published its decision).

19    As to the two articles, the Federal Circuit Court found that the appellant (then applicant) did not seek to submit them to the Authority. As they were advanced only as material that should be brought to account in making the decision whether to grant the applicant a protection visa (and not as evidence supporting a particular claim of jurisdictional error) that finding alone was a sufficient basis to support the refusal. The Federal Circuit Court relied upon other matters, but it is not necessary to consider whether they also provided support for the refusal to receive the two articles into evidence.

20    Significantly, no claim was made (or could be made given the dates of publication) that the Authority acted unreasonably in failing to get information of the kind stated in the two articles such that there could be said to be an unreasonable failure to exercise the discretionary power in Part 7AA Division 3: see the analysis by Thawley J in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71].

21    Finally, the grounds raised in the Federal Circuit Court included 'bias based on conscious or unconscious prejudice'. The claim appeared to rely upon an inference to be drawn from the reasoning of the Tribunal. Such claims are difficult to establish for good reason: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [18]; and SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]. Adverse findings alone do not establish bias. In circumstances where nothing beyond adverse findings as to credibility supported by reasons had been demonstrated, the Federal Circuit Court correctly rejected this claim.

Appeal to this Court

22    Before me, the appellant made submissions about the circumstances concerning the disappearance of his father and his mother's fear that the same would happen to him if he returned to Sri Lanka. However, these were factual matters that did not disclose error in the decision of the reviewer or the reasons of the Federal Circuit Court.

23    The appellant also relied on the two articles concerning the circumstances in Sri Lanka that had been presented to the Federal Circuit Court. No error has been demonstrated in the approach by the Federal Circuit Court to the two articles. In principle, evidence which was not before the original decision-maker will only be admitted and considered insofar as it concerns whether there was jurisdictional error, not in order to support a claim that fact-finding by the original decision-maker was wrong: see the authorities collected by Greenwood J in SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [56]-[57]. Further, there is no error by a decision-maker (in this case the reviewer) in failing to take into account events after the decision by the reviewer: SZOIG v Minister for Immigration and Border Protection [2016] FCA 547 at [27].

24    Finally, the appellant said that the reviewer and the Federal Circuit Court did not consider his safety. However, it is clear that the reviewer did address the issue and concluded that the appellant would not face a real risk of serious harm.

25    The appeal should be dismissed with costs.

Associate:    

Dated:    31 May 2018