FEDERAL COURT OF AUSTRALIA

ANA18 v Minister for Home Affairs [2018] FCA 1854

ORDERS

THE COURT ORDERS THAT:

    The appeal is dismissed.

    The appellant is to pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an appeal from the determination of the Federal Circuit Court of Australia (FCC), delivered on 1 June 2018, which dismissed an application for judicial review of the Immigration Assessment Authority’s (IAA) affirmation of the decision of a delegate of the Minister for Home Affairs. The delegate’s decision was not to grant the appellant a Safe Haven Enterprise visa (SHEV).

2    On 21 June 2018, the appellant filed a Notice of Appeal from the decision of the FCC. The grounds in the Notice of Appeal were, it appears, drafted by the appellant.

3    It is not irrelevant to note that the appellant is presently in immigration detention at Villawood and has not had access to legal assistance.

Background

4    Although the background and history of the appellant’s visa claims are summarised by the primary judge, it is necessary to mention some of the relevant facts.

5    The appellant is a citizen of Sri Lanka who made an application for a subclass 866 Permanent Protection visa on 5 June 2012. That application was rejected and, subsequently, at the invitation of the Minister, he applied for a SHEV in September 2017.

6    The appellant based his visa claim on several allegations. First, that he is a Tamil Hindu who witnessed the shooting of his uncle, allegedly by the Criminal Investigation Department (CID), a branch of the Sri Lankan government. He claimed the shooters then went after him, but he was able to escape. He alleged that since the shooting, whoever was responsible for the killing have been looking for him. Secondly, he claimed he was constantly harassed and targeted by police officers and other authorities in his village. He said that if he returned to Sri Lanka he will be tortured and killed by the CID because of his uncle and his ethnicity or he may be killed because of his suspected association with the Liberation Tigers of Tamil Eelam (LTTE).

7    The appellant made his application for a Protection visa on 5 June 2012. On 22 August 2012 he made a statutory declaration to support his application which detailed the foundations of his claims. The delegate refused to grant his Protection visa on 28 March 2018 and the appellant applied for review of that decision to the Refugee Review Tribunal (RRT). He provided the RRT with additional information and comments, much of which was a response to the delegate not accepting that men came to look for him on the day his uncle was killed. He also made written submissions to the RRT on 15 April 2013 and 7 May 2013. Those submissions referred to Country Information and responded to other issues raised by the delegate. Nonetheless, on 29 January 2014 the RRT affirmed the delegate’s decision.

8    The appellant then applied for a SHEV and relied on the claims for protection stated in his earlier visa application and linked statutory declaration as well as another statement provided to the RRT. The appellant attended an interview with the Department on 10 October 2017 and, in response to that interview, provided a second statement to the Department on 16 October 2017. In that statement, he said he gets nervous and finds it is hard to re-tell his story. He said that he had been told by his father that his uncle was a LTTE member and held a high position. The appellant said that he had not mentioned this sooner because there was no documentary evidence and no one would have believed him. He further claimed that because of a Departmental data breach, the situation in Sri Lanka is now worse because he believes the government now knows he sought asylum in Australia and so they were now more convinced of his suspected LTTE membership. He also said further that his grandmother has been threatened by the CID who has been searching for him.

9    On 22 November 2017, the delegate refused to grant the appellant the visa and on 30 November 2017, the matter was referred to the IAA.

Decision of the IAA

10    In a letter dated 30 November 2017, the IAA acknowledged the matter had been referred to it and noted that the Department had provided to it all documents relevant to the case. It was also noted that new information can only be considered in limited circumstances.

11    On 21 December 2017, the appellant’s migration agent provided a submission to the IAA, some of which referred to information before the delegate and some of which referred to additional information. The submission referred to the United Nations High Commissioner for Refugees Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process. That document was dated 20 November 2017 and the IAA was satisfied that it could not have been provided to the delegate before the decision. It was submitted that the UN document was relevant when assessing inconsistencies in the appellant’s evidence and the plausibility of his claims. The IAA concluded it ought take into consideration the UN document and submissions made in respect of it.

12    The submissions made on behalf of the appellant also asked the IAA to call him for an interview if there were any doubts as to his credibility or any aspect of his claims. The IAA’s decision referred to s 473DB of the Migration Act 1958 (Cth) (the Act), which provides that, generally, the IAA must review decisions on the papers without interviewing the applicant. Section 473DC provides that the IAA does not have a duty to obtain, request or accept any new information. It was noted that the appellant had been represented by the same migration agent during his visa application process and had been afforded a number of opportunities, both orally and via writing, to present his claims and evidence. As well, he has been given opportunities to address issues arising from his claims and previous findings. For those reasons, the IAA decided it was not necessary for it to interview the appellant.

13    The IAA considered that, overall, the appellant had made five claims. They are outlined at [3] of the IAA’s reasons and [11] of the judgment of the FCC. The appellant claimed a fear of harm because:

(1)    He witnessed the death of his uncle.

(2)    His uncle was a member of the LTTE.

(3)    He was a Tamil.

(4)    Some of his personal details were published in the data breach.

(5)    He would return to Sri Lanka a failed asylum-seeker, who fled Sri Lanka illegally.

The IAA considered each one of those claims in detail.

14    In relation to the claim that the appellant had witnessed the shooting and death of his uncle it was noted that, whilst his evidence was confused and/or inconsistent (at [15]), the core elements of that story had remained consistent and the IAA was prepared to accept that it had occurred. It was accepted that any implausibility in the appellant’s story likely arose from a combination of the appellant’s age at the time, trauma and lapse of time. The shooting allegedly occurred in 2007 when he was 11 years old and he had made his statements in relation to the incident at least five years after it occurred. Ultimately, while the IAA accepted that the appellant’s uncle was shot and killed, it did not accept that this was because of his LTTE profile, or that the attack was perpetrated by the CID (at [18]). It was noted that the Country Information available to the IAA did not suggest that the CID conducted itself in the way claimed by the appellant.

15    The IAA considered other inconsistencies in the appellant’s claim. For instance, while it determined that his uncle was not a high-ranking member of the LTTE, if he were, it was implausible that the CID might target the appellant, an 11 year old, and not his father, his uncle’s brother. The appellant’s father has never been arrested, detained, interviewed or subject to any kind of harassment, investigation or interest (at [19]). Another implausibility was that the appellant went to the same school in Udappu after the incident. He remained at that school for five more years and the IAA concluded it was implausible that if persons were seeking him they would not have been able to find him. It did not appear that they tried to find him even though he remained enrolled at one institution (at [22]).

16    For those reasons, the IAA did not accept that any Sri Lankan authority was, or would now be, looking for the appellant in relation to the death of his uncle (at [23]).

17    The appellant also claimed to have suffered abuse from Sri Lankan authorities. However, the IAA found that his evidence in relation to this was vague and sometimes inconsistent although it was acknowledged that he was a young boy at the time of these events. It was acknowledged that as a young Tamil, he may have been targeted by the authorities for harassment, abuse, intimidation and low-level violence. But this harm was opportunistic harm and the IAA found that the appellant was not personally targeted by authorities (at [24]). The IAA did not accept that he had an adverse profile with any Sri Lankan authority for any reason. It was satisfied that he did not face a real chance of harm (at [25]-[26]).

18    In relation to the data breach, the IAA said: it was accepted the appellant’s details were published, but that information did not include information about his claims for protection; it was accepted that it was possible the Sri Lankan authorities would know of his claim for asylum and that he was held in immigration detention; the appellant’s migration agent submitted that the appellant’s risk profile will be heightened because of the data breach and there would be more reason to suspect the appellant had LTTE affections. However, as the IAA did not find the appellant was of any adverse interest to the Sri Lankan authorities, it was not accepted that there was an existing suspicion and, therefore, it was not accepted that that suspicion would be intensified by the data breach (at [29]).

19    Next, the IAA considered the likelihood the appellant would face a real chance of harm because of his mental condition. It was noted that there is universal, free health care available in Sri Lanka, although it facilities vary and not all medicines and services are available. It was also acknowledged that mental health care was not abundant and mental illness is not widely discussed in Sri Lanka, which itself acts as a barrier for individuals seeking assistance (at [30]). There was no medical evidence before the IAA that went to the appellant’s condition, treatment requirements or recommendations for ongoing care or management save that in 2013 he was assessed as requiring counselling. There was no information about the appellant not having access to the Sri Lankan health system or the level of care which he required. Furthermore, it was observed he would be able to return to live with his family. The IAA was not satisfied that he would face a real chance of harm because of his mental health condition.

20    The IAA then discussed at great length the circumstances of being a Tamil Hindu in Sri Lanka. It was accepted that, being of that ethnicity, the appellant suffered harassment, violence and serious mistreatment. However, it was also noted that the situation in Sri Lanka has improved significantly since 2012 when he left. The IAA canvassed Country Information in relation to the situation of Tamils in Sri Lanka from DFAT, the UN, the United States Department of State and the United Kingdom Home Office and concluded that Tamils do not now face a real chance of harm on the basis of ethnicity (at [46]).

21    Next, the IAA considered whether or not the appellant would face any harm or discrimination on the basis of having sought asylum overseas and, in particular, because he had departed illegally. Information before the IAA indicated that returned asylum seekers without an adverse profile are generally not at risk of harm at the airport upon their return. The IAA concluded that there was no real chance the appellant would suffer harm upon return (at [53]).

22    The IAA considered that the appellant may be arrested and charged for departing illegally if he were to return to Sri Lanka. An illegal returnee may be remanded in custody for a short period before being brought before a magistrate. Country Information indicated that where a person pleads guilty they will be fined and discharged; where a person pleads not guilty they will immediately be granted bail. Considering the appellant’s father was able to pay for his travel to Australia, and there was no evidence he suffered financially from doing so, and that the bail can be paid in instalments, the IAA did not accept that the requirement to pay a fine would cause economic hardship, or constitute serious harm (at [57]).

23    It was submitted that the appellant is vulnerable and that his personal circumstances should be taken into account, specifically his mental health. However, it was noted there was no information that persons held in detention are denied access to medical treatment. The IAA was also satisfied that, to the extent he might be fined, detained or questioned under the relevant Sri Lankan laws, that would not constitute serious harm (at [61]).

24    For those reasons, the IAA concluded that the appellant did not face a real chance of harm because of being a returned asylum seeker, the death of his uncle, any real or imputed association with the LTTE, previous incidents with the Sri Lankan authorities, any medical conditions, including his mental health, being a Tamil, or the data breach. The appellant did not satisfy the requirements of the definition of refugee in s 5H(1) of the Act and so did not satisfy s 36(2)(a).

25    Next, the IAA considered the Complementary Protection criteria, which applies where, as a necessary and foreseeable consequence of a person being removed from Australia to a receiving country, there is a real risk the person will suffer significant harm. For the same reasons that the IAA found the appellant would not face a real risk of harm, the IAA found that the appellant does not face a real risk of significant harm.

Appeal to the FCC

Application for an adjournment

26    At the hearing of the application for review before the FCC, the appellant made an oral application for an adjournment. He claimed that he needed time to obtain legal representation. After hearing the application, the primary judge determined that it was not in the interests of the administration of justice that an adjournment be granted and he gave ex tempore reasons for that decision: ANA18 v Minister for Home Affairs [2018] FCCA 1372. As one of the discernible grounds of appeal to this Court is that there was some error in the primary judge’s refusal to grant an adjournment, it is appropriate to refer to the primary judge’s reasons in relation to this issue in some detail.

27    The appellant told the primary judge that he had made contact with pro bono legal assistance and while that service had initially indicated it could assist him, it then retracted the offer and said it could not. It is, perhaps, worth noting that the service the appellant had contacted, the Refugee Advice and Casework Service, was a referral service only. The primary judge asked the appellant how he might go about obtaining the assistance of a lawyer (at [5]), but he was unable to articulate any precise steps and said that he would try his level best to obtain one. He then said he had also attempted to call a lawyer but that the lawyer was overseas, or so he was allegedly told by his friends.

28    The Minister opposed the adjournment because firstly, the appellant was aware of the need of securing legal representation and secondly, it was submitted the appellant was seeking an open ended, albeit limited by time, opportunity to obtain legal representation.

29    The primary judge identified that whether an adjournment should be granted is a matter of discretion and, in exercising that discretion, a Court ought to consider why an applicant is not ready to proceed, whether there would be prejudice to an applicant if an adjournment is not granted, and the prejudice likely to be suffered by the opposing party.

30    The learned judge held he could accept the appellant was not ready to proceed because he needed legal representation, which he was unable to secure. In relation to any potential prejudice suffered by the appellant, he concluded that it depended on whether there was any prospect the appellant would be able to obtain legal representation (at [9]) and he was not satisfied there was any such prospect. In reaching that latter conclusion he observed the appellant filed his application three months before the hearing and had not, in that time, managed to obtain legal representation. That was, his Honour said, a basis for doubting whether he would be able to obtain legal representation. The appellant’s claim that he would try his level best to obtain representation did not allow the judge below to form the view there was any prospect in him securing representation.

31    The judge below also noted that it was not immediately apparent securing representation would result in any benefit. He did not lay great stress on that conclusion as it would involve a consideration of the merits, however, he did emphasise that he was not satisfied there would be any utility in granting the application (at [10]).

32    The prejudice suffered by the Minister was also considered. Here, if an adjournment was granted the Minister might obtain an order for the costs thrown away, however, that order would be inutile as the appellant would be unlikely to be able to meet such an order (at [11]). That being so it was apparent that the Minister would suffer prejudice from the granting of the adjournment.

33    It is for those reasons that the application for an adjournment was refused.

Consideration of grounds of review

34    The application to the FCC contained the following grounds of review:

1.    The Immigration Assessment Authority failed to consider and take into account a Relevant Consideration.

Particulars

(i)    As a Member of social group Tamil Hindu from Udappu in the North western Province of Sri Lanka

(ii)    Applicant fear persecution from Sri Lana Government (CID) being targeted as a chief witness to his uncle’s death in Sri Lanka

(iii)    The Applicant fear of harm because the Sri Lanka government (CID) wanted he to come forward as a witness to his uncle’s death, follow on going investigation and reconciliation for those who lost their life during the civil war, as a chief witnesses to his uncle’s death, the applicant feared to go against the government (CID) and feared from the LTTE groups if he failed to complied. As a result the Applicant cannot express his opinion and he is not safe to go back to Sir Lanka.

 2.    The Respondents denied the applicant procedural fairness and natural justice

3.    Leave to fill amended application with particulars and any supplementary affidavit and any relevant documents

[Errors in original].

35    Despite the inclusion of item three, before the FCC the appellant did not file an amended application, any affidavit material other than that which supported the application for review and nor did he adduce any further documents. It was, therefore, necessary to consider grounds 1 and 2, only.

36    The primary judge concluded that ground 1 could be taken to claim that each of the three particulars was a “claim” before the IAA, but that the IAA failed to consider them. The learned Judge set out, first, the principles that ought be applied when determining what are an applicant’s claims, or integers of claims, which a decision maker is obliged to consider (at [28]). He considered the Full Federal Court decision of NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 (NABE (2)), and, particularly from that judgment that:

(a)    The Tribunal’s function is to respond to the case advanced; the Tribunal is not obliged to consider claims that have not been made.

(b)    The Tribunal must deal with the case raised by the material and evidence before it. The question is whether the case put before the Tribunal has sufficiently raised the relevant issue that the Tribunal should have dealt with.

(c)    The Tribunal is not only required to deal with claims expressly articulated by an applicant, and, at the same time, is also not required to consider a case not expressly made or one that does not clearly arise on the materials before the Tribunal.

37    The learned judge below also considered NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 where Allsop J (as he was then) cited NABE (No 2) for the proposition that:

A practical common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

38    Having discussed those principles, the primary judge considered particular one of ground 1. He held that ground could not be made out as the IAA had, in fact, considered a claim based on the appellant being a Tamil male from the North West and a Kindu. It followed there was no foundation to this particular of ground 1.

39    In relation to particulars two and three of ground 1, his Honour said:

(a)    Those particulars were related.

(b)    That the appellant did not make any claim that on his return to Sri Lanka he would be exposed to a risk of harm because the CID would require he be the chief witness to his uncle’s murder. The appellant’s claims were, as set out in [33] of the learned judge’s reasons, that the appellant believed the perpetrators of the killing were, or associated with, the CID; that the appellant’s uncle was killed because he was, or was perceived to be, a high ranking member of the LTTE; and, that the appellant believed he would also be at risk because the perpetrators attempted to harm him because of his avuncular association.

(c)    The question was then whether or not the two claims asserted in particular two and three were tolerably clear from the material itself.

40    The learned primary Judge was satisfied that the claims did not arise tolerably clearly, or at all, from the claims which had been made to or from the material before the IAA (at [34]). In particular, it was noted that the claims before the IAA were inconsistent with those advanced on appeal before the learned primary judge. Particularly, those new claims were premised on the CID now wishing to bring to justice those people whom the appellant claimed to fear, with the assistance of the appellant. For those reasons, particulars two and three of ground 1 also failed.

41    Ground 2 claimed the IAA denied the appellant procedural fairness and natural justice. That ground was not particularised. Notwithstanding the lack of particulars, there was nothing to indicate that the IAA failed to comply with its obligations in relation to procedural fairness and natural justice.

42    The appellant, in the FCC, therefore, failed to demonstrate the IAA made any jurisdictional error and the primary judge dismissed the application.

Appeal to this Court

43    There were three grounds of appeal formally advanced to this Court in the Notice of Appeal although they included what purported to be a variety of particulars which were not necessarily connected to any of the identified grounds or to the grounds in respect of which they were said to be particulars.

44    At the hearing of the appeal the appellant attended although he did not speak. On multiple occasions he was invited to address the Court and advance any submission which might promote the grounds of his appeal. He did not respond orally or by action to any of those invitations and he did not address the Court at all.

45    In circumstances where the appellant is unrepresented and where it was apparent that he was unable to present any argument in support of his appeal, it is appropriate to analyse and consider the grounds of appeal taking them at their highest.

Ground 1

46    The first ground was expressed as follows:

The applicant erred at [10] & [11] in finding that the trial judge in conducting the adjournment had denied the appellant procedural fairness by failing to put the respondents arguments to the appellant upon which the respondents had relied, for the reasons that the respondent’s conclusion was obviously open on the known material the applicant has taken steps in finding a legal representation because of his limited English language as result he could not make submissions and stand trial by himself because of the technicality of legal procedures inspite of the interpreter.

Particulars

(a)    The trial judge found that there was only a remote chance that the appellant will be harmed by Sri Lanka authorities on account of departing Sri Lanka illegally and seeking asylum overseas.

(b)    The Trial judge said that “[b]ased on the country information”, the appellant had not engaged in activities and did not have a profile disclosed in that country information that would suggest that he would be harmed upon his return to Sri Lanka.

(c)    The primary judge and (IAA) held that whether the appellant had engaged in certain activities or had a certain profile such as to expose him to risk for leaving Sri Lanka illegally and seeking asylum was an issue obviously open on the face of the material that he was a witness to his uncle’s death only, and he will only be arrested and charged for leaving Sri Lanka illegally, if pleaded guilty he will be made to pay fine and discharged and his family will help him sine they paid for his travelling to Australia, and if not plead guilty he will be granted bail on personal surety.

i.    A situation the IAA did not know if the family can afford the fine for the applicant, The Applicant contended they cannot afford any fines.

ii.    A situation that the applicant will be arrested and charged and detained until the court process is completed by the magistrate and he may be sent to prison, that will expose the applicant more to the CID the applicant feared for his returns to Sri Lanka

iii.    These matters were not obviously open on and procedural fairness obliged the the Trial judge and IAAT to put the country information to the appellant.

[Errors in original].

Refusal of an adjournment

47    The determination by the trial judge not to grant the appellant an adjournment of the hearing before the FCC was the exercise of a discretionary power. That being so, the circumstances in which an appellate Court might interfere with its exercise are limited by well-established principles: House v The King (1936) 55 CLR 499. In essence the Court will not interfere with the exercise of discretion unless it is shown that the primary judge acted upon a wrong principle, taken into account extraneous or irrelevant matters, failed to take into account a relevant consideration or mistaken some material fact. In migration matters this Court has recognised that an unreasonable refusal to grant an adjournment would be an error which might be rectified on appeal.

48    Here, no error in the exercise of the discretion by the primary judge has been identified. From the analysis of the primary judge's decision to refuse the adjournment, it is apparent that all relevant considerations were taken into account. The appellant has not identified any which were not. It is also not suggested that any irrelevant matter was taken into account. The primary judge acted on the correct principles of weighing the need for an adjournment, the circumstances in which it arose and any prejudice to the other party. He took into account the ground advanced by the appellant that he needed to secure legal representation and determined that the securing of such representation was unlikely in the circumstances. That was particularly so because none had been secured as at the date of the hearing.

49    Far from there being any discernible error in the decision of the learned primary judge, his reasons demonstrate a careful analysis of the circumstances and a proper and correct weighing of each matter. There is nothing to show that the primary judge's decision in this respect was in error.

50    There is no merit in the ground of appeal that the appellant was wrongly denied an adjournment of the hearing of his application.

Subparagraphs (a) and (b) of ground 1

51    Both subparagraphs (a) and (b) of ground 1 were not grounds agitated before the primary judge. Whilst, technically, leave is required to advance these new grounds on appeal, Mr Kay Hoyle indicated that the Minister did not take any point in that respect.

52    In responding to these grounds, Mr Kay Hoyle correctly submitted that they do no more than challenge the conclusions of the IAA in respect of the appellant’s claims and, inferentially, ask this Court to engage in a merits review of those determinations. There is nothing in the particulars provided which suggest that the IAA made any jurisdictional error in its determination relating to the issues in subparagraphs (a) and (b) which would vitiate its decision.

53    Neither this Court nor the FCC are generally entitled to revisit the merits of the decision of the Tribunal. The limits of the power of the Courts is to consider whether the Tribunal has made a jurisdictional error in the manner in which it went about making its decision. Subparagraphs (a) and (b) of ground 1 do not raise any error which this Court might consider.

Subparagraph (c) of ground 1

54    Subparagraph (c) of ground 1 seeks to raise an issue as to the IAA’s determination of the likely consequences to the appellant on his return to Sri Lanka as an illegal returnee. In particular it seeks to raise a question as to the harm which might be inflicted upon him or to which he might be subjected because he was a member of a particular social group.

55    As Mr Kay Hoyle submitted on behalf of the Minister, this issue was given extensive consideration by the IAA in its reasons for decision from paragraphs [49] to [64]. The IAA considered the circumstances in which the appellant might be held in custody or on remand were he to be charged with leaving the country unlawfully. After considering the appellant's family circumstances, including that his father had paid for his travel to Australia, it was not satisfied that his family would not be able to raise the money to pay any bail or fine or to provide any guarantee necessary to release him.

56    The point raised by ground 1(c) might be taken to suggest the IAA did not properly consider whether his family could afford to pay any fine or bail condition. This critical issue was directly dealt with by the IAA and it cannot be said that any error which might vitiate the decision arises in respect of its conclusion. It might also be noted that, to the extent to which it is suggested the Tribunal did not consider that the appellant might be arrested and charged and held in prison, that submission cannot be accepted. Those matters were expressly considered and taken into account by the Tribunal in reaching its conclusion. Again no error in the decision making process arises.

Ground 2

57    The second ground in the notice of appeal was as follows:

The Trial judge erred in finding that the appellant suffered no practical injustice as a result of the IAA not putting country information to him because the appellant had not claimed to have engaged in the activities or had the profiles referred to in the country information does not portraits he was a known figure neither his uncle.

Particulars

(a)    Procedural fairness required these matters to be put to the appellant precisely so that he could address them.

(b)    That he was not a big profile nor his uncle was not well known in Sir Lanka, material did not previously address the matters relevant on the country information is not a proper basis to conclude that he suffered no practical injustice.

(c)    It is unnecessary for the appellant to have made a submission in order to demonstrate a denial of procedural fairness, when he took all steps to address this issues by contacting RACS (Refugee Advice and Case work services) which later declined to represent him for submission and hearing.

(d)    The appellant reserves the right to make submissions to the effect that this submission was not made, Contrary to the notation that the reasons by the Trial judge, the appellant represented himself at the hearing. The hearing having taken place almost 5 years prior to the applicant in the community, notwithstanding that the appellant was in the community and detention and had been in community/detention prior to the hearing, the applicant drawing this notice of appeal cannot recall precisely the submissions that was made by RACS. To the best of applicant’s recollection.

[Errors in original].

58    This ground appears to raise questions of procedural fairness. That said, the nature of the alleged procedural unfairness is fairly opaque. Some of the particulars of this ground appear to relate to the adjournment application rather than the substantive matters before the IAA or issues concerning the appellant’s actual or imputed political profile in Sri Lanka.

59    Before the primary judge the ground advanced was that, “the respondents denied the applicant procedural fairness and natural justice”. That allegation was not particularised. The learned primary judge (at [36]) correctly identified that, in the absence of any identification of the nature and extent of any alleged failure to accord procedural fairness, the ground could not succeed. As the Minister correctly submitted, the absence of particulars of such a generic allegation invites speculation as to the nature of the errors alleged and places the respondent in the position of having, in effect, the onus of proving that there was no procedural fairness. That alone is sufficient to dismiss this ground of appeal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760, [35]; SZNXAV v Minister for Immigration and Citizenship [2010] FCA 775, [21].

60    It must also be kept steadily in mind that the natural justice obligations of the IAA are limited by the provisions of Div 3 of Part 7AA of the Act: DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [58]-[64]; BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71]; DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [75]-[76]; BSQ16 v Minister for Immigration and Border Protection [2018] FCA 469 at [32]. The IAA was not obliged to conduct any hearing or interview and nor was it obliged to put any of the material to the appellant. Whilst there is a discretionary power in the IAA to invite a person to provide further information or attend an interview, there is no obligation on it to do so. Quite properly, it considered whether it ought exercise its power under that section. Its reasons for concluding that it was not satisfied that an interview was necessary or required in the circumstances appear at paragraph [8] of its decision. There is no suggestion that the IAA failed to properly consider exercising its power.

61    In the circumstances, the above matters are a complete answer to the appellant’s ground of appeal in this regard and it must fail.

62    This ground also alleges that there was a further denial of procedural fairness by the IAA. Essentially, the body of the ground and particulars (a) and (b), allege that the Country Information used by the IAA should have been put to him and that the IAA made an error concerning the appellant’s profile in Sri Lanka. Before the primary judge, such ground was unparticularised and the learned primary judge was right to conclude that, in the absence of particulars, the claim could not be made out. The IAA was not required to put the Country Information to the appellant, nor was it required to interview the appellant and, further it is not required to obtain any new information: ss 473DE(3), 473DB and 473DC of the Act.

63    As the Minister submitted, the learned primary judge did not fall into error in relation to this ground. There was no reason to find the IAA made any error of the kind identified in ground 2.

64    Particulars (c) and (d) of ground 2 relate to the appellant’s application for an adjournment which has been considered above. The primary judge made no error in refusing the adjournment.

Ground 3

65    The third ground in this appeal was the same as the only particularised ground of appeal in the court below. It was as follows:

3.    The Immigration Assessment Authority failed to Consider and take into account a Relevant Consideration.

Particulars

(i)    As a Member of social group Tamil Hindu from Udappu in North western Province of Sri Lanka.

(ii)    Applicant fear persecution from Sri Lanka Government (CID) being targeted as a chief witnesses to his uncle’s death in Sri Lanka.

(iii)    The Applicant fear harm because the Sri Lanka government (CID) wanted he to come forward as a witness to his uncle’s death, follow on going investigation and reconciliation for those who lost their life during the civil war, as a chief witnesses to his uncle’s death, the applicant feared to go against he government (CID) and feared from the LTTE groups if he failed to complied. As a result the Applicant cannot express his opinion and he is not safe to go back to Sri Lanka.

[Errors in original].

66    By this ground the appellant asserted the IAA failed to take into account certain relevant considerations. It is uncontentious that where a decision maker fails to take into account a consideration which is legally regarded as “relevant”, a jurisdictional error might arise: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. However, in this case, the “considerations” identified by the appellant in ground 3 are not “considerations” in the relevant legal sense. Nevertheless, they were integers of the claims advanced and it is appropriate to approach this ground on the basis that the appellant asserts the IAA failed to consider relevant component integers of his claims: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244.

67    However, even giving the ground this favourable complexion, on the face of the reasons of the IAA, it is apparent it considered each of the relevant integers referred to in ground 3.

68    The appellant submitted that the IAA failed to take into account his membership of a particular social group being “Tamil Hindu from Udappu in the North Western Province of Sri Lanka” and that he would face harm because of that. However, from [32] to [46] of the IAA’s reasons it considered the position of Tamil males from the North West of Sri Lanka who were Hindus. It accepted that as a Tamil and a young male from that part of Sri Lanka, the appellant had experienced harassment, violence and serious mistreatment in the past. It also accepted that treatment was related to his ethnicity. However, it then considered the political and social situation in Sri Lanka since 2012 and noted the substantial improvement in general security and in the treatment of Tamils specifically. At [46] it concluded that as a result of the change in position in Sri Lanka and the activities of the government in preventing violence, the appellant, as a Tamil, did not face a real chance of harm on the basis of his ethnicity.

69    It follows that the identified integer of the appellant’s claim was considered by the IAA and no error arose. The primary judge was correct to reach this same conclusion.

70    The particulars of ground 3 also assert that the IAA failed to consider the appellant’s claim that he feared persecution because the Sri Lankan government through the CID wanted him to be a witness in the prosecution of the murderers of his uncle. He said that he feared that members of the LTTE will be prosecuted and, because the CID will require him to be a witness, he will be targeted by the LTTE. However, the central difficulty with this ground is that the appellant’s claim to fear harm from the LTTE was not one he made clearly or at all before the IAA. The IAA dealt with the claim advanced by the appellant before it that his imputed support for or association with the LTTE would give rise to a risk of harm from the government authorities as it was required to do. However, there was no obligation on it to consider a claim which was not made to it nor clearly articulated on the basis of established facts: NABE (No 2). It follows that the IAA made no error by not considering a claim which was not advanced before it.

71    The claim actually advanced before the IAA and the delegate was that the appellant feared persecution from the Sri Lankan government (CID) because he had been a witness to the killing of his uncle by the CID. He said that his uncle was associated with or had an imputed association with the LTTE. However, the IAA did not accept that the appellant’s uncle was a high profile member of the LTTE or that the CID killed him. It reached that conclusion because of a number of implausibilities in the appellant’s evidence as to the relevant events. The conclusion by the IAA that the CID did not kill the appellant’s uncle was pivotal to the rejection of his claim of fear of harm from the CID. The IAA, therefore, concluded that neither the CID nor the Sri Lankan authorities would be seeking the appellant were he to return to Sri Lanka in relation to the death of his uncle or because of his relationship with his uncle.

72    Consequently, to the extent to which the above is a separate ground of appeal there was no error by the IAA in the manner in which it dealt with it. Further, there was no error by the primary judge in not detecting any error.

73    It follows that this ground also cannot succeed.

Ground 4

74    The substance of ground 4 is dealt with by the comments in respect of ground 2.

Grounds 5

75    Ground 5 was as follows:

Leave to file amended application with particulars and any supplementary affidavit and any relevant documents.

76    No amended application and indeed no other documents were filed in respect of which leave was sought and, consequently, this ground becomes otiose.

Conclusion

77    It necessarily follows from the above that none of the grounds in the Notice of Appeal can be sustained. The appeal must be dismissed and the appellant must pay the first respondent’s costs of the appeal.

Associate:

Dated:    28 November 2018