FEDERAL COURT OF AUSTRALIA

EJB17 v Minister for Immigration and Border Protection [2019] FCA 742

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J

Introduction

1    The appellant is a citizen of Sri Lanka, originally from the Eastern Province. He is of Tamil ethnicity and of the Hindu faith. He left Sri Lanka by boat and, after a brief diversion to Indonesia, the appellant arrived by boat in Australia in November 2012. The appellant was classified as an unauthorised maritime arrival for the purposes of the Migration Act 1958 (Cth).

2    On 18 December 2018, the appellant filed a notice of appeal from the whole of a judgment of the Federal Circuit Court of Australia delivered ex tempore on 30 November 2018. The reasons were published on 15 January 2019: see EJB17 v Minister for Immigration and Border Protection [2018] FCCA 3883. The primary judge dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority, made on 5 September 2017, affirming a decision of a delegate of the Minister not to grant the appellant a Safe Haven Enterprise (subclass 790) visa.

Grounds of judicial review and primary judge’s decision

3    The grounds of the appellant’s judicial review application were as follows (as written):

Ground 1– The IAA failed to consider an integer of the applicant's claim, which was on the facts.

Particulars

a. The IAA outlines the applicant's claims at [7].

b. The IAA accepted that the applicant’s father was detained for several months in 1985 on suspicion that he was involved with the LTTE [35].

c. The IAA failed to consider an essential integer that the applicant had familial connections to an individual with imputed links to the LTTE.

d. More details to be provided once court book is made available to the applicant.

Ground 2 – The IAA failed to consider that the applicant was a member of a particular social group and if he would suffer harm if returned.

Ground 3 – The IAA made a legal error at [3], because it failed to clarify with the applicant regarding a ''police message form" of the document's relevance to the applicant's claims.

4    The primary judge at (J[1]) adopted the Minister’s summary of the claims the appellant made in support of his application for a protection visa as follows:

The applicant is an ethnic Tamil from Sri Lanka from the Trincomalee District (Eastern Province), who claims to fear harm of being killed or seriously injured by the Karuna Group who, it was claimed, had already threatened to kill him and had already harmed his family. The applicant’s claims can be summarised as follows:

(a)    due to his Tamil ethnicity he will be perceived to be connected, or be imputed with connections, to the Liberation Tigers of Tamil Eelam (LTTE) and will face harm, persecution and harassment from the Sri Lankan authorities in turn;

(b)    around 2002-2004 he was involved in protecting the Tamils in his village from Sinhalese attacks and helping the LTTE (though “not involved much in such efforts”);

(c)    he fled to Qatar on several occasions out of fear of being identified and killed by the Sri Lankan Army and/or Karuna Group, and members of that group subsequently obtained his identification details and visited his house;

(d)    his father was previously detained in 1985 on suspicion of LTTE involvement, his brother was killed in 2013 by unknown persons (but the applicant believed that this was done by the Karuna Group), and his friend was killed by the Karuna Group; and

(e)    he also fears harm as a failed asylum seeker who departed Sri Lanka illegally and would be returning from a Western country.

5    At J[7], the primary judge adopted the Minister’s summary of the Authority’s substantive findings and decision as follows (footnotes removed):

The IAA ultimately found that the applicant was not a truthful or credible witness, on the basis of the “significant changes, inconsistencies and implausibility in the applicant’s evidence” across the entry and arrival interviews, SHEV application and SHEV interview. The IAA concluded that the applicant had “exaggerated embellished and fabricated aspects of his evidence to boost his claims/or protection”.

In particular, whilst the IAA accepted that the applicant’s father had been detained in 1985 and the applicant had friends who were killed, it rejected the applicant’s claims that his brother was killed by the Karuna Group and that the Karuna Group has an interest in him or his whereabouts. The IAA further did not accept the applicant’s claims that the Sri Lankan authorities were interested in him or that he had previously provided assistance to the LTTE. It also did not accept the applicant’s claim that his uncle was involved in the LTTE and detained as a result. However, the IAA accepted that the applicant would be regarded by the Sri Lankan authorities as a failed asylum seeker who departed illegally. The IAA also accepted that the applicant and his family may have previously faced a level of hostility from the Sinhalese between 2002-2004.

The IAA proceeded to have extensive regard to country information concerning the circumstances which the applicant would face if returned to Sri Lanka, in light of its earlier findings and the applicant’s claims (to fear harm as a young Tamil male from the Eastern province with imputed LTTE connections, to fear harm from the Karuna Group, and to fear harm as a returned failed asylum seeker who departed illegally). The IAA was not satisfied that the applicant would face a real risk of harm as an ethnic Tamil or that the applicant would be of adverse interest to the authorities or imputed with LTTE connections. The IAA was likewise not satisfied that the applicant would be of adverse interest to the Karuna Group. Finally, the IAA accepted that the applicant was liable to be charged and arrested upon return under the Immigration and Emigration Act, but was satisfied that this would not amount to “serious harm”, given its findings that the applicant was not of adverse interest to the authorities nor imputed with LTTE connections.

On these bases, the IAA was not satisfied that the applicant was a person to whom Australia owes protection obligations by virtue of ss 36(2)(a) or 36(2)(aa) of the Act.

6    In relation to a document referred to as a “police information form”, the primary judge relevantly said at J[3]-[6]:

3.    One of the documents, which was both in a language I assume to be Tamil and in English, was called a “Sri Lanka Police Message Form” dated 21 July 2016. It stated:

...

Please inform the undermentioned person to be present at the Criminal Investigation Department on 2016/07/27 at 9.00hrs for the purpose of obtaining a statement regarding a case now inquired by the Criminal Investigating Department and report back to me.

...

4.    The name set out below that part of the document was a name which was not the applicant’s name and which did not, on my survey of the evidence before the Court, appear at all in any other document that was before either the Department or the Authority. In addition to those documents, a submission was sent to the Authority by Mr Tambimuttu on the applicant’s behalf as well as some further information. On 5 September 2017, the Authority made a decision to affirm the delegate’s decision.

5.    In its reasons, the Authority first dealt with the further information provided by the applicant.

6.    In respect of some of the information, it was satisfied that there were exceptional circumstances to justify considering the documents that was necessary in order for the Authority then to consider the documents, given the provisions of s.473DC of the Act. In respect of the Police Message Form, the Authority said at [3]:

... The police message form was issued 21 July 2016 asking the police to contact a named person at an address in Mandaitivu to attend an interview in relation to a police investigation. On its face the document is not relevant to the applicant or his protection claims.

7    In relation to the first two grounds of review, the primary judge found as follows at J[10]-[12]:

10.    Essentially, they are that while the Authority accepted that the applicant’s father had been detained for several months on suspicion that he was involved with the LTTE, the Authority failed to consider whether the applicant might face harm as a result of that detention. Only the first premise of that ground can be accepted. At [35] of its reasons, the Authority explained that it did accept that the applicant’s father was detained for several months in 1985 and that that was on account of suspicion that he was a member of the LTTE. However, the Authority did consider the impact upon that of the applicant’s claim to be a refugee and to otherwise satisfy the criteria for the granting of a protection visa.

11.    First, at [36], it found that the applicant was not at risk of harm for reason of any links to the LTTE or any imputed political opinion. One of the express reasons given for that conclusion was that, while the applicant’s father was detained by the authorities in 1985, he was subsequently released without charge and it occurred more than 30 years ago.

12.    Secondly, in determining the risk that the applicant might face upon return as a failed asylum seeker and illegal departee from Sri Lanka, the Authority expressly took into account the fact that the applicant’s father had been detained in 1985: [47]. For those reasons, the first and second grounds of the application do not establish jurisdictional error.

8    The primary judge thought that the third ground of review was best understood as being an assertion that the appellant was denied procedural fairness because the Authority came to a view about the relevance of the police message form without giving the appellant a chance to make any submissions about that issue. The primary judge found as follows at [14]-[17]:

14.    Generally speaking a decision-maker is not obliged, in order to afford procedural fairness, to indicate to a person what he or she thinks about that person’s evidence. So long as the inference is drawn, or the conclusions arrived at in respect of that evidence are obvious, then it can proceed to make a decision without reverting to the applicant for further submissions: see, for example, Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576. There is no question that the inference drawn by the Authority was obvious, given the fact that the document did not refer to his name or to the name of any person who appeared to have any relevance to the applicant’s claims.

15.    In any event, the applicant did have an opportunity to present arguments about the relevance of the documents and took that opportunity. It was submitted that the document was amongst those which were “pivotal” to his claims. That said, the proceedings before the Authority are not governed by the ordinary principles of procedural fairness and it is well-established that what must be done in order to afford procedural fairness is governed by the statutory context in which the decision-making takes place. The relevant statutory context is explained in [18] of the Minister’s submissions, which I accept, as far as they go.

16.    The critical question for the Authority in respect of the police message form is, as noted in [18] in the first respondent’s submissions, that, as a general rule, the Authority must review the decision referred to by considering the review material referred to it under s.473CB without accepting or requesting new information and without interviewing the referred applicant. However, under s.473DC, the Authority may, and subject to later matters, consider new information. New information however, must be both information that was not before the Minister when the decision was made and also information that the Authority considers may be relevant. It was the second of these questions that the Authority was dealing with in [3] of its reasons.

17.    By stating that the document was not relevant to the applicant or his protection claims, the Authority was explaining, in effect, that this was not new information within the meaning of pt.7AA of the Act and, for that reason, none of the provisions relating to new information applied to it. Given the over-arching principle in s.473DB of the Act and the express limitation of the natural justice hearing rule in s.473DA, there was no obligation on the Authority to give the applicant any further opportunity to address the relevance of this material. For that reason, the third ground must be rejected.

Appeal

9    The appellant’s notice of appeal contains a single ground, which is as follows:

His Honour erred in holding that there is no jurisdictional error in relation to all three grounds. We will provide in detail the error after receiving the written judgement.

10    The Court was assisted by an interpreter at the hearing. The appellant was not legally represented and appeared in person. The Minister appeared by his legal representative and filed written submissions.

11    The Court noted to the appellant that the ground foreshadowed that further details of alleged error by the primary judge would be provided when the primary judge’s published reasons were received, but none had been filed. The appellant explained that he had been assisted by someone in filing grounds in the Federal Circuit Court but that person had refused to further assist him. The appellant submitted that the delegate and the Authority had found that he had lied but he had told the truth in his claims. He said that he needs to protect his life. It should be noted that the appellant’s submissions went only to the merit of the Authority’s decision.

12    While the difficulty faced by a self-represented litigant cannot be minimised, this Court cannot meaningfully engage with the appellant’s ground of appeal where the ground makes a general and unparticularised complaint of error by the primary judge. As pointed out by Bromwich J in FLW17 v Minister for Immigration and Border Protection [2019] FCA 352 at [17], it is well-established and beyond doubt that an appeal, even by way of a rehearing, requires the identification of error, and is not merely a second trial hearing. It is also not for the Court to perform the function of identification of error where the appellant has not. Where no identifiable error on the part of the primary judge has been alleged, let alone established, and none is otherwise apparent, the appeal must be dismissed with costs. See also SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [17], [24]-[26], [29]-[30] and [32] per Flick J.

13    In this case, the appellant has not identified appellable error by the primary judge and none is apparent in his decision to reject the three grounds of review for the reasons that his Honour gave.

Conclusion

14    This appeal must be dismissed with costs.

Associate:

Dated:    23 May 2019