FEDERAL COURT OF AUSTRALIA

WZASW v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1401

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted for the appellant to rely on the ground of appeal raised in his notice of appeal.

2.    The appeal is dismissed.

3.    The appellant must pay the costs of the first respondent, fixed in the sum of $4,000.

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

REASONS FOR JUDGMENT

(edited from the transcript)

JACKSON J:

1    This is an appeal from orders of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) refusing to grant the appellant a Protection (Class XA) visa.

2    The background to the application is set out in the reasons of the primary judge and it is not necessary to repeat it here: WZASW v Minister for Immigration and Border Protection [2019] FCCA 237 at [5]-[6]. Suffice to say that the appellant, a citizen of Sri Lanka, made claims for protection based on his Tamil ethnicity and allegations that the perceived association between his family and the Liberation Tigers of Tamil Eelam (LTTE) would result in persecution from the Sri Lankan authorities. He also claimed to fear harm at the hands of the authorities if he were to return to Sri Lanka as a failed asylum seeker.

3    The appellant had no legal representation in the Federal Circuit Court and has none in this court. On both occasions he appeared with the assistance of an interpreter. His grounds of review in the application to the Federal Circuit Court were:

1    Jurisdictional error

2.    The Tribunal did not follow the laws of natural justice

3.    The Tribunal was biased in its decision.

4    An affidavit which the appellant affirmed on 21 November 2013 supplemented those general grounds by asserting that the Tribunal failed to consider the current and future situation in Sri Lanka in applying s 36(2A)(e) of the Migration Act 1958 (Cth) to his claims based on his ethnicity and social position, and that it failed to consider his claims adequately, referring to numerous paragraphs of the Tribunal's reasons.

5    The affidavit annexed five documents. The first was a one-page extract from a document entitled Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka dated 31 March 2011 (2011 Report). The primary judge rejected the tender of all five documents. In relation to the extract from the 2011 Report, his Honour found that it had not been before the Tribunal, but the 2011 Report had been referred to in written submissions made on behalf of the appellant shortly before the Tribunal hearing.

6    His Honour found that the 2011 Report referred to the Sri Lankan government's treatment of Tamils in the years following the end of the civil war in Sri Lanka and that it contained country information. On the authority of NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, his Honour held that it was well accepted that the Tribunal was entitled to have regard to its choice of particular country information, and to weigh that information and make reasonable factual findings based on it, if it puts the information to the applicant.

7    The primary judge also held that it should not be inferred, from the fact that the Tribunal did not mention the 2011 Report in its reasons, that the Tribunal did not consider the report. The relevance of the 2011 Report was based on a factual contention that the authorities would impute to the appellant an association with the LTTE. The Tribunal dealt with that claim comprehensively and found that the appellant would not be targeted by the authorities as a result of an imputed association with the LTTE. His Honour held that in putting the documents before the Tribunal, the appellant was inviting the court to reconsider the merits of his protection visa application. He therefore ruled that the documents were inadmissible.

8    Two other documents which the appellant sought to tender before the primary judge also came to be in issue in this appeal. The affidavit designated these as Documents IV and V. Document IV was described by his Honour as a letter dated 30 March 2012 which, on its face, was from an attorney and public notary that set out factual assertions that supported the appellant's protection visa application. Document V was an affidavit from the appellant's father, which also contained evidence potentially supporting the appellant's claims.

9    His Honour rejected the tender of both of those documents, principally because there was no reference to them in the Tribunal's decision, and the transcript of the hearing before the Tribunal indicated that the appellant made no attempt to put the documents before the Tribunal at that hearing. His Honour also mentioned that the documents were not referred to in a submission which the Tribunal received from the appellant's migration agent after the hearing.

10    After rejecting the tender of the documents, the primary judge went on to consider each of the grounds of review that the appellant had advanced. In the context of the claims made in the affidavit his Honour construed the first ground of review as alleging that the Tribunal failed to give adequate consideration to the appellant's protection claims and the current and future situation in Sri Lanka. His Honour concluded that the Tribunal gave active consideration to those matters and that the ground amounted to an impermissible attempt to obtain merits review. His Honour went on to review each of the specific paragraphs of the Tribunal's decision that the appellant identified in his affidavit. He concluded that no jurisdictional error was evident in those paragraphs.

11    As far as the 'laws of natural justice' were concerned, his Honour found no basis for any suggestion that the Tribunal had failed to accord procedural fairness to the appellant, especially in light of the Tribunal's obligations in Part 7, Div 4 of the Migration Act, nor was there any reason to conclude that the Tribunal was biased.

12    His Honour rejected an allegation that he said the appellant made, to the effect that the Tribunal had demanded money before it would consider certain documents that the appellant sought to tender. There was no evidence at all in support of that. His Honour characterised other submissions that the appellant had made as either irrelevant or constituting a plea for impermissible merits review. He therefore dismissed the application for a judicial review with costs.

13    There is one ground of appeal in this court:

Grounds of appeal

The primary Judge erred in not finding that the decision of the Administrative Appeals Tribunal (AAT) was vitiated by jurisdictional error in that it failed to consider the 'Report of the Secretary-General Panel of Experts on Accountability in Sri Lanka' ('2011 Report').

Particulars

The '2011 report' was forwarded to the AAT by the applicant on 16 Jan 2013. This report refers to the Sri Lankan government's treatment of Tamils in the years following the end of the civil war in Sri Lanka. The '2011 Report' was not referred to in the Tribunal Decision.

14    The Minister submitted that the appellant required leave to raise this ground, as it was not raised before the primary judge. But having regard to the fact that the appellant is unrepresented in this court and was also unrepresented in the Federal Circuit Court, he cannot be expected to articulate the grounds of review as specifically or as comprehensively as he would have had he secured legal representation. Bearing that in mind, the appellant did seek to rely on at least part of the 2011 Report before the primary judge, and in the context of an affidavit where he asserted that the Tribunal failed to consider the current situation in Sri Lanka.

15    On a fair reading of that, it encompasses an allegation that the Tribunal erred in failing to consider the 2011 Report, so the point was raised in substance. I am not convinced that leave to raise the ground of appeal is necessary but, for the avoidance of doubt, I grant leave.

16    The Minister submitted that leave should not be granted because the ground lacks merit. While I acknowledge that this is an important and, in many cases, crucial factor to be taken into account in the exercise of the discretion, in the circumstances of this case I do not consider that it outweighs the other factors I have identified. In my view, in circumstances where it appears that an unrepresented applicant did raise the point in substance before the primary judge, he should be given the benefit of the doubt.

17    At the hearing of this appeal, I invited the appellant through an interpreter to say anything else he wished to say in support of the ground of appeal set out in his notice of appeal. Rather than focus on that ground, however, the appellant sought leave to refer me to other documents, the tender of which the primary judge had rejected, being the documents I referred to above as Documents IV and V. The appellant claimed that there had been a mistranslation of what he said to the primary judge about these documents. As I have already mentioned, the primary judge understood the appellant to be saying at one point that the Tribunal had refused to accept certain documents unless the appellant paid money.

18    The appellant said at the hearing of this appeal that in fact what he said to the primary judge was that the Tribunal member told him that it is possible to obtain any kind of documents from Sri Lanka if one pays money. The appellant asked me to listen to the recording of the Tribunal hearing. It is clear, if the appellant's statement is accepted (and there was no objection on the part of the Minister to me receiving that statement from the bar table), that the appellant had not alleged to the primary judge that there was any request for money made by the Tribunal member (which would be a surprising allegation to make), but was instead referring to having been told about what is, in effect, the possibility that Documents IV and V were forged.

19    The Minister objected to leave to rely upon any failure to accept the tender of Documents IV and V as a ground of appeal, because the Minister maintained that it was not raised below, and in any event, there was no merit to the ground. The transcript of the hearing before the Tribunal was before the primary judge, although the recording, which the appellant asked me to listen to, was not.

20    I have reviewed the transcript of the hearing before the Tribunal. The difficulty the appellant faces in relying upon this new ground is that, in contrast to the ground set out in the notice of appeal, which I have given him leave to pursue, it is clear from the transcript of the hearing that there was no attempt to put Documents IV and V before the Tribunal.

21    In the hearing, the Tribunal member asked at the outset whether the appellant had any documents that he wanted to submit to the Tribunal, and his answer was recorded as a simple 'No'. The Tribunal member, shortly after that, asked whether the appellant was able to understand the interpreter, and his answer (of course through the interpreter) was a simple 'Yes'. Later, towards the end of the hearing, the Tribunal member asked the appellant whether there was anything that he wanted to tell her that she had not already asked him questions about. The appellant's response was a renewed general assertion of his protection claims, which did not refer at all to Documents IV and V. When asked shortly after that by the Tribunal member whether there was anything else he would like to say, he said, 'No. Nothing'.

22    It is also relevant to note that the appellant was represented by a migration agent at the hearing and it could be expected that if the appellant did wish to rely upon Documents IV and V, the agent would have placed them before the Tribunal. There is no evidence that the agent did so. The agent did seek and obtain leave to provide a written submission after the Tribunal hearing, but that submission only concerned country information and it did not seek to provide or refer to Documents IV and V.

23    On my review of the transcript, there is nothing in the relevant parts to which I referred which is capable of being a mistranslation or mistranscription of what was said at the hearing. I therefore decline to listen to the recording of the interview. It was not in evidence before the primary judge and is not in the appeal book. And, in any event, based on the transcript, I do not consider that it can add anything to the appellant's case in this regard.

24    I find that there was no attempt to rely upon Documents IV and V before the Tribunal, so that the primary judge was correct in rejecting the tender of those documents. The appeal ground now sought to be raised has no apparent merit, and I refuse leave to pursue it.

25    As a result, the appellant is confined to the ground of appeal set out in his notice of appeal, which I did give leave to pursue. As I have indicated, during the hearing of the appeal I invited the appellant, who has not filed any written submissions, to say anything that he wanted to me about why the primary judge erred in failing to take the 2011 Report into account. The appellant was unable to say anything more about that. He referred to difficulties that he will face if he is forced to return to Sri Lanka and also referred to the fact that he does not have legal representation in this appeal. I acknowledge the difficulties the appellant faces because of his lack of legal representation, but that, of course, is not in itself a ground of appeal. I am required to deal with the sole ground of appeal on its merits.

26    The appellant also claimed that he had provided a number of documents to a lawyer who had been assisting him previously, but later was told that only his passport and birth certificate were before the primary judge. Be that as it may, that is not capable of supporting any claim that the primary judge fell into error.

27    Turning, then, to the sole ground of appeal, in NAHI, the appellants, who sought protection visas, complained that the Tribunal had relied on certain country information. The Full Court (Gray, Tamberlin and Lander JJ), observed at [11]:

By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on 'country information'. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to 'guidance', as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on 'country information' that is not true. The question of the accuracy of the 'country information' is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of 'country information', it would be engaging in merits review.

28    And at [13] their Honours observed:

The appellants also complained that the Tribunal made an incorrect assessment of the foreseeable future, by making a 'mere guess' and by relying on 'country information' that did not present a true picture. It is clear from its reasons for decision that the Tribunal did rely on 'country information' in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.

29    NAHI is frequently cited as authority for the proposition that the choice as to the country information on which to rely is a matter for the Tribunal or other administrative decision-maker: e.g. Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; (2009) 113 ALR 46 at [45] (Spender, Moore and Foster JJ). There is ample authority supporting the correctness of that proposition: see also Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1 at [8] (Gleeson CJ); VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291 at [41]; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 at [81], [84] (Young J).

30    The extract of the 2011 Report which the appellant sought to tender before the primary judge dealt with conditions during what might be described as the last intense phase of the civil conflict in Sri Lanka that took place between September 2008 and 19 May 2009. The extract referred to credible allegations of serious human rights violations committed by the government of Sri Lanka, but that needs to be understood in context as referring only to that period. In any event, on the basis of the authorities I have cited, whether or not the Tribunal considered that particular country information, and the weight the Tribunal put upon that country information, were matters for the Tribunal. If the court were to go further into the substance of what is set out in the 2011 Report, the court would be embarking on impermissible merits review.

31    I also accept the submission made on behalf of the Minister, in support of the conclusion reached by the primary judge, that the appellant has not demonstrated that the Tribunal did not consider the 2011 Report. The 2011 Report was referred to in a footnote in submissions put to the Tribunal by the appellant's migration agent, and an excerpt from the executive summary in the 2011 Report was set out in that submission. The reasons of the Tribunal indicate that it took account of that submission. It was not necessary for the Tribunal to refer to every piece of evidence and every contention made by the applicant in the Tribunal's written reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46].

32    The primary judge was therefore correct to find both that the question of whether to consider the 2011 Report was a matter for the Tribunal, and that the material did not establish, in any event, that the Tribunal had failed to consider the 2011 Report. I do not uphold the ground of appeal. The result is that the appeal must be dismissed with costs.

Associate:

Dated:    6 September 2019