FEDERAL COURT OF AUSTRALIA

GEW18 v Minister for Home Affairs [2020] FCA 111

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, fixed at $3000.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1    The appellant appeals a decision of the Federal Circuit Court of Australia: GEW18 v Minister for Home Affairs and Anor [2019] FCCA 2705. In that decision the Federal Circuit Court dismissed the appellant’s application for judicial review of the decision of the second respondent, the Immigration Assessment Authority.

2    The appellant, a citizen of Sri Lanka, arrived on Cocos Keeling Islands as an unauthorised maritime arrival in October 2012. He claimed protection in a statement lodged with a visa application which claimed that:

(a)    in June 2006, he was working as a fisherman and his boat was hit by a missile launched by the Sri Lankan Army (SLA). He was rescued by the Liberation Tigers of Tamil Eelam (LTTE) who took him to their camp and treated his injuries. They persuaded him to complete LTTE basic military and weapons training. He was then released from the camp, but he was questioned by authorities and held for 10 days and beaten with a rifle. After his release he was required to report every day and to surrender his fishing pass. He was questioned from time to time by the Criminal Investigation Department (CID) at his house. In October 2006 and thereafter, he was permitted to fish again as long as he did not fish at the same time as his father;

(b)    he started spying for the LTTE. In early 2007, he provided information to LTTE which led to an attack on an SLA camp. This, in turn, led to his arrest by the CID and detention, torture and interrogation. It took him a month to recover;

(c)    his cousin, TS, was an LTTE combatant and was killed in 2009. His cousin’s brother was kidnapped in a white van and has not been seen since. His cousin’s husband was with the LTTE intelligence and was killed by the CID in December 2011;

(d)    he feared that information about his involvement with the LTTE would be provided to the Eelam Peoples’ Democratic Party (EPDP) and so he went into hiding;

(e)    in August 2005, he joined a Tamil associated club in Australia; and

(f)    in post-interview submissions he further claimed that since arriving in Australia, he had become an active member of the Australian Tamil Congress (ATC), participating in annual events and in a protest.

3    On 14 February 2018, the delegate of the Minister for Home Affairs rejected his application for a Safe Haven Enterprise visa (SHEV) on the basis that he did not meet the requirements set out in the Migration Act 1958 (Cth). The matter was referred to the Authority to whom the appellant made written submissions. The Authority, however, affirmed the delegate’s decision on 14 November 2018.

BEFORE THE AUTHORITY

4    The Authority had regard to material provided by the Secretary and considered the submissions provided by the appellant’s representative. It noted that the appellant had also provided three screen shots from Facebook, which it considered to contain new information. Two of them concerned clothing worn by the sporting club posted online in May 2018, the other was a screenshot of a video taken by a television station, which the appellant contended, showed him attending an event in Perth. The Authority was satisfied that, having regard to the nature of the information, there were exceptional circumstances justifying consideration of the new information. In addition, the Authority also obtained new country information of its own accord, namely, a 2018 Department of Foreign Affairs and Trade (DFAT) country information report on Sri Lanka. The Authority was satisfied there were exceptional circumstances justifying consideration of that new information

5    The Authority had regard to the appellant’s request to exercise its discretion to invite the appellant to attend an interview, but was satisfied that he had received ample opportunity to present his claims and did not interview the appellant.

6    In its deliberations, the Authority accepted that the appellant was a Sri Lankan Tamil and a Christian. It was not satisfied, however, on the basis of country information, that Tamil men formerly from LTTE controlled areas continued to be at risk of significant harm from Sri Lankan authorities.

7    In relation to the appellant’s claims as presented at the interview before the delegate, the Authority considered the appellant to be an unsatisfactory witness. It found his evidence was frequently vague and when asked by the delegate, he appeared unable to expand in any detail on his written claims. The Authority formed the view that the appellant had not been truthful in regard to some of his claims and had exaggerated or embellished incidents, in part, to enhance his profile.

8    Based on country information and some inconsistency in the appellant’s claims, the Authority did accept that in around June 2006 the appellant’s uncle’s boat was hit by a missile launched by the SLA and destroyed. It also accepted that one of the appellant’s friends was killed, that he was injured and rescued by the LTTE, taken to a camp for treatment, undertook some LTTE training and was later released.

9    The Authority also accepted that on return to his home area the appellant was accosted by government officials and held for 10 days, questioned and beaten. It accepted that his fishing pass was revoked and he was required to report daily to the SLA camp and that officers would question him at his house.

10    It also considered it to be plausible that in October 2006, he was permitted to go fishing again, but not to work at the same time as his father.

11    These, however, were treated by the Authority as being isolated incidents which occurred in a heightened security environment that prevailed during the war and that the appellant had no further interactions with the authorities from 2006 until he left Sri Lanka in 2012.

12    There were significant discrepancies, the Authority concluded, in the evidence the appellant gave at the interview with the delegate about his involvement with the LTTE and what he claimed was his motivation for supporting and assisting the LTTE.

13    The Authority considered that the discrepancies were not minor such that they could be attributed to the passage of time etc. It did not consider the appellant’s account of his involvement with the LTTE and the resulting interest by the authorities to be credible or plausible and was satisfied the appellant had embellished and fabricated claims. It was not satisfied that the appellant was involved in the LTTE as a member between 2006 and 2009; that he spied or smuggled for them; was detained or tortured by the CID in March 2007; spent a month in bed recovering; resumed work for the LTTE in January 2009 or was suspected of killing SLA officers.

14    The Authority also rejected the claim about his two cousins being in the LTTE, given that the appellant had not raised this earlier. The Authority was willing to accept that a cousin was killed by the CID, but noted that the appellant did not claim at the SHEV interview that this was of any significance to his claims for protection and, as such, the Authority was satisfied that it was not relevant to the appellant’s claims. It accepted as plausible that the appellant knew of LTTE members and supporters who were killed by the authorities and having regard to country information, it did not accept that the appellant was at risk of being identified to the EPDP as an LTTE member.

15    As to matters occurring in Australia, while it had some doubts, the Authority was willing to accept that the appellant had participated in a number of the events described, but was not satisfied that doing so exposed him to any risk. While the Authority accepted the possibility that the appellant may be monitored for a period of time on return, having regard to country information, it did not consider there was any risk of serious harm.

IN THE FEDERAL CIRCUIT COURT

16    On the appellant’s application for judicial review in the Federal Circuit Court, lodged in November 2018, his claims were:

1.    the assessor failed to properly consider all of my claims.

2.    the assessor didn’t give me a chance to comment on one aspect of my claims.

17    The application was heard and dismissed by ex tempore judgment.

18    Ground 1 was rejected because it was clear that the Authority did consider and thoroughly assess the appellant’s claims. The primary judge rejected as being illogical the appellant’s submission that the Authority could not properly have considered his claims because if it had done so, the outcome would have been favourable to the appellant. In either event, that was clearly merits review.

19    The primary judge also rejected ground 2, interpreted as being directed towards the Authority’s decision not to exercise a discretion to invite him to attend an interview. No jurisdictional error was apparent in that decision where the Authority had ‘looked at all the proper principles and [had] exercised the discretion in the manner in which it was entitled to do’ (at [36]).

20    Two documents were tendered by the appellant at the Federal Circuit Court hearing, namely, a draft amended application and an advice from a barrister to a solicitor concerning the grounds set out in the draft amended application. Leave was not granted to pursue the amended application. Nonetheless, the primary judge did give consideration to the proposed ground, the essence of which was a complaint that the Authority had failed to perform the statutory task of review with respect to the appellant’s claim that he faced a risk of harm that engaged the complementary protection requirements by reason of any interaction he may have with the Sri Lankan authorities on his return to that country.

21    The ground relied upon referred to [41] of the Authority’s decision, which was in these terms:

In its February 2017 annual report Amnesty International similarly referred to reports of Tamil suspected of links to the LTTE continuing to be detained under the PTA. However, I have found that after the 2006 incident the [appellant] experienced no further interest from the authorities and I do not accept that he is at risk of being suspected of links to the LTTE. DFAT assesses that generally, Sri Lankans face a low risk of mistreatment that can amount to torture irrespective of their religion, ethnicity geographic location or other identity. The UK Home Office in 2017 reported a notable reduction in torture complaints and its report indicates that the risk of torture in Sri Lanka appears to exist whenever an individual comes into contact with law-enforcement officers; it is a systemic issue with policing in Sri Lanka and exists regardless of ethnicity. Reported instances of arbitrary arrest and detention continue to fail.

(Citations omitted, emphasis in the original.)

22    The primary judge explained that the underlined text was not a finding of fact by the Authority as to the risks, but simply a description of the contents of a relevant piece of country information. The actual finding of fact relevant to that issue was in the Authority’s decision (at [44]) to the following effect:

The country information referred to above indicates that although some monitoring still occurs, overall the monitoring and harassment of Tamils in the north has significantly decreased, there have been positive developments for Tamils politically, and the situation for Tamils generally has greatly improved. Even if, as most sources in the country agree, progress is slow, overall, it does not support a conclusion that Tamils or Tamil men from formerly LTTE-controlled areas face a real chance of serious harm at the hands of the Sri Lankan authorities.

23    The primary judge also said that it was perfectly clear from the Authority’s finding on the refugee criterion that the same findings were applicable to the complementary protection criteria. That conclusion was correct and is not challenged on appeal.

THE APPEAL

24    The notice of appeal is in these terms:

The Primary Judge didn't adequately examine the evident that was placed there by didn't exercise the Courts proper Jurisdiction [sic].

25    I explained to the appellant that the function of this Court is to determine whether the judgment of the primary judge is affected by appealable error: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 (at [11]). The task is to correct error, if any, on the part of the primary judge. Despite the notice of appeal and the content of the ground of appeal, the appellant’s oral submissions were almost exclusively directed to seeking merits review of the matter and, in particular, the consequences to him if he were returned to Sri Lanka.

26    At the hearing of the appeal, the appellant handed up a document described as submissions containing the following statements:

1.    The [Authority] made a jurisdictional error which was not examined in depth by the Primary Judge.

2.    A jurisdictional error was made by failing to exercise its proper jurisdiction and thereby making the errors of law in relation to the Migration Act of 1958, in relation to the fact that I had a well-founded fear of retuning to Sri Lanka as that government will not extend the needed protection to me and that I will suffer human right abuses if I return to that country.

3.    The Primary Judge did not examine the provision of Prevention of Terrorism Act which gives wide powers to the Sri Lankan armed forces to arrest and detain persons who do not have immediate access to the courts of law. This act is primarily aimed at Sri Lankan Tamils such as me so as to prevent them exercising their right to self-determination which arose due to years of discrimination and the violation to their person and property caused by ethnic racial riots.

4.    The Primary Judge failed to examine the real situation faced by Tamils such as me who has perceived links with the [LTTE].

5.    I was taken into custody by the Sri Lankan army and was able to escape and thereafter flee to Australia and seek asylum.

6.    The UNHCR is currently examining the issue of human right abuses caused by the Sri Lankan armed forces against the Tamils.

7.    In this process the Secretary of defense [sic] in 2009 Mr Gotabaya Rajapakse was the prime suspect.

8.    He is now the President of Sri Lanka.

9.    Your kind reference is made paragraph 11, 12, 13, 14, 15, 16, 17 and 18 of the Judgment of the Primary Judge.

27    In addition to those written submissions, he orally emphasised the change in circumstances due to recent leadership changes in Sri Lanka, changes which had occurred well after the decision of the Authority. I informed the appellant that he should seek immigration advice in relation to those changes, but the topic of my consideration was the decision of the Federal Circuit Court and the way in which that Court dealt with the decision of the Authority.

28    The appellant also handed up some additional undescribed documents which were clearly not before the Authority. For a variety of reasons, including the fact that the documents were not before the Authority, that they appear to be irrelevant having regard to the date of the documents (for example, 1 April 2009) and the fact that they had not been produced evidence, I informed the appellant I would not receive the documents, but I would receive the submissions.

29    The following points can be made about the submissions. The first two points in the submissions are entirely unparticularised.

30    The third point is not a matter that arose before the primary judge and does not arise for this Court, but assuming the complaint is directed to the Authority, the topic also did not appear to arise before the Authority and appears to relate to the present provisions of Sri Lankan legislation as distinct from a point which the appellant sought to make before the Authority as to the circumstances prevailing at that time. The fourth and fifth points are merits review points. The sixth to eighth points relate to the current situation and were not before the Authority at the time of the review. The ninth point simply refers to various passages of the Federal Circuit Court judgment.

31    There is nothing in these submissions which identifies appellable error in terms of the ground of appeal or otherwise. It is quite clear that the appellant, despite my explanation to him regarding the function of this Court, wishes this Court to form its own view about the Authority’s decision. That approach is to be ‘firmly rejected’: SZVBT v Minister for Immigration and Border Protection [2017] FCA 355 per Flick J (at [9]-[10]), where his Honour said:

9    The first Ground of Appeal does not identify any appellable error said to have been committed by the Federal Circuit Court. As expressed, it is but an invitation to this Court to place to one side the decision of the Federal Circuit Court and for this Court to form its own view as to the adequacy of the Tribunal’s reasons for decision.

10    Such an approach is to be firmly rejected. To pursue such a course would be to impermissibly reduce the proceedings before the Federal Circuit Court to a “preliminary skirmish”: Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ. See also: Sobey v Nicol and Davies, in the Matter of Guiseppe Antonio Mercorella [2007] FCAFC 136 at [72], (2007) 245 ALR 389 at 403 to 404 per Branson, Lindgren and Besanko JJ.

32    There is no doubt the appellant disagrees with the Authority’s factual findings and ultimate conclusions and no doubt strongly disagrees with the adverse credibility findings, but that does not mean that the Authority did not properly consider his evidence. The conclusion of the primary judge on the topics raised was correct. In particular, with respect to ground 1 before the primary judge, no claims for protection that were not properly considered by the Authority were identified. The Authority’s consideration was undoubtedly comprehensive.

33    In relation to ground 2 before the Federal Circuit Court, again, there has been no attempt at all to identify any aspect of the claims in which the appellant was not given a ‘chance to comment’. He was given the opportunity to provide further information to the Authority and did so through the provision of detailed submissions prepared by his migration agent, together with new information, which was accepted.

34    There being no substance in the appeal, the appeal must be dismissed with costs.

35    The Minister sought costs fixed in the sum of $3000. I afforded the opportunity to the appellant to be heard on that claim. He made no comment on the question of costs, but referred to his fears on return to Sri Lanka.

36    The sum of $3000 is considerably less than the sum which can be awarded, but is appropriate in the circumstances.

CONCLUSION

37    The appeal will be dismissed with costs fixed at $3000.

Associate:

Dated:    12 February 2020