FEDERAL COURT OF AUSTRALIA

COS16 v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112

ORDERS

THE COURT ORDERS THAT:

1.    The Minister's name be changed to ‘Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2.    The appeal be dismissed.

3.    The appellant pay the costs of the first respondent, fixed at $4,000.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1    In October 2012, the boat on which the appellant was travelling was intercepted by Australian officials. He was taken to Cocos Keeling Island. On 5 February 2016, the appellant lodged a Safe Haven Enterprise visa (SHEV) application. It was refused by a delegate of the Minister and the then Department of Immigration and Border Protection referred the application to the Immigration Assessment Authority for review. In August 2016, the Authority affirmed the delegate’s decision.

2    The appellant now appeals from an order of the Federal Circuit Court of Australia. In July 2019, that Court dismissed an application to review the Authority’s decision, affirming the decision of the delegate. Extensive and careful written reasons were published by the Federal Circuit Court: COS16 v Minister For Immigration and Anor [2019] FCCA 1857.

THE FEDERAL CIRCUIT COURT

3    An application for review was filed in September 2016 without grounds of review. The appellant filed a second affidavit in the nature of submissions on the ground of review.

4    In June 2018, the primary judge ordered that the appellant have leave to file an amended application and any affidavits within three weeks and have leave to file an outline of submissions by 7 August 2018, with the application to be heard on 30 August 2018.

5    A third affidavit was filed and, indeed, a fourth affidavit, which attached what was described as ‘merit review material’.

6    On 30 August 2018, the primary judge commenced hearing the application and received submissions from the Minister on a model litigant basis drawing to the attention of the primary judge two possible issues which had not been raised by the appellant’s materials. The first was an issue arising from the decision of AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442 and the second was an issue described as the 2006 Mistreatment Issue which concerned the question of whether events from that year had been addressed.

7    After receipt of those submissions, the primary judge ordered, amongst other things, that the application be adjourned to a date to be fixed, that the Minister file submissions on those new matters and that the appellant have leave to file submissions in reply. The Minister filed an outline of submissions and the appellant subsequently engaged a solicitor who appeared on his behalf. An outline of submissions was filed and the solicitor appeared on the adjourned application.

8    Certain material was tendered at the hearing of the amended application by the solicitor in relation to the preparation and the content of the SHEV application. It was received by the Federal Circuit Court, even though parts of it were already in the Court Book.

9    As to the grounds of review, which the primary judge treated as being in issue, his Honour’s reasons (at [43] and [48]-[52]) are of note:

43.    At that hearing, the Minister raised two further issues that had not been previously raised by the Minister and, again, were not raised in any of the [appellant’s] “grounds”. Those two issues were:

a)    the impact of the decision of the Full Court of the Federal Court in AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111 (“AQU17”) – in particular, how that decision relates to the [Authority’s] treatment of the e-mail dated 19 July 2016 sent by the [appellant] to the [Authority] (the “New Information Issue”); and

b)    whether the [Authority] addressed an issue of alleged mistreatment of the [appellant] in 2006 by the Sri Lankan authorities mentioned in the reasons of the delegate (the “2006 Claim”).

…

48.    The matter returned for further hearing on 29 May 2019. Mr Draper appeared for the [appellant]. Mr Hannan appeared for the Minister.

49.    The Court has had regard to all of the materials filed. It notes that the affidavit materials, while not formally read, were before the Court. The Court also marked the Court Book as Exhibit 1.

50.    In the course of the hearing, Mr Draper sought to tender what was described as “The Humanitarian Group Documents”. The Minister objected on the basis of relevance. The Court marked the documents as Exhibit 2, and caveated this by indicating that their tendering was subject to the Court determining their relevance. Notably, as Mr Hannan indicated, at least three pages of Exhibit 2 were included in the Court Book.

51.    As indicated, the course of these proceeding has been protracted and somewhat unusual. In effect, the Court has before it a number of grounds as advanced by the [appellant] in his various affidavits and the two further issues identified by the Minister at the 30 August 2018 hearing.

52.    Mr Draper [sic] submissions did not address any of the [appellant’s] affidavits or “grounds of review” as outlined above. Rather, they only addressed the two issues referenced at [43] above. Nor did Mr Draper address any of the [appellant’s] affidavits in his oral submissions to the Court – again, focusing only on the two issues discussed at [43] above. Despite this, given that the [appellant] was not legally represented for most of these proceedings, the Court will nonetheless address all of his “grounds of review” and the new issues raised by the Minister to ensure that the [appellant’s] concerns are properly addressed. In that regard, the Court notes that at no time did Mr Draper indicate at the 29 May 2019 hearing that the [appellant] had abandoned all previous grounds or submissions advanced.

10    After reserving, his Honour delivered extensive reasons for dismissing the application.

IN THIS COURT

11    The appellant filed a notice of appeal, which reads as follows:

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

12    Plainly, the notice has been prepared without the benefit of legal assistance and I will assume that the notice was intended to read that the primary judge did not adequately examine the evidence which the appellant placed before the Federal Circuit Court and, therefore, did not properly exercise jurisdiction.

13    Taken alone, the notice would be quite unhelpful for lack of particularity and indeed, on its face it identifies no particular error.

14    However, at the hearing of the appeal, the appellant, without objection, handed up a document entitled ‘written submissions’ to which certain other documents were attached.

15    I refused to accept the attached documents for a variety of reasons, not least of which, as they were not properly produced in evidence, they were not before the Authority, they were not before the Federal Circuit Court and most of them substantially predated relevant events or, if being more recent, referred to circumstances long predating relevant events.

16    The written submissions handed up by the appellant were in the following terms:

  1.    The primary judge did not examine in depth my case based on evidence as an asylum seeker and agreed with the [Authority] in his decisions.

  2.    I submit that there was jurisdictional error as the provisions of the Migration Act of 1958 state that if I have a well-founded fear that I should not be returned to the country from which I fled and sought refuge in Australia.

  3.    I have proved and my evidence was accepted that I am a young Tamil whose home is the North of Sri Lanka in an area which was controlled by the LTTE who fought for a separate state for the Tamils in Sri Lanka.

  4.    The Prevention of Terrorism Act and the Public Security Act was used and is yet being used at present primarily against minority communities in Sri Lanka like the Tamils.

  5.    As I suffered and feared the Sri Lankan army of occupation I feared for my life and fled the country.

  6.    Many Sri Lankan Tamils who were civilians were killed during this conflict in 2009 and are yet being taken into custody and arrested if there is a least suspicion that they had connections with the LTTE.

  7.    I fall into this category as a young Sri Lankan Tamil. ,

8.    The current President of Sri Lanka when questioned by a UN Official admitted that over 20,000 persons missing were mainly Sri Lankan Tamils.

  9.    In this context stated above I fear to return to Sri Lanka.

10.    I attach documents to point briefly to the plight of the Sri Lankan Tamils and the official admission that a number of Sri Lankan Tamils had been killed without any evidence of their deaths contrary to the laws and regulations of Sri Lanka.

17    It can be seen at a glance that, while the submissions purport to expand upon the written ground of appeal, in a significant sense, they seek to re-ventilate the merits of the appeal. It was made clear to the appellant that the function of this Court was to recognise errors of law or other forms of errors which are properly appellable in the Federal Circuit Court’s decision, rather than to revisit the facts.

18    The appellant also sought to advance new evidence from the bar table, which was not before the Federal Circuit Court. In particular, it pertained to what was said to be the current situation in Sri Lanka as a result of a change in leadership which had occurred in late 2019, after the decision of the Federal Circuit Court. Again, I made it clear that these statements from the bar table could not be accepted as evidence, but counsel for the Minister, Mr PJ Hannan, undertook to recommend to the appellant that he seek immigration advice in relation to what he contended were the new circumstances following completion of the appeal.

19    No one was in a position to deal with new statements from the bar table as to the present position in Sri Lanka, nor did that fall within the ambit of the ground of appeal, even allowing latitude for lay-drafting.

20    It is well-established that it is not the role of the Court to examine the reasons of the primary judge in detail in order to identify potential grounds of appeal: see, for example, BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J (at [10]). However, in the case of an unrepresented appellant, it is preferable for the Court to review the reasons under consideration and to determine whether there is any self-evident error as to the manner in which the Court or Tribunal has resolved the grounds of review previously advanced and which it would appear are sought to be re-agitated on appeal: see BGZ15 (at [11]). However, such an examination for an obvious error may fall well short of the Court parsing and analysing an administrative decision with a view to identifying a potential argument as to jurisdictional error. In the absence of self-evident error, there is no duty or function of the Court to articulate a question of law or to identify an error.

21    That said in this instance, the notice does not plead any sensible ground of appeal taken alone, although with the addition of the written submissions handed up at the appeal, there is greater particularity. However, in this instance, the substance of the contention is that all of the evidence advanced for the appellant before the delegate, the Authority and, indeed, before the Federal Circuit Court should have led to a different conclusion. This is no more than a merits review. It also ignores the fact that many of the matters which were raised before the delegate and the Authority were not accepted as a matter of credit.

22    There is nothing in the primary judge’s reasons to suggest that his Honour made any error in dismissing the application for review. It is clear that his Honour examined each of the affidavits and expressly dealt with the materials referred to in the written outline of submissions filed with the Court (at [4]-[7]).

23    At the hearing, the appellant orally sought to adduce evidence from the bar table broadly consistent with his fourth affidavit concerning events which were not brought to the attention of the delegate or the Authority. These events related to fleeing from Sri Lanka to Thailand, Malaysia and Africa. He said his failure to disclose the facts as to what happened in these countries was because he did not have any proper evidence or documents in writing as his passport and UNHCR letter were confiscated and he was depressed. He was brought to Sri Lanka for one day only in June 2012 and that ‘I hear from my mother that arrests, inquiries, abductions and tortures have been still in practice in Sri Lanka’. Quite understandably and correctly, the primary judge ruled (at [96]-[97]), that there could not be any weight attached to the material in the fourth affidavit as:

(a)    the materials were not before the Authority and it was not open for the Court to consider the material which the appellant did not put before the Authority, unless it was relevant to identifying jurisdictional error;

(b)    the documents pertained to the merits of the application and the appellant’s claims for merits invited merits review; and

(c)    the appellant had the opportunity to provide the information to the Authority. He did not do so. He invited the Court to disagree with the Authority, which was impermissible.

24    In my view, all the material which was before the primary judge was properly considered and no error is demonstrated in his Honour’s reasons.

CONCLUSION

25    In those circumstances, the appeal must be dismissed with costs.

Associate:

Dated:    12 February 2020