FEDERAL COURT OF AUSTRALIA

WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 132

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the first respondent's costs in the appeal fixed in the sum of $3,000.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The appellant is a citizen of Sri Lanka, a Tamil, and a Roman Catholic. He arrived in Australia in 2012 and applied for a protection visa in that year. A delegate of the Minister for Immigration, who is now represented by the first respondent (Minister), refused the visa. The appellant applied to the Refugee Review Tribunal for review, and the Tribunal affirmed the delegate's decision. He then applied to the Federal Circuit Court of Australia for judicial review of the Tribunal's decision. That court dismissed the application, and the appellant now appeals.

The Tribunal decision

2    The basis of the appellant's protection claims was that he feared returning to Sri Lanka on the basis of his Tamil ethnicity and his imputed political opinion as a supporter of the Liberation Tigers of Tamil Elam (LTTE).

3    The Tribunal accepted that in 2000, at a time when he was helping his father to fish in an area controlled by the LTTE, the appellant helped the LTTE to transport medical and food supplies, and continued to do so over the next two years. He was detained by the LTTE for four days after one occasion on which he refused to help them. The Tribunal also accepted that in 2002 the appellant was beaten by the Sri Lankan navy and detained by the police on suspicion of involvement with the LTTE. He was found not guilty of transporting goods for the LTTE and was released.

4    The appellant lived without fear during the ceasefire between the LTTE and the Sri Lankan government which lasted from 2002 to 2006. The Tribunal accepted that when the war started again, the appellant was routinely monitored by the navy. It also accepted that the appellant was present when a grenade went off in a church, although it found that he was not a target of that attack, and he had not claimed to fear returning to Sri Lanka on the basis of his religion.

5    In his entry interview, the appellant made claims about events from 2007 to 2012 that were markedly inconsistent with the claims made in his protection visa application. According to the first account he gave, he spent those years in Sri Lanka and was subject to adverse treatment by the navy and the police, including a claim that in 2011 police broke into his home, and he escaped, but his brother in law was taken into custody and his whereabouts were unknown. But according to his second account, in 2007 he fled to India and was held in jail and then in a detention camp, until he came to Australia in 2012.

6    The Tribunal found that the first account, as to spending 2007 to 2012 in Sri Lanka, was a fabrication, which was made on advice from the people smuggler who had transported the appellant to Australia. It found that the appellant had in fact spent those years in India. Accordingly, the Tribunal did not accept the claim that the police had broken into the appellant's home or abducted his brother in law. The appellant modified the date of that alleged incident before the Tribunal, saying that it had happened in 2006, but the Tribunal did not accept that, either. He also claimed that a separate incident occurred in 2011, when the police broke into his home in Sri Lanka and asked where he was. The Tribunal rejected that claim too, and found that the various inconsistent claims undermined the appellant's credibility as a witness.

7    The Tribunal found that the appellant was arrested in India in 2007 because he did not have documentation and not, as he claimed, because he was suspected of transporting goods for the LTTE. It did not accept as plausible a claim that the Indian authorities charged the appellant with assisting the LTTE. It also found that various claims he made about the Sri Lankan authorities harassing his parents were inconsistent and implausible. It did not accept that the authorities had any continuing interest in him.

8    The Tribunal found on the basis of country information that there was no real chance that the appellant would be mistreated because of any perceived association with the LTTE in the foreseeable future, or that he would be persecuted as a failed asylum seeker. There was only a remote chance that he would be imprisoned because of his illegal departure from Sri Lanka, other than possibly for a period of a fortnight on remand. The Tribunal did not consider that this would amount to serious harm or persecution for a Convention reason.

9    The Tribunal considered that even though the appellant had been detained and monitored in Sri Lanka for suspected LTTE links in 2002 and following resumption of hostilities in 2006, the situation in Sri Lanka since the end of the civil war in 2009 was 'vastly different'. The adverse interest the authorities had in him before that was consistent with their treatment of Tamils generally, and he did not have a profile that would make him of interest to the Sri Lankan authorities.

10    In view of its findings that the appellant would not suffer serious harm on return to Sri Lanka as a failed asylum seeker, the Tribunal also found that he was not entitled to complementary protection. Despite the poor conditions in prisons in Sri Lanka, a period of custody on remand would not amount to the kind of treatment described in s 36(2A) of the Migration Act 1958 (Cth).

The Federal Circuit Court decision

11    The appellant was represented by solicitors and counsel in the Federal Circuit Court. He raised four grounds of review.

12    The first was that the Tribunal failed to consider an integer of his claim that he remained a target for the Sri Lankan authorities by reason of imputed support for the LTTE in light of his detention in India. The primary judge recorded the submission in support of that ground as being that the Tribunal did not consider or make any finding on whether the appellant remained a target for the Sri Lankan authorities by reason of imputed political opinion of support for the LTTE, as enlivened through a prolonged period of detention in India for many years on charges of supporting the LTTE.

13    His Honour held that since the Tribunal found that the appellant had not, in fact, been charged in India for supporting the LTTE, but had only been detained due to lack of documentation, the factual basis for that asserted integer of the appellant's claim fell away. In any event, his Honour quoted passages from the Tribunal's decision that acknowledged the claim that his fear of imputed links with the LTTE arose, in part, from his record of arrest and imprisonment in India. Having found that the arrest was not on charges of support for the LTTE, the Tribunal made findings of greater generality to the effect that in the absence of substantive links to the LTTE, the appellant would not be of any interest to the Sri Lankan authorities if he were to return. Therefore ground 1 was not made out.

14    Ground 2 asserted jurisdictional error by the Tribunal in finding that there was no evidence that the appellant had been involved in facilitating or organising people smuggling. That involvement would, it was said, mean that the appellant would face persecution on return to Sri Lanka. The appellant claimed that he had said in his entry interview that everyone on the people smuggler's boat to Australia 'took turns to drive the boat', and had also claimed that he had said in his entry interview that he stayed with a people smuggler for 12 months in Sri Lanka before his departure from there to Australia.

15    The primary judge found that in various submissions made by the migration agent who represented the appellant before the Tribunal there was no claim that the appellant was or ought to be considered a people smuggler. When it was put to the appellant that failed asylum seekers of Tamil ethnicity would not be treated any differently to others on return to Sri Lanka, he did not raise any claim that he would be treated differently because he was a people smuggler. His Honour held that the evidence on which the appellant relied before him was not sufficient to put the Tribunal on notice of any such claim. It did not follow from merely having driven the boat along with everyone else on it, and having stayed with a people smuggler, that the appellant would be imputed with involvement in people smuggling. Ground 2 was not made out.

16    To that conclusion could be added the point that the claim of having lived with the people smuggler in 2012 in Sri Lanka was only consistent with the first account given by the appellant, that he left Sri Lanka for Australia in that year, which the Tribunal found to be false. The appellant could not have lived with a people smuggler in Sri Lanka in 2012 if he was in fact in a prison camp in India in that year before departing for Australia. But his Honour did not advert to that additional difficulty with ground 2.

17    The third ground of review claimed that the Tribunal had denied procedural fairness to the appellant by failing to put to him an inconsistency in his evidence, on which it relied. The inconsistency was identified in the Tribunal's reasons as being that, on the one hand, he claimed that in 2011 the authorities came to his house and took his mother away, and this happened intermittently but only in 2011, and on the other hand the navy has harassed his mother about his whereabouts from 2007 to date. The Tribunal did not accept the claims as plausible.

18    The primary judge referred to the terms of s 424A of the Act which, subject to certain exceptions, requires the Tribunal to put to an applicant for comment clear particulars of any information that it considers would be the reason, or part of the reason, for affirming the decision under review. His Honour noted the exception to that requirement found at s 424A(3)(b), namely that it does not apply to information where the applicant gave it to the Tribunal for the purposes of the application for review.

19    His Honour found that the conflict between the two claims was readily apparent to the appellant and that the adverse conclusion the Tribunal reached was obviously open on the material before the Tribunal that was known to the appellant. His Honour thus held that there was no denial of procedural fairness in the Tribunal omitting to put the inconsistency to the appellant. His Honour relied on Kaur v Minister for Immigration and Border Protection [2015] FCA 1 at [57], where Robertson J encapsulated the relevant principles as being that a decision-maker must identify for the person affected any critical issue that is not apparent from the nature of the decision or the terms of the statutory power, and must also advise of any adverse conclusion that would not obviously be open on the known material, but is not otherwise required to expose his or her thought processes or provisional views. The primary judge also held that, in any event, the appellant had given to the Tribunal for the purposes of its review all the information which the Tribunal identified as inconsistent, so it was covered by the exception to s 424A of the Act that is found in s 424A(3)(b). Ground of review 3 was not made out.

20    The fourth and final ground asserted that the Tribunal had erred by failing to evaluate the appellant's claim of fearing persecution from his experience of arrest and violence and detention in Sri Lanka due to suspected links to the LTTE. This appeared to be based on a contention that it was not enough for the Tribunal to find that he had been found not guilty of transporting goods for the LTTE; it was still possible that he could have a well-founded fear of persecution for imputed links.

21    The primary judge found that the Tribunal had evaluated the claim. While it accepted that the appellant had been subject to adverse treatment in from 2000 to 2002 and from 2006 up to his departure for India in 2007, it found based on country information that the situation after 2009 in Sri Lanka was vastly different. So it did not accept that the appellant would be of any interest to the authorities in Sri Lanka should he return. The Tribunal did not base its finding solely on the evidence that the appellant had been found not guilty of transporting goods for the LTTE. His Honour held that the ground was an invitation for the court to engage in impermissible merits review. Ground 4 was not made out and the application was dismissed.

The appeal

22    The sole ground of appeal was (errors in original):

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

This is generic and does not identify any specific error on the part of the primary judge.

23    In EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 at [12], Farrell J observed:

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.

24    As McKerracher J said in COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20], while in the case of an unrepresented appellant it is preferable for the court to review the reasons under consideration to determine whether there is any self-evident error, that examination will fall short of parsing and analysing the decision to identify potential arguments. While the appellant in the present case was self-represented, he did appear with the assistance of an interpreter and a McKenzie friend. I asked him at the hearing to identify what mistakes, in his view, the primary judge had made. He said the primary judge had failed to examine the real situation of Tamils in Sri Lanka. He claimed that he was 'strongly involved with the LTTE'. He said that the LTTE had approached him and wanted him to work for them transporting food, medicines and weapons from India. He referred to his arrest and imprisonment in 2000 in Sri Lanka and his arrest in India in 2007. He also claimed that a recent change in government meant that the people who were responsible for the war 'and the genocide' were in power again.

25    These contentions were an entreaty to the court to consider the merits of the Tribunal's decision for itself, and to uphold the appellant's claims to protection. But that is not the proper function of this court, or of the Federal Circuit Court. The place of the Federal Circuit Court in relation to the review of a decision of the Tribunal made under Part 7 of the Act is to grant remedies if an applicant persuades it that the Tribunal committed certain kinds of error. That is the effect of s 474 and s 476 of the Act. Examples of such error are the denial of natural justice or where a tribunal 'falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion': Craig v State of South Australia (1995) 184 CLR 163 at 179. But what it does not include is a review of the merits of the Tribunal's decision. It follows that the appellant's claim that the primary judge failed to examine the real situation of Tamils in Sri Lanka does not describe any error of fact or law which the Federal Circuit Court could have committed in the exercise of its limited jurisdiction.

26    The function of the Federal Court on an appeal under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) is even more removed from the merits of the Tribunal's decision. That function is, relevantly, to make appropriate orders if an appellant persuades the court that the Federal Circuit Court fell into error in determining whether or not the Tribunal committed a jurisdictional error: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11]. Since neither this court nor the Federal Circuit Court have jurisdiction to consider the merits of the appellant's protection claims afresh, the appellant's submissions made at the hearing could not result in the court allowing the appeal.

27    In so far as the ground of appeal asserts that the primary judge did not adequately examine the evidence before him, his Honour's thorough and reasoned judgment provides no basis for that contention. Nor is there any basis for the claim that his Honour did not exercise the court's jurisdiction. He considered each of the appellant's grounds of review in detail and decided that none of them was made out, and so dismissed the application. I have summarised his Honour's reasoning above, and no error is apparent in it. The appeal must be dismissed, with costs.

Associate:

Dated:    14 February 2020