Federal Court of Australia

ETZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 29

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

BACKGROUND TO THE APPEAL

1    The appellant appeals from a decision of the Federal Circuit Court of Australia.

2    The appellant was born in Sri Lanka. He arrived in Australia on 24 December 2012. He was interviewed at Christmas Island. A further interview occurred on 22 January 2013. He was invited, in April 2013, to apply for a temporary protection visa or a Safe Haven Enterprise visa and duly lodged an application.

3    In 2017, the appellant was invited to attend an interview with a Department officer. He participated in that exercise, but on 3 November 2017, a delegate of the Minister refused to grant him a visa. The delegate’s decision noted the appellant’s assertion that since he had left for Australia, the appellant’s father had informed him that the Sri Lankan police and Sri Lankan Army (the SLA) had attended the family home.

4    The delegate’s decision to refuse the visa was referred to the Immigration Assessment Authority for review on 8 November 2017. On 30 November 2017, the appellant’s migration agent provided a submission to the Authority. The submission contained new information that was not before the delegate, including country information reports from 2015-2017, a medical report of 2014, a report in the Guardian newspaper of 2016, various 2017 media references, and photographs showing the appellant attending ceremonies in Australia to commemorate Tamils who died in the Sri Lankan civil war.

5    The Authority examined all of the material, but determined that none of it should be taken into account as it could not be satisfied that the requirements of s 473DD(b)(i) or s 473DD(b)(ii) of the Migration Act 1958 (Cth) had been met. It did, however, take into account a Department of Foreign Affairs and Trade report published on 23 May 2018 containing updated country information. In August 2018, it affirmed the delegate’s decision.

6    The appellant’s claims were summarised by the Authority as follows (at [17]):

•    In December 2008, while working for his father fishing he was abducted by cadres of the Liberation Tigers of Tamil Eelam (LTTE). He was taken to an LTTE training camp and detained for around three months. He was given a uniform and photographed wearing the uniform. He was issued a photographic identity card. He was trained by the LTTE until he managed to escape and returned home.

•    In 2010 - 2011, he was caught up in a fight between two gangs of youths and he was arrested by the police and detained for approximately 15 days. He was released on condition that he report to the police on a regular basis after that.

•    Following his release, some of the youths who he had fought with bribed an army officer to shoot him as a way of scaring him. The officer did not shoot him.

•    He travelled to Dubai on a work visa. He lived in Dubai for around 10 - 11 months before returning to Sri Lanka.

•    Shortly after his return to his village in 2011, the Sri Lanka Army (SLA) searched his house one day and when he was asked for his ID, the old photograph of him in LTTE uniform fell out of his wallet and he was immediately detained on suspicion of having an LTTE past. The SLA took him to their camp nearby and detained him for 45 days. He was questioned repeatedly about the period of time that he trained with the LTTE and beaten repeatedly. His left knee was badly injured in one of the beatings.

•    He managed to escape from the SLA camp when the camp guards were not watching him and he returned home to his family.

•    He went into hiding in Colombo for several weeks until his father arranged for him to join a boat venture to Australia.

•    Since his arrival in Australia, the local police and the SLA have searched for him [back in Sri Lanka].

•    The youths he fought with and the corrupt army officer will all search for him and harm him if he returns to Sri Lanka.

•    He fears he will be harassed and detained by the SLA on account of his Tamil ethnicity.

7    The Authority addressed each of these claims in turn (at [18]-[35]) and rejected the vast majority of them, finding the appellant to be a ‘wholly unreliable witness’ (at [39]).

8    The appellant sought judicial review in the Federal Circuit Court, where he was given the opportunity to explain orally the matters said to give rise to each of the grounds of review in the Federal Circuit Court. Each of the grounds was considered by the primary judge and rejected.

9    The three grounds of review in the Federal Circuit Court were:

1.    Jurisdictional error

2.    Bias based on conscious or unconscious prejudie [sic] by ignoring relevant materials.

3.    Identifying a wrong issue or a wrong question.

10    His Honour took ground 1 as relating to the Authority’s refusal to accept new information the appellant wished to place before it. His Honour found no jurisdictional error in the approach of the Authority (at [28]-[32]). Ground 2 was treated as raising bias and failure to take into account relevant material. The primary judge found (at [33]-[34]) that there was no evidence to indicate that the Authority did not bring an open mind to the review and the mere fact that adverse factual findings were made by the Authority did not raise an inference of bias. His Honour accordingly dismissed ground 2, as well as ground 3 noting that in the absence of particulars, it was impossible to detect any error in the Authority’s approach to the relevant criteria under s 36(2)(a) and s 36(2)(aa) of the Act.

11    None of those grounds is advanced in this appeal from the Federal Circuit Court’s decision. The appellant seeks to raise a single new ground.

IN THIS COURT

12    The appellant’s ground of appeal simply states (verbatim):

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

13    The first point to note about the oral hearing of this appeal is the unsatisfactory circumstance in that the interpreter was not physically present in court, but present by Microsoft Teams on video. Had I thought that this presented any disadvantage to the appellant, I would have adjourned the appeal to a time and date when the interpreter could be present in person. I was satisfied, however, that the video and audio between the appellant and the interpreter was (subject to some initial interruptions due to delays) as clear as it would have been in person and that the appellant, who had quite a good command of English, did not exhibit or express any concern about communication. Nonetheless, this form of interpretation should not, without leave in advance being granted by the Court, be the norm.

14    In accordance with my usual practice in the case of unrepresented appellants in migration appeals, I invited the appellant on several occasions to say whatever he wished to say in support of his appeal. In support of his appeal, the appellant said that he did not understand why his claim was rejected. He had received the Federal Circuit Court reasons. He was in Court when they were delivered. He submitted that he had recently learned that his father had been killed and that he would be in trouble if he returned so he could not understand why his claim had been rejected. He did not clearly or specifically address the ground of appeal.

CONSIDERATION

15    In assuming that the ground is intended to mean that the Federal Circuit Court did not adequately examine the evidence before it and thereby did not properly exercise its jurisdiction, it fails to disclose with any specificity any ground of appeal which could succeed in this Court.

16    The object of the appeal is to consider whether or not some legal, factual, or discretionary error should be corrected. It is necessary to specifically identify an error.

17    It is appropriate to take into account the fact the appellant is self-represented. But there are still limits on how far the Court can assist a self-represented litigant: see BKB15 v Minister for Immigration and Border Protection [2018] FCA 770 per Flick J (at [32]-[34]) where his Honour said:

32    Whatever the source of the difficulties confronted, this Court attempts in practice to ensure that an unrepresented Appellant is not prejudiced by his lack of legal training or by reason of English not being a language that an Appellant properly understands or speaks. In many cases, those representing the Respondent Minister make submissions directed to both the absence of appellable error and also the absence of error committed on the part of the Tribunal whose decision has been reviewed by the Federal Circuit Court.

33    In many cases, this Court shuns the shackles imposed by the principles underlying the exercise of the appellate function and indeed gives an unrepresented Appellant a “second go”.

34    The difficulty presented by appellants being unrepresented nevertheless persists and will not go away without being addressed. In the past it has been recognised that however convenient it may be for this Court to “fill the gap” where there is an inadequacy in the way that proceeding has been dealt with before it reaches this Court, for this Court to routinely do so “would not be consistent with the processes of review as prescribed by the legislature”: SZKLO v Minister for Immigration and Citizenship [2008] FCA 735 at [41], (2008) 247 ALR 582 at 590 per Flick J. That sentiment has been endorsed by others in recognition of the fact that for this Court to do so would “erode the appellate nature of this Court’s jurisdiction”: AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 at [26] per Perram J.

18    On review of the primary judge’s reasons, there is no self-evident error as to the manner in which his Honour resolved the grounds of judicial review previously advanced.

19    Assuming a complaint is directed to the failure on the part of the primary judge to accept fresh documentary evidence which the appellant wished to rely on at the Federal Circuit Court hearing on 18 November 2019, no error is demonstrated. The primary judge considered that material (at [19]-[20]) and treated it as going to the merits of the appellant’s protection claims rather than to judicial review. There is no reason to doubt that assessment. Merits review was not open to the Federal Circuit Court, nor is it open to this Court.

20    Even if the appellant’s new evidence could demonstrate a relevant change in circumstances in Sri Lanka since the Authority’s decision, that is a matter for the appellant to take up with the Department, should he be so advised or should he so consider. The consideration in this Court is whether there was error in the consideration by the Federal Circuit Court of any alleged failure to exercise jurisdiction on the basis of the material before the Authority or which should have been before the Authority. It is apparent from its decision that all of the material the appellant sought to adduce was considered by the Authority, but reliance on it was rejected for reasons which disclose no error. There was no error in the Authority’s application of s 473DC(2) or s 473FB(5) of the Act.

CONCLUSION

21    As the ground of appeal is meaningless, and there is no clearly identifiable error on the face of the primary judge’s decision, the appeal must be dismissed with costs.

Associate:

Dated:    29 January 2021