Federal Court of Australia

FBF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 864

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    This appeal is from orders and a judgment of the Federal Circuit Court (FBF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 189) (the primary judgment), which dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (IAA) (second respondent) under s 476 of the Migration Act 1958 (Cth). That decision affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant the appellant a Safe Haven Enterprise visa (SHEV).

2    The sole ground of appeal identified in the appellant’s notice of appeal dated 3 March 2021 is (without alteration):

1.    The Primary Judge failed to find that the Immigration Assessment Authority (IAA) erred by failing to determine the Applicant’s claim for a Safe Haven Enterprise visa (SHEV) according to law.

3    For the following reasons, I find that the primary judgment discloses no appealable error and therefore the appeal should be dismissed with costs.

Summary of facts relating to refusal of SHEV application

4    These facts may be summarised briefly.

5    The appellant, who is a citizen of the Democratic Socialist Republic of Sri Lanka, arrived in Australia as an unauthorised maritime arrival on 8 November 2012 (as defined under s 5AA of the Migration Act 1958 (Cth)). The appellant was interviewed as an irregular maritime arrival on 30 December 2012.

6    On 20 March 2017, the appellant lodged an application for a SHEV. In an unsigned written statement which accompanied his application, the appellant stated his claims for protection were that he feared harm from the Sri Lankan authorities due to his Tamil ethnicity and imputed connections to the Liberation of Tigers of Tamil Eelam (LTTE) if he returned to Sri Lanka. The appellant’s specific reasons for protection, including those raised at his SHEV interview with the delegate on 24 September 2019, were summarised by the primary judge at [2]-[3] of his reasons for decision (footnotes omitted):

2.     The applicant stated his claims for protection in a statement that formed part of his application for a SHEV. In that statement the applicant claimed as follows:

(a)     The applicant is a national of Sri Lanka, a Tamil, and a Hindu. He was born in a village in Trincomalee.

(b)     For as long as he can remember the army had been in control of the applicant’s home town. As a child there was frequent conflict in his village between the army and the Liberation Tigers of Tamil Eelam (LTTE).

(c)     The applicant began working as a fisherman when he was 13, initially with his father, and later with anyone who wanted to come out fishing with the applicant. The applicant required a navy pass to go out fishing. The LTTE caused the applicant trouble when he began working as a fisherman.

(d)     When the applicant was 15 or 16, members of the Sri Lankan Navy (SLN) captured, detained, and beat the applicant and his father. This occurred when the applicant and his father were returning from fishing. The SLN asked questions about whether the applicant was part of the LTTE and a fire that had occurred near the applicant’s home. The applicant found out from his mother that while the applicant was out fishing a shop caught fire because a fight had broken out between the LTTE and the Sri Lankan Army (SLA). Two other people who had gone fishing were also captured and taken to jail after they returned from fishing.

(e)     In 2005 the SLA arrested the applicant’s father and he was jailed for 2 years. The applicant’s father heard a second fisherman being beaten and believes he was beaten to death. The applicant’s father was tortured terribly.

(f)     The police arrested the applicant while his father was in jail. The applicant was detained and tortured for around 6 to 7 days. The police released the applicant because, so the police told the applicant, the applicant’s wife told the Red Cross about the applicant’s detainment. The police told the applicant they would “call on [the applicant] again”. On his release, the applicant went into hiding, and the SLA tortured the applicant’s father to try to find out where the applicant was hiding.

(g)     The applicant remained in hiding until 2006 when he decided to give himself up. He did so after he contacted the Red Cross. The applicant was required to sign in with the police once a week. About four months after he came out of hiding the applicant was captured by the SLN. The applicant could not understand why he was being taken away, but he suspected it was because the SLN thought the applicant was with the LTTE. The SLA and SLN beat the applicant and others for about 5 hours. The Red Cross came to their rescue. The applicant was taken to court and he arranged bail at 50,000 rupees. The applicant’s name was placed on a list of people associated with the LTTE.

(h)     The applicant fled with his wife and daughter to India three days after he was released. The applicant, his wife, and daughter stayed in a refugee camp until around 2008 when the applicant and his wife returned to Sri Lanka. While the applicant was in India, his father was released from jail, but then sent to a detention centre.

(i)     The applicant’s problems started again about three months after he returned to Sri Lanka. These occurred when the applicant tried to go fishing. The SLN would capture and beat the applicant because, at night, he would accidentally drift into the wrong area. The applicant was beaten approximately once every few months until the applicant fled Sri Lanka in 2012.

(j)     The applicant’s mother and brother also experienced harassment. The SLA thought the applicant’s brother was with the LTTE because he was found in a LTTE controlled area. The applicant’s mother was beaten when she was leaving the LTTE area.

(k)     The applicant’s sister’s husband has been missing since the civil war ended.

(l)     The applicant has spoken to his family and they told him: it is not any better in Sri Lanka than it was before the applicant left; young children are being killed and their bodies are being dumped in rivers; and the authorities frequently ask the applicant’s family where the applicant is.

(m)     The applicant fears that if he returns to Sri Lanka he will be subjected to detainment, torture, and death at the hands of the authorities, including the SLA, SLN, and “the CID” (that is, the Criminal Investigation Department).

...

3.     At his interview before the delegate (SHEV interview) the applicant claimed: in 2005 the applicant’s father was arrested and charged with planting a bomb on behalf of the LTTE; the applicant had supported the LTTE and he feared harm from the Sri Lankan authorities because of his involvement with the LTTE; the authorities had targeted the applicant because of LTTE activities, these consisting in his transporting goods, oil, and people for the LTTE; the applicant’s sister and younger brother were both involved in the LTTE; and the applicant claimed his sister was in the LTTE for 4 years after she joined when she was 16 or 17.

7    On 24 October 2019, the appellant’s SHEV application was refused by the delegate. This decision was referred to the IAA on 31 October 2019. On 25 November 2019, the IAA notified the appellant that it had decided to affirm the delegate’s decision to refuse the SHEV application.

8    As noted by the primary judge at [5] of his reasons for decision, the IAA ultimately did not accept the appellant’s claims that his family were members of or associated with the LTTE. This was because the appellant had not made such claims at his arrival interview or in his SHEV application but raised them first in the SHEV interview, because he gave “varying accounts of the same incident”, or because the IAA regarded certain aspects of his claims to be “implausible”. As such, the IAA was not satisfied that because of his ethnicity or returning to Sri Lanka that the appellant faced a well-founded fear of persecution within the meaning of s 5J of the Migration Act and was therefore not a “refugee” under s 5H (s 36(2)(a)). The IAA also found that there were no substantial grounds for believing that the appellant would suffer significant harm as a necessary and foreseeable consequence of his return to Sri Lanka under s 36(2)(aa).

The proceedings below and relevant parts of the primary judgment summarised

9    On 12 December 2019, the appellant, who was self-represented, commenced judicial review proceedings in the Federal Circuit Court seeking to set aside the IAA’s decision. In his originating application, the appellant advanced five grounds of review (without alteration):

1.    The IAA made serious error at this case.

2.    I would need hear that case in federal circuit court.

3.    The Department of home affairs identified the wrong issue.

4.    The IAA disregarded relevant materiel.

5.    The IAA applied an incorrect interpretation.

10    The appellant did not file any written submissions in support of his grounds of review. At the hearing on 3 February 2021, the primary judge explained to the appellant the purpose of and procedure for the hearing before inviting the appellant to make submissions (through an interpreter). In particular, he was invited to comment on why he believed the IAA’s decision should be set aside and identify the matters said to give rise to each ground of review (see [7] of the reasons for judgment).

11    The primary judge’s reasons for rejecting the appellant’s five grounds of review can be summarised as follows.

12    As to ground 1, the primary judge found it did not disclose jurisdictional error because the appellant failed to identify the error the IAA was said to have made, noting that submissions by the appellant “he had been living in Australia for 9 years” and “he was not educated, and it would be enough if he is released” did not engage with the IAA’s decision (at [10]-[11]).

13    As to grounds 2 and 3 of the originating application, the primary judge concluded that they failed to engage with the IAA’s decision, and therefore did not disclose any jurisdictional error (at [12] and [13]).

14    As to ground 4, the primary judge concluded that no jurisdictional error was established as the appellant failed to “identify the material it is said that the [IAA] disregarded” (at [14]). It is worth extracting the primary judge’s reasons at [14]-[16], as they disclose some of the primary submissions made by the appellant at the hearing below:

… The applicant submitted to me he was badly affected by the civil war, and he left Sri Lanka to protect his life; he had lost his mother as a result of what occurred in the civil war; he saw with his own eyes people being buried alive; and he travelled by boat to Australia putting his life at risk to protect his life. Ms Xiao, who appeared for the Minister, submitted the applicant’s statements could be taken to be a submission to the effect that the Authority did not consider the applicant’s claims; and she submitted the Authority clearly had considered the applicant’s claims.

15.    In my opinion, the applicant did not intend to refer to the [IAA’s] reasons; the applicant’s statements are an appeal to the merits of his claims for protection. As I explained to the applicant, this Court has limited power in relation to a decision of the [IAA] which an applicant seeks to set aside; this Court’s power is limited to determining whether the [IAA] has acted according to law when reviewing the applicant’s case; and that the Court does not have power to grant the applicant refugee status.

16.    In any event, assuming the applicant intends to submit the Authority did not consider or properly consider his claims for protection, I would not accept that submission. The Authority identified the applicant’s claims, considered them, and decided it would not accept essential elements of the applicant’s claims. The Authority gave reasons for not accepting those claims, and its reasons are intelligible and reasonable.

15    Finally, as to ground 5, the primary judge concluded that no jurisdictional error was established as the appellant failed to identify any error made by the IAA, and why that interpretation was wrong, noting the appellant’s submission that “he is not educated and he does not know what to say” (at [17]).

16    While noting that the appellant was (and remains) self-represented, the primary judge’s reasons demonstrate that the appellant’s oral submissions below were wholly directed to the merit of his claims for protection and did not engage with the IAA’s reasons for decision nor identify the nature of any of the alleged errors. This is emphasised by the primary judge’s summation of the appellant’s remaining submissions at [18]:

In addition to the submissions and statements the applicant made in relation to each of the grounds contained in the application, the applicant made statements that did not refer to those grounds. The applicant said his brother who joined the LTTE is no more; the applicant lost his sister as well; and being a driver he helped the LTTE and the police came looking for him. These statements appeal to the merits of the applicant’s claim for protection; they do not disclose any jurisdictional error by the Authority.

Consideration and determination

17    The reasons of the primary judge disclose no appealable error. The appellant’s sole ground of appeal is not particularised and fails to identify any specific error made by the primary judge.

18    The appellant did not file written submissions in support of his notice of appeal. He explained that this was because he is illiterate. During the course of the oral hearing, the appellant made the following submissions with the assistance of an interpreter. First, he submitted that the primary judge failed to take into account his claim that his sister had been killed. That submission must be rejected having regarding to [18] of the primary judge’s reasons for judgment.

19    Secondly, the appellant submitted that the primary judge had failed to take into account that he had been forced to provide assistance to the LTTE. That submission must also be rejected having regard to the contents of [18].

20    Thirdly, during the course of the hearing, the appellant said that he had additional material which supported his claim for protection. He said that he had videos and photos on his mobile telephone which showed people being killed by the Sri Lankan Army. I treated this as an application to adduce new evidence under s 27 of the Federal Court of Australia Act 1976 (Cth). When asked why he had not provided this material earlier, the appellant said that he had deliberately decided not to do that because it would put his family in danger. He then said that he realised that this was his last chance to rely upon that material.

21    The application to adduce further evidence was opposed by the Minister on two grounds. The first was that no adequate explanation had been provided for not producing the evidence in earlier decision-making processes. The second ground of opposition was that the material was not relevant to any ground of appeal. I accept the second of those submissions. Accordingly, I rejected the further evidence but indicated to the appellant that it was a matter for him as to whether he wished to rely upon the material in his future dealings with the Department.

22    The appellant’s substantive submissions in the appeal, limited as they were, failed to engage with the reasons of the primary judge and amounted to no more than a challenge to the merits of the IAA’s decision, in particular with respect to its rejection of his specific claims for protection (see [6] above).

23    Furthermore, the reasons of the primary judge do not disclose appealable error. Putting to one side grounds 2 and 3 before the primary judge (which failed to engage with the IAA’s decision), the remaining grounds of review amount to no more than bare assertions that the IAA committed “serious error” (ground 1), failed to have regard to unspecified “relevant” material (ground 4), or failed to apply a correct “interpretation”. As the primary judge’s reasons demonstrate, the appellant’s oral submissions below failed to particularise or substantiate any of these alleged jurisdictional errors. In particular, the appellant did not identify any relevant material which he alleged the IAA failed to have regard to in deciding to affirm the delegate’s decision.

24    The appellant failed to particularise the grounds upon which the IAA’s decision involved jurisdictional error, nor did he demonstrate any appealable error by the primary judge. The appeal must be dismissed.

25    For these reasons, the appeal will be dismissed, with costs.

Associate:

Dated:    29 July 2021