BWB17 v Minister for Immigration, Citizenship and Multicultural Affairs

Background and the Tribunal's decision 5 The appellant's fear of returning to Sri Lanka relates to his ethnicity as a Tamil and actual or imputed links to the Liberation Tigers of Tamil Eelam (LTTE). 6 The appellant claimed that: (a) he had been arrested and detained by authorities in Sri Lanka on a number of occasions between 2007 and 2011 due to an alleged affiliation with the LTTE, and that he had left Sri Lanka on four occasions due to local police harassment and a fear of being re-detained and harmed; (b) on one occasion in 2011 he was detained and severely beaten by police for refusing to participate in a demonstration; and (c) in March 2012 the police transferred his matter to the Criminal Investigation Department (CID) who wrote him a letter asking him to attend the CID headquarters. It is that last claimed event which is said to have prompted the appellant to leave Sri Lanka on the occasion which resulted in his arrival in Australia. 7 The Tribunal generally accepted the appellant's account of the events that occurred up until around October 2009. This included that in June 2007 he was arrested on suspicion of terrorist related activities and released on bail later that month, that he had to report to the local court or police station until January 2009, that on returning from Singapore he was kept in the airport in Colombo for 10 hours but not questioned or mistreated, and that he was questioned and detained in a 'bunker' by authorities from June 2009. 8 However, the Tribunal found that the appellant's conduct after October 2009 was not consistent with an objective or subjective fear of harm by the authorities and indicated that he was of no further interest to them. In particular, the Tribunal considered that the appellant's travel to India and Mali and return to Sri Lanka on a number of occasions lead to considerable doubts about the events he claimed were happening at those times. The Tribunal stated that 'the applicant was incapable of explaining or reconciling his actions in returning [to Sri Lanka] on these occasions despite the deteriorating situation for him in Sri Lanka' (para 60). 9 The Tribunal did not accept that the appellant was harassed, detained or treated with suspicion by the authorities after approximately October 2009. More specifically, and as the Tribunal explained in significant detail, it did not accept: (a) that the appellant was ordered to participate in a demonstration and detained and beaten because of his refusal to do so or that his uncle arranged for his release and made a complaint about the appellant's treatment to any person; (b) that the authorities threatened him and his family, demanding that he withdraw the complaint (which the Tribunal did not accept had been made); (c) that any complaint was escalated to the CID in March 2012; (d) that the local authorities or CID left a letter or another note requiring the appellant attend the CID headquarters (the Tribunal found that the letter or note was not genuine and so gave it no weight); or (e) that, because of a photograph at a volleyball match and a video at a cricket match, both published on Facebook and containing visible links to the Tamil diaspora, the appellant's family were questioned or that any harm would be caused to the appellant because of his participation in those events. 10 The Tribunal also considered at length the appellant's claimed fears due to his race, returning as a failed asylum seeker and his illegal departure from Sri Lanka. 11 The Tribunal concluded that having considered all of the appellant's claims that had been accepted and weighing those against the country information, the appellant did not face a real chance of serious harm in Sri Lanka arising from his past suspected LTTE involvement (which had in truth been suspected only until the end of 2009), detention towards the end of 2009, activities in Australia, race, status as a failed asylum seeker or returnee from a Western country, or as a person who left Sri Lanka illegally, or for any other reason. The Tribunal found this was the case for each aspect of the appellant's claims taken alone or cumulatively, and now or in the reasonably foreseeable future. 12 The Tribunal therefore affirmed the delegate's decision that the appellant does not meet the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth), nor the complementary protection criterion in s 36(2)(aa), and so is not a person in respect of whom Australia has protection obligations.

The Federal Circuit Court proceeding 13 To succeed in the Federal Circuit Court, it was necessary for the appellant to demonstrate jurisdictional error in the Tribunal's decision: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [83]. 14 The appellant's grounds of review of the Tribunal's decision before the primary judge were: 1. Jurisdictional error. 2. Bias based on conscious or unconscious prejudice by ignoring relevant material. 3. Identifying a wrong issue on a wrong question. 15 The primary judge dismissed the first ground, finding that the Tribunal complied with its statutory obligations in the conduct of the review and had a real and genuine intellectual engagement with the appellant's claims and evidence, making dispositive findings that were open to it. 16 The primary judge dismissed the second ground, finding that: (a) no conduct was identified that supported any basis on which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits; (b) no identified relevant material was ignored; (c) the Tribunal conducted the review with an open mind reasonably capable of persuasion on the merits; and (d) the Tribunal's adverse findings were not a basis for a reasonable apprehension of bias. 17 The primary judge dismissed ground 3, stating that on the face of the Tribunal's reasons the Tribunal correctly identified and applied the relevant law, making findings that were open to it. 18 The primary judge then went on to consider six paragraphs of an affidavit of the applicant, which the primary judge considered to be the applicant's submissions. Four of the paragraphs are potentially relevant to this appeal. 19 In paragraph 3 the appellant stated 'The Tribunal did not pay adequate attention to the facts and the law in determining my case and therefore fell [into] jurisdictional error'. On this, the primary judge held that there was no fact identified that the Tribunal failed to refer to, and the Tribunal correctly identified the law, so there was no jurisdictional error. 20 In paragraph 4 the appellant stated 'The Tribunal did not take into account the prevalent laws and regulations in Sri Lanka which relates to Tamils and their aspirations for self-determination'. On this, the primary judge found that the Tribunal took into account the appellant's illegal departure and what processes he would be subject to on return, the 'volleyball incident' and subsequent activities, and the appellant's Tamil ethnicity and his claimed fear of harm. On each of these, the primary judge found that the Tribunal made adverse findings that were open to it and so there was no jurisdictional error. 21 In paragraph 5, the appellant stated 'As a young Sri Lankan Tamil with suspected links to the LTTE I will be taken into custody and subjected to human right abuses under the Prevention of Terrorism Act'. On this, the primary judge found that the Tribunal considered the appellant's claims in relation to imputed LTTE links and made adverse findings which were open to the Tribunal, so no jurisdictional error arose. 22 In paragraph 6, the appellant stated 'I submit therefore that I have a well-founded fear of retuning to Sri Lanka as I will not be protected by the state or government of that country'. The primary judge found that this reflected disagreement with the Tribunal's findings, inviting merits review, and did not identify any jurisdictional error. 23 The primary judge therefore held that the appellant had not identified any jurisdictional error and so dismissed the application.

The appellant's case on appeal 24 The appellant's ground of appeal quoted above can be distilled into two grounds: that the primary judge did not adequately examine the evidence, and that the primary judge did not exercise the Court's proper jurisdiction. Both of these are broad and unparticularised. The appellant filed no written submissions. 25 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. 26 In COS16 v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20], McKerracher J said that in the case of an unrepresented appellant, the Court should review the reasons under consideration to determine if there is obvious error. However, that examination does not extend to the Court parsing and analysing the decision with a view to identifying a potential argument as to jurisdictional error, and in the absence of obvious error there is no duty or function of the Court to articulate a question of law or to identify an error. 27 At the hearing, I attempted to explain to the appellant with the assistance of the interpreter the function of this Court in appellate review of the primary judge's decision. I reminded the appellant of the ground specified in his notice of appeal and invited him to tell me how the primary judge had erred. He then put four matters which were not clearly related to his ground of appeal, which I will address shortly. 28 In so far as the appellant's ground of appeal and oral argument asserted that the primary judge did not adequately examine the evidence, there is no apparent basis on which that claim could succeed. The 'evidence' which the primary judge was required to consider was the Tribunal's reasons. In his reasons, the primary judge outlined in detail the appellant's claims before the Tribunal and the Tribunal's findings on those claims. His Honour was not required to scrutinise the underlying material before the Tribunal unless something specific was put before him. The appellant has not identified any material before the Tribunal that the primary judge failed to adequately examine and it is not for this Court to identify an error, at least where no error is apparent, when the appellant has not: EJB17 at [12]. 29 The appellant's ground alleging that the primary judge did not exercise the Court's proper jurisdiction also should not be upheld. The primary judge stated that the application was for a constitutional writ within the Court's jurisdiction under s 476 of the Migration Act. This is the correct source of the Federal Circuit Court's jurisdiction over proceedings of this kind, and his Honour proceeded to determine the matter on that basis. No error arises. 30 The four matters put by the appellant at the hearing were: that regard should have been had to a change of government in Sri Lanka in 2018; that his hearings before the Tribunal and primary judge were conducted by phone and/or video or audio link; that he was only given 10 minutes to talk at the Federal Circuit Court hearing; and that the primary judge did not ask him in any detail about the CID letter. For the reasons that follow, none of these claims reveal appealable error in the primary judge's decision. 31 The appellant said that at the time of the hearing before the Tribunal the economic situation in Sri Lanka was very good and the government was going very well but then in 2018 the government changed. The appellant suggested that it is the situation in Sri Lanka in 2018 that should have been the reference point and took issue with the primary judge only having regard to the information given at the hearing before the Tribunal in 2017. But it is well established that whether the Tribunal has erred is to be answered by reference to the circumstances that existed at the time the decision-making authority was exercised: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; (2022) 289 FCR 164 at [28] (Beach, Thawley and Cheeseman JJ). 32 The appellant also said that all his previous hearings had been conducted over the telephone, which meant that it was hard to get his point across. However, under s 429A(a) of the Migration Act, an applicant can appear before the Tribunal by telephone. Similarly, under s 67 and s 68 of the Federal Circuit Court of Australia Act 1999 (Cth) (which was in force at the time of the appellant's hearing in the Federal Circuit Court), an applicant could appear and make submissions by way of video link or audio link in a proceeding. There is no reason to think that the discretion to allow the appellant to appear by telephone at the Tribunal, or video link or audio link at the Federal Circuit Court was exercised unfairly or inappropriately. The appellant had legal representation before the Tribunal, making it unlikely that the fact that it was an audio hearing caused him any disadvantage in getting his points across. While it can be inferred that the appellant's complaint went to the procedural fairness of the hearing before the primary judge, the appellant did not proffer any specific examples of how the allegedly audio nature of the hearing (which was in fact conducted over Microsoft Teams) inhibited his ability to make any of the points he wished to make. 33 The appellant also said that before the Federal Circuit Court he was only given 10 minutes to talk, but he did not say that this was insufficient time and it was not clear that he was putting to this Court that he had further submissions to the Federal Circuit Court which he was not given the opportunity to make, such that he was not afforded procedural fairness. 34 The appellant also made a complaint that the primary judge asked him about the letter from the CID, but not in any detail. The primary judge discussed the letter in his reasons and found that no jurisdictional error arose in relation to the Tribunal's findings concerning it. The appellant has given no reason to doubt the correctness of this finding. Nor is there any reason to think that further interrogation of the letter by the primary judge would have revealed jurisdictional error on the part of the Tribunal. More likely it would have led to impermissible merits review. In any event, in our adversarial system it would have been inappropriate for the primary judge to have investigated the merits of the letter to ascertain whether the appellant did in fact have a case to make about it. 35 The Minister submits that the appellant needs leave to rely on these matters he agitated at the hearing, insofar as they were complaints about the Tribunal, because they were not raised before the primary judge. To the extent that leave is required it will not be granted, on the basis that any new points agitated have no merit for the reasons given above. 36 The appellant has not identified any error in the Federal Circuit Court's decision and so the appeal will be dismissed. 37 At the hearing the Minister sought costs fixed in the amount of $7,000. This is less than the amount fixed for short form bills for migration appeals dismissed after hearing (Federal Court Rules 2011 (Cth) Schedule 3, item 15.2) and when it was put to the appellant, he declined to make any submission about it. Accordingly, it will be ordered that the appellant pay the first respondent's costs fixed in the amount of $7,000. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.