CPV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Background and the appellant's claims for protection 4 The appellant is a 34-year-old male of Tamil ethnicity. He comes from Chilaw District in north-western Sri Lanka. He completed school to year 11 and worked as an apprentice carpenter before he left for Australia. 5 Once in Australia, the appellant sought protection on the basis that he claimed to fear harm if he were to return to Sri Lanka because of his Tamil ethnicity, his Hindu religion, his imputed political opinion, and as a failed asylum seeker. In addition, he claimed to fear harm from the Sri Lankan government, because there had been an allegation that the land on which his family lived was owned by the State. He also alleged that three people described as 'influential Sinhalese thugs' had assaulted members of his family. This, the appellant claimed, had resulted in a court case which was ongoing at the time of his protection claims. He said that the thugs had threatened to harm him and his family when the case ended. The appellant additionally claimed that he feared he would be attacked by Buddhist nationalists. 6 The first decision of the Refugee Review Tribunal was subsequently quashed (by consent) because it had failed to consider a claim that the appellant had a well-founded fear of persecution on the basis of his Tamil ethnicity. 7 The appellant added two further claims in the remitted review before the Tribunal. One was that his mother, who was still in Sri Lanka, told him that Criminal Investigation Department (CID) officers visited their family home in August 2015 to ask where the appellant and one of his cousins were. The CID officers allegedly said that they had been told the appellant and his cousin had been helping the Liberation Tigers of Tamil Elam (LTTE). The other claim was that the appellant's brother-in-law had been attacked by Sinhalese 'thugs' in August 2015.

The decision of the Tribunal that was under review by the primary judge 8 The Tribunal described the appellant's evidence as 'evasive, vague and inconsistent' and found that he was not a credible witness. 9 In relation to the claim about state-owned land, the Tribunal recorded that the appellant said at the hearing that he did not want to pursue the claim. The Tribunal was not satisfied that the appellant would face persecution if he returned to Sri Lanka based on the land dispute. 10 As to the claim about Sinhalese thugs, the Tribunal did not accept that the attacks were politically motivated, that the thugs were politically connected or able to exert political influence, or that they had been released from custody due to their political connections. The Tribunal noted that the Sri Lankan authorities took action against the thugs, having apparently arrested and charged them, with the resulting court proceedings being ongoing at the time of the hearing before the Tribunal. The Tribunal expressed surprise at the appellant's claim that he did not know if the proceedings had concluded, given that he claimed to have regular contact with his family in Sri Lanka. The Tribunal also expressed surprise that assault proceedings commenced in 2008 would be ongoing seven years later, when the claim was before the Tribunal. 11 Having found the appellant's evidence on this claim to be vague, lacking in detail and at times inconsistent, the Tribunal did not accept that the appellant's family in Sri Lanka had continued to be targeted by the same Sinhalese thugs since he left Sri Lanka, or that his family had been targeted in Sri Lanka because they were witnesses in court proceedings. Consequently, the Tribunal was not satisfied there was a real risk that the appellant would suffer significant harm if he were to return to Sri Lanka, by reason of the assaults on his family and/or because of any court proceedings where his family were witnesses. 12 In relation to the appellant's claim to fear harm on the basis of his Tamil ethnicity, the Tribunal had regard to the relevant Department of Foreign Affairs and Trade country information, which it discussed with the appellant at the hearing, and found that the information did not support the appellant's claims of persecution based on his Tamil ethnicity alone. The Tribunal found that the situation for Sri Lankan Tamils had improved since the end of the civil war. The Tribunal discussed with the appellant the change in Sri Lanka's political landscape since he departed, and noted that he agreed that the problems faced by Tamils had decreased, but maintained that he and his family had problems. 13 In relation to the appellant's claim that he feared harm on the basis of his Hindu religion, he submitted that since leaving Sri Lanka he had become aware of attacks on non-Buddhists by Buddhist nationalists. The Tribunal noted that the appellant did not provide evidence of experiencing persecution in Sri Lanka from Buddhist nationalists. Having considered the country information, the Tribunal found that there was no real chance that the appellant would face persecution in Sri Lanka in the reasonably foreseeable future on the basis of his Tamil ethnicity or his Hindu religion, and that his fears of persecution because of his race and religion were not well-founded. 14 In relation to the appellant's claims that he feared harm on the basis of having left Sri Lanka illegally or being a failed asylum seeker, the Tribunal accepted that the appellant left Sri Lanka illegally. The Tribunal accepted that there were reports of some failed asylum seekers suffering abuse on their return to Sri Lanka, but noted that these overwhelmingly involve persons who have criminal connections, or Tamil persons who have had connections or suspected connections with the LTTE. 15 The Tribunal found that the appellant was not suspected of having LTTE connections and that there was no real chance he would be harmed for this reason on return. The Tribunal found that the appellant did not have an adverse political profile at the time of his departure, and it did not accept that the appellant had come to the attention of Sri Lankan authorities or that there was an outstanding warrant for his arrest. The Tribunal accepted that the appellant would likely be charged and convicted under Sri Lanka's departure laws on his return, that he could be detained for up to a few days, and that he would likely have to pay a fine. However the Tribunal was satisfied that this was a risk faced by the population generally in relation to illegal departures, and that the fine would not amount to significant harm within the meaning of s 5(1) of the Migration Act 1958 (Cth). 16 Accordingly, the Tribunal did not accept there was a real chance that the appellant would be persecuted in the reasonably foreseeable future if he were to return to Sri Lanka by reason of having departed illegally or because he was a failed asylum seeker from a Western country. The Tribunal did not accept that he had a well-founded fear of harm on this basis. 17 In regard to the appellant's new claims, the Tribunal did not accept that CID officers had visited his family and informed his mother that they had received information that the appellant and his cousin were assisting the LTTE. Nor did it accept that the appellant or his family had any links with the LTTE. 18 The Tribunal found the appellant's claim regarding the attack on his brother-in-law was vague and lacking in detail. It did not accept that it was linked to the earlier assaults his family had experienced, and did not accept that the attack was politically, religiously or racially motivated. 19 Based on these findings and the Tribunal's review of the country information and the appellant's individual circumstances, the Tribunal was not satisfied that the appellant met the criterion in s 36(2)(a) of the Act (refugee) or the criterion in s 36(2)(aa) of the Act (complimentary protection).

The Federal Circuit Court decision 20 The appellant's application for judicial review of the Tribunal's decision was filed on 15 September 2016. It raised two grounds of review, namely that the decision of the Tribunal was 'affected by an error of law' and that the Tribunal denied the appellant procedural fairness. 21 Almost five years passed after the filing of the application before it was heard by the Federal Circuit Court on 8 June 2021. At the hearing the appellant appeared on his own behalf, assisted by an interpreter. 22 Based on oral submissions the appellant made through an interpreter, the primary judge interpreted the error on which the appellant relied to be that the findings of the Tribunal were not open on the evidence. The primary judge reviewed the decision of the Tribunal and summarised it in some detail. His Honour found that all the conclusions the Tribunal reached were open on the evidence, and that the Tribunal had complied with 'all of the legislative requirements in the exhaustive statement of natural justice and procedural fairness.' By that I take his Honour to be referring to the requirements of Part 7 Division 4 of the Act which, pursuant to s 422B, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. 23 The appellant also made a new claim to the Federal Circuit Court which was not before the Tribunal, stating that his cousin had come to Australia with him and made a similar claim for protection as his own, which was not accepted and he was sent back to Sri Lanka. The appellant submitted that on his cousin's return to Sri Lanka he was unable to live there and he had gone to France, where he was accepted as a refugee. The appellant submitted that as his and his cousin's claims were similar, he would not be able to live in Sri Lanka if he returned. This claim was not before the Tribunal, as the events in question were said to have occurred after the Tribunal's decision. The primary judge found that this new claim was irrelevant to what his Honour had to decide, being whether, on a review of the evidence before the Tribunal, the conclusions that it made were open or not. 24 As the primary judge had found that the conclusions made by the Tribunal were open to it on the evidence, his Honour found that no jurisdictional error on the part of the Tribunal had been established.

The appeal 25 The sole ground of appeal was (errors in original): The Primary Judge didn't adequately examine the evidence that was placed and didn't exercise the Courts proper Jurisdiction. This is generic and does not identify any specific error on the part of the primary judge. The appellant did not file any outline of submissions that might have provided particulars of the error. 26 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 recitation of the evidence in his reasons for judgment means that there is no apparent basis for that contention. 27 Nor is there any apparent basis for the claim that his Honour did not exercise the Court's jurisdiction. His Honour considered the appellant's grounds of review and decided that none of them were made out, and so dismissed the application. I have summarised his Honour's reasoning above, and no error is apparent in it. 28 It is necessary to be conscious of the particular disadvantages faced by a self-represented litigant in migration appeals, especially one who is not fluent in English. But 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. 29 In COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20], McKerracher J said that 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.

Matters raised by the appellant at the appeal hearing 30 At the hearing of the appeal I pointed out to the appellant what was said in the first part of the ground of appeal, about evidence, and asked him to identify what mistakes were made in the primary judge's examination of the evidence. He said that in regard to his claim that the CID had visited his mother, it had been stated in a 'paper' that his mother had told him about the visit, but he had actually said that it was he who asked his mother about the visit, as someone known to him had told him about it. The appellant said that this acquaintance was part of the 'gang' who had come to hit him. 31 By 'the paper', the appellant may have been referring to his written submissions before the Tribunal, which were made on his behalf by a solicitor and registered migration agent. In those, it was claimed that the appellant had been informed of the visit from the CID by his mother. To the extent that this was wrong, the mistake is to be laid at the feet of the appellant or his legal representative at the time, and cannot establish jurisdictional error on the part of the Tribunal. 32 In any event, neither the Tribunal nor the primary judge in their reasons made any findings or assumptions as to who it was that told the appellant about the visit from the CID to his mother. Even if the Tribunal or the primary judge had erred in understanding the claim as to who had told the appellant of the visits, it would not have been material to their respective reasoning. This asserted deficiency in the evidence is not capable of establishing jurisdictional error by the Tribunal or error on the part of the primary judge. 33 With the other part of the ground of appeal in mind, concerning an alleged failure to exercise the court's 'proper jurisdiction', I asked the appellant whether there was something that the primary judge should have done that he did not do. The appellant said he had nothing to say about that. 34 I then asked the appellant if he had anything more that he wanted to tell me. He said that, as it was a long time ago when the events that are the subject of his claims happened and when he arrived in Australia, he may not have remembered certain dates correctly when presenting them to the Minister's delegate and to the Tribunal. He also said that he may have not presented his case and his evidence properly, and he appeared to be attributing that to his youth at the time. 35 However these explanations for inadequacies in his evidence, even if correct, cannot support any finding that the Tribunal fell into jurisdictional error. The Tribunal was entitled to act on the basis of the evidence as presented to it by the appellant. I note also that the appellant was represented by a lawyer in the proceeding before the Tribunal and assisted by migration agents in previous proceedings, including his protection application and his first Tribunal review. It was for them to elicit the appellant's evidence as accurately as possible. 36 At the hearing of the appeal, the appellant also said that his aunt's hand had been cut in an attack in Sri Lanka when he was 17 years old, and his fear of this and for his safety was the reason that he came to Australia. However the Tribunal addressed the appellant's claim about the attack on his aunt and accepted that it may have happened, but did not accept that it was politically, religiously or racially motivated. The Tribunal found that the perpetrators were arrested and charged, the dispute subsequently ended, and the family experienced no further problems after the charges were laid.

Conclusion 37 The appellant has failed to establish any error on the part of the primary judge. The appeal will be dismissed, with costs. 38 The Minister sought a lump sum costs order of $4,500, which is less than the amount provided for in Schedule 3 item 15.2 of the Federal Court Rules 2011 (Cth) in respect of migration appeals that are dismissed after hearing. The appellant had no submission to make in reply to that proposal, which counsel for the Minister repeated in oral submissions. The amount is reasonable and an order to that effect will be made. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.