DEZ16 v Minister for Immigration and Border Protection

A failure to consider the full integers of the claim made 8 The first Ground of Appeal contends that the primary Judge erred in failing to conclude that the Authority had not considered "the full integers of the claims" made. 9 A failure to consider claims made by a claimant may constitute jurisdictional error: cf. Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [52], (2003) 236 FCR 593 at 605 per French, Sackville and Hely JJ. 10 Two Grounds of Review were advanced before the Federal Circuit Court, namely: a claim that the "tribunal" had "failed to consider the full integers of the claims", being claims that the Authority had: "failed to consider the fact that the applicant is liable to extortion as a person from overseas"; and "failed to consider … the cumulative claims of the applicant". a claim that the Authority had "failed to consider PAM3 guidelines". The second of these Grounds of Review formed no part of the Grounds of Appeal to this Court. 11 Care needs to be exercised when considering the first Ground of Appeal and the argument that the Authority had "failed to consider the full integers of the claims". The "integers of the claims" made by the now-Appellant, and as summarised by the Authority, were claims that: • In 2004 [the applicant] came to know a number of Liberation Tigers of Tamil Eelam (LTTE) cadres who were attached to the intelligence wing of the LTTE. He and several others assisted the LTTE by transporting cadres and goods in the area. • Two other Tamil boys were assisting the LTTE in the same way as the applicant. One was abducted and never found. The other was tortured and killed by the Special Task Force (STF). • The situation deteriorated when the Karuna Group separated from the LTTE around this time. • The applicant decided to leave for Saudi Arabia to work. His passport was obtained through altered documents - a national ID and birth certificate with an incorrect birth date (changed from 1986 to 1984). • The applicant returned from Saudi Arabia in 2009. He began to support the Tamil National Alliance (TNA) and two of its candidates prior to the 2012 election. He drove a van for the TNA. • During the campaign members of the Karuna Group threatened to harm him if he did not cease campaigning for and supporting the TNA. The applicant again decided to leave Sri Lanka. • He fears harm on the basis of these forged and fraudulently obtained travel documents. The applicant fears that if he returns to Sri Lanka it will be necessary to present his genuine Sri Lankan birth certificate, at which point Sri Lanka authorities will identify his true birth year. He may be questioned and could face imprisonment. Missing from those claims, it will be noted, is any claim that the now-Appellant feared harm by reason of the prospect of him being "liable to extortion as a person from overseas". 12 In rejecting the first Ground of Review, the primary Judge relevantly concluded that: no claim had been made by the now-Appellant that he would be "liable to extortion as a person from overseas" and that "no such claim squarely arose on the material before this Court" ([2018] FCCA 1317 at [43]); there had been no failure on the part of the Authority to consider and resolve the "integers" of the claims made and that the Authority resolved the claims in a manner which was "not tainted by any failure to afford procedural fairness" ([2018] FCCA 1317 at [40] to [43]); and the Authority had in fact considered the claims "cumulatively" ([2018] FCCA 1317 at [45] to [46]). 13 Having separately considered the reasons of the Authority, concurrence is expressed with the conclusions of the primary Judge. 14 Because the now-Appellant failed to expressly raise (as a matter to be considered) the prospect of him being exposed to "extortion as a person from overseas", it was necessary for the primary Judge to make an assessment as to whether the claims he in fact made also "squarely" raised the prospect that he faced extortion: cf. NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, (2004) 144 FCR 1 at 18 to 19. Black CJ, French and Selway JJ there observed: [58] The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it. There is authority for the proposition that the Tribunal is not to limit its determination to the "case" articulated by an applicant if evidence and material which it accepts raise a case not articulated. By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant. It has been suggested that the unarticulated claim must be raised "squarely" on the material available to the Tribunal before it has a statutory duty to consider it. The use of the adverb "squarely" does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. (citations omitted) Having separately considered the claims made by the now-Appellant, concurrence is expressed with the conclusions of the primary Judge that any claim as to the prospect of harm by reason of "extortion as a person from overseas" was not a claim which "squarely arose": [2018] FCCA 1317 at [43]. The remainder of the claims in fact made were considered by the Authority. 15 The first Ground of Appeal is thus rejected.

Unreasonableness and a denial of procedural fairness 16 The second Ground of Appeal contends that the Authority "acted unreasonably and denied the applicant procedural fairness in not exercising its power, and not considering whether to exercise its power under s 473DC(3) to invite the applicant to comment on the new information 24 January 2017 of the Department of Foreign Affairs and Trade … orally or in writing before it made its decision". 17 Section 473DC of the Migration Act 1958 (Cth) provides as follows: Getting new information (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. 18 The reference to "the new information 24 January 2017" in the second Ground of Appeal is mysterious. On its face, it is difficult to see how the Authority in the course of making its decision in September 2016 could have misapplied s 473DC to information which was not then available. 19 But such uncertainty is removed when reference is made to the Particulars provided in respect to this Ground of Appeal. Those Particulars identify reports of the Department of Foreign Affairs and Trade referred to by the Authority at paras [35], [37], [38], [40], [41], [44], [45] and [50] of the Authority's reasons for decision. Included within the footnotes to those paragraphs are references to two reports of the Department, namely: "DFAT Country Information Report - Sri Lanka", 18 December 2015; and "DFAT Thematic Report People with Links to the Liberation Tigers of Tamil Eelam", 3 October 2014. The reference to the 24 January 2017 information can be placed to one side as simply a mistake in the identification of the Reports to which reference was intended to be made. 20 The argument sought to be advanced in the second Ground of Appeal fails for either of two reasons. 21 First, no question of any denial of procedural fairness or unreasonableness arises. The content of both of the departmental Reports was canvassed in the reasons for decision of the delegate. Those reasons disclose the content of those Reports throughout the reasoning process, including those parts of the reasons directed to the delegate's findings as to: whether the now-Appellant faced a well-founded fear of persecution (e.g., at paras [93] to [97]); and whether the now-Appellant would face a "real chance of persecution" by reason of him being "perceived to be associated with the LTTE" (at paras [101] to [106] and [132] to [133]). No question could thus arise of the Appellant not having an opportunity to make any such comment to the Authority with respect to those Reports as he saw fit. No question arose as to either of these two Reports being "new information" for the purposes of s 473DC of the Migration Act. Nor could reliance by the Authority upon the content of such Reports be regarded as "unreasonable". 22 Second, this argument was not one raised for the consideration of the primary Judge. Although leave may be granted to raise new arguments on appeal where it is "expedient in the interests of justice to do so" (VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46], (2004) 238 FCR 588 at 598 per Kiefel, Weinberg and Stone JJ), there is no occasion in the present proceeding for leave to do so to be granted. 23 The second Ground of Appeal is rejected.

An LTTE supporter? 24 The third Ground of Appeal concerns the delegate and the Authority's assessment of whether the now-Appellant was a supporter of the Liberation Tigers of Tamil Eelam (the "LTTE") before he left Sri Lanka and invokes the observations of Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719, (1999) 93 FCR 220. The observations of present relevance include the following (at 239 to 240): The principles [60] It follows from the observations of the High Court in [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259] and [Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559] that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a "real substantial basis" for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring. [61] The RRT performs its fact-finding task as an administrative decision-maker. Although the civil standard of proof is not irrelevant to the process, the RRT cannot simply apply that standard to all fact-finding. Moreover, the RRT must frequently make its assessment on the basis of fragmented, incomplete and confused information. It has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision-maker/investigator. As Gummow and Hayne JJ remarked in [Abebe v Commonwealth [1999] HCA 14 at [191], (1999) 197 CLR 510 at 577 to 578]: "[i]t is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself." Even applicants with a genuine fear of prosecution may not present as models of consistency or transparent veracity. [62] In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur. [63] Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. 25 An initial difficulty is that this Ground of Appeal is directed to the decision of the delegate and the Authority, rather than the primary Judge. However, it is the decision of the primary Judge which is the subject of the appeal, and it was the decision of the Authority (and not the delegate) that was the subject of review by the primary Judge. The decision of the delegate would appear to have no present relevance. Leaving that initial difficulty to one side, the more substantive difficulty with this Ground of Appeal is again twofold. 26 First, this was a ground of challenge not advanced for the consideration of the primary Judge. Again, there is no reason why leave should be granted to now rely upon this argument before this Court. 27 Second, it is an argument which does not arise on the facts. The Authority considered the alleged "past association" of the now-Appellant with the LTTE and made an assessment of the prospect that he would face harm by reason of that past association. Part of the Authority's consideration of that aspect of his claims appears in its reasons as follows: 15. I have considered whether the applicant is at risk for any past association with the LTTE, as a result of living in a former LTTE-controlled area or any actual or imputed political opinion to the LTTE. The current UNHCR Guidelines from December 2012, reiterated in the most recent DFAT report in 2015, identify that previous real or perceived links with the LTTE that go beyond residency in an LTTE-controlled area may lead to adverse treatment for persons returning to Sri Lanka, including torture or other serious or significant harm. A range of risk profiles are listed, but broadly they relate to combatants, supporters, those that were involved in sheltering or transporting LTTE personal [sic] or goods, or those that funded or provided other support or are otherwise sympathetic to the LTTE. Other reports before me support the risks to persons with these profiles. 16. Notwithstanding my concerns about aspects of the applicant's evidence, I am prepared to accept that he lived in a conflict zone in the East and may have provided some low level transport support for the LTTE. While UNHCR and DFAT both highlight that certain persons connected or associated with the LTTE may remain at risk of harm in Sri Lanka, I do not accept that his brief period of low level and infrequent support to the LTTE in 2004-05 would give rise to the applicant having a profile that would put him at a real chance or risk of harm from the authorities if he returned to Sri Lanka. Instead, I find that he would fall into the large cohort of ordinary Tamil people who lived in conflict zones during the civil war and who provided, or were forced to provide, low level material support to the LTTE. I give weight to the fact that he does not claim to support the LTTE, nor did his father or immediate family. I accept that people from his village, including even former Karuna Group members, may have known or know about that limited support, but I do not accept that this factor would increase his profile on return in particular given the prevalence of low level assistance provided by ordinary Tamils to the LTTE during the war. The applicant was not himself a cadre, he was not employed or a member of the LTTE, he was not engaged in combat, nor does he possess the type of history or connection to the LTTE that may give him a risk profile that would put him at a chance or risk of harm on return. 17. I am satisfied that the applicant does not have a profile and does not face a real chance of being seriously harmed for these reasons. In this regard, I also find it significant that the applicant was able to travel out of and return to Sri Lanka in 2005 and 2009. The applicant was also able to obtain a new passport in 2010 and he experienced no issues with the authorities before leaving in 2012. If the applicant had any security or other profile arising from that assistance to the LTTE in 2004-05, I am satisfied that he would not have been able to obtain travel documents and travel out of the country, nor would he have been able to escape further scrutiny from the authorities prior to his departure in 2012. (footnotes omitted) 28 None of that reasoning gave rise to any necessity for the Authority to consider the prospect of the chances of harm in the event that it was wrong in its assessment. 29 The third Ground of Appeal is, accordingly, rejected.

A fair hearing before the Federal Circuit Court 30 The final Ground of Appeal contends that the Federal Circuit Court Judge failed to ensure that the hearing was fair and that the now-Appellant did not "suffer a disadvantage from exercising his or her right to be self-represented". It is further contended that the Federal Circuit Court Judge "failed to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court". The contention was that it is a requirement imposed upon the primary Judge to "explain in plain terms to unrepresented applicants that they must identify why the Tribunal's decision was not made lawfully and by a fair process" and that it is "not enough to merely say that they must demonstrate jurisdictional error". 31 In support of these grounds, the Notice of Appeal refers to the decision of the New South Wales Court of Appeal in Hamod v New South Wales [2011] NSWCA 375 ("Hamod") and the decisions of this Court in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146, (2013) 216 FCR 445 ("SZRUR"); and Shrestha v Migration Review Tribunal [2015] FCAFC 87, (2015) 229 FCR 301 ("Shrestha"). 32 In Hamod, Beazley JA (with whom Giles and Whealy JJA agreed) observed: Courts' duty to unrepresented litigants [309] Courts have an overriding duty to ensure that a trial is fair. This entails ensuring that the trial is conducted fairly and in accordance with law. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented. In MacPherson [v The Queen (1981) 147 CLR 512] Mason J, at [31] 534, noted that: "A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'." [310] However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just. [311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case. [312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant. [313] The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated: "But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant." [314] Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court. [315] There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality: "A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6." [316] The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. (some citations omitted) In SZRUR, Robertson J cited these observations with approval: [2013] FCAFC 146 at [37], (2013) 216 FCR at 452 to 454 (Allsop CJ and Mortimer J agreeing). 33 In Shrestha, the Full Court was directing its attention to a case where the primary Judge had summarily dismissed an application for review pursuant to s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) in circumstances where the parties were seeking an adjournment in order to (inter alia) obtain a transcript of the hearing before the Tribunal. It was in that context that the Court, constituted by Mansfield, Tracey and Mortimer JJ, observed (at 310 to 311): [53] The pressure of high volume decision-making, such as that undertaken by the [Federal Circuit Court of Australia] in the migration jurisdiction, should be recognised. Essential tools in managing high volumes of cases include the show cause process in Pt 44 of the [Federal Circuit Court Rules 2001 (Cth)], and the power outside that process, in s 17A of the [Federal Circuit Court of Australia Act 1999 (Cth)], summarily to dismiss a judicial review application. The existence and utilisation of those processes do not obviate the need to consider the material before the Tribunal (rather than simply its reasons), nor to explain in plain terms to unrepresented applicants that they must identify to the court why the Tribunal's decision was not made lawfully and by a fair process. Insisting to an unrepresented applicant that she or he identify a "jurisdictional error" is a pointless, and unfair, exercise. Further, the processes in s 17A and Pt 44 do not remove the obligation to give parties, whether represented or unrepresented, some reasonable time to regularise their materials and present their arguments. Their Honour's comments as to a mere reference to "jurisdictional error" being a "pointless, and unfair, exercise", it is respectfully considered, must be read in context. That was a context in which the Full Court was considering the peremptory behaviour of the primary Judge in summarily dismissing a proceeding at what was, in effect, the first return date. Concurrence is nevertheless expressed with the view that in many cases it will be futile - and possibly a denial of procedural fairness - to merely inform an unrepresented party of the need to establish "jurisdictional error" without providing any further explanation. 34 But Shrestha is no authority for the proposition that an unrepresented party is in all circumstances denied procedural fairness where he is told no more than that he needs to establish "jurisdictional error". 35 On the facts of the present case, the only evidence of the manner in which the primary Judge sought to explain the functions to be discharged by the Federal Circuit Court are those set forth in that Judge's reasons. Those reasons relevantly state as follows: [22] Before inviting the applicant to make submissions, I explained to the applicant that the role of this Court is very different to that of the Authority, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Authority was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Authority, unless the Court is satisfied that the decision of the Authority is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Authority rarely, by itself, establishes such a mistake. There was no transcript available to this Court of the hearing before the primary Judge and thus no way of knowing in any greater detail the manner in which the primary Judge may have more fully explained to the now-Appellant the role being undertaken by that Court. 36 Although greater exposition may well have been desirable in respect to the comments directed to what was meant by the phrases "according to law" and "a mistake going to … jurisdiction", it is respectfully concluded that the unrepresented DEZ16 was adequately put on notice as to the role being undertaken by the Federal Circuit Court and put on notice that he had to go beyond merely making submissions expressing "disagreement with the findings and conclusions of the Authority". Such "disagreement", it was explained, would "rarely" of itself establish the sort of error which would warrant intervention by the Federal Circuit Court. 37 Although each case must inevitably depend upon its own facts and circumstances, it is to be doubted that a primary Judge is required to explain to an unrepresented party "why the Tribunal's decision was not made lawfully". The task imposed upon a Judge at first instance is not to act as an advisor or advocate for the unrepresented party. That contention of the Appellant, expressed in such unqualified terms, is rejected. 38 There was certainly nothing before this Court to establish a denial of procedural fairness on the part of the primary Judge in the manner in which the hearing before that Court was conducted. Albeit unnecessary to resolve the argument by reference to onus of proof, it may nevertheless be noted that the onus remained upon the Appellant to establish a denial of procedural fairness on the part of the primary Judge (Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations [2011] FCAFC 88 at [79], (2011) 195 FCR 318 at 365 to 366 per Keane CJ, Lander and Foster JJ) and that onus has not been discharged. 39 The now-Appellant, it is concluded, was not denied a "fair" hearing before the primary Judge and that Judge adequately discharged the responsibilities imposed on that Court with respect to an unrepresented party. 40 The final Ground of Appeal is rejected.

CONCLUSIONS 41 Each of the four Grounds of Appeal have been rejected. The Appellant has failed to establish any error of the part of the primary Judge. 42 To the extent that it is necessary, leave should not be granted in the present case to raise new arguments on appeal. 43 There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent, either as agreed or assessed. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.