DIF17 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs to be agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ABRAHAM J: 1 The appellant is a citizen of Sri Lanka who arrived in Australia as an Unauthorised Maritime Arrival on 13 October 2012. He applied for a Safe Haven Enterprise Visa (SHEV), which was refused by the Minister's delegate on 18 November 2016. On 4 July 2017 the Immigration Assessment Authority (the Authority) affirmed that decision. This is an appeal from an order made by the Federal Circuit Court of Australia on 19 September 2018 dismissing an application for judicial review of the decision of the Authority. 2 The appellant appeared unrepresented at the hearing of the appeal, assisted by an interpreter. 3 The appellant has filed only one ground of appeal in this Court, alleging there was a legal error in the decision of the Federal Circuit Court. Background 4 The appellant is a citizen of Sri Lanka, is of Tamil ethnicity and a Hindu. In summary he claimed to fear harm from the Sri Lankan authorities because: (a) of an imputed involvement with the Liberation Tigers of Tamil Elam (LTTE); (b) of an imputed anti-government political opinion due to his brother's position as a member of parliament for the past Tamil National Alliance; (c) he could be regarded as a witness to international organisations about his detention from 1993 until 1996; (d) he will be perceived by the Sri Lankan authorities as having told people in foreign countries of his treatment while detained in Sri Lanka; and (e) he will be arrested without charge or brought before a court due to the continuing operation of "emergency regulations" in Sri Lanka. 5 As noted above, on 18 November 2016, the delegate refused the appellant's application for a protection visa (SHEV). On 24 November 2016, that decision was referred to the Authority for review. 6 The appellant lodged written submissions with the Authority challenging the delegate's conclusion. The Immigration Assessment Authority 7 The Authority accepted the appellant was a male Hindu Tamil from the Vavuniya District in the Northern Province in Sri Lanka. 8 The Authority found that the appellant's explanation for not disclosing his travel to Thailand on a tourist visa for three to four months in 2007, and that he made an application for a Refugee and Humanitarian visa to Australia, to be unconvincing and to impact on his credibility. 9 It observed that the appellant did not claim that he or any member of his family (apart from some distant relatives) had any involvement with the LTTE, or that he had any adverse encounters with the Sri Lankan authorities up until 1993. 10 The Authority accepted that the appellant was arrested and detained under the emergency regulations at the "Joseph camp", and subsequently the Thandikulam army camp and the Bandarwella Bendunuwewer camp from 1993 to 18 May 1996. It accepted that: during his period of detention he was seriously mistreated; following his release he was required to report monthly for a period of 18 months; his ability to move freely into LTTE-controlled areas was restricted; and he experienced a level of scrutiny by the Sri Lankan army of his activities. 11 The Authority was not satisfied that the disappearance and deaths of other detainees indicated that there was a real chance of serious harm to the appellant. It noted that, apart from having to report to the Joseph camp each month, the appellant did not claim to have any adverse encounters with the Sri Lankan authorities, including the army. It did not consider that the appellant had a profile with the Sri Lankan authorities for actual or imputed support of the LTTE, or that he was a person of interest to the authorities for holding an imputed anti-government political opinion for any of the reasons he claimed. It did not accept that he would face a real chance of being arrested and detained for a lengthy period under the emergency regulations on return to Sri Lanka. 12 The Authority was satisfied that the appellant had left Sri Lanka legally on a valid passport, and noted that he was not questioned or detained at the airport prior to his departure. It considered this further supported its finding that the appellant was not of adverse interest to the Sri Lankan authorities at the time of his departure. 13 The Authority accepted that the appellant would return to Sri Lanka as a returned asylum seeker and was likely to be identified as such but did not consider that the appellant would be targeted or subjected to processes on re-entry to Sri Lanka that would be different from the usual processes. It was not satisfied that he would face a real chance of serious harm on this basis. 14 The Authority found that the appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act 1958 (Cth) (the Act), and that the appellant did not meet the criteria in s 36(2)(a) of the Act. 15 Regarding the complementary protection criterion in s 36(2)(aa) of the Act, the Authority found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm because of the claims that he made. Federal Circuit Court 16 The appellant sought review of the Authority's decision on three grounds. The primary judge in the Federal Circuit Court, after reciting the reasons of the Authority in some detail, found that the Authority had expressly addressed the concerns raised in the three grounds relied on by the appellant and that jurisdictional error had not been established. 17 During the hearing of the appeal the appellant was unrepresented and made submissions addressing the merits of the case, which the Court did not have power to consider. The primary judge did consider the grounds which were filed. 18 Ground 1 alleged jurisdictional error on the basis that the Authority did not consider a crucial claim made by the appellant, namely that as a former inmate of a camp, he will be called as a witness to give evidence about the burning down of the camp and the death of Tamil LTTE suspects. His Honour found that the Authority's reasons directly addressed this claim and noted the Authority's reference to the absence of any retaliation or further action taken by the authorities against the appellant regarding the appellant's previous disclosures to international agencies. However, as explained below, there is a factual mistake in one aspect of his Honour's conclusion. 19 Ground 2 alleged jurisdictional error being that the Authority did not take into account a relevant issue, namely a claim that as a former suspect of the LTTE, the appellant was on reporting conditions in army controlled area when he fled the country and the Authority did not consider the implications of leaving without informing the authorities. 20 His Honour referred to the reasons of the Authority which considered the imputation that the appellant was involved with the LTTE. His Honour also referred to the Authority's consideration of these reporting conditions, and that they only lasted 18 months. The Authority noted the appellant's previous trips overseas that occurred without apparent difficulties. 21 Ground 3 alleged jurisdictional error on the basis that the Authority failed to consider a relevant issue, namely, that the appellant was held in prison for almost 2 years as a suspect of the LTTE, that during the incarceration, he was imputed with an LTTE profile and once imputed with an LTTE profile, he will face problems from the authorities despite being in the community at large. 22 His Honour rejected this ground on the basis that the Authority expressly addressed the imputation argument. His Honour concluded that the Authority gave logical and rational reasons for rejecting the claim. Consideration 23 The ground of appeal does not identify any error in the reasons from the Federal Circuit Court. Rather, it contains a general assertion that the Federal Circuit Court made a legal error. The notice states that the appellant will file further particulars when he has received the transcript of the proceedings. No further particulars were filed. The appellant was provided the opportunity to provide written submissions. None have been filed. 24 As noted above, the appellant was unrepresented but was assisted by an interpreter. He made oral submissions. 25 The appellant's submissions, perhaps understandably, related to his circumstances and focused on why he should have been granted a visa. They were, in effect, a plea to review the factual conclusion of the Authority. Ultimately the appellant said he could not point to any error in the Federal Circuit Court's judgment. 26 It is appropriate to observe that neither this Court, nor the Federal Circuit Court has jurisdiction to decide whether the appellant satisfies the criteria for the grant of a protection visa: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] per Sackville J; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] per Kirby J. Neither Court has the jurisdiction to consider the factual merits of the Authority's decision. The issue is not whether this Court or the Federal Circuit Court agrees with the decision. Moreover, this Court is not a forum in which a party may simply reargue the case in the hope of convincing a judge to take a different view of the evidence: DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262 at [21]. 27 The Federal Circuit Court could only have disturbed the decision of the Authority under review if that decision was infected by jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1223 at [13] per French CJ, Hayne, Crennan, Kiefel and Bell JJ. This Court's appellate function is to ascertain whether there is an error in the decision of the Federal Circuit Court. 28 The ground of appeal that does appear in the notice of appeal is without merit as it does not disclose any identifiable error on the part of the primary judge or the Authority. 29 The respondent submitted that the failure to identify or particularise any error in a ground of appeal, by itself, was a sufficient basis for the appeal to be dismissed: e.g. WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; ANA18 v Minister for Home Affairs [2018] FCA 1854 at [59]; BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 at [12]-[13]. 30 Nonetheless, obviously mindful of the obligations of a model litigant, the respondent took the Court through the findings of the Authority and the Federal Circuit Court. As noted above, in the Federal Circuit Court grounds of appeal were pleaded and particularised, at least to some extent. The oral submissions made by the appellant at the hearing in this Court bore some resemblance to the topics raised in those grounds. 31 The respondent addressed those grounds and given the appellant is unrepresented, in the interests of justice, I have given particular consideration to those grounds of appeal. 32 In relation to the first ground the respondent properly alerted this Court to an issue with an aspect of the primary judge's reasons. When rejecting this ground, his Honour stated, amongst other things, that the Authority took into account the appellant's claim that he had witnessed the burning of the camp. As the respondent conceded, the claim that the appellant witnessed the burning of the camp was not before the Authority, but rather, was raised by the appellant in oral submissions during the hearing of that appeal. The primary judge was incorrect when he said the Authority had addressed that issue. The claim before the Authority was that the appellant could potentially be a witness to the government's treatment of detainees in the camp. This was taken in to account by the Authority. The primary judge's observations in relation to the Authority's consideration of other relevant aspects of the appellant's claim is correct. 33 However, the respondent submits that despite this error in the Federal Circuit Court reasons, the appeal ground was correctly dismissed because the matters particularised in support of this claim, that the appellant could be a witness in relation to the camp conditions, was considered by the Authority. That submission should be accepted. There was no failure by the Authority to consider the claim. It would be futile to remit the matter in those circumstances: CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150 at [93]. 34 In relation to the second ground, the Federal Circuit Court rejected the argument that the Authority did not take into account the appellant's claim that, as a former suspect of LTTE he was placed on reporting conditions for 18 months. The primary judge noted the Authority's reasons make it apparent that it did consider this claim and the ramifications said to flow from it. A consideration of the Authority's reasons reflect that this is correct. Those conclusions do not reflect any error. 35 The third ground related to the claim that the Authority failed to consider that the appellant was imputed with a LTTE profile and the effect that would have on his return. A reading of the Authority's reasons reflects that it was conscious of this claim and did take it into account. The Federal Circuit Court rejected the claim. Again, the conclusion does not reflect any error. 36 The Authority engaged with each of the issues raised in those grounds. The claims were considered and addressed. Conclusion 37 The respondent is correct that the failure to identify or particularise any error in a ground of appeal is a sufficient basis for this appeal to be dismissed. In any event, there was no apparent jurisdictional error made by the Authority. 38 The appeal is dismissed. As the appellant has failed in his appeal he should pay the cost of the Minister, the first respondent, to be agreed or taxed. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham.