Consideration
41 The Appellant has not advanced any ground of appeal to identify any error alleged to have been made in the primary judge's reasoning. It is not the role of this Court to examine the reasons of a primary judge in detail in order to identify potential grounds of appeal on behalf of an appellant. However, because the Appellant is unrepresented, I adopt the approach taken by his Honour Flick J in BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 (BGZ15) at [11]-[12]:
11 In such circumstances, it is considered that the preferable approach that should be pursued is for this Court to review the reasons for decision of the Federal Circuit Court Judge and to determine whether there is any self-evident error as to the manner in which that Court resolved the grounds of review previously advanced for consideration and which it would appear are sought to be re-agitated on appeal. A course which construes Grounds of Appeal which impermissibly seek to repeat arguments directed to the question of whether the Tribunal erred as though they were expressed as an argument that the Federal Circuit Court erred in not accepting like arguments previously advanced is a course which:
• is commonly pursued in this Court;
• recognises difficulties confronting unrepresented appellants; and
• recognises that the Court's duty is not solely to the unrepresented litigant but "entails ensuring that the trial is conducted fairly and in accordance with law" and a duty to strike a "balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties" (cf. Hamod v New South Wales [2011] NSWCA 375 at [309] to [315] per Beazley JA, Giles and Whealy JJA agreeing; AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [39], (2016) 241 FCR 30 at 44 to 46 per Flick, Griffiths and Perry JJ).
In striking that balance, it is necessary to balance compliance with the requirement imposed by r 36.01(2)(c) of the Federal Court Rules 2011 (Cth) to state "briefly but specifically, the grounds relied on in support of the appeal" and the need to ensure that an unrepresented appellant "suffers no meaningful disadvantage in the conduct of her or his case because she or he does not have the skills or knowledge of a lawyer" (MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 at [32] per Mortimer J).
12 In the absence of any appellable error having been specifically identified in the purported Grounds of Appeal, or in the absence of an ability to construe a Ground as meaning that the primary Judge erred in not accepting much the same argument as previously advanced, this Court has no general function to resolve an unspecified and unidentified error. A consideration as to whether there is any self-evident error, it is recognised, may well fall far short of a Judge of this Court independently parsing and analysing a Tribunal decision with a view to identifying a potential argument as to jurisdictional error and thereafter proceeding to resolve that newly formulated argument. In the absence of a self-evident error, this Court has no general duty or function to itself articulate a question of law.
42 In my view the Minister's objection to competency should be upheld.
43 The only aspect of the primary judge's reasons that could provide a basis for this Court to conclude that there was a self-evident ground of appeal overlooked in the court below arises in respect of his Honour's consideration of Grounds 3 and 4 as advanced before the FCCA. Those grounds took issue with the IAA having determined that documents provided by the Appellant in relation to an alleged pending court case arising from the Appellant having been detained for four days were not genuine.
44 However to express the point in that way provides an inadequate context and a too abbreviated account of the differences as to how the material before the Delegate and the IAA were dealt with.
45 The relevant paragraphs of the Delegate's decision were as follows:
56 The applicant was asked about what will happen to him in relation to the outstanding court case if he were to return to Sri Lanka. The applicant was unsure what the consequences for his actions will be if he returns to Sri Lanka. That applicant explained that he fears that there may also be consequences for postponing the court case for such a long time (given the incident occurred in 2012 and it is now 2016), for his original offence of attempting to depart Sri Lanka illegal by boat, and his subsequent illegal departure from the country. The applicant is also concerned about whether his family will be harmed as a result of his actions.
57 At the Protection visa interview, the applicant was asked to provide documentation relating to his ongoing legal proceedings in Sri Lanka. Following the Protection visa interview, the applicant provided a letter from Attorney-At-Law, M.B.M. Mahir dated 19th May 2016 which states that '[the Appellant] is a suspect in the case no [redacted] at the magistrate court Negombo. I appeared for him to enlarge him on bail with two sureties and a cash deposit. Further he has to report to the courts on calling. Since he has not turned up to the courts he has been issued warrant. He can be arrested any time when he returns to Sri Lanka.' … I find that this document corroborates with the applicant's testimony and I accept this document as evidence of his ongoing legal proceedings in Sri Lanka.
58 In 2012, the UNHCR stated that the number of Sri Lankans attempting to leave the country in an irregular manner on boats had increased and were a common occurrence. Previously, such departures primarily took place from Negombo, however from early 2012, attempted departures from other coastal locations had been reported. The Sri Lankan authorities, including the navy, increased their vigilance and strengthened surveillance in Sri Lanka's territorial waters, resulting in an increase in the number of boat interceptions. After interception, the persons on board were reportedly regularly detained. The UNHCR references a media report which indicates that in July 2012, the Sri Lankan authorities claim to have prevented some 700 irregular departures since the beginning of the year, and by November 2012, the Sri Lankan authorities had arrested more than 1,200 people trying to leave the country in an irregular manner. Most persons on board had a view to seek asylum in Australia.
59 Based on the information above, I accept that the applicant made a previous attempt to depart Sri Lanka in early September 2012 and was intercepted by the Sri Lankan Navy. I accept that the applicant was detained by the Sri Lankan authorities for four days, brought before a court in Negombo and released on bail, with further court hearing outstanding at the time that he left Sri Lanka on 27 September 2012. I accept that the applicant fears possible harm for his unsuccessful attempt to depart Sri Lanka illegally by boat in early September 2012 and for having not complied with the consequent legal proceedings in Sri Lankan.
(Footnotes omitted.)
46 It is uncontentious that in respect of those matters the IAA reached a different conclusion. It reasoned as follows:
19 He was much less consistent about his first unsuccessful attempt to leave Sri Lanka and subsequent events. Having considered his evidence from his TPV application, TPV interview, and his supporting documents, I have serious concerns about the truthfulness of some aspects of the applicant's other evidence.
20 The applicant indicated at questions 3 and 86 in his TPV application that he was detained for four days, brought to court in Negombo for trying to depart illegally from Sri Lanka in 2012 and the court proceedings were still pending. He did not mention that incident in his written statement accompanying his TPV application. None of the supporting documents he provided with the TPV application mention his unsuccessful attempt to leave Sri Lanka and several of the letters (his wife's letter of 9 November 2012; his wife's letter of 7 November 2012 that is endorsed as correct by the Grama Niladhari; and the letter dated 12 November 2012 from M Julius a JP) confirm that he was never charged in a court or wanted by the Sri Lankan authorities. Initially at the TPV interview he said he had not tried to leave Sri Lanka previously, that he was not intercepted in a boat prior to his departure and that he had never been brought before a court in Sri Lanka and confirmed that when he departed Sri Lanka for Australia it was the first and only time he attempted to depart for Australia. When reminded of the claim in his TPV application that he was brought to Negombo Court for trying to leave Sri Lanka illegally he appeared to react with surprise before saying that he had so many other worries he forgot. Given that he claimed at the end of the interview that his only concern was the court case if returned to Sri Lanka, I do not find his explanation that he forgot to be credible. He then provided some further details including that his wife, possibly as guarantor, attends court when the matter comes up; that the lawyer appears each time and somehow gets the matter adjourned; that his wife last attended court in December 2015; and she was next due in court in August 2016 after it was adjourned on the last occasion. The delegate asked him to provide supporting documentation about this court matter. After the TPV interview he provided a letter dated 19 May 2016 from a lawyer who says he represents the applicant in the court proceedings, that he was bailed on two sureties and a cash deposit, that he is required to attend court when called, since he has not turned up at court a warrant has been issued for his arrest and he can be arrested at any time if he returns to Sri Lanka. The lawyer's letter makes no mention of the applicant's wife attending court in December 2015 and that the matter was adjourned to August 2016 as claimed by the applicant, a significant omission. Nor do I consider it plausible that, if an arrest warrant was issued for the applicant he would be unaware of it or fail to mention it to the delegate when discussing the court proceedings. He also provided letters from his wife and brother both dated 15 September 2012 addressed to the Divisional Secretary stating that the applicant has never been engaged in subversive activities, charged in any court or wanted by the police and asking for that to be certified so they can apply for bail and the letters are endorsed by the Divisional Secretary and the Grama Niladhari. These two letters are clearly inconsistent with the November 2012 letters discussed above.
21 Given the discrepancies in the applicant's evidence about the incident, I reject the applicant's claim that he was detained for four days and brought to Negombo court for trying to depart Sri Lanka illegally prior to his successful departure from Sri Lanka as a fabrication. Additionally, given the inconsistencies between the lawyer's letter and the details the applicant provided at the TPV interview and the inconsistencies between the letters dated September 2012 he provided after the TPV interview, the letters dated from November 2012 he provided in the TPV application, together with the general incidence of document fraud in Sri Lanka, I am satisfied that the lawyer's letter of 19 May 2016 and the letters dated 15 September 2012 from his wife and brother are not genuine but have been supplied by the applicant to boost his protection claims.
(Footnote omitted.)
47 In DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 (DGZ16) a full court of this Court (Reeves, Robertson and Rangiah JJ) set out the relevant principles binding on a single judge of this Court:
69 In our opinion, the starting point for analysis is not the different regime under Pt 7 and the cases decided in relation to those statutory provisions. Instead, the starting point must be the terms of Pt 7AA and, subject to Pt 7AA, the obligation on the Authority to review a fast track reviewable decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant: s 473DB(1). Also, by s 473DA, Div 3 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. In our view, SZBEL is not the appropriate starting point.
70 It is to be noted that the present case is not one where the Authority has decided a point which was not the point decided by the delegate, but rather one where additional information is necessary in order to complete the review. We refer to Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, where the Authority affirmed the decision of the delegate to refuse to grant the SHEV but on the different basis of relocation which the delegate had not addressed. Thus there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3).
71 In the present appeal, in our opinion, the Authority reassessed the material which the delegate had considered. The delegate did not accept the appellant's claims largely because of the delegate's finding that there was no CTS office in Nasiriyah during the period claimed by the appellant, which significantly undermined the credibility of the appellant's claims to have been a CTS informant. The delegate referred to "the significant credibility issues surrounding the applicant's claim to have been a 'secret agent' for the CTS". But the delegate also tested the plausibility of the appellant's claims to have become or remained an informant. The delegate was not satisfied that the risk in which the appellant claimed to have put himself and his family was plausible, in that the delegate did not accept that a reasonable person would continue to be an informant for altruistic reasons after being personally attacked and having his home burnt out.
72 In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant's case and to provide the appellant with an opportunity to respond.
73 We would not however approach the resolution of the appeal by considering whether or not the delegate's decision indicated that all aspects of the appellant's credit were at issue in the Authority's review. That is to view the procedure through a natural justice lens.
74 We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant's case, and to provide the appellant with an opportunity to respond.
75 There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
48 Thus, subject to legal unreasonableness (see Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 254 FCR 475 (CRY16)) it is within the IAA's statutory remit to reassess the materials that had been before the Delegate and to come to a different conclusion without giving the review applicant notice of its reservations regarding the conclusion earlier reached by the Delegate, and an opportunity to respond.
49 Before the primary judge, consistently with the duty of a model litigant, counsel for the Minister advised the Court that the principles of CRY16 would mean that the IAA would have fallen into error if it had unreasonably failed to consider whether to get documents or information from the Appellant in respect of the matters that were the subject of its findings in the above paragraphs. Counsel for the Minister however submitted that on the facts of the Appellant's review there had been no such requirement. The primary judge accepted that submission.
50 His Honour reasoned as follows (at [43]):
I accept the Minister's submission that the IAA did not in the case before me decide the applicant's case on any issue different from the issues the delegate considered, but simply reassessed the material the delegate considered.
51 That reasoning is conclusionary rather than analytical but in my submission the primary judge did not thereby fall into error in holding that the IAA had done no more than to fulfil its duty to "reassess the material which the delegate had considered": see DGZ16 at [71].
52 When examined, it is clear that the IAA's reasons for rejecting the Appellant's accounts were based on the Appellant's earlier failure to raise the point and the internal inconsistencies in the various accounts provided. Such reasoning in an administrative decision-maker is unexceptional.
53 Legal unreasonableness is inherently fact and context specific. It is an aspect of the principle of statutory interpretation that Parliament expects any statutory power to be performed in a reasonable manner. In the present case, similarly to that of DGZ16, an asserted failure to consider the exercise of a discretion must be assessed in the context that pursuant to s 473DB of the Migration Act, subject to Pt 7AA, the IAA ordinarily must review a fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing a referred applicant.
54 In my opinion, in the particular circumstances before it, it was not legally unreasonable for the IAA not to have revealed its concern regarding the facts of this particular aspect of the Appellant's review such as to require it to consider the exercise of the discretionary power in s 473DC.
55 That is not to conclude it will never be the case that where a Tribunal makes a finding contrary that of a delegate a different conclusion might be required. Legal unreasonableness is both outcome and process focussed. In the court below, counsel for the Minister made an appropriate concession that CRY16 was relevant that regard.
56 That general proposition accepted, it is sufficient for the disposition of these proceedings to indicate that the Court can discern no error in the primary judge's conclusion. The obligation to provide the Appellant with an opportunity to respond did not engage the principle of legal unreasonableness in this specific instance.
57 In respect of a matter which was the subject of some significant attention in the hearing before me today, there was initially an issue of confusion regarding the Appellant's contention that the process before the FCCA had overlooked reference to a letter he had received from the Sri Lankan CID which he had had translated into English and had provided to the IAA. That initial confusion was resolved by its identification as the document (at AB 473) entitled "message form". In respect of that matter, the IAA had concluded that the document pre-dated the Appellant's hearing before the Delegate and that there were no exceptional circumstances that would justify the IAA considering that particular new information. His Honour's consideration of that aspect of the application before him was dealt with at [29]-[37] of his Honour's reasons. Those reasons are comprehensive and no submission is made that they are inaccurately or otherwise unsound in the particular circumstances of this case. Such circumstances do not engage the principles that Flick J referred to in BGZ15 as would reveal self-evident error.
58 It must be acknowledged that the scheme for fast track reviews provided for by Pt 7AA of the Migration Act does not extend to providing the range of entitlements that an applicant would ordinarily be entitled to in other types of proceedings. However that circumstance arises because of a deliberate choice made by the Parliament and I can discern no error in the primary judge's application of those constrained entitlements.
59 In these circumstances, given the form of the appeal does not comply with the requirements of the Rules to specify grounds of appeal, I would uphold the Minister's objection to competency. The appeal is dismissed with costs to be agreed or assessed.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.