EMR17 v Minister for Immigration and Border Protection

Federal Court of Australia|2019-05-31|Before: Mr J, Wheelahan J

The appellant's draft notice of appeal received by the Court on 8 January 2019 stand as the notice of appeal, and be taken to have been filed on 8 January 2019.
The appeal be dismissed.
The appellant pay the first respondent's costs of the appeal, to be assessed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is an appeal from a decision of the Federal Circuit Court made 12 December 2018 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal dated 8 September 2017. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth). 2 On 8 January 2019, the appellant filed an application for an extension of time within which to appeal, together with a draft notice of appeal. While r 36.03 of the Federal Court Rules 2011 (Cth) provided for a period of 21 days within which an appeal from a decision of the Federal Circuit Court must be filed, r 1.61(5) discounts any day starting 24 December and ending 14 January for the purposes of calculating time. The Minister accepted that for this reason, the draft notice of appeal was filed within time, and that the appellant's draft notice of appeal should be treated as the notice of appeal, and I pronounced orders accordingly. 3 The appellant was self-represented before the Court, and addressed the Court through an interpreter. The Minister was represented by counsel, and the Tribunal filed a notice submitting to any order of the Court, save as to costs.

Background 4 The appellant is a citizen of Sri Lanka who applied for a protection visa on 16 October 2013, after having travelled to Australia. On 13 February 2015, her protection visa application was refused. 5 The appellant claimed that the purpose of her travel was to participate in the Masters Athletics Games at Geelong, Victoria. The appellant claimed that she was an inspector of police in the President's Security Service Unit in Sri Lanka. Her interest in athletics competitions and successful participation in Police Department competitions over the years led to her being selected to compete in the annual Masters Athletic Games on a number of occasions. The appellant claimed that in 2013 Sri Lankan officials sought to block her participation in the Games, because they wanted other persons to travel to Australia under the guise of competing in the Games, but then be able to migrate to Australia. The appellant claimed that she was threatened by high ranking police officers and told to withdraw from the team so that others would have the chance to travel to Australia. The appellant claimed that she refused to withdraw from the Games, and obtained a visa and travelled to Australia. The appellant claimed that after arriving in Australia she was verbally and physically abused and received death threats. The appellant claimed that these death threats came from top government bodies and underworld figure in Sri Lanka. The appellant also claimed that she was told by members of her family living in Sri Lanka that after her arrival in Australia, unknown people had attended her home in Sri Lanka asking for her and threatening her family. 6 A delegate of the Minister refused the appellant's application for a visa, and the appellant then sought review by the Tribunal.

The Tribunal's decision 7 The appellant attended a hearing before the Tribunal on 23 August 2016 to give evidence and to present arguments, and evidence was also taken from three witnesses by telephone from Sri Lanka. 8 The Tribunal accepted that the appellant was associated with sporting activities in the Police Department over a period of 33 years, and that she represented Sri Lanka at the Masters Games in 2006 and 2012. The Tribunal accepted in a general sense that irregularities could occur in the selection process for the Masters Games, and that selection and travel for the Games was sought after. 9 However, the Tribunal did not accept the appellant's claim that her Visitor's Visa was rejected on her initial application because a petition had been made against her by people hostile to her travel. The Tribunal considered that the appellant's credibility was affected by what it considered was the embellishment of her claims for protection. The Tribunal found that the appellant's evidence was inconsistent in relation to whether her name was omitted from a Police Department list of members selected for the team. The Tribunal considered the appellant's evidence in respect of this claim was shifting and inconsistent, and did not support her claim that people tried to prevent her travel. The Tribunal rejected the appellant's claim that people with influence tried to prevent her participation in the team. 10 The Tribunal expressed other doubts in relation to the appellant's credibility, particularly in relation to whether she travelled to Australia primarily to participate in the Masters Games. This view was informed by discrepancies in the appellant's evidence and the fact that she arrived after her event in the competition had already taken place. The Tribunal considered that the appellant's explanation for her travel after her events took place to be unconvincing, and ultimately did not accept that the appellant came to Australia with the purpose of participating in the Masters Games, finding that the appellant was not a witness of truth in relation to that matter. 11 The Tribunal accepted the evidence of a colleague of the appellant at the Sri Lankan Police, who was an Inspector of Police, that the appellant's sister had made a report to him in October 2013 after the appellant had left for Australia, that individuals had attended her house asking about the appellant and threatening the appellant. However, the Tribunal did not consider that the police officer's report was evidence that the appellant had been threatened, as he was not a witness to the event. The Tribunal did not accept that a similar incident had occurred at the appellant's cousin's house, indicating that both reports raised credibility issues. In relation to the appellant's cousin, the appellant had claimed in her statutory declaration in support of her visa application that after arriving in Australia her sister and "brother" had told her that unknown people had trespassed into her home, asked for her, and threatened her family. The appellant produced a translation of a report to the police by a person who referred to the appellant as his "sister". The Tribunal noted that the appellant did not have any brothers, and ascertained from the appellant that the person was not her brother, but her cousin. The Tribunal stated that it formed the view that the person providing the report was seeking to strengthen his credentials as a close relative of the appellant. The Tribunal further stated that the place where the incident at her cousin's house was alleged to have occurred was some distance from the appellant's residence, and did not accept the appellant's explanation that she had sometimes stayed there when she was a police officer, and that the people who made the threats would have all their addresses. The Tribunal found that the report by the appellant's cousin was contrived. The Tribunal set out extracts from the translations of the separate reports of the appellant's sister and her cousin, and noted the high level of similarity in language, expressions, and content in relation to what were claimed to be two different incidents which the Tribunal stated raised significant concerns about their credibility. The Tribunal considered that the appellant's own responses to questions about these incidents was vague and limited, leading it to the view that the appellant was not a witness of truth. Ultimately, the Tribunal formed the view that the claimed threats did not reflect incidents that actually occurred, and did not accept that the appellant's sister and cousin were the subject of abuse or threats of any kind. 12 The appellant had claimed that further threats were made in 2015, and produced translations of two police reports recording complaints by her older sister of threats that had been directed to the appellant. The Tribunal rejected these claims also, finding that the appellant's responses to questions about them were vague and limited, and finding that the appellant was not a witness of truth. The Tribunal referred to the evidence given to the Tribunal by a senior Sri Lankan police officer, who was an Assistant Superintendent, and accepted his evidence that that the appellant's sister had approached that police officer in 2014 or the beginning of 2015 about alleged threats, but because this police officer was not a witness to the claimed incidents, considered that his evidence was not persuasive in assessing whether the appellant was the subject of threats. The Tribunal formed the view that the claimed threats that were the subject of the 2015 police reports had not occurred. 13 The Tribunal did not accept that the appellant was ill-treated or threatened by people of influence to withdraw from the Games, and did not accept that the appellant had otherwise been threatened, and found that the appellant did not satisfy any of the criteria for the grant of a protection visa. In relation to complementary protection considerations, the Tribunal did not accept that the appellant had a real risk of significant harm from criminal conduct of police or civilians arising from the security situation in Sri Lanka, and did not have a real chance of significant harm then, or in the foreseeable future for any reason. The Tribunal found that there were not 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 the appellant would suffer significant harm.

The proceeding before the Federal Circuit Court 14 Before the Federal Circuit Court, the appellant was unrepresented. There were two grounds of review in the appellant's application to that Court - 1. The Administrative Appeal Tribunal did not afford me procedural fairness 2. The Administrative Appeals Tribunal applied the wrong legal test. 15 The appellant did not file any written submissions in the Federal Circuit Court. The primary judge recorded at [8] that at the hearing the appellant was not able to identify anything that would indicate a failure by the Tribunal to afford her procedural fairness. In relation to the second ground, the primary judge recorded at [9] that the appellant had argued that the Tribunal had failed to take into account a statement by a police officer that she provided to it, but the primary judge found that the evidence of that witness had been carefully considered by the Tribunal, and the rejection of the evidence based upon concerns about the credibility of the appellant was not an error of law. The primary judge recorded that the other submissions of the appellant were effectively seeking merits review.

The grounds of appeal 16 In this Court, the appellant advanced three grounds of appeal - 1. Applicant thinks the order, which is based on the application has a question of law and it should be investigated. 2. Applicant states that there is a jurisdictional error in the matter. 3. Applicant has provided lot of information and supporting documents for her protection Visa application. Applicant believes this information was not considered properly and not granted a fair order. 17 The appellant filed written submissions in this Court. None of the appellant's written submissions was directed to identifying any error in the decision of the primary judge, still less any particular jurisdictional error of the Tribunal. The written submissions referred to facts, and contained a plea that the appellant could prove that her case was arguable on the merits. There was a broad submission that the Tribunal did not consider the relevant facts, and had made a jurisdictional error. 18 In relation to the facts to which the appellant referred, the appellant alleged in her written submissions that due to the ongoing harassment of an unknown gang, her sister had become a mental health patient, and had entered a mental hospital. The appellant attached to her submissions what purported to be a copy of a mental health diagnosis card in respect of her sister that recorded an admission date of 14 August 2018, and a discharge date of 3 November 2018. The appellant alleged that while her sister was at the hospital, some unknown gang had destroyed her house. There were photographs of damage to premises attached to the written submissions, and the appellant stated that a report had been made with the police on 25 November 2018. The appellant stated that … at the first application I presented this event to my Agent, but he had been neglect and not lodge the information correctly. 19 At the hearing of the appeal, the appellant made submissions through an interpreter. Initially, the appellant stated that there was nothing she wanted to say in addition to her written submissions. In response to a question from the Court, the appellant confirmed that the reference in her written submissions to her sister being admitted to hospital was to an admission in August of 2018, and that it was this event of which she informed her agent, which was after the hearing before the Tribunal, but before the hearing in the Federal Circuit Court. The appellant referred to the photographs and the diagnosis card for her sister that were attached to her submissions. I summarised for the appellant two features of the written submissions that had been made on behalf of the Minister in relation to her reliance on her sister's admission to hospital, which were that because the admission to hospital occurred after the hearing before the Tribunal, it did not give rise to any error, and that negligence on the part of her agent was not a ground to set aside the Tribunal's decision. 20 The appellant also made a submission that the Tribunal had misunderstood the evidence in relation to her cousin, to whom she had referred as her brother. I understood the appellant to submit that in Sri Lanka, cousins are also referred to as brothers. 21 The appellant also submitted that the police officers from whom the Tribunal heard evidence had said that it was not good for the appellant to go back to Sri Lanka, that the police could not provide security for the appellant, and that the Tribunal had not accepted that evidence. The appellant also submitted that her sister had told her that she had received advice from the police that it was not good for her to go back to Sri Lanka, and that she had conveyed this to the member of the Tribunal. 22 Finally, the appellant submitted that the situation in Sri Lanka was now quite different to the situation that had existed when she filed her written submissions.

Consideration 23 The starting point is to recognise that this proceeding is an appeal from the Federal Circuit Court. The evident purpose of Part 8 of the Migration Act is to limit the original jurisdiction of the Federal Court of Australia in relation to judicial review of migration decisions, and to vest much of that jurisdiction in the Federal Circuit Court: AAM15 v Minister for Immigration & Border Protection (2015) 231 FCR 452 at [14]. That purpose would be defeated if appeals to this Court were treated as hearings de novo where judicial review proceedings could be argued afresh. The Court has a practice of requiring that leave be sought to raise new arguments on appeal. Leave to raise a new argument may be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration & Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]. Typically, in considering whether it is expedient in the interests of justice to allow a new point to be raised on appeal, the Court may consider any explanation for the point not having been raised at first instance, the merit of the point, and whether there is any prejudice to other parties in allowing the point to be raised on appeal: VUAX at [48]. 24 The appellant's grounds of appeal, which I have set out at [16] above, do not in terms allege any particular error by the primary judge. There were three reasons why the primary judge dismissed the appellant's application. First, the appellant had not identified anything that would indicate a failure by the Tribunal to afford her procedural fairness. Second, the appellant had not persuaded the primary judge that the Tribunal had failed to take into account a statement by a police officer, because the Tribunal had referred to the evidence of that police officer at [74] of its reasons. Third, the appellant's submissions otherwise were concerned with the merits of the Tribunal's decision rather than jurisdictional error. The appellant was self-represented, and there was also much that the appellant put to this Court that was concerned with the underlying merits of her claim for a protection visa. 25 I shall, nonetheless, address four points which the appellant raised in submissions, namely - (1) her claim that that her sister was admitted to a mental health facility in August 2018 as a result of ongoing harassment from an unknown gang; (2) a submission that the Tribunal had misunderstood her evidence in relation to her cousin to whom she had referred as her brother; (3) a submission concerning the evidence that the appellant should not return to Sri Lanka; and (4) that the situation in Sri Lanka is now quite different.

The first submission 26 The appellant's claim that her sister had been subjected to ongoing harassment from an unknown gang, including alleged damage to property, and her sister's admission to a mental health institute, do not raise any question of error by the Federal Circuit Court, or jurisdictional error by the Tribunal. These claimed events concern the underlying merits of the appellant's claim, and the events post-date the decision of the Tribunal. As I have recorded at [18] above, the appellant claimed that she presented these events to her agent, which I take to mean the immigration agent who prepared written submissions for the appellant and attended the hearing before the Tribunal. Given that the events appear to post-date the Tribunal's decision, I am not satisfied that they were matters that could have been conveyed to the agent before the Tribunal published its decision. Further, the appellant alleges neglect by her agent, but negligence or incompetence by a party's representative is not a basis on which to set aside the Tribunal's decision: SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73 at [52], [57]; SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189, at [53]. The appellant would have to establish some fraud on the Tribunal, and this did not form part of her submissions. In any event, the appellant did not raise these matters before the Federal Circuit Court. I am not satisfied that there is any merit in the point, and I refuse leave to the appellant to raise it before this Court.

The second submission 27 The appellant claimed before this Court that the Tribunal had misunderstood the evidence about her cousin, to whom she had referred in her statutory declaration in support of her application for a protection visa as her "brother". In turn, the appellant's cousin had referred to the appellant in a police report as his "sister" As I have stated, the Tribunal formed the view that the appellant's cousin had sought by the police report to strengthen his credentials as a close relative of the appellant. The appellant submitted to this Court that cousins in Sri Lanka are also referred to as brothers. The Tribunal in its reasons stated that it noted that the appellant did not have any brothers and asked the identity of the person making the police report, and the appellant stated that the person she referred to was not a brother, but her cousin. 28 Following the hearing of the appeal, the Court requested the solicitors for the Minister to furnish to the Court the audio recording of the hearing before the Tribunal so that the Court could better understand the submission put to this Court by the appellant. The audio recording provides some basis for a suggestion that there may have been some confusion concerning the appellant's responses to questions about her cousin. The interpreter at one point used the term "cousin brother", and the Tribunal member then used the term "cousin's brother" on a number of occasions, in context using the possessive form. The interpreter also appears to have said "cousin's brother" on one, possibly two occasions. If there was a misunderstanding, it was not identified at the Tribunal hearing, and any misunderstanding may well have been contributed to by the use of the term "cousin's brother" in answers that the appellant gave in evidence, as they were interpreted. 29 What to make of the terms "cousin brother" or "cousin's brother" used by the appellant in her evidence as interpreted was a matter for the Tribunal. Any misunderstanding of that evidence occurred in the course of the Tribunal's review of the evidence that was given by the appellant, and did relate to any jurisdictional fact, or go to the nature of the appellant's claim, or otherwise go to an element of the review that was so central as to amount to a jurisdictional error: see, Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; 115 ALD 303 at [28] (North and Lander JJ); Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111]-[114] (Robertson J); Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [70] (Kenny, Griffiths and Mortimer JJ); BZAFB v Minister for Immigration and Border Protection [2018] FCA 995 at [30] (Flick J). The Tribunal's finding that the appellant's cousin had sought in a police report to strengthen his credentials as a close relative of the appellant was collateral to a number of factors that led the Tribunal to find at [67] of its reasons that the appellant's relatives had made false reports to the police. In particular, as I identified at [11] above, the Tribunal relied on the high level of similarity between the reports as suggesting that the reports had been scripted, and were not therefore spontaneous reports of separate events.

The third submission 30 In relation to the appellant's third submission, which was that Sri Lankan police officers from whom the Tribunal heard evidence had said that it was not good for the appellant to go back to Sri Lanka, that the police could not provide security for the appellant, and that the Tribunal had not accepted that evidence, I considered that I should on this topic check the audio recording of their evidence before the Tribunal, because there was no explicit reference in the Tribunal's reasons to evidence of this sort having been given by the police officers. 31 There were two Sri Lankan police officers who provided short email statements to the Tribunal, and who gave evidence by telephone: the Assistant Superintendent, and the Inspector to whom I have already referred. The Assistant Superintendent's statement was very short, and did not address the matters referred to at [30] above. In oral evidence, the Assistant Superintendent stated that one of the appellant's sisters had complained to him that there were threats by people against the appellant, and that he had advised the appellant's sister to make a complaint to the local police station. As I have indicated at [12] above, the Tribunal specifically addressed this evidence in its reasons. The Tribunal considered the statement of the Inspector at [62] of its reasons and accepted his evidence that that the appellant's sister had approached him in 2014 or the beginning of 2015 about alleged threats, but because he was not a witness to the claimed incidents, considered that his evidence was not persuasive in assessing whether the appellant was the subject of threats. In oral evidence, the Inspector referred again to the appellant's sister's report to him. Neither police officer gave oral evidence addressing the matters referred to at [30] above.

The fourth submission 32 The fourth submission to which I have referred at [25] above did not relate to any claim of error by the primary judge, or jurisdictional error by the Tribunal.

Conclusions 33 The appellant has not demonstrated any appealable error in the primary judge's decision which dismissed her application for judicial review of the Tribunal's decision. Nor has the appellant raised anything else that justifies this Court considering any other grounds on which there might have been jurisdictional error in the Tribunal's decision. 34 The appeal will be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan.

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