MZARG v Minister for Immigration and Border Protection

Federal Court of Australia|2018-05-08|Before: McKerracher J

The appeal be dismissed.
The appellant pay the costs of the first respondent, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The appellant appeals a judgment of the Federal Circuit Court of Australia which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (as it was then known), to affirm a decision of a delegate of the Minister for Immigration and Border Protection, to refuse to grant the appellant a Protection (Class XA) visa.

BACKGROUND 2 The appellant is a citizen of Sri Lanka, who arrived in Australia as an irregular maritime arrival on 1 June 2012 and participated in an entry interview on 18 and 20 July 2012. 3 On 9 September 2012, the appellant made an application for the visa to the Department of Immigration and Citizenship (as it was then known), after the Minister exercised his discretion under s 46A(2) of the Migration Act 1958 (Cth). A migration agent was appointed to represent him. On 13 September 2012, the appellant attended a visa interview with the Department. 4 In a decision dated 4 December 2012, the delegate refused to grant the appellant the visa. On 19 December 2012, the appellant applied to the Tribunal for review of the delegate's decision. On 6 March 2013, the Tribunal affirmed the decision of the delegate to refuse to grant the appellant the visa. 5 On 30 May 2014, the Federal Circuit Court made orders, by consent, quashing the decision of the separately constituted Tribunal and remitting the application for review for reconsideration by the Tribunal according to law. On 30 June 2014, the Tribunal wrote to the appellant to confirm that his application for review would be reconsidered. On 30 September 2014, the Tribunal wrote to the appellant inviting him to appear at a hearing before it scheduled for 18 December 2014. On 21 October 2014, 31 October 2014 and 5 November 2014, the Tribunal received documents provided to it by the appellant, including a statutory declaration by the appellant dated 31 October 2014. On 18 December 2014, the appellant appeared at a hearing before the Tribunal with the assistance of a Tamil interpreter.

THE APPELLANT'S CLAIMS 6 The appellant claimed to be a fisherman from Udappu and to fear harm in Sri Lanka from the authorities for reason of his: (a) Tamil race; (b) membership of particular social groups comprising Sri Lankan Tamils and Tamils from the North or East of Sri Lanka; (c) membership of a particular social group comprising of practising Hindus; (d) real and imputed political opinion in support of the Liberation Tigers of Tamil Eelam (LTTE) arising from his race and his former residence in a predominantly Tamil region; and (e) membership of a particular social group of Tamils who fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia. 7 In a declaration filed in support of his visa application, the appellant asserted that: (1) In 1995, he departed Sri Lanka and made an application for asylum in Germany. In 1999, his application for asylum was rejected and he then entered the United Kingdom illegally and made an application for asylum. In 2004, the appellant returned to Sri Lanka on emergency travel documents issued by the Sri Lankan Embassy in the United Kingdom. (2) Prior to 2004, the appellant did not encounter difficulties with the Sri Lankan authorities. However, in May 2004, the Criminal Investigation Department (CID) came to his house and questioned him about leaving Sri Lanka illegally in 1995 and his involvement in raising funds for the LTTE whilst in London. He was then detained by the CID, demands were made that he pay CID officers money and he was only released when his father paid. (3) In November 2004, the CID came to his house again and demanded payment of the balance of the money they had requested from him previously. He was again detained and held until his wife and father found the money for his release. (4) In 2006, he started a partnership with a friend to set up a prawn farm in Udappu. (5) In September 2008, people came to the prawn farm looking for his partner and three days later his partner was found dead. Later that month the army and Singhalese fishermen expropriated his prawn farm. (6) He left Udappu and went to the town of Mullaitivu where he fished. He subsequently returned to Udappu and commenced fishing with his father. (7) Between 2010 and 2012, the CID, army and police came to his house six times harassing him. (8) In February 2012, the CID came to his house and confiscated his new passport. They questioned his wife and said that they were going to kill the appellant. (9) As a result of these threats he feared for his life and decided to leave Sri Lanka.

BEFORE THE TRIBUNAL 8 After describing the nature of the application, the Tribunal's reasons commence by considering the relevant law. The Tribunal noted the alternative criteria for a protection visa set out in s 36 of the Act. That is, an applicant must either be a person to whom Australia has protection obligations as a refugee (though Australia's obligations were qualified under s 91R and s 91S of the Act, which have since been repealed under Migration and Maritime Powers Legislation Amendment (Resolving Asylum Legacy Caseload) Act 2014, No. 135, 2014) or a person whom Australia has protection obligations on 'complementary protection' grounds. 9 The Tribunal accepted that the appellant left Sri Lanka in 1995 and travelled to Germany, where he unsuccessfully applied for asylum, and then to the United Kingdom in 1999, where he also applied for asylum. The Tribunal accepted the appellant's claims that he had no problems in Sri Lanka before his departure in 1995, and that he was questioned at the airport when he arrived back in Sri Lanka in 2004 about where he had been and why he was returning, but was allowed to leave without any problems. 10 The Tribunal found that the appellant's evidence had been largely consistent and that he had been a credible witness with respect to 'the greater part of his claims'. However, the Tribunal was troubled by inconsistencies in the appellant's claims relating to the events of 2004 outlined by the appellant and significant inconsistencies in his claims concerning visits to his house by the CID, especially those claimed to have taken place in February 2012 and 2014. As a result, the Tribunal found that he had embellished his claims to some degree and that not all of these claims were credible or reliable. In particular, the Tribunal made the following findings: (1) In relation to the harassment by CID in 2004, the Tribunal did not accept his claim at the hearing that a boy from his village was detained with him and later shot by the CID. (2) The Tribunal found that the chance the appellant would again be abducted, beaten and forced to pay a bribe for his release was no more than remote, as more than 10 years has elapsed since these events and the circumstances in which the appellant would be returning to Sri Lanka were very different from those of his return in 2004. (3) As to the prawn farm incident, the Tribunal found that, on the evidence before it, there was not a real chance that the appellant would be seriously harmed for reason of the prawn farm incident or his connection to his former business partner. Nor that the appellant faced a real risk of significant harm for the same reasons. (4) As to the 2012 and 2014 incidents, the Tribunal had significant concerns regarding the credibility of the appellant's claims in relation to these events. (5) In relation to the bus incident, the Tribunal found there were not substantial grounds for believing the appellant faced a real risk of significant harm on those same bases. (6) As to the festival incident, the Tribunal not accept that police had pursued the appellant after this. As a result, the Tribunal found the appellant did not face a real chance of serious harm or a real risk of significant harm for reason of his religion. (7) In relation to the fishing incident, the Tribunal found that any harm suffered as a result of this incident did not amount to serious harm as envisaged by s 91R(1)(b) or significant harm as envisaged by s 36(2A). (8) Finally, the Tribunal did not accept that the bus incident, the festival incident or the fishing incident, were related in any way to the events of 2004. As a result, the Tribunal found there was not a real chance the appellant would be seriously harmed or that there was a real risk of significant harm by the army or navy in connection with his work as a fisherman should he resume this. 11 With regard to the appellant's claim to fear harm due to an actual or imputed political opinion, the Tribunal did not accept that the government would impute every Tamil resident of Udappu with an adverse political opinion or that every Tamil in Sri Lanka is imputed with a pro-LTTE or anti-government political opinion. The Tribunal also did not accept that the appellant faced a real chance of serious harm because of any actual or imputed political opinion arising from his race or his former residence in a predominantly Tamil area. For the same reasons, it found there were not substantial grounds for believing there to be a real risk of significant harm. 12 On the evidence before it, and in light of its findings, the Tribunal did not accept that the appellant faced a real chance of serious harm or a real risk of significant harm for reason of his Tamil race or Hindu religion. 13 In relation to other issues raised by the appellant, the Tribunal found there was not a real chance of serious harm or a real risk of significant harm as a result of any debt arising from his passage to Australia. 14 On the evidence before it and having regard to its findings of fact, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution, nor that there were substantial grounds for believing that he faced a real risk of significant harm. Accordingly, the Tribunal found that the appellant did not satisfy the refugee and complementary protection criteria under the Act. The Tribunal affirmed the decision not to grant the appellant the visa. 15 I have not set out the full details of its considerations, but, in my view, the Tribunal gave the appellant's claims real, detailed and genuine consideration.

BEFORE THE FEDERAL CIRCUIT COURT 16 On 3 February 2015, the appellant filed an application to show cause in the Federal Circuit Court. The appellant pleaded the following grounds of review: 1. The [Tribunal] did not offer me procedural fairness[.] 2. The [Tribunal] applied the wrong legal test[.] 17 On 22 September 2016, the Federal Circuit Court dismissed 'the application filed on 7 January 2015' for non-appearance, pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). On 13 October 2016, the appellant filed an application in a case seeking reinstatement of the substantive application for judicial review filed on 3 February 2015. On 3 July 2017, the Federal Circuit Court made orders reinstating the proceedings and requiring the appellant to file and serve an amended application and written submissions. No amended application or submissions were subsequently filed by the appellant. 18 The matter proceeded to hearing on 28 August 2017, and was dismissed by ex tempore judgment: MZARG v Minister for Immigration and Anor [2017] FCCA 2108. In relation to ground 1, the primary judge found that the appellant identified no breach of any of the relevant natural justice provisions set out in the Div 4 Pt 7 of the Act (at [42]-[43]). The primary judge found that the Tribunal afforded the appellant statutory procedural fairness and that ground 1 was not made out. 19 In relation to ground 2, the primary judge found that the ground contained a bare assertion without particularisation (at [44]). The primary judge found that the Tribunal referred to and applied the correct legislation and relevant legal tests and that its findings were open to it. 20 The primary judge concluded that the Tribunal's decision was not affected by jurisdictional error and dismissed the application with costs (at [45]).

IN THIS COURT 21 By notice of appeal filed on 12 September 2017, the appellant advances the following grounds of review: 1. That there is a jurisdictional error in the Federal Circuit Court Decision. 2. The reasons provided by the [Tribunal] to the [Minister] in Support of the [Minister's] recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical nor rational. 3. Further grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed. 22 The task of the Federal Circuit Court was to determine whether the Tribunal's decision was affected by jurisdictional error: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The task of this Court is to determine whether the judgment of the Federal Circuit Court is affected by appealable error: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 (at [11]). Although an appeal to the Federal Court of Australia is an appeal by way of rehearing, it remains necessary to demonstrate an error in the judgment appealed from. 23 The appellant has been unable to demonstrate that the decision of the primary judge is affected by any appellable error. The primary judge was correct to find that the decision made by the Tribunal was not affected by jurisdictional error. 24 The appellant requires leave to raise the grounds of appeal as they were not raised in the Court below: NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51. Leave will be refused as the grounds have insufficient prospects to warrant the exercise of the Court's discretion. The grounds simply indicate disagreement with the Tribunal's factual findings and seek that the Court undertake an impermissible review of the merits of the Tribunal's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ (at 272). 25 Ground 1 is not particularised to make it meaningful and does not assist in identifying any error in the primary judge's judgment. Failure to particularise a ground of review is sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 (at [60]) and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969; see also WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 per Gilmour J (at [35]). 26 Ground 2 is also not particularised to make it meaningful, and does not identify how the Tribunal's decision was neither logical nor rational. To describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it: Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 (2003) 77 ALJR 1165 per Gleeson CJ (at [5]); Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gleeson CJ and McHugh J (at [40]). As set out above, the Tribunal considered the appellant's evidence concerning the 2004 incidents, the prawn farm incident, the 2012 and 2014 incidents, the appellant's actual and imputed political opinion, the bus incident, the festival incident, the fishing incident, the Sinhalisation of his home area, the appellant's status as a Tamil from the North and East, the appellant's status as an illegal departee and returned asylum seeker, and any other reason the appellant would be harmed on return to Sri Lanka, and made findings which were open to it. The Tribunal's decision was based on the evidence before it and given at the hearing and was open to it for the reasons it gave. There is no unreasonableness, in the sense of any want of logicality, in the Tribunal's reasoning or decision: Eshetu per Gaudron and Kirby JJ (at [101]). 27 Ground 3 is not a proper ground of review and the appellant has filed no amended notice of appeal.

ORAL SUBMISSIONS IN THIS COURT 28 Before me, the appellant explained that he was unable to make any oral submissions concerning the reasoning of the Federal Circuit Court or the Tribunal because he had not had the benefit of legal advice. He said: 'Only if I have a lawyer who could read that decision and tell me that there are some mistakes, then only I can definitely say that there are some mistakes.' Apart from some statements from the bar table as to the merits of the decision, he claims to have approached many lawyers, but the amounts they were seeking him to pay just to 'read a piece of paper' were too great. He said he had also made several attempts to seek assistance from the Asylum Seekers Resources Centre (ASRC), but they kept on changing the times of the appointments. Counsel for the Minister correctly made the point that none of this material was contained in any sworn evidence, but more importantly, that it had been over three years since the Federal Circuit Court proceedings were filed, that there was no apparent error in the Federal Circuit Court's decision, and that there was no evidence that advice would be forthcoming especially with indications to the contrary. 29 The appellant accepted that he had initially had advice and successfully challenged an earlier Tribunal decision but that his adviser had since been transferred. He then, as I understood it sought time to file further evidence as to his attempts to obtain assistance from the ASRC, but in my view, that evidence would add nothing in demonstrating error on the part of the Tribunal, or on the part of the Federal Circuit Court. The appellant did have the benefit of representation at an earlier stage in the proceedings, and to that end, was assisted. In substance the appellant was saying that without legal advice he could not identify relevant legal (for example, jurisdictional) error. Legal advice cannot be guaranteed. There is and cannot be any guarantee of legal representation for an indefinite period. In essence, the appellant's position was no different from that of many others before the courts and if he had not been able to gain some assistance during that period of time, the Minister should not be required to wait longer. 30 In a case where some point might be apparent, the Court may be able to do more. This is not such a case. Further, if it be the fact that the appellant has not otherwise understood (or even in 18 months obtained a translation of) the substance of the Federal Circuit Court decision, that deficiency does not disclose reviewable judicial error on the part of the Court, either within the grounds of appeal or otherwise.

CONCLUSION 31 No error is demonstrated. The appeal is dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Migration Act 1958(Cth)ss 36, 36(2A), 46A(2), 91R, 91R(1)(b), 91S, 474, Div

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