SZRCD v Minister for Immigration and Citizenship

JUDGE: FLICK J DATE: 4 APRIL 2013 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Appellant is a citizen of Sri Lanka. 2 He arrived in Australia in November 2010 and made a request for a Refugee Status Assessment in January 2011. He feared that if he were returned to Sri Lanka he would be detained, tortured and killed by the authorities who would believe he was a supporter of the Liberation Tigers of Tamil Eelam (the "LTTE"). In April 2011 it was concluded by the Refugee Status Assessor that the Appellant did not meet the definition of a refugee. He thereupon applied for an Independent Merits Review. In December 2011 the Independent Merits Reviewer also concluded that the Appellant did not meet the criteria for a protection visa. 3 Review of the recommendation of the Independent Merits Reviewer was sought in the Federal Magistrates Court of Australia. Before that Court the now Appellant was represented by Counsel. The Application as filed in January 2012 with that Court simply asserted that the decision of the Independent Merits Reviewer "was affected by legal error". An Amended Application filed in May 2012 raised a single ground of review, namely: The Independent Protection Assessment Reviewer failed to afford the claimant procedural fairness as he failed to address the claim that para-military groups like EPDP (Eelam People's Democratic Party) and the Karuna group would identify him as a stranger and would identify him to the Sri Lankan army. The argument as advanced before the Federal Magistrate, it would appear, diverged to some extent from both the terms of the original Application as filed and from the terms of the Amended Application. The proceeding before the Federal Magistrate was dismissed in December 2012: SZRCD v Minister for Immigration and Citizenship [2012] FMCA 1190. 4 The argument as advanced before the Federal Magistrate was explained by the Federal Magistrate in the reasons for decision as follows: [23] It was contended for the applicant that the IMR had failed to address an integer of his claims. It was said to be apparent from the material before the reviewer that the EPDP and the Karuna group remained active in the north-east of Sri Lanka. It was submitted that the applicant had claimed that what would draw him to the attention of these groups was the fact that he was a stranger and a young Tamil male with no family or friends. This profile was said to be quite separate from his claimed link to the LTTE which depended on knowledge of his family history in the area. It was contended that the reviewer had erred in failing to make any finding about whether being a stranger would place the applicant at risk of attention from the paramilitary groups and that the IMR's observation that human rights abuses were declining and that people were beginning to live relatively normal lives did not address this claim. The Federal Magistrate went on to further elaborate upon the arguments being advanced and later concluded: [35] It was contended that a claim arose on the material before the IMR (including the independent country information) not only that the applicant was at risk from these organisations because of his perceived LTTE connection but also because he would be a stranger in the area. It acknowledged that the reviewer referred generally to the absence of anything in the applicant's "particular circumstances" that would give rise to a real claim that he would face serious harm such as human rights deprivation and terrorisation for reason of his Tamil ethnicity, his actual or imputed political opinion or otherwise. However it was submitted that this finding did not deal with the possibility that the applicant might face harm from the paramilitary groups for a non-Convention reason and that he may not have state protection from such harm for a Convention reason. ….. [38] I am not satisfied that this ground is made out, either on the basis pleaded in the amended application and addressed in written submissions or as elaborated upon by the applicant in oral submissions. The Federal Magistrate also recorded that the now-Appellant's initial claim to fear a group described as the Karuna Group was later "disclaimed" and "disavowed": [2012] FMCA 1190 at [43] and [45]. The Independent Merits Reviewer also noted that the now-Appellant had accepted that "he had fabricated his claims at the RSA stage and said he would like to state his real claims". 5 The Appellant now appeals to this Court. Before this Court the Appellant appeared unrepresented. He had the assistance of an interpreter. 6 The Notice of Appeal as filed in this Court identifies the Grounds of Appeal (without alteration) as follows: 1. That there is a jurisdictional error in the Federal Magistrate Courts decision. 2. The reasons provided by the Second Respondent to the First Respondent in support of the Second Respondent's recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical nor rational. 3. The Minister cannot lawfully act on the recommendation of the Independent Merits Review Reviewer because that recommendation failed to take into account a relevant consideration for the Minister, namely the Applicant's claims to complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth) ("the Act"). The Minister is obliged to take s 36(2)(aa) of the Act and the Applicant's claims thereunder into account from 24 March 2012 notwithstanding that the Independent Merits Review Reviewer had not been obliged to take into account s 36(2)(aa) of the Act and the Appellant's said claims at the time the Independent Merits Review Reviewer made his recommendation. 4. Further grounds of appeal will be provided once I have legal representation and the review of the review of the written reasons for the decision has been completed. It will be noticed that it is only the first Ground of Appeal which seeks to identify any error on the part of the Federal Magistrate. It will be further noticed that the second and third Grounds of Appeal depart from the manner in which the case was advanced before the Federal Magistrate when the now Appellant was represented by Counsel. No further Grounds of Appeal have been provided, as contemplated by Ground 4. 7 The appeal is to be dismissed with costs.

JURISDICTIONAL ERROR 8 The first Ground of Appeal neither identifies the "error" said to have been committed by the Federal Magistrate nor an "appellable error" - as opposed to "jurisdictional error". 9 Notwithstanding these deficiencies, it has been construed as an argument that the Federal Magistrate erred in rejecting the grounds upon which the Amended Application was argued and advanced before that Court. 10 Given the manner in which the claim to fear persecution was changed throughout the consideration of those claims, however, and the manner in which the Appellant sought to formulate his grounds of judicial review, there is some difficulty in identifying the "error" now relied upon - either by the Independent Merits Reviewer or by the Federal Magistrate. 11 Notwithstanding these difficulties, the reasons for decision of the Independent Merits Reviewer have been separately considered together with the reasons for decision of the Federal Magistrate. The reasons for decision of the Federal Magistrate record the claims of the now-Appellant, including his claims founded upon his fears arising by reason of: his father's connection with the LTTE, and his father's detention and interrogation in 1990; the death of his uncle in 2006; his being a "stranger" and a young Tamil male with no family or friends; paramilitary groups, such as the EPDP and Karuna group, said to be working with, but separate from, the government; the Sri Lankan army; his "perceived LTTE connection"; and the absence of any identity documents provided by the military. There is no apparent failure on the part of the Independent Merits Reviewer to have considered any of the claims made by the now-Appellant. Nor, more importantly, is any appellable error discernible in the reasons for decision of the Federal Magistrate. The Federal Magistrate, it may be noted, has carefully reviewed the reasons for decision of the Independent Merits Reviewer. There is no failure on the part of the Federal Magistrate to consider the claims made and the reasons for decision of the Independent Merits Reviewer. 12 The first Ground of Appeal, construed as an argument that the Federal Magistrate has committed appellable error, is rejected.

A LACK OF RATIONALITY AND A FAILURE TO CONSIDER 13 The second Ground of Appeal seeks to contend that the reasons of the Independent Merits Reviewer were "neither logical nor rational"; the third Ground of Appeal seeks to contend that the Independent Merits Reviewer failed to consider claims "to complementary protection under s 36(2)(aa) of the Migration Act…". 14 Neither of these Grounds were relied upon before the Federal Magistrate. 15 Except in "exceptional circumstances", a party is bound by the manner in which he advances his case for resolution: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there observed: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. See also: Zheng v Cai [2009] HCA 52 at [16], 239 CLR 446 at 453 per French CJ, Gummow, Crennan, Kiefel and Bell JJ. 16 Leave to raise an argument not previously advanced may, however, be granted 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] per Kiefel, Weinberg and Stone JJ. While it is necessary for there to be some consideration of the merits of the application for leave, it is not necessary to "enter upon a full consideration of the grounds. To do otherwise would make the requirement for leave meaningless": Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [24] per Heerey, Moore and Goldberg JJ. 17 Leave to rely upon either the second or third Ground of Appeal is refused. 18 In refusing leave, it is considered that neither of the two Grounds have any merit. Also of relevance is the desirability of this Court not being transformed into a de facto court of original jurisdiction and the desirability of cases such as the present being resolved in a timely and orderly manner: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [30] per Lander J. In Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929, 192 ALR 71 at 86 Gyles J observed: [62] In my opinion, it is wrong to analyse the question which arises here as requiring a balancing of prejudice. Departure from the proper role of appeal in the court system is not simply a discretionary procedural decision. Furthermore, in public law matters like this, it can always be said that no actual prejudice apart from costs is suffered by the respondent compared with the prejudice to the appellant. It can easily be overlooked that there is a significant public interest in the timely and effective disposal of litigation. This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible… These observations were endorsed by Lander and Middleton JJ in MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [63] to [64]. Their Honours there also observed that if there had been some merit in the proposed new grounds "this would be a case where it would be expedient in the interests of justice to allow the grounds to be put for the first time": [2013] FCAFC 1 at [66]. But there was no merit. See also: SZMRD v Minister for Immigration and Citizenship [2009] FCA 598. 19 All too frequently in cases such as the present, an unrepresented party includes in a Notice of Appeal grounds which have no self-evident bearing upon the issues to be resolved and which cannot be explained in any meaningful manner. As with many other cases (e.g., SZOOM v Minister for Immigration and Citizenship [2011] FCA 152 at [31]; MZYGR v Minister for Immigration and Citizenship [2010] FCA 883 at [37]; SZOBU v Minister for Immigration and Citizenship [2010] FCA 568 at [32]; SZOJH v Minister for Immigration and Citizenship [2010] FMCA 445 at [32] and [48]), Grounds 2 and 3 were drafted with the assistance of a "friend". It is hardly surprising when an unrepresented applicant for refugee status who claims to be facing persecution in the country from which he has fled seeks assistance from whatever quarter is available and is unable to explain what is meant by (for example) "jurisdictional error". Nor is it surprising in the present proceeding that the Appellant cannot explain what is intended to be conveyed by an argument that a decision is lacking in logic or rationality. It would be even more surprising if the present Appellant combed the text of the Migration Act 1958 (Cth) with a view to unearthing s 36(2)(aa). 20 Criticism has previously been expressed with the deficiencies in the present processes whereby judicial review of migration decisions may be sought: SZQPE v Minister for Immigration and Citizenship [2012] FCA 544. Those criticisms are repeated. To fail to address the deficiencies places this Court in the position of itself having to provide de facto legal advice to the unrepresented party with the very real risk that it thereby may prejudice the Respondent Minister. 21 Having repeated such criticisms, it may nevertheless be accepted that an administrative decision may potentially be set aside if it is neither logical nor rational: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130]-[131], 240 CLR 611 at 647-648. In the context of review being sought of a decision of the Refugee Review Tribunal, Crennan and Bell JJ there observed: [130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. Appl'd: MZYPM v Minister for Immigration and Citizenship [2012] FCA 1453 at [13] per North J. See also: [2010] HCA 16 at [40], 240 CLR 611 at 265 per Gummow A-CJ and Kiefel J. A decision is thus not illogical or unreasonable simply because a reviewing court would have attributed different weight to one factor or piece of evidence or submission than the decision-maker: cf. Woolworths Ltd v Director of Liquor Licensing [2012] WASC 384 at [65] per E M Heenan J Milwain v Sim [2009] VSC 75 at [21]; Dibeek Holdings Pty Ltd v Notaras [2000] FCA 1212 at [54]. The "threshold for establishing illogicality is … on any view … very high": MZYOI v Minister for Immigration and Citizenship [2012] FCA 868 at [165], 130 ALD 256 at 283 per Dodds-Streeton J. 22 In the present proceeding, however, there is no basis upon which it can be said that the reasons and recommendation of the Independent Merits Reviewer lacked either logic or rationality. The Appellant explained, with the assistance of the interpreter, that Ground 2 was intended to refer to the claim founded upon the Appellant being a Tamil. So construed, the Ground is either subsumed within Ground 1 or is an impermissible attempt to seek "merits review": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at [31], 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). Ground 2 certainly does not come anywhere near satisfying the approach formulated by Crennan and Bell JJ in SZMDS. 23 Nor can the now Appellant rely upon any failure to consider "complementary protection…" as proposed in Ground 3. It is an argument which is not supported by any evidence advanced on behalf of the now Appellant and could potentially have been met with evidence adduced by the First Respondent had it been raised at an earlier point of time. With the assistance of the interpreter, the Appellant explained that he had "no idea" what was intended to be conveyed by Ground 3. 24 The Appellant made no further submissions, either in writing or during the course of the hearing, in relation to Ground 4.

CONCLUSIONS 25 The first Ground of Appeal is rejected. 26 Leave to raise Grounds 2 and 3 is refused. No further Grounds of Appeal have been identified as anticipated by Ground 4. 27 The appeal is thus to be dismissed. There is no reason why the Appellant should not pay the costs of the First Respondent. 28 During the course of the hearing of the appeal the Appellant sought to tender an undated letter from a Justice of the Peace. The letter sets forth events that had occurred in Sri Lanka. The letter, it was said, was only received by the Appellant recently. It was thus not tendered before either the Independent Merits Reviewer or the Federal Magistrate. Although admitted and marked as an exhibit, the letter assumes no relevance. There is no explanation as to why the letter was not obtained prior to the interview with the Independent Merits Reviewer. The letter assumes no relevance to establishing any appellable error said to have been committed by the Federal Magistrate nor any relevance to any ground upon which judicial review was sought. It has, accordingly, been given no weight.

THE ORDERS OF THE COURT ARE: 1. Leave to raise Grounds 2 and 3 in the Notice of Appeal filed on 27 December 2012 is refused. 2. The appeal is dismissed. 3. The Appellant is to pay the costs of the First Respondent. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.