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[2013] FCA 1349
Federal Court of Australia
2013-11-19
Jagot J
Original judgment source is linked above.
THE APPEAL 1 This is an appeal from orders of the Federal Circuit Court of Australia dismissing the appellant's application for judicial review of the recommendation of the second respondent, the independent merits reviewer, to the first respondent, the Minister for Immigration and Citizenship, in respect of the appellant's application for a protection visa which had been refused by a delegate of the Minister.
THE PRIMARY JUDGE'S REASONS 2 The appellant was not legally represented before the primary judge. None of the grounds in his judicial review application purported to identify jurisdictional error by the independent merits reviewer. 3 In his reasons for judgment delivered on 12 June 2013 (WZART v Minister for Immigration & Citizenship [2013] FCCA 416 at [17]) the primary judge noted that the independent merits reviewer had "correctly referred to the complementary protection criterion and the circumstances in which it would operate". Further, that "the record of the review shows that the applicant was accorded procedural fairness" (at [19]). At [20] the primary judge said: It is clear that the Reviewer went through the applicant's account of his circumstances in considerable detail and put to him, in my view fairly, country information relevant to a possible outcome. 4 At [22] the primary judge noted that: Because of a number of inconsistencies in the versions of events given by the applicant from time to time, the Reviewer simply did not believe the applicant's claim that he had an LTTE connection as claimed. His claims that would have grounded his assertion that he was a refugee were roundly rejected. 5 The LTTE means the Liberation Tigers of Tamil Eelam, an organisation which had been fighting the Sri Lankan government for Tamil independence in the north of the country for many years. 6 At [23] the primary judge said that the conclusion of the independent merits reviewer recorded at [22] did not mean the reviewer disbelieved everything the appellant said. The independent merits reviewer thus "gave the applicant the benefit of the doubt and accepted that he was a citizen of Sri Lanka although his family lives in India where there is a large Tamil presence" and that "the applicant had been detained because he went into an LTTE controlled sea area". However, as the primary judge put it: 24. Nonetheless, the Reviewer's conclusions that the applicant was not involved with the LTTE are not in my opinion open to criticism and do not reveal jurisdictional error. 25. Indeed, the applicant has not asserted jurisdictional error in this regard but I have considered it since the applicant, being effectively self represented, may not have been able to put forward such a criticism. 7 The primary judge, having undertaken the required analysis of the independent merits reviewer's reasons, concluded at [29] that: fair reading of the decision suggests that the Reviewer gave fair and conscientious consideration to the applicant's claim pursuant to the Complementary Protection criteria but rejected them for reasons which I have said more than once strike me as being cogent. 8 In consequence, the primary judge dismissed the application for judicial review.
LEAVE TO AMEND 9 In an amended notice of appeal filed for the appellant on 25 October 2013 the following four grounds of appeal were specified: Ground 1 The second respondent failed to accord procedural fairness to the appellant in his consideration of the appellant's previous claim for refugee status, lodged with the Australian High Commission in New Delhi and refused in 2008 ('Previous Claim'). Particulars (a) The documents that comprised the "claim" were not identified by the second respondent or provided to the applicant. (b) The second respondent failed to respond to the appellant's submission, acknowledged at [99], that the Previous Claim was rejected because the appellant "filled out his father's name wrongly". Ground 2 Alternatively, or in addition, to Ground 1, the second respondent ignored relevant material by not considering whether there was any other material included in the Previous Claim that would have assisted in the determination of whether the appellant: (a) had been untruthful in claiming that he was bashed by the Sri Lankan CID in 2000 ([140]); (b) had been untruthful in relation to the other matters identified by the second respondent at [139], [141], [142] and [143]; (c) has a well-founded fear of persecution from former members of the Karuna Group that the appellant transported when they were in the LTTE ([56]-[64]; [116]). Ground 3 In telling the appellant that he "always has the right to go to India if he wants to go there" ([99]), the second respondent made a jurisdictional error by failing to consider whether: (a) the appellant has "a right to enter and reside", within the meaning of s 36(3) of the Migration Act 1958 ('the Act'), in India; (b) the appellant has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in respect of India, pursuant to subsection 36(4)(a) of the Act; (c) there are substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant availing himself of a right mentioned in subsection 36(3), there would be a real risk that the appellant will suffer significant harm in relation to India, pursuant to subsection 36(4)(b) of the Act. (d) the questions mandated by subsection 36(5) of the Act: whether India will return the appellant to Sri Lanka and the appellant will be persecuted in Sri Lanka for reasons of race, religion, nationality, membership of a particular social group or political opinion; and (e) the questions mandated by subsection 36(5A) of the Act: whether the appellant has a well-founded fear that India will return him to Sri Lanka, and there are substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant availing himself or herself of a right to enter and reside in India, there would be a real risk that he will suffer significant harm in relation to Sri Lanka. Ground 4 The primary judge erred by not finding that the second respondent made jurisdictional errors in terms of Grounds 1, 2 and 3 above. 10 The first respondent opposed leave to amend the notice of appeal on the basis that the appellant had not adequately explained the reasons for the proposed grounds not having been put before the primary judge and that it was not appropriate for these proposed grounds first to be raised in this appeal rather than before the primary judge. 11 The most persuasive point in favour of the position of the first respondent is that there would be a significant costs penalty (to both parties and the public) if the appeal to the Federal Circuit Court of Australia were to be rendered a nullity. Despite this, there is new evidence from the appellant explaining his lack of legal representation before the Court below. In all of the circumstances, I consider that leave to amend should be granted, despite the fact that none of the proposed grounds were put to the primary judge and that, for the reasons given below, I have concluded that each of the proposed grounds is unsustainable.
GROUND 1 12 The appellant submitted that the appellant was denied procedural fairness because: (i) the Departmental officer who assessed the appellant's application for a protection visa referred to the appellant's previous application which was refused in 2008, and (ii) the independent merits reviewer referred in his report to the appellant mentioning this claim as having been refused because "he filled out his father's name wrongly" and the reviewer then confirmed he had "particulars of his previous claim",. According to this submission, in the circumstances, procedural fairness required the independent merits reviewer to both identify the documents that comprised the previous claim and respond to the appellant's assertion that the previous claim was refused because the appellant filled out his father's name incorrectly. 13 I disagree. The Departmental officer did no more than record the existence of the previously rejected claim in a section of the Departmental report dealing with the appellant's history. The independent merits reviewer merely recorded an exchange he had with the appellant (along with many other exchanges) during an interview. But the previous claim, the rejection of that claim, and the reasons for the rejection do not appear anywhere in the findings and reasons for the respective recommendations. 14 The assertion of denial of procedural fairness, without consideration of the context said to give rise to the particular obligation, is unhelpful. The submission fails to articulate any reasoned basis by which the asserted obligation could arise in circumstances where: (i) the appellant never said that his previous claim was relevant to his current claim, and (ii) the independent merits reviewer did not rely on any aspect of the previous claim in his reasoning. 15 As the first respondent's submissions correctly put, the appellant did not advance his previous claim as "a separate claim or an integer of his claims that he was owed protection obligations" and the previous claim formed no part of the reasoning of the independent merits reviewer. Accordingly, nothing about the previous claim can be characterised as "credible, relevant or significant so as to give rise to procedural fairness obligations".
GROUND 2 16 Ground 2 asserts that as the previous claim lodged in 2008 was closer in time to the alleged events involving the LTTE, the independent merits reviewer should not have reached his recommendations "without having regard to the material purporting to show why the appellant, in 2008, met the criteria for" a protection visa. 17 Again, this submission does not rise above the mere assertion of a conclusion unsupported by any reasoning related to the particular circumstances of this case. Not having asserted that his previous claim was relevant to his current claim, the appellant cannot now complain of any failure to consider that matter by the independent merits reviewer.
GROUND 3 18 This ground relates to another aspect of the numerous exchanges between the appellant and the independent merits reviewer during an interview. The independent merits reviewer, in the section of his report entitled "IMR interview" which precedes the section dealing with "Findings and reasons", records that: • I told the claimant that it seems to me that he could have stayed in Tamil Nadu…The claimant said he had fear about being returned. • I told the claimant that he always has the right to go to India if he wants to go there. The claimant stated that he asked to go to India ' I asked them but they said that they could not send me back to India'. 19 According to the submissions for the appellant it was incumbent on the independent merits reviewer "to make findings on the nature of the appellant's right to enter and reside in India, and on whether the appellant would experience persecution … if he was returned to India (rather than Sri Lanka)". 20 The problem with this submission is that the findings and reasons of the independent merits reviewer do not include or assume anything about the appellant being able to return to India. The independent merits reviewer gave the appellant "the benefit of the doubt" and thus accepted that he is a citizen of Sri Lanka, although his family lives in India. The independent merits reviewer assessed the appellant's claims as against Sri Lanka, not India. As the first respondent correctly submitted: Critically, the issue of whether the appellant could return to India did not form part of the Reviewer's findings and reasons. 21 The submission for the appellant, that the independent merits reviewer found that the appellant could enter and reside in India and thus had to make findings in respect of s 36(3), (4), (5) and (5A) of the Migration Act 1958 (Cth), is misconceived. The apparent belief of the independent merits reviewer that the appellant could enter and reside in India might have engaged s 36(3) which, if satisfied, would have meant that Australia would be taken not to have protection obligations to the appellant. However, nothing in the reasoning process of the independent merits reviewer involved the considerations in s 36(3). As such, the circumstances in which s 36(3) did not apply specified in ss 36(3), (4), (5) and (5A) were also immaterial in this case. 22 That said, ground 3 thus fails to engage with the facts of the present case and lacks any substance.
GROUND 4 23 This ground depends on one or more of grounds 1 to 3 succeeding. As I have rejected grounds 1 to 3 as unsustainable above, ground 4 does not arise.
CONCLUSIONS 24 For the reasons given, the appeal must be dismissed. The appellant should pay the first respondent's costs of the appeal. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.
WZART
Minister for Immigration and Citizenship