CEP17 v Minister for Immigration and Border Protection
[2019] FCA 134
•14 February 2019
FEDERAL COURT OF AUSTRALIA
CEP17 v Minister for Immigration and Border Protection [2019] FCA 134
Appeal from: CEP17 v Minster for Immigration & Anor [2017] FCCA 3124 File number(s): NSD 2300 of 2017 Judge(s): GREENWOOD J Date of judgment: 14 February 2019 Catchwords: MIGRATION – consideration of an appeal in which it was contended simply that the Federal Circuit Court of Australia erred when dismissing an application for judicial review which relied simply upon the proposition that the Immigration Assessment Authority had failed to consider any of the claims and integers of claims and any other relevant considerations in reaching a decision in relation to the matter before it – consideration of the basis for the claims made before the IAA – consideration of whether the claims were assessed and whether the IAA fell into jurisdictional error in undertaking its statutory function – consideration of the grounds advanced before the Federal Circuit Court of Australia and the treatment by that Court of those grounds Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa) Cases cited: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Date of hearing: 1 June 2018 Date of last submissions: 1 June 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 54 Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Ms D Watson Solicitor for the First Respondent: Australian Government Solicitor ORDERS
NSD 2300 of 2017 BETWEEN: CEP17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
14 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondents costs of and incidental to the appeal.
3.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
This is an appeal from orders (and reasons) of the Federal Circuit Court of Australia made on 12 December 2017 dismissing the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) under Pt 7AA of the Migration Act 1958 (Cth) (the “Act”) made on 24 April 2017. The decision of the IAA affirmed a decision of the delegate of the Minister not to grant the appellant a Safe Haven Enterprise (Subclass 790) visa (the “Safe Haven visa”). Before this Court, the appellant was self‑represented. I propose to therefore review the detail of the claims and the factual matters in some depth to be satisfied about whether the primary judge fell into error or not as contended, or otherwise.
Factual Background
The appellant is a Tamil from the Eastern province of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 13 November 2012.
The applicant’s father and brother were shot dead by the Sri Lankan army in 1980 and his family home was destroyed.
In 1991, the appellant began work as a motorcycle mechanic at a garage frequented by members of the LTTE. In 1995, the appellant was detained and beaten by the Sri Lankan army in the vicinity of his work place. He departed the country lawfully in 1995 and worked in Qatar. He returned to Sri Lanka in 1999. The appellant relocated to a village in an area that was controlled by the LTTE. He resumed work as a mechanic, initially from his home, but later from a garage. The appellant alleges that during this period he was caught in “round‑ups” by the Sri Lankan army; that he was taken to an army camp for interrogation and assaulted; that he was ordered to report to the camp weekly; and, that if he failed to report to the camp, the army would take him from his home overnight, detain him and assault him.
The appellant alleges that the Sri Lankan army withdrew from his village in 2004 after the conclusion of peace talks with the LTTE. He began working at a different garage as a mechanic. The appellant alleges that his work included repairing motorcycles for the LTTE and that he could not refuse to undertake that work for fear the LTTE would harm him.
The appellant alleges that when hostilities resumed in 2006, the “Criminal Investigation Department” (the “CID”) shot and killed the appellant’s former employer and began searching for the appellant. The appellant alleges that the CID searched his workplace looking for him. However, he was absent at the time. According to the appellant, although the CID attempted to find him at his home, he escaped by climbing over a fence. He claims that on that occasion, the CID abused and assaulted his wife.
The appellant alleges that he went to Malaysia to escape from the CID sometime after the attack. However, the appellant returned to Sri Lanka in 2009 because his family had informed him that he would be safe. The appellant claims that the CID has a file on him which, in his view, means that he will be killed should he return to Sri Lanka. He claimed before the IAA that the CID began looking for him once it learned that the appellant had returned to Sri Lanka. The appellant alleged that all the mechanics who had trained with his former employer who had been killed, have also been killed.
The appellant claimed that in October 2012 the CID came to the appellant’s workplace and threatened him at gunpoint demanding information about the LTTE. The appellant alleged that CID officers threatened to kill him but left the workplace without harming him as his workplace was crowded. He claimed that he had made a complaint to the Human Rights Organisation of Justices of the Peace about this incident. The appellant claimed that he went to live with a distant relative in Colombo until he was able to depart Sri Lanka illegally in November 2012.
The appellant claimed that the CID continued to look for him and seek him out at his former workplace and that his son has been threatened by the CID.
On 23 September 2016, the Minister’s delegate refused the appellant’s application for the visa.
Decision of the Immigration and Assessment Authority
On 28 September 2016, the IAA wrote to the appellant saying that the refusal decision of the delegate had been referred to the IAA for review. The IAA explained that there are limited circumstances in which the IAA could consider new information. The letter provided an attached fact sheet and Practice Direction giving the appellant an opportunity to put on submissions and to submit any “new information”. The appellant provided no new information to the IAA.
At para 3 of the IAA’s reasons, the IAA noted that it had regard to the material referred to it by the Secretary under s 473CB of the Act. Further, at para 5, the IAA considered that although it was not subject to Ministerial Direction 56 issued by the Minister under s 499 of the Act, there were “exceptional circumstances” that justified taking into account a new Department of Foreign Affairs and Trade (“DFAT”) Report published on 24 January 2017, despite the fact that this Report was published after the delegate’s decision. The IAA noted that it also had regard to a previous version of the DFAT Report issued on 18 December 2015 forming part of the review material.
The IAA accepted that the appellant’s father and brother had been shot dead by the Sri Lankan army in 1980: para 10.
The IAA referred to the appellant’s claims that he would be targeted because he had worked as a “motorcycle mechanic”. The IAA identified that there were “several aspects” to this claim: para 11.
First, the appellant claimed that the authorities had inflicted harm upon him because he had been in the vicinity of a bomb attack (thought to have been LTTE related) near his workplace. The IAA noted that the appellant made reference to a later “bomb blast” as the reason the Sri Lankan authorities began targeting motorcycle mechanics thought to be connected with the LTTE. That conduct became the appellant’s motivation for going to Qatar. The IAA accepted that the appellant had been assaulted in the way he described at the “Safe Haven Enterprise Visa Interview” (the “SHEV interview”) and in the “Safe Haven Enterprise Visa Statement”. The IAA, however, was not satisfied that this incident related to the appellant’s work as a motorcycle mechanic. The IAA noted that the first motorcycle bomb attack occurred after the assault: para 13.
Second, the IAA notes that the appellant consistently claimed that the LTTE used the device of motorcycle bombs, making the Sri Lankan authorities suspicious of all motorcycle mechanics. The IAA noted that the appellant claimed that the Sri Lankan authorities had killed his former employer and all his former colleagues (all of whom were motorcycle mechanics). The IAA noted that the delegate was unable to locate country information supporting the appellant’s claims that motorcycle mechanics had been targeted by Sri Lankan authorities for harmful treatment in the mid‑1990s. The IAA identified a news report of an incident in 2006 near the appellant’s home village. At the SHEV interview, the appellant claimed that the report related to his former employer. The IAA attributed some weight to the report as supporting the appellant’s claims. However, the IAA noted that the report did not indicate that his former employer had been shot on suspicion of helping the LTTE. The appellant claimed that he was “rounded‑up” and questioned, and on one occasion detained and assaulted and then required to report regularly to authorities. The IAA notes that these events do not appear to be related to his work but are consistent with information in the DFAT reports regarding the round ups of Tamils in the Eastern province during the civil war. The IAA also referred to the appellant’s claim that the members of the CID came to his home looking for him but he managed to escape notwithstanding that he was shot at, and members of the CID assaulted his wife: para 15.
Third, the appellant claimed that he was forced to do gratuitous repair work for the LTTE. The IAA accepted as plausible that the appellant did undertake motorcycle repair work for the LTTE and noted that his claims were consistent with information in the DFAT reports regarding the LTTE operating as a government and that residents in LTTE controlled areas had day to day interactions with the LTTE: para 17.
Fourth, the IAA noted the appellant’s claim that his name is on a “CID kill list”. The IAA noted that the appellant claimed CID officers threatened him at gunpoint at his workplace in October 2012 and that CID officers later came to his home for the purpose of shooting him. However, he escaped. The IAA noted that during the SHEV interview he referred to the “STF” (an acronym for the “Police Special Task Force”) threatening him and searching him. The IAA considered that the appellant not referring consistently to the CID or STF undermined the creditability of his claims: para 19.
The IAA considered it implausible that the CID or STF had been searching for the appellant for approximately three years, but did not locate him until October 2012. The IAA also considered it implausible that the STF or CID would threaten the appellant at gun point at his workplace, but then leave without taking any further steps because the workplace is a busy location. The IAA also considered it implausible that either the STF or CID would tell the appellant’s brother that the appellant’s name is on the “kill list”: para 20.
The IAA referred to previous material provided by the appellant to support the allegations of past harm. The IAA accepted that the appellant’s travel was, in part, motivated by a worsening security situation and, in part, motivated by an opportunity to work overseas: para 25.
The IAA gave weight to the fact that the appellant was willing to return to Sri Lanka on both occasions due to changes in the general circumstances (as opposed to the appellant’s specific circumstances) as a consideration which undermined his claims that he was the subject of individual targeting for harmful conduct by the Sri Lankan authorities for any reasons related to his own specific characteristics including that he had worked as a “motorcycle mechanic”: para 25.
The IAA did not accept that the appellant would have been able to pass through airports or security checkpoints in Sri Lanka if his name had been listed upon on a “kill list”: para 25.
The IAA accepted that the appellant’s employer had been shot dead. However, the IAA was not satisfied that that event was due to any link between the employer and the LTTE, his work as a motorcycle mechanic, or to the appellant. The IAA did not accept the claim that all of the appellant’s work colleagues had been shot. The IAA considered it implausible that Sri Lankan authorities would have come to the appellant’s workplace on only one occasion and to his home on only one occasion if he was of genuine interest to the authorities due to his work as a motorcycle mechanic. The IAA considered it implausible that the appellant would be so easily able to escape from his home, and found the appellant’s evidence as to how he did so, to be “vague”: para 27.
The IAA rejected the claim that the Sri Lankan authorities attempted to arrest or shoot the appellant just prior to his going to Malaysia: para 27. The IAA found that the appellant had greatly exaggerated the personal risk of remaining in Sri Lanka in an attempt to explain his having left Sri Lanka to go to Malaysia for work, as well as to avoid general, not specific, harm from the Sri Lankan authorities: para 27.
The IAA did not accept that officers of the CID assaulted the appellant’s wife prior to his going to Malaysia: para 27.
The IAA rejected the claim that the appellant was a person of interest to the Sri Lankan authorities and that he would have been able to travel to and from Qatar and Malaysia without being questioned or detained. The IAA rejected the claim that the appellant made a complaint to any human rights organisation. The IAA also rejected the claim that the appellant’s name was on a “kill list” and the claim that the CID or STF were searching for him for almost three years after he returned to Sri Lanka from Malaysia: para 28.
The IAA rejected the claim that the appellant was threatened at gunpoint at his workplace in October 2012: para 28.
The IAA also rejected the claim that the Sri Lankan authorities came to his home for the purpose of shooting him in October 2012: para 29.
The IAA rejected the claim that the appellant had been hiding in Colombo. The IAA rejected the claim that the appellant was of any ongoing interest to the Sri Lankan authorities and rejected the claim that officers of the CID or STF had been looking for him after he left Sri Lanka. The IAA rejected the claim that officers of the CID or STF have in any way threatened his family: para 28.
The IAA considered that the appellant had fabricated these parts of his claim so as to exaggerate the level of risk to him of harm should he return to Sri Lanka: para 28.
The IAA was not satisfied that the appellant had a profile which would bring him to the attention of the Sri Lankan authorities as someone connected to the LTTE. The IAA noted that the DFAT reports, both the 2015 version and the 2017 version, reported that the situation has improved for Tamils: para 32. The IAA was not satisfied that the appellant faced a real chance of serious harm from the Sri Lankan authorities for an imputed political opinion that was pro‑LTTE or antagonistic to the Sri Lankan Government or because of the appellant’s age, ethnicity as a Tamil, or due to the fact that he lived in an LTTE controlled area. Nor was the IAA satisfied that the appellant faced a real chance of serious harm from Sri Lankan authorities due to his father, brother, and former employer having been killed; or because he worked as a motorcycle mechanic; that he did repair work for the LTTE; or because he was “rounded‑up and assaulted” by the army; or because he had previously been required to report to the army. The IAA was not satisfied that the appellant faced a real chance of serious harm from the Sri Lankan authorities either now or in the reasonably foreseeable future should he return to Sri Lanka: para 34.
The IAA was not satisfied that the Sri Lankan authorities had any ongoing suspicion about the appellant. The IAA was not satisfied that the appellant faced a real chance of harm from Sri Lankan authorities due to being a failed asylum seeker now or in the reasonably foreseeable future if he returns to Sri Lanka: para 37.
The IAA accepted that the appellant departed from Sri Lanka without a passport and for that reason, committed an offence under the Immigrants and Emigrants Act 1949 (Sri Lanka): para 38. The authority found that any questioning and detention the appellant may experience would be brief and would not constitute significant harm as that term is defined in s 36(2A) of the Act: para 43.
The IAA found that the provisions of the Immigrants and Emigrants Act 1949 (Sri Lanka) are laws of general application that apply to all Sri Lankans equally and are not discriminatory on their terms, nor does the country information support that they are applied in a discriminatory manner or that they are selectively enforced. The IAA was satisfied that any process or penalty that the appellant may face on his return to Sri Lanka because of his illegal departure would not constitute persecution for the purposes of the Act: paras 44‑45.
The IAA found that the appellant had failed to meet the definition of “refugee” in s 5H(1) and found that the appellant had failed to meet the criteria under s 36(2)(a) of the Act: para 47.
The IAA was not satisfied that there were substantial grounds for believing as a necessary and foreseeable consequence of the appellant being returned from Australia to Sri Lanka that there is a real risk that the appellant will suffer significant harm and found that the appellant therefore failed to meet the criteria under s 36(2)(aa) of the Act. The IAA affirmed the decision of the delegate: para 54.
Proceedings before the Federal Circuit Court
The appellant was represented before the Federal Circuit Court. The amended application raised the following grounds:
Ground 1
The IAA fell into legal error at [CB 162. 14] as its findings regarding the employer’s cause of death was unreasonable and not open to it.
Particulars
1.The applicant claimed the Sri Lankan authorities were suspicious of all motor cycle mechanics as the LTTE employed motorcycle bombs [CB 162. 14].
2.The IAA accepted that the applicant “was targeted for questioning due to his work as a motorcycle mechanic and the use of motorcycle bombs by the LTTE” [CB 164. 26].
3.The applicant claimed that his former employer was killed by the CID [CB 160. 6].
4.At [CB 162.14], the IAA noted that the delegate was able to locate a news report from 2006 [CB 141. 726] which, the applicant claimed, was related to the death of his former employer.
5.Although the IAA put “some weight” on the report, the IAA rejected the applicant's claim on the basis that the report did not explicitly state that the applicant's former employer had been killed due to perceived links to the LTTE [CB 162.14].
6.The IAA did accept that the applicant's employer was shot dead, but was not satisfied that it was because of any link between the employer and the LTTE [CB 165. 27].
7.The report relied by the IAA refers to “GoSL agents” having murdered a mechanic, that mechanic being the applicant's employer.
8.The IAA in its assessment, failed to consider that it was agents of the state (GoSL) who had murdered the applicant's employer.
9.The IAA in its assessment, failed to consider that news reporters may have been hesitant to expressly state and publish the fact that the GoSL agents killed the applicant's employer due to perceived LTTE links, at a time when the war was going on.
Ground 2
The IAA failed to assess a Particular Social Group claim that was raised by the applicant.
Particulars
1.The applicant claimed the Sri Lankan authorities were suspicious of all motor cycle mechanics as the LTTE employed motorcycle bombs [CB 162. 14].
2.The applicant in his statement of claims stated “After this incident all mechanics were targeted by the SLA as they were blamed” [CB 67. 17].
3.The delegate stated at [CB 127] “Central to the applicant's claims is that he was a motor mechanic in [redacted] between 1990 and 1995, and then on and off ...”
4.The IAA accepted that the applicant “was targeted for questioning due to his work as a motorcycle mechanic and the use of motorcycle bombs by the LTTE” [CB 164. 26].
5.The IAA states at [CB 161. 11]. “The applicant claims if he returns to Sri Lanka he will be targeted for harm because he worked as a motorcycle mechanic”.
6.At [CB 166. 34] the IAA states that it was not satisfied that the applicant faces a real chance of serious harm from the Sri Lankan authorities for several reasons including the reason that “he worked as a motorcycle mechanic, he did repair work for the LTTE”.
7.Australian Courts have emphasised that the primary focus of this Convention ground is on what a person is - a member of a particular social group - rather than what a person has done. See Morato v MILGEA (1992) 39 FCR 401 at 405.
8.The IAA had before it a news report that the delegate was able to locate [CB 140].
9.Though the report that the delegate was able to locate in its entirety has not been included in the court book, the applicant has been able to obtain the report relied by the delegate and the IAA (refer Affidavit filed on behalf of the applicant).
10.The report refers to the following incidents relating to “mechanics” and “garage owners” who were murdered by the SLA / GoSL.
a.726. May 23, 2006: Amparai - Two motorbike-riding gunmen. GoSL agents by gunfire murdered a motor mechanic.
b.952. October 21, 2006: Jaffna - owner of a garage the report states murdered by gunfire separately by unidentified men acting as GoSL agents
c.653. April 19, 2006: Jaffna - Sri Lanka Army (SLA) soldiers murdered by gunfire 5 Tamil civilians close to an SLA 51-1 Division camp located at Vatharavathai, 13 km north-east of Jaffna. The soldiers took the five civilians, a Municipal Council official, an electrical mechanic, ... and later brought them out to an open terrain and gunned them down.
d.876. September 3, 2006: Jaffna - Two Tamil civilian males were murdered by gunfire separately by unidentified men acting as GoSL agents riding on motorbike in the northern Jaffna. Sunday. Baskaran Suresh, 31, owner of a garage at 5th Cross Street in Jaffna, was murdered around 11 a.m.
e.881. September 4, 2006: Jaffna - Motorbike riding Sri Lanka Army (SLA) men in civil clothes shot and murdered three Tamil civilian males in three separate shootings in Jaffna Monday. An owner of a garage 100 meters away from an SLA sentry point
a. [sic]1027. December 2, 2006: Jaffna - The owner of a vehicle repair facility in Duch Road Chavakacheri in Thenmaradchy district was murdered by gunfire by two gunmen riding in a motorbike. The murderers were GoSL agents
a. [sic]585. December 27, 2005: Kilinochchi - The young Tamil civilian female who was murdered by gunfire by the SLA soldiers and dressed up with denim trousers last Saturday. ... Two bodies were earlier identified as belonging to a night watcher and a garage worker in Kottady.
11.The IAA failed to assess if the applicant would face harm due to his membership of a particular social group of mechanics, this claim was raised squarely by the applicant, and even if we are wrong on this this claim arose on the facts that did not require constructive or creative activity by the decision-maker.
Ground 3
The Secretary failed to provide the IAA a complete copy of the 2006 report [CB 128, footnote 8] that the delegate had obtained and was relied by the delegate to reach an important inference, thereby breaching section 473CB of the Migration Act.
Particulars
1.Section 473 CB of the Migration Act states
MIGRATION ACT 1958 – SECT 473CB
Material to be provide to Immigration Assessment Authority
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i)sets out the findings of fact made by the person who made the decision; and
(ii)refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b)material provided by the referred applicant to the person making the decision before the decision was made;
(c)any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review; ...
2.The delegate referred to country information (a report) that she had obtained and the reference to the report was footnoted at [CB 128].
3.The reference to the report at footnote 8, appears to be a complete reference to the source relied by the delegate to make findings regarding an important integer of the applicant's claims [CB 128].
4.The Court Book refers to two pages of the report relied by the delegate [CB 140] and [CB 141].
5.Though the Secretary could be said to have met s473CB (1) (a) (ii), it could not be said that the Secretary had met its mandatory obligations under s473CB (1) (c) as the report footnoted at 8, falls within the scope of “other material” that was in the Secretary's possession or control and was considered by the delegate to make findings regarding an important integer of the applicant's claims. The fact the report (though not in its entirety) formed part of the material that was referred to the IAA under 473CB [CB 159. 3] amounts to a consideration by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review.
6.For these reasons, the Secretary failed in its statutory obligation to provide the complete report to the IAA.
[excludes the emphasis adopted by the appellant in the amended application]
In relation to ground 1, the lawyer for the appellant, Mr Tambimuttu, submitted before the primary judge that the finding by the IAA that the appellant’s employer’s death was not due to a link between the employer and the LTTE, the employer and his work as a motorcycle mechanic, or the employer and the appellant, was legally unreasonable and not open on the evidence.
The primary judge noted that the adverse finding by the IAA was open on the material before it for the reasons given by the IAA.
The primary judge concluded that “the adverse finding cannot be said to lack an evident and intelligible justification and no jurisdictional error as alleged in Ground 1 is made out.” at [38].
In relation to ground 2, Mr Tambimuttu submitted that the material gave rise to the existence of a particular social group described as “motorcycle mechanics”.
The primary judge held that no claim fairly arose on the material before the IAA of a fear of harm by reason of the appellant being a member of a particular social group described as “motorcycle mechanics”.
The primary judge said this at [40]:
The [IAA] made findings dispositive of the applicant’s claims which included his fear of harm by reason of his involvement of work as a mechanic and made express reference in its adverse findings to the applicant’s role as a motorcycle mechanic. [counsel for the appellant] submitted that motorcycle mechanics was a particular social group being an occupational group that fairly arose on the material before the [IAA]. I do not accept that any such social group fairly arose in the material before the [IAA]. No jurisdictional error as alleged in Ground 2 is made out.
In relation to ground 3, the primary judge made these observations at [41] to [52] of the reasons:
41.In relation to Ground 3, Mr Tambimuttu sought to argue that the Authority had been the subject of a breach of s 473CB by the secretary in the failure to provide the whole of the report earlier referred to in the delegate’s decision at footnotes 7 and 8. The Practice Direction previously referred to makes crystal clear that the digital electronic copy of that report was available to the Authority and deemed to be provided in accordance with s 473CB. The argument that the Court book identified only two pages by reason of which it should be assumed the Authority did not have the whole report has no substance or merit.
42.It is entirely appropriate for Court books to reflect the distillation of material, and no adverse inference is open or arguable by reason of the selection of country material to assist the Court and ensure that the Court is not swamped with hundreds of pages of irrelevant material.
43.Mr Tambimuttu also sought to put into evidence the report that was 815 pages, first, in relation to Ground 3. In relation to Ground 3, he did so by reason of wanting to identify that the content of the Court book was not the whole of the report. The Minister accepted as a matter of agreed fact that the relevant report comprised 815 pages, and Mr Tambimuttu acknowledged that that was the only relevant fact that he required for the purpose of Ground 3 in seeking to tender the material that the Court rejected.
44.In relation to Ground 2, the first respondent accepted as an agreed fact that within that 815 page report, there were incidents of the kind identified in Particular 10 that Mr Tambimuttu had extracted subsequent to the Authority’s decision and advanced in support of Ground 2. Those paragraphs do not make out any particular social group as advanced by Mr Tambimuttu, nor were they incidents that were identified and advanced before the Authority as giving rise to some particular fear by the applicant.
45.Mr Tambimuttu accepted that the only requirement of the tender of the report in respect of Ground 2 was Particular 10 which Mr Tambimuttu confirmed was a verbatim extract by him from that report. It was on that basis that the Minister accepted as an agreed fact that that was material contained within the report. That agreed material advances the alleged error in respect of Ground 2.
46.Mr Tambimuttu also sought to argue that the report should be admitted into evidence in support of Ground 1 and the assertion of legal unreasonableness in the adverse finding on the basis that the nature of the report was directed to the difficulties faced by Tamils and that the report in whole would accordingly assist the inference that the owner of the mechanical garage was shot because of LTTE suspicion by the Government of Sri Lanka agents.
47.The Court raised with Mr Tambimuttu that the description of the report was apparent from the delegate’s reasons and was a sufficient basis upon which Mr Tambimuttu could develop that argument. Mr Tambimuttu pressed that the whole report should be admitted into evidence. The Court was not satisfied that the whole of the report was relevant. The whole of the report is hundreds of pages long, and the proposition that Mr Tambimuttu wished to develop in relation to Ground 1 was capable of being advanced based on the description of the report as well as taking into account the incidents that Mr Tambimuttu had been able to identify and extracted in Ground 2, Particular 10.
48.I do not accept that the principle of legal unreasonableness in respect of the adverse finding by the Tribunal could be made out by the receipt of the whole of the report into evidence. It is important in relation to the conduct of cases before the Court that prolix or irrelevant material is not adduced into evidence to clutter the Court record either for this Court, or for any superior Court.
49.Whilst I accept that the report may have been relevant to a particular ground by reason of particular entries of the kind identified in Particular 10 or by reason of the size of the report as raised by Ground 3, the Court was not satisfied that the whole of the report was relevant to the issues raised by the allegations of jurisdictional error in the present case. Unless the relevant country information in whole is relevant to the allegations of jurisdictional error, the Court should not be burdened with hundreds of pages of country information that are not relevant to the determination of legal error.
50.Further, where it is the case that there are particular entries that are capable of being said to be relevant it is those particular entries only, not hundreds of other pages that should be adduced into evidence.
51.The Court notes that the agreed facts in the present case were the subject of leave granted by the Court under s 191(3)(b) of the Evidence Act 1995 (Cth) and that there was no dispute by the parties as to the agreed facts and that the agreed facts were before the Court with the agreement of all the parties, albeit, Mr Tambimuttu did press for the tender of the whole of the document which, for the above reasons, was rejected.
52. No jurisdictional error as alleged in Ground 3 is made out.
Appeal to this Court
The appellant in this Court was self-represented.
The notice of appeal raised as a sole ground of appeal, the following ground:
The FCC Judge committed jurisdictional error when dismissing proceedings in the FCC. His Honour to consider that the IAA failed to consider my claims and integers of my claims and other relevant considerations in my matter raised during proceedings were not considered in a proper and fair manner.
No written submissions have been filed in support of the appeal. The appellant appeared in person and was assisted by the interpreter at the hearing of the appeal.
The appellant was not able to meaningfully support the ground of appeal. For this reason, I have examined the background material in some detail.
Having considered the background material, the reasons of the IAA and the reasons of the primary judge, I am satisfied that no error arises on the part of the primary judge in dismissing the first ground of appeal. Although the primary judge framed the conclusion in relation to ground 1 on the footing that there was “an evident and intelligible justification” for the IAA decision, it is clear that the primary judge correctly dismissed the first ground of appeal on the footing that, on the material, the findings of the IAA in being unable to be satisfied about the relevant matters under the Act were clearly open to it. The reference to the phrase “an evident and intelligible justification” derives from an expression adopted by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] in the context of a discussion of unreasonableness. Their Honours there described unreasonableness as a “conclusion” which may be applied to a decision which lacks an evident and intelligible justification. That discussion was concerned with the question of whether the exercise of a discretionary power conferred upon the decision‑maker was unreasonable rather than an examination of whether fact‑finding was open to the decision‑maker and whether particular fact‑finding formed a proper basis upon which a decision‑maker could or could not be “satisfied” of the relevant statutory integers. Nevertheless, the IAA was entitled to reach the conclusions it came to in relation to ground 1.
As to the second ground of appeal, the reasons of the primary judge disclose no error in dismissing that ground. There was no constructive failure on the part of the IAA to assess any clearly articulated claim raised by the appellant (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1). In so far as the appellant raised a claim that there was a “particular social group” made up of and described as “motorcycle mechanics”, and that such a group had been targeted by the Sri Lankan authorities, that claim was expressly dealt with by the IAA at para 27.
At that paragraph, the IAA finds:
I consider that the [appellant] has exaggerated the level of interest in him because of his work as a motorcycle mechanic and he has exaggerated that all of his former colleagues and other motorcycle mechanics were also shot. I consider it implausible [that] the Sri Lankan authorities came to his workplace only one time and to his home only one time if he was of genuine interest to them due to his work as a motorcycle mechanic.
Having regard to the claims made by the appellant, the material put before the IAA and the analysis of the material by the IAA, I am satisfied that it was open to the IAA to conclude that it could not be satisfied that a ground had been made out under either s 36(2)(a) or s 36(2)(aa) and I am also satisfied that it was open to the IAA to conclude that it could not be satisfied about the foundational factual matters concerning the claims in relation to any focus by Sri Lankan authorities upon persons because they were or had been motorcycle mechanics.
The reasons of the primary judge disclose no error in dismissing the third ground of appeal. The reasons for rejecting the tendering of the whole report into evidence on the basis of relevance were correct. It is readily apparent that the only relevant passage of that report was contained on p 141 of the Court Book, which was before the primary judge.
The appeal must be dismissed with costs.
I certify that the preceding fifty‑four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 14 February 2019
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