FEDERAL COURT OF AUSTRALIA AQP17 v Minister for Immigration and Border Protection [2018] FCA 750 Appeal from: AQP17 v Minister for Immigration and Border Protection [2017] FCCA 2418 File number: WAD 598 of 2017 Judge: COLVIN J Date of judgment: 25 May 2018 Legislation: Migration Act 1958 (Cth) ss 46A, 476(1), Part 7AA Cases cited: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 Date of hearing: 9 May 2018 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 28 Counsel for the Appellant: The Appellant appeared in person, assisted by an interpreter Counsel for the Respondents: Ms EL Tattersall Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS WAD 598 of 2017 BETWEEN: AQP17 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent JUDGE: COLVIN J DATE OF ORDER: 25 MAY 2018 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant do pay the costs of the first respondent fixed in the amount of $4,363. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT COLVIN J: 1 The appellant arrived in Australia by boat without a visa on 3 November 2012. He was formally interviewed by an officer of the Department of Immigration and Citizenship in Darwin on 9 January 2013. He was assisted by a Tamil interpreter and stated that he is a Tamil and a citizen of Sri Lanka. He said that he left Sri Lanka by plane and then travelled to Australia by boat. 2 The record of his interview states that the appellant described an incident in 1983 when he was held in jail for an extended period after a bombing and that he was having the same problem before he left. (This appears to be a reference to a concern about the risk of again being held in jail.) 3 The record also states that the appellant said that in a week he had to go to the police three times and sign. His ID card and most of his documents were with the police. He could not live a proper life and was not allowed out of the country. He had paddy fields and buses. The paddy field had been taken by the army. He had sold his buses. He could not work as a driver. He came to Australia for freedom. He said that he was not involved with the Liberation Tigers of Tamil (or LTTE) and did not have anything to do with the bomb blast after which he was jailed. He said that if he returned to Sri Lanka there would be people waiting to kill him. 4 When he arrived, the appellant was prevented from lodging a valid application for a visa while in Australia by operation of s 46A of the Migration Act 1958 (Cth). 5 In February 2014, there was a data breach which resulted in personal information about people held in detention (including the appellant) being made available. The Department accepted that information about the appellant may have been accessed and expressed its deep regret to the appellant about the breach in March 2014. 6 In 2015, the Minister exercised a statutory power under s 46A to allow many people who had arrived by boat without a visa to make an application for a temporary protection visa or a safe haven enterprise visa. On 2 November 2015, the appellant made application for a safe haven enterprise visa. He withdrew that application and lodged a fresh application on 21 April 2016. The new application was supported by a statement in which he expressed fear that if he was forced to return to Sri Lanka he would be seriously harmed because of his ethnicity as a Tamil and imputed political opinion because of suspected LTTE links. 7 The Refugee Advice & Casework Service assisted the appellant in preparing a detailed submission to the Department dated 4 May 2016 in support of his safe haven enterprise visa application. The application was rejected by the Department after an interview process. The appellant was notified of the rejection on 7 September 2017. 8 The Act provided for a right to have a review conducted by the Immigration Assessment Authority. The appellant sought a review. In accordance with Part 7AA of the Migration Act, the review was undertaken on the papers. 9 The Authority Reviewer prepared a detailed report considering all the claims made by the appellant in support of his visa application. The Reviewer accepted most of the factual claims by the appellant as to what had occurred when he was in Sri Lanka, including that he was detained for 18 months when there was a bombing in 1983, that he had been released after his father had paid a bribe, that he had worked overseas for a number of years returning to Sri Lanka in between and that when he came back to Sri Lanka in 2012 when his work contract expired, he was the only Tamil on the flight and he was detained, his passport was taken and he was required to report to the police station. 10 However, the Reviewer was not satisfied that the appellant would be imputed with any link to, or support of, the LTTE. The Reviewer gave reasons to support conclusions that he did not accept that the appellant has any profile or is of interest to the Sri Lankan authorities in relation to real or imputed links to the LTEE and he was not satisfied that the appellant would be included on any terror watch list. 11 The Reviewer also considered claims by the appellant that he may suffer harm if returned to Sri Lanka due to his Tamil ethnicity and his name. The Reviewer dealt with these matters generally and found that UNHCR Guidelines did not include Tamils as being a group at risk generally. The Reviewer relied upon DFAT reports that the situation in Sri Lanka had greatly improved since the end of the civil war in May 2009. 12 The Reviewer dealt separately with the appellant's specific circumstances as a Tamil male from Jaffna in the north of Sri Lanka. He found that the appellant would be readily identifiable as a person form Jaffna by his national identity card. However, the Reviewer made the following findings (citing references): Country information suggests that in the north and east of Sri Lanka (including Jaffna), the security forces maintain a significant presence and a high level of awareness of the civilian population. In 2013, 71% of Tamils who had returned to their homes in these districts reporting having been visited by the CID [Criminal Investigation Department] for interviews. The degree of monitoring and harassment is nevertheless easing and the cessation of forced registration of Tamils suggest a further easing of the situation. While some country information indicates that Tamils are facing difficulties in returning to an taking up their properties in the north and east, I note that the applicant's wife and family live in Colombo. I also note that his mother has retained ownership and possession of the family property in Jaffna. I also note that the UNHCR Guidelines referred to earlier do not list Tamil males from the north as being a group at general risk. 13 Further, the Reviewer found that although there was a risk of the appellant's detention if he was sent back to Sri Lanka due to his illegal departure, the detention would be at most for a few days and would not constitute serious harm. The Reviewer relied upon information that thousands of Tamils have returned to Sri Lanka since the end of the civil war in that country in 2009. The Reviewer considered the particular circumstances of the appellant being a male Tamil from the north of Sri Lanka with a name that may be incorrectly associated with Tamil leadership and reports of regular visits for interviews by Criminal Investigation Division officers. Detailed reasons were provided for the view that the appellant did not face a real chance of serious harm on the basis of being a male Tamil from the north. 14 The Reviewer dealt with the data breach and concluded that he was not satisfied that the appellant will face a serious risk of harm on that basis. 15 A separate complementary protection assessment was undertaken. 16 The appellant sought judicial review in the Federal Circuit Court. The two grounds were very generally expressed as 'The assessor has made jurisdictional errors in reviewing my protection claims' and 'The assessor has not given consideration to some important claims I made'. The jurisdiction of the Federal Circuit Court in relation to migration decisions of the kind made by the Assessor in this case is the same as that of the High Court in respect of constitutional writs: s 476(1) of the Migration Act. For present purposes that meant that the appellant had to demonstrate jurisdictional error in the decision by the Assessor. 17 The only amplification of the written grounds by the appellant at the hearing in the Federal Circuit Court was his concern that there was an emergency law in operation under which he might be detained. The Federal Circuit Court dealt with that ground. It correctly rejected the ground in circumstances where the Reviewer had dealt with all the matters presented by the appellant as a basis for his concerns. 18 A claim raised about whether the Reviewer had applied the correct legal test concerning harm was correctly rejected given the decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34. 19 Otherwise, in the absence of particulars (whether by the appellant providing such details orally or by the Minister identifying a matter in performance of its obligations as a model litigant dealing with a litigant in person), the written grounds before the Federal Circuit Court did not identify any jurisdictional error. 20 The appellant now appeals to this Court. The appellant appeared in person with the assistance of an interpreter. 21 The grounds sought to be advanced on appeal are not confined to the grounds advanced before the Federal Circuit Court. They are expressed in generic terms, without particulars or context relevant to this case, as follows: Ground 1: There was not a sufficient logical or evidentiary basis for the IAA & (FCCA) to refuse and dismiss my case Ground 2: The (IAA) & FCCA was in error by making a decision on my case which is not in a substantive sense fair; it is a denial of natural justice. Ground 3: The (IAA) & FCCA failed to assess whether legislation properly construed the obligation to accord natural justice. Ground 4: The (IAA) & FCCA did not assess/consider the real risk of significant harm to my person upon return to Sri Lanka. Ground 5: They relied on irrelevant factors and materials which have nothing to do with my persecution. Ground 6: They ignored relevant materials. Identified the wrong issue and asked themselves wrong questions. Ground 7: They made an incorrect interpretation and applied applicable law in a way that affects the exercise of power. Ground 8: Minister is infected by an error of law as they did not consider that applicant will face the prospect of indefinite detention as I already suffered, and unreasonably detained for more than 5 years in detention centre. 22 Notwithstanding the nature of the grounds, the Minister provided written submissions which sought to deal with the matters raised despite the absence of particulars. This is the appropriate course for a model litigant in proceedings brought by a litigant in person that seek review of a migration decision which concerns a claim that there is a serious risk of personal harm to the appellant if not granted protection in Australia. The submissions did not identify any matter for consideration by the Court as possibly providing an arguable basis for appeal. 23 Further, at the hearing, I provided the appellant with an opportunity to articulate orally the concerns that he had with the way the Federal Circuit Court had dealt with his case. The submissions made by the appellant raised the following matters. 24 First, the appellant said that the Minister had been wrong to refer to him being in jail. He had been in military detention and he had not done anything unlawful. As to this matter, in a statement provided to the Minister in support of his application, the appellant had described himself as being in jail, but never charged with a crime or an offence. He said he was just taken away by the military and detained: see para 32 of his statement provided with his application. The Assessor accepted this and found that he had been in a Sri Lankan army camp and was held in detention for 18 months. He found that the appellant was mistreated while in detention. Even assuming leave was given to raise these matters, they do not disclose any jurisdictional error. 25 Second, he said that he did not get a chance to speak in the Federal Circuit Court. He said that the judge did not ask many questions and on that occasion he could not speak. Later he said that was not in a good mental situation at the time. I asked whether there was anything that he wanted to say to the Federal Circuit Court that he could not say at the time. The appellant did not identify any matter that would support a claim of jurisdictional error that he had not been able to present. The reasons of the Federal Circuit Court judge record that the appellant was asked what error the Assessor made. His response is recorded in the reasons. No doubt it is difficult for a person without legal training to present a case which depends upon demonstrating jurisdictional error. However, there was no evidence before me to support a claim that the appellant was not afforded an opportunity to present his case in the Federal Circuit Court. 26 Third, he said that he cannot live in Sri Lanka. He said he has lost everything and lost everyone. He said that his request was for his own safety. He was asked about his wife and family living in Colombo. He said he had no contact with them. He said that he should not have been kept in the detention centre in Australia so long. He also asked to be allowed to live in the detention centre his whole life rather than be sent back to Sri Lanka. Whilst these statements express with some force the appellant's personal belief as to the consequences of the refusal of his application for a protection visa, none of these matters demonstrate error by the Federal Circuit Court. 27 In those circumstances as no error has been demonstrated in the decision by the Federal Circuit Court, the appeal must be dismissed. 28 The Minister asks that I fix the costs in the amount of $4,363. The appeal was not complex. The Minister incurred the costs of preparing a book of papers, but it was in the same terms as would have been required for the proceedings before the Federal Circuit Court. The Minister also prepared submissions dealing with the 8 grounds. It is appropriate to fix costs. I fix them in the sum of $4,363. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin. Associate: Dated: 25 May 2018