FEDERAL COURT OF AUSTRALIA

CJO15 v Minister for Immigration and Border Protection [2018] FCA 1338

ORDERS

THE COURT ORDERS THAT:

1.    The applications to amend the notice of appeal are refused.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NORTH J:

1    Before the Court is an appeal from orders of the Federal Circuit Court made on 2 March 2018. The Federal Circuit Court dismissed an application for review of a decision of the Administrative Appeals Tribunal given on 11 October 2015. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellant a protection visa.

2    In these reasons for judgment, I refer to the moving party as the appellant although in some aspects he is properly described as the applicant for particular relief.

3    The appellant was born in 1983 in Batticaloa District of the eastern province of Sri Lanka. After finishing school he worked as a house painter in Batticaloa, although he told the delegate that at one stage from 2011 he worked mainly in Jaffna.

4    The nature of the appellant’s claims is summarised by the Tribunal as follows:

1.    [The appellant] is a citizen of Sri Lanka. He belongs to the Tamil ethnic group and he comes from Vantharumoolai in the Batticaloa District of the Eastern Province of Sri Lanka. He told the Department that in 2008 his older brother [N] had had problems with the CID because of his work as a newspaper reporter and that he had gone to Qatar with the help of an agent. He said that he himself had left Sri Lanka in June 2012 because his family had feared that the CID might harm him on account of his brother. When the matter came before the Tribunal he claimed that his oldest brother [S] had been a Lieutenant Colonel in the intelligence wing of the Liberation Tigers of Tamil Eelam (LTTE) and that he was currently serving a prison sentence of 20 years for the assassination of Major General Janaka Perera.

2.    In a submission to the Department relating to all their Tamil clients [the appellant’s] representatives submitted that their clients feared being persecuted for reasons of their race (Tamil), their imputed political opinion and their membership of two particular social groups, ‘young Tamil males who originate from the North or the East’ and ‘failed asylum seekers returning from a western country’. When [the appellant] was interviewed by the primary decision-maker in relation to his application on 27 September 2013 his representative submitted that, in addition to the Convention reasons referred to in their written submission, [the appellant] feared persecution as a member of a particular social group on the basis of being connected to a person or having a family connection with a person suspected of having LTTE involvement due to the media link.

3.    In a submission sent to the Tribunal on 28 April 2014, [the appellant’s] representative submitted that, besides the Convention reasons referred to in the submission to the Department, [the appellant] feared persecution for reasons of his membership of the particular social group of ‘failed Tamil asylum seekers returning from a western country’. In a further submission dated 22 March 2015 (after [the appellant] had made the claims to the Tribunal regarding his oldest brother as referred to above) his representative submitted that the Tribunal should conclude that [the appellant] was the brother of a senior LTTE cadre and that he therefore met the risk profiles in the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka (21 December 2012).

5    The Tribunal rejected the appellant’s claims.

6    In relation to the appellant’s claim relating to his brother, N, the Tribunal reasoned thus:

62.    As I put to [the appellant] in the course of the hearing before me, I have difficulty in accepting that he is telling the truth in his claims with regard to his brother [N]. While I accept that, as he said, the office of Thinakkathir was in Batticaloa town, the independent evidence indicates that it was attacked by the LTTE on 8 August 2002, not by people who thought that the newspaper was critical of the government. At the interview with the primary decision-maker [the appellant’s] representative submitted that Thinakkathir was still operating, referring to the website of that name, but there is nothing to indicate that this website has any association with the newspaper that was published in Batticaloa at the time when [the appellant] has claimed that his brother [N] worked there as a part-time news reporter. [The appellant] has said that his brother also worked for Thamil Alai and, as I put to him, the translation of the article written by his brother which he has produced says it appeared in Thamil Alai on 3 April 2004 (see folios 163-164 of the Department's file CLF2012/213165). As I put to him, according to the pro-LTTE website TamilNet, Thinakkathir stopped publishing after the attack in August 2002 and Thamil Alai was launched as a daily newspaper in September 2003. It had its editorial office and press in Kokkaddicholai, the main village in the Batticaloa District controlled by the LTTE and Colonel Karuna, who was at the time the leader of the LTTE in the East, opened the office.

63.    As I put to [the appellant], when Karuna broke away from the LTTE he kept control of Thamil Alai. As I put to him, this is at the time when the article which he has produced appeared in Thamil Alai. As I put to him, after Karuna left Sri Lanka the Pillayan faction of the TMVP took control of Thamil Alai. As I noted, there were reports in October 2008 that the two factions had clashed over the ownership of the newspaper but, as I put to him, by then according to his evidence his brother [N] had already left Sri Lanka. As I put to him, this suggests that, even if his brother worked as a reporter for Thamil Alai, he would not have had any problems with the Sri Lankan Government because the TMVP was a pro-government group. [The appellant] denied that he was lying and he said that he had witnessed his brother’s arrest by the authorities. He said that his brother had been working for this newspaper before the split in the LTTE but, as I put to him, this is true of everyone involved in the TMVP: they were all in the LTTE before the split. What is relevant is that by the time he claims his brother [N] was arrested by the CID and accused of having links with the LTTE, in 2008, the newspaper for which he claims his brother worked, Thamil Alai, had been under the control of the Karuna faction which later became the TMVP since 2004.

64.    Having regard to the independent evidence I do not accept that it is true that [the appellant’s] brother [N] was arrested on 23 March 2008 as a result of his work as a part-time news reporter for either Thinakkathir or Thamil Alai, nor that he was accused of having links with the LTTE, nor that on 27 September 2008 he was told to report to the Fourth Floor in Colombo. I do not accept that the document which [the appellant’s] representative produced which he said was ‘an English translation of the CID note written in Sinhala’ and which is said to have been taken from the telephone book at the Chenkalady Police Station stating that [the appellant’s] brother was required to attend the ‘Terrorist Confessional Division, No. 101’ in Colombo at 10.00 am on 3 October 2008 is genuine. I accept that [the appellant’s] brother [N] has gone to Qatar to work but I do not accept that he was of any interest to the Sri Lankan authorities at the time when he left nor that, since he left, the authorities have been coming and looking for him or for [the appellant], nor that, as his representative claimed he told him in a telephone interview on 29 March 2014, approximately three months previously some unknown persons who he believed to have been CID officers came to his family home and inquired about him and his brother [N], saying that they would get them when they came back to Sri Lanka. I do not accept that [the appellant] has ever been of interest to the Sri Lankan authorities on the basis of his relationship with his brother [N] nor do I accept that, if [the appellant] returns to Sri Lanka now or in the reasonably foreseeable future, there is a real chance that he will be persecuted for reasons of his membership of a particular social group on the basis of being connected to a person or having a family connection with a person suspected of having LTTE involvement due to the media link as his representative submitted to the Department.

[Footnotes omitted.]

7    In relation to the appellant’s claim relating to his oldest brother, S, the Tribunal reasoned thus:

65.    As I indicated to [the appellant] in the course of the hearing before me, I accept that his oldest brother is named [SS]. As I noted, he has said this from the very beginning. What I have difficulty in accepting is that [the appellant’s] oldest brother is a former Lieutenant Colonel in the intelligence wing of the LTTE who is current serving a sentence of 20 years imprisonment for the assassination of Major General Janaka Perera. As [the appellant] and his representative concede, all the media reports in relation to the person who was sentenced for the assassination of Major General Janaka Perera give his family name as [S], not [S]. [The appellant’s] representative has submitted that there can be differences in the transliteration of names and [the appellant] himself has said that at the time of his brother’s arrest they wrote down his brother’s name wrongly: instead of S they wrote S. He said that the court documents said [S] but, as I put to him, the only court document which he has produced is a detention order in English in which it appears that his brother’s name has been added since it is in larger type than the rest of the document (see folio 104 of the Tribunal’s file 1315618). [The appellant] said that he had received this document from Sri Lanka but, as I put to him, it appears to me that it is a false document and I give it no weight. [The appellant] said that I could investigate but, as I put to him, it is not clear to me what investigation I could make which would establish whether what he is claiming is true or not.

66.    As I noted, [the appellant] said at the hearing on 12 March 2015 that people from his village would know that the man who had been sentenced for the assassination of Major General Janaka Perera was his brother and he said that there would be people from his village in Australia who could give evidence to the Tribunal confirming their relationship. However no evidence from such people was ever produced. Besides the evidence already referred to [the appellant’s] representative produced copies of a photograph taken at [the appellant’s] oldest brother’s wedding and two photographs taken at the first birthday party for his oldest brother’s son on 1 April 2003. [The appellant] identified the person standing at the left in the photograph of the wedding and in one of the photographs taken at the birthday party as Colonel Ramesh; a senior LTTE cadre.

67.    [The appellant’s] representative submitted that in his opinion the person in the photographs closely resembled images of Colonel Ramesh which were available online and that a reasonable decision-maker would draw the conclusion that the person in the photographs closely resembled images of Colonel Ramesh. As I put to him, I am unable myself to see the resemblance. I accept that the person in the photographs has a moustache as did Colonel Ramesh according to the images of him which appear online but this appears to me to be too slim a basis upon which to base a positive identification. I asked [the appellant’s] representative if he could point to any distinguishing features which would identify the person in the photographs as Colonel Ramesh. [The appellant’s] representative submitted that the person’s posture and the way he was holding a camera in one of the photographs (see folio 116 of the Tribunal’s file 1315618) was characteristic but he conceded that there were no images from other sources of Colonel Ramesh taking photographs which could be used for comparison. He submitted that [the appellant’s] mother was looking at the person whom [the appellant] had identified as Colonel Ramesh with reverence but, as I put to him, I consider that this may mean that the person in question was a senior member of the family: it does not mean, as has been submitted, that he was in the LTTE or a colonel in the LTTE.

68.    [The appellant’s] representative also referred to the fact that images of the LTTE leader Prabhakaran appeared in the background in the photographs. He submitted that not all of the houses in the North, even if they were in LTTE-controlled areas, would have hung images of the LTTE leader Prabhakaran in the house and that this suggested that at the least these were people who had connections of some sort with the LTTE. He submitted that if the person in the photographs was not Colonel Ramesh then he would be someone related to [the appellant’s] family who was connected to the LTTE on the basis of these images of Prabhakaran appearing in photographs. However, as I put to [the appellant’s] representative, [the appellant] himself gave evidence that his oldest brother’s family had been living in an LTTE-controlled area at the time these photographs were taken so I do not consider it surprising that there were photographs of Prabhakaran in the home. As I put to [the appellant], it appears to me that the identification of the person in the photographs as Colonel Ramish rests on his word alone.

69.    As referred to above, the hearing in March was adjourned on the basis that [the appellant’s] representative would provide additional evidence to demonstrate that the man who had been convicted in relation to the assassination of Major General Janaka Perera was in fact [the appellant’s] oldest brother but no evidence demonstrating this has been produced and, as I put to [the appellant], it appears to me that the suggestion that his oldest brother [S] was a Lieutenant Colonel in the LTTE’s intelligence wing likewise rests on his word alone. Having regard to the problems which I have with [the appellant’s] original claims in relation to his brother [N], as outlined above, I do not regard him as a witness of truth and I do not accept that he is telling the truth in relation to his claims about his oldest brother [S] either. I do not accept that his oldest brother [S] joined the LTTE in 1989 or 1990 nor that he was a Lieutenant Colonel in the LTTE’s intelligence wing nor that he is the person who has been sentenced to 20 years imprisonment for the assassination of Major General Janaka Perera as [the appellant] has claimed. I do not accept that, as [the appellant] has claimed, when his father was taken by the army in 1992 they referred to the fact that he was the father of ‘LTTE [S]’, nor that, as he claimed at the hearing before me, his next oldest brother [K] was tortured before he went to Saudi Arabia to work. I do not accept that the applicant’s oldest brother [S] has ever been in the LTTE nor that he has ever been arrested or gaoled in Sri Lanka. I consider that the truth is that, as he told the primary decision-maker (as referred to in the decision under review, a copy of which was provided to the Tribunal along with the application for review), his oldest brother [S] is living in Kalluvankerni in Batticaloa. I do not accept that there is a real chance that, if he returns to Sri Lanka now or in the reasonably foreseeable future, he will be persecuted because he is the brother of a senior LTTE cadre as has been submitted. Since I do not accept that his brother [S] was a senior LTTE officer it follows that I do not accept that there is a real chance that his relationship with a senior LTTE officer will be identified if he returns to Sri Lanka nor that he will be detained, interrogated or otherwise persecuted on the basis of this claimed relationship.

8    The remaining claims made by the appellant concerning the vulnerability of Tamils or returned asylum seekers were rejected on the basis of the Tribunal’s analysis of country information.

9    The appellant applied to the Federal Circuit Court for a review of the Tribunal’s decision. It is unnecessary to traverse the whole of the Federal Circuit Court’s reasons for judgment because only some of the grounds argued before the Federal Circuit Court are pursued on this appeal and leave is sought to argue several new grounds.

10    The notice of appeal filed on 16 March 2018, had one ground of appeal as follows:

1.    The FCC Judge failed to consider the grounds and the applicant's representative’s submissions raised in a proper manner.

Particulars

A.    The FCC judge failed to make a finding that the Tribunal did not ask it self [sic] the what if Iam [sic] wrong question

B.    This was a case where the Tribunal expressed some doubt when assessing claims concerning the applicant's family links to the LTTE.

11    On the hearing of the appeal, the appellant appeared in person with the assistance of an interpreter in the Tamil language. He agreed that in the circumstances which are described later, that he does not pursue the ground in the original notice of appeal.

12    On 31 July 2018, the appellant filed an outline of submissions and attached a proposed amended notice of appeal which purported to raise two grounds of appeal as follows:

Proposed New Ground

a.     In light of all of the evidence presented to the Tribunal, the Tribunal’s decision to disbelieve that the appellant’s brother assassinated Maior General Janaka Perera was so unreasonable.

Particulars

1.    The applicant provided his brother’s birth certificate

2.    The applicant provided press articles

3.    The applicant provided reasons for the minor variation in brother’s name as spelt in the press article [AB 474, 44].

4.     The applicant provided color photographs as evidence to corroborate his claim [AB 358- 360].

2.     The appellant seeks leave to put forward the following new ground which was embedded in Ground 1 in the application filed in the court below.

Proposed New Ground

a.     The Tribunal committed legal error at [24] as it refused to give weight to submissions advanced because the submissions didn’t “expand” or “explain why” the military presence meant the applicant faced a real chance of persecution.

Particulars

1.     The applicant’s submissions were that he was at risk of being harmed due to “higher number of military personnel in Tamil areas” [AB 469, 24].

2.     The applicant’s submissions also expanded further stating that the higher number of military personnel were involved in administration, economic activity, education agriculture etc [AB 469, 24].

3.     The Tribunal states the applicant did not expand upon this submission or explain why the military presence meant that the applicant faced a real chance of persecution [AB 469, 24].

4.     The submissions before the tribunal referred to “Higher Number of Troops in Jaffna”, the contents of this submission at [AB 126] does not appear to have been considered by the Tribunal when raising concerns at [AB 469,24].

5.     The persecutor has always been the Sri Lankan authorities, an increase in the number of military personnel without more being explained was sufficient for the Tribunal to conclude that the applicant was at a heightened risk of being persecuted.

13    The first proposed new ground of appeal was not raised before the Federal Circuit Court. Consequently, the appellant requires both leave to amend the notice of appeal and leave to raise a new argument on the appeal. This ground would only succeed if reasoning of the Tribunal failed to disclose an evident and intelligible justification: Minister for Immigration and Citizenship v Li (2013) HCA 18 at [76].

14    The reasoning of the Tribunal at [65] to [69], which is extracted at [7] of these reasons for judgment, disclose a rational basis for the finding that the appellant’s brother was not the person who assassinated Major General Janaka Perera.

15    The Tribunal said that the name of the assassin was similar but not the same as the person convicted of the murder. The Tribunal further found that a court document relied upon by the appellant had been altered to include the name of the appellant’s brother and was not a genuine document.

16    The Tribunal further said that the appellant had not produced any of the people from his village whom the appellant said would give evidence of the relationship of the appellant and the person convicted of the assassination.

17    The hearing before the Tribunal was adjourned to allow the appellant to provide further evidence that his oldest brother was convicted of the assassination of Major General Janaka Perera. No additional evidence was provided. The Tribunal was not able to identify that a person depicted in photographs supplied by the appellant was an officer of the LTTE.

18    The Tribunal finally said that, as it had found that the appellant was not a credible witness in relation to claims about his other brother, N, the Tribunal did not accept that he was telling the truth about his oldest brother, S.

19    Thus it can be seen that the Tribunal set out a rational basis for the finding that the appellant’s oldest brother, S, was not the person who assassinated Major General Janaka Perera. This proposed ground of appeal is bound to fail, hence it would be futile to allow the argument to be raised or to allow the notice of appeal to be amended in the way sought by the appellant.

20    The second proposed new ground of appeal relates to the military presence in Tamil areas. The argument concerns what the Tribunal said at [24] as follows:

In a further submission sent to the Department on 9 October 2013 [the appellant’s] representative referred once again to the ‘Oral update of the High Commissioner for Human Rights on promoting reconciliation and accountability in Sri Lanka’ (25 September 2013) highlighting references to the military presence in the North. He submitted that [the appellant] faced a real chance of suffering Convention-related harm due to the higher number of military personnel in Tamil areas who were involved in administration and economic activity, including education, agriculture and tourism, but he did not expand upon this submission or explain why, in his submission, the military presence meant that [the appellant] faced a real chance of being persecuted for a Convention reason.

21    The proposed new ground argues that the appellant’s representative did expand on the submission and that the Tribunal failed to consider the full extent of the submission (see particular 4). Then, the appellant argued without elaboration, that the fact that there was increased military presence was sufficient for the Tribunal to conclude that the appellant was at heightened risk of persecution. Beyond stating the proposed ground, no argument was articulated in support of it.

22    The alternative argument simply posits that the evidence which was dealt with by the Tribunal would have enabled it to conclude that the appellant was at heightened risk of persecution. However, the failure to make that finding was, even on the ground as stated, available. That conclusion was a choice open to the Tribunal. Indeed, in the submission of the Minister, it was the only conclusion open because the submission related to the military presence in the north, whereas the appellant was largely in and around Batticaloa in the east. In any event, selecting one of several conclusions open on the evidence does not amount to error, let alone jurisdictional error.

23    The contention that the Tribunal did not consider that part of the appellant’s representative’s submission dated 9 October 2013 headed “Higher Number of Troops in Jaffna” is directly contradicted by [24] of the Tribunal’s reasons, set out at [17] of these reasons for judgment. The paragraph refers to the submissions and characterises the context in relation to the issues in the case, in a way which was open to the Tribunal. It is doubtful that this proposed amendment raises a completely new ground. A similar argument was put to the Federal Circuit Court. That argument will be dealt with later in these reasons for judgment. Insofar as the ground is sought to be raised in the proposed amended notice of appeal, the amendment is refused as the ground is bound to fail.

24    The written submission filed by the appellant challenges three of the conclusions reached by the Federal Circuit Court. Although the challenges do not find their way into the original or proposed amended notice of appeal, they are dealt with out of an abundance of caution.

25    First, the appellant argued that the Tribunal failed to understand the appellant representative’s argument that the appellant faced a real chance of persecution due to the higher number of military personnel.

26    The Federal Circuit Court rejected the argument by reference to [24] of the Tribunal decision and said:

[28]     The Tribunal noted the applicant did not expand on the submission or explain why the military presence meant the applicant faced a real chance of being persecuted. The applicant has not identified the respects in which he claims the Tribunal failed to understand this claim. The Tribunal plainly understood the claim, but found that, without further elaboration, it went nowhere.

27    The appellant’s written submissions contested that conclusion in the following terms:

[8]     The submission regarding an increased military presence in the area the appellant originates from in light of other findings was sufficient to consider this claim / submission when applying the real chance test, this the Tribunal does not appear to have done. It is submitted that nothing more was required (i.e. the need to elaborate this claim / submission) in this instance as the fear many Tamils, particularly young Tamil males face from the Military is well documented. See: Paramananthan v MIMA (1998) 94 FCR 28, it was accepted that young Tamil males in Jaffna (per Merkel J) or LTTE controlled areas in Sri Lanka (per Lindgren J) were a particular social group in Sri Lanka. The Tribunal failed to consider this claim / submission and this is made out on the facts, especially as the claim / submission was related to a “higher number of military presence”. Increased number of military presence would imply increased risk of being harmed for a young Tamil male with a certain profile. The Tribunal ought to have considered this claim/ submission.

28    Although the submission alleges that the Tribunal failed to consider the facts, in truth, the submission contests the Tribunal’s factual conclusion on the merits of the argument. That does not demonstrate jurisdictional error.

29    Second, the appellant sought to raise the following argument in the Federal Circuit Court:

The AAT failed to refer to in [sic] the decision record and or consider any findings that the differently constituted tribunal is likely to have made. The differently constituted tribunal conducted the hearing on 12 March 2015, and thereafter for a period of 5 months the applicant's case remained assigned and under review of the differently constituted tribunal.

PARTICULARS

(i)    The Member directed to finish the review [CB375], stated at [CB492, 69] that the reason the hearing in March 2015 (conducted by the differently constituted tribunal) was adjourned was to provide the applicant an opportunity “to demonstrate that the man who had been convicted in relation to the assassination of [the General] was in fact [the applicant’s] older brother ...”

(ii)     On the basis of the above it is submitted that it is unlikely that . . . the tribunal differently constituted made no findings of fact when it adjourned for a very specific reason. It is also unlikely that the tribunal differently constituted made no findings of fact during the 5 month period the applicant’s case remained assigned and under review of the differently constituted tribunal.

[Emphasis in original.]

30    The Federal Circuit Court rejected the argument as follows:

40.    In his oral submissions Mr Tambimuttu submitted that s.19D of the AAT Act, being the provision pursuant to which the matter was assigned to a differently constituted Tribunal, required the newly constituted Tribunal to “continue” the proceeding; that this prevented the newly constituted Tribunal from considering the matter de novo, and that the Tribunal as previously constituted may have made some finding of fact which the newly constituted Tribunal would have been bound to adopt.

41.    This ground is not reasonably arguable. First, there is nothing to suggest the Tribunal, as originally constituted, made any findings. Second, it is difficult to see how the previously constituted Tribunal could have made any finding until it made a decision. Given the previously constituted Tribunal did not make any decision, the inference that should be drawn, and which I do draw, is that the previously constituted Tribunal made no finding. Third, what s.19D(4) of the AAT Act requires to be continued is the proceeding. That requires the Tribunal member, as reconstituted, to discharge the functions under Division 4 of Part 7 of the Act. That includes the duty cast by s.414 of the Act to “review the decision”. That duty cannot be diminished by a direction that may be made under s.19D of the AAT Act.

[Emphasis in original.]

31    The appellant contended that the Federal Circuit Court wrongly concluded that the previous Tribunal member did not make any findings. The argument was based on a Tribunal file note which stated that the matter was adjourned from the original Tribunal member to another day “if necessary”. That meant, so it was contended, that an adjournment might not have been necessary and it followed that the Tribunal member must have come to some conclusions necessary to finalise the matter. Reliance on the file note does not detract from the reasoning of the Federal Circuit Court that, until the Tribunal member made a decision, that member could not have made any findings relevant to the determination of the application. There is, therefore, no basis upon which an appeal could succeed on this ground.

32    Third, the appellant complained that the Federal Circuit Court wrongly rejected the ground that the Tribunal should not have deviated from the finding of the delegate that the appellant’s brother, N, was at risk as a journalist.

33    The ground before the Federal Circuit Court was as follows:

The AAT deviated from a positive finding made by the delegate regarding the “risk according to UNHCR Guidelines” that the applicant’s brother who was journalist faces in Sri Lanka [CB248 and 249], see SZBEL.

PARTICULARS

(i)    Though the AAT put the applicant on notice that more broadly the AAT would not be accepting that the applicant’s journalist brother would have problems with the Sri Lankan Government [CB47 5, 47], the delegate accepted that the applicant’s brother was a “journalist” and that being a journalist there was a “risk according to the UNHCR Guidelines” that the applicant’s brother faced in Sri Lanka. The AAT’s reasoning for not accepting that the applicant’s brother would have problems with the Sri Lankan Government was due to a different reason (i.e. because the [name 1f (sic) newspaper] was pro government group).

(ii)    The AAT when putting the applicant on notice that it would not be accepting that the applicant’s journalist brother would have problems with the Sri Lankan Government ought to have given consideration to the reason for the delegate to draw the inference that the applicant’s journalist brother would have problems with the Sri Lankan Government.

(iii)    It is erroneous to state that the applicant’s journalist brother would not have problems with the Sri Lankan Government without addressing the reason which the delegate relied upon to draw a positive inference.

34    The Federal Circuit Court rejected the ground and explained that SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) HCA 63 did not support the argument. Importantly, the Federal Circuit Court said:

[46]    In any event, the Tribunal’s reasons show the Tribunal went further than putting the applicant on notice that it would not necessarily accept that N would attract the adverse interest of Sri Lankan authorities; the Tribunal put to the applicant for his comments the very matters on which the Tribunal relied for finding that the newspaper for which the applicant claimed his brother N worked was under the control of a pro-government faction.

[Footnotes omitted.]

That was and remains a complete answer to the appellant’s contention.

35    Neither the proposed amended notice of appeal nor the grounds referred to in the appellant’s written submissions took issue with the first ground advanced before the Federal Circuit Court, namely, that the Tribunal failed to apply the real chance test. The appellant confirmed, at the oral hearing of the appeal, that he did not intend to rely on the first ground in the original notice of appeal. In any event, that ground would have failed for the reasons explained by the Federal Circuit Court at [27] to [30].

36    When asked whether there were any further matters which the appellant wished to raise on the appeal, he reiterated that it was his oldest brother, S, who was convicted for the assassination of Major General Janaka Perera. He also reiterated the contention made before the Tribunal that the photographs tendered demonstrated an association of his family with the LTTE.

37    On these matters, the appellant sought to contest the fact findings of the Tribunal. It was explained that the function of the Court was not to conduct a merits review. It is the function of the Tribunal to make the findings of fact on the issues which he raised provided that the Tribunal acted lawfully in so doing.

38    The appellant also sought to tender on appeal two letters from Catholic clergymen in Sri Lanka who sought to confirm that the name of the appellant’s oldest brother was the same as the person convicted of the assassination of Major General Janaka Perera. The tender was rejected on the basis that the letters, which were recently dated, could have been obtained for the purposes of the hearing before the Tribunal. Furthermore, the statements made in the letters were without any relevant context to link them with the issues in the case and, finally, they made reference to a birth certificate which in itself was not a matter before this Court.

39    For those reasons, the applications to amend the notice of appeal are refused and the appeal is otherwise dismissed.

Associate:

Dated:    30 August 2018