FEDERAL COURT OF AUSTRALIA

ALD15 v Minister for Immigration and Border Protection [2018] FCA 94

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BARKER J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal, affirming a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a protection (class XA) visa.

2    The appellant is a male citizen of Sri Lanka of Tamil ethnicity and Hindu faith. At material times, he resided in the Trincomalee area of Sri Lanka and worked as a farmer.

3    He arrived in Australia in July 2012 without a visa, and applied for a protection (class XA) visa in October 2012. In his written claims, the appellant said that in 1986 the Sri Lankan army surrounded his area and arrested many people around the age of 14 or 15, including his brother, who went missing after he was arrested.

4    The appellant also claimed that the Criminal Investigation Department (CID) and the Sri Lankan army regularly arrested Tamil people, and those people were either interrogated or disappeared.

5    The appellant resided in Sri Lanka until 1989, when he went to India as a refugee, returning to Sri Lanka in 1992.

6    The appellant claimed that he was taken by the CID in 1993. He said the CID were rounding up and arresting people aged between 18 and 35, and he was kept at Planton Point camp for a week. During this time, he said, he was interrogated about his knowledge of specific members of the Liberation Tigers of Tamil Eelam (LTTE) and assaulted. He said that after he was released, he had to sign in at the CID office once a week for a month.

7    The appellant said he was arrested again in 1994, taken to the CID office and interrogated about whether he had been helping the LTTE, and in particular, whether his family supplied food to the LTTE from their fields. The appellant claimed he was released after one month.

8    The appellant also claimed that in 2001 he was arrested and detained for 15 days during which time he was beaten. He further claimed he was arrested in 2004 and was dragged along the ground while his legs were tied, and had to get treatment for the injuries he sustained.

9    In his protection visa application the appellant stated that in 2008 he travelled to South Africa for one month. The application listed the reason for travel as “employment”. The appellant said that while he was in South Africa, the CID arrested and assaulted his wife, wanting to know where he was. The appellant said his wife was kept for a day before being released. He further said that he was arrested by the CID when he returned from South Africa and was detained for 10 days.

10    The appellant also said that his uncle was taken and detained by the CID in 2011 and had not been released (as at 7 November 2012, at the time of the appellant’s interview with the delegate), and his sister-in-law’s husband was arrested and detained by the CID in 2012.

11    In 2012 the appellant claimed he received a letter from the CID requesting his attendance at the CID office. He said he did not attend and decided to leave the country.

12    The appellant claimed to fear that he would be killed by the army or the CID if he returned to Sri Lanka on the basis that he had already been arrested several times and had now fled Sri Lanka illegally by boat to Australia. The appellant added that the Sri Lankan government would not protect him because they support the army, and because he is Tamil.

13    The appellant’s application for a protection visa was refused by the delegate on 12 August 2013.

14    On 19 March 2015 the Tribunal affirmed the delegate’s decision following review.

15    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 30 September 2016 the primary judge held that the Tribunal’s decision was not affected by jurisdictional error and so dismissed the appellant’s application. See ALD15 v Minister for Immigration & Anor [2016] FCCA 2503.

16    The appellant now appeals from the decision of the Federal Circuit Court by a notice of appeal filed on 5 October 2016, on the grounds of error discussed below.

17    On 22 February 2017 I made orders, by consent, adjourning the appeal in this matter, pending the decision of the High Court of Australia in SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405; [2017] HCA 34. The judgment in that case was delivered on 6 September 2017.

DELEGATE’S DECISION

18    On 7 November 2012 the appellant attended an interview before the delegate. During this interview the appellant raised two further claims, firstly, that he witnessed five people being killed on a beach in 2005, and secondly, that his co-worker was killed and young people were being abducted in 2008.

19    The appellant’s migration agent also made a further submission containing articles from 2009 and 2010 which contained country information highlighting troubles faced by people of Tamil ethnicity in Sri Lanka.

20    With regard to the 1993 and 1994 claims, the delegate accepted the incidents may have occurred, but found they had no influence on the appellant’s current profile in Sri Lanka because the events had occurred two decades prior.

21    In relation to the appellant’s claims regarding 2001 and 2004, the delegate asked the appellant why he had not mentioned these incidents during his entry interview. The appellant stated that he wanted to raise the claims during the entry interview but was told that he would be able to submit more detail at a later point.

22    In respect of the 2005 beach killings, the delegate also asked the appellant why this was not raised in his entry interview. The appellant responded that he did not realise he could mention incidents that did not involve him directly. In the decision record the delegate stated that the appellant said he was with his friends who were shot and knew those who were killed. The delegate considered that the appellant was therefore involved in the incident. The delegate pointed to the appellant’s inability to provide additional details regarding this claim other than that the families of the victims were granted asylum in Switzerland. Based on the appellant’s failure to mention the incident earlier, the delegate concluded that this claim was not credible and was manufactured to strengthen the appellant’s protection claim, stating:

As it would have been a traumatic experience, as well as being relevant to his claims, I would have expected it to have been mentioned in any of his prior interviews or submissions.

23    In considering the 2008 incident, the delegate stated that the appellant had claimed the fundamental reason he left for South Africa was to protect himself and his family. The delegate found that instead it was more likely that he went to South Africa for employment prospects rather than to escape persecution. The delegate pointed to a number of inconsistencies he found in the appellant’s evidence and did not accept the incident occurred in the way the appellant described.

24    With regard to the 2012 summons claim, the delegate said the appellant could not give any reason why he, his uncle or brother in law would be of interest to the authorities, other than due to their Tamil ethnicity. The delegate considered this “unusual” because Tamils are the majority in the area. The delegate also stated that the appellant was able to avoid the authorities for four years, and that the authorities were aware of his address because he claimed plain clothed men delivered the summons.

25    The delegate did accept that the Sri Lankan government would charge the appellant for departing Sri Lanka illegally.

26    The delegate found that there were major discrepancies in the appellant’s claims as follows:

    He failed to mention being detained in 1994, 2001, and being beaten in 2004.

    He did not mention in his entry interview or statement of claim that he witnessed the death of five of his friends in 2005 or the shooting death of his friend in 2008.

    The applicant did not mention the 2008 claims stated in the entry interview where he was detained for 15 days for being a Tamil businessman, and denied it occurred when questioned.

    The 2008 incident stated in the statement of claim where he went to Colombo for six months, and that he was detained for 10 days was not mentioned in the entry interview previously.

27    Accordingly, the delegate did not accept the following claims:

    That he was arrested in 2001, or beaten in 2004.

    That he witnessed the killing of five of his friends on a beach in 2005.

    Had a friend killed and was in danger of being abducted for be a young Tamil male in 2008.

    Was of interest to the authorities from 2008 to 2012, considering he remained in Colombo without incident for three months after claiming to be targeted by the CID, and that he was at the same Trincomalee address for years and was well known in the community.

    That the applicant departed Sri Lanka in 2008 for fear of his life but for employment prospects.

    That he was summoned by the CID in April 2012.

28    The delegate found the appellant was not a credible witness and that his claims from 2001 onward were created to strengthen his claims. He was not satisfied that the appellant was owed protection obligations.

TRIBUNAL’S DECISION

29    On 14 August 2013 the appellant lodged an application for review in the Tribunal.

30    The appellant’s migration agent provided a detailed submission in support of his application for review on 28 March 2014 regarding his fear of persecution based on his Tamil race, his imputed political opinion as a supporter of the LTTE or being anti-government, and his membership of the “failed asylum seekers from western countries” particular social group. This submission contained extensive country information regarding the treatment of Tamil people and returned asylum seekers in Sri Lanka.

31    The 28 March 2014 submissions also addressed the delegate’s failure to accept the appellant’s claims regarding 2001 and 2004 because he did not mention the incidents in his entry interview. It was submitted that the appellant did mention these events in his statutory declaration and his interview with the delegate, and that the entry interview was the first the appellant would have completed in Australia while he was without legal representation.

32    Further, the appellant’s migration agent submitted that entry interviews do not focus on the claims of the person but rather on the methods of departing their country, including questions regarding people smugglers. The submission pointed to the “Handbook on Procedures and Criteria for Determining Refugee Status” and the “Refugee Review Tribunal, Guidance on the Assessment of Credibility” publications regarding refugee status determination which stated that the person’s ability to give evidence may be affected by trauma or mistrust of people in positions of authority.

33    On 5 December 2014, the appellant appeared before the Tribunal at a hearing with the assistance of a Tamil interpreter and was represented by his migration agent who participated via telephone. He provided a further submission and a range of documents. This submission outlined the appellant’s concern that Sri Lankan authorities would have access to his biographical data details which the Department of Immigration and Border Protection advised him was contained in leaked documents.

34    The Tribunal allowed the appellant to prepare a further submission, which was provided on 19 January 2015. This contained further information about the whereabouts of the appellant’s uncle and his sister-in-law’s husband. It also referred to inconsistencies raised by the Tribunal regarding statements he made in his entry interview, his interview with the delegate and in his statutory declaration. Finally it referred to information regarding the appellant bribing security officials to get through the airport to go to South Africa.

35    In its statement of reasons dated 19 March 2015, the Tribunal commented on the delegate’s findings regarding inconsistencies in the appellant’s claim:

The Tribunal referred to the delegate’s decision record and to the inconsistencies identified by the delegate between what the applicant had said at the entry interview and what was claimed in his statement of claims and also at the departmental interview. The applicant told the Tribunal that during the interview he was without food and he was very tired. He said that the interviewing officer told him that he could provide more detail later. The Tribunal asked the applicant about his claim to have witnessed the killing of five friends on a beach and that this was not referred to in the applicant’s entry interview or in his statement of claims. He replied that at the entry interview the officer told him not to talk about what happened to other people but what had happened to him.

36    The Tribunal said that it considered the reason for inconsistences in the appellant’s claims was that he was an unreliable witness in respect of essential matters in issue. Its decision record ultimately stated:

The Tribunal assessed the applicant’s individual claims for protection and in each case has found after considering the substance of his claim, his evidence, and the relevant country information, that the applicant does not face a real chance of serious harm for any of the individual bases he has claimed. It then considered whether, when all the claims are considered cumulatively, he faces a real chance of serious harm, and finds it is not satisfied that even cumulatively the applicant faces a real chance of serious harm amounting to persecution if he returns to Sri Lanka.

37    It was also not satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth).

JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT

38    On 8 April 2015, the appellant filed an application for judicial review based on the following grounds:

1.    Jurisdictional error

2.    Bias based on conscious or unconscious prejudice by ignoring relevant materials

3.    Identifying a wrong issue on a wrong question.

39    The Minister filed a response on 5 May 2015 stating that:

1.    The applicant has not filed any evidence in support of the serious allegation of bias. This ground cannot be established.

2.    The application for judicial review does not establish any jurisdictional error in the decision of the Refugee Review Tribunal dated 19 March 2015.

40    The primary judge found that the appellant’s three grounds of appeal were not made out because an unparticularised assertion of jurisdictional error could not succeed, citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J); WZAVL v Minister for Immigration & Anor [2015] FCCA 2388 at [26] (Lucev J).

41    With regard to the second ground, the primary judge also held that the appellant made no attempt to comply with the requirement that the serious allegation of bias be firmly and distinctly made and clearly proven, citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17.

42    In relation to the third ground, the primary judge cited Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 and stated that it was for the Tribunal to consider the claims made by the appellant, subject to exercising its power in a manner which did not manifest jurisdictional error. Further, his Honour stated that it was also for the Tribunal to identify the material it found relevant to its reasoning and to give it appropriate weight, citing Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7] (Kiefel, RD Nicholson and Downes JJ); Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]; [2003] FCAFC 184 (French, Sackville and Hely JJ).

43    The primary judge concluded that the Tribunal did not identify a wrong issue based on a wrong question but rather set out seemingly relevant country information, correctly identified the relevant law, made detailed findings regarding the appellant’s credibility, claims, evidence and materials and drew conclusions reasonably open to it on the materials before it.

44    On 17 February 2016, the appellant filed a further affidavit which annexed a media article from “The Island Online” and a document titled “Fact Book – Sri Lanka’s Prevention of Terrorism Act”. Neither of the annexures was before the Tribunal. The Minister objected to the annexures being read into evidence.

45    The primary judge held that both annexures were inadmissible. “The Island Online” article was considered as such because it post-dated the Tribunal’s decision by over ten months.

46    The second document consisted of a statement attributed to the International Commission of Jurists regarding the nature of the powers conferred by the Prevention of Terrorism (Temporary Provisions) Act 1978 (Sri Lanka) (POT Act) and various extracts from sections of the POT Act. The primary judge held that the provisions of the POT Act were irrelevant to the Court’s judicial review function because the Tribunal concluded as a matter of fact that the appellant was of no interest to the Sri Lankan authorities and was not to be imputed with pro-LTTE opinions.

47    The 17 February 2016 affidavit provided:

(1) I am the Applicant in this case ALD 15, No PEG145 of 2015 before the Federal Circuit Court of Perth Division which has been listed to be heard on the 14th of March 2016 at 21.15pm [2.15pm].

(2) I submit that the decision of the Tribunal was affected by jurisdictional error by reason that the Tribunal applied the wrong test and was biased.

(3) The relevant legislation is the Tribunal Amalgamation Act, 2015, item 15AG of sch.9, and the Migration Act 1958, ss.36, 474.

I also rely on section 75(1) of the of the Australian Constitution dated 1 July 1900, which relates to any matter ar[i]sing under any treaty: in this instance the Refugee Convention. The Australian government is a signatory to this Convention.

(4) In terms of the UNRCR eligibility guidelines for assessing the international protection needs from asylum seekers from Sri Lanka. It has been specifically stated that there is a need for international refuge protection to persons suspected of certain links with the Liberation Tigers of Tamil Elam.

(5) As there had been a data breach in my case the Sri Lankan authorities have a suspicion and belief that I have certain links with the Liberation Tigers of Tamil Elam.

(6) The Tribunal only cited the Immigration and Emigration Act of Sri Lanka and did not take into account the Prevention of terrorism Act no 48 of 1979, which is a part of the permanent law of that country and under the provisions of which I was arrested and detained while in Sri Lanka.

(7) I submit in document marked 1 a report from Sri Lanka which refers to the visit of the Commissioner of the UNHCR to Sri Lanka and the ongoing investigations into human right abuses of the Sri Lankan armed forces against the Sri Lankan Tamils living in the north and east of Sri Lanka.

(8) I submit excerpts from the Prevention of Terrorism Act marked II.

I submit, therefore, that I have at present a well-founded fear of returning to Sri Lanka given the present circumstances.

48    The primary judge noted that this affidavit could arguably give rise to the following grounds of judicial review:

a)    at [2] and [3] that the Tribunal Decision was affected by jurisdictional error by reason that the Tribunal applied the wrong test and was biased (‘Ground 4’);

b)    at [4] that the applicant falls into the category of persons suspected of certain links with the LTTE in terms of the UNHCR Eligibility Guidelines and therefore is at risk if forcibly returned to Sri Lanka (‘Ground 5’);

c)    at [4]-[5] that as the applicant falls into the category of persons suspected of certain links with the LTTE, that link is reinforced by the data breach, and the applicant is therefore at risk if forcibly returned to Sri Lanka by reason of a suspicion of certain links with the LTTE (‘Ground 6’); and

d)    at [6]-[8] that the Tribunal failed to take into account relevant material, namely the POT Act, under which the applicant would be arrested and detained, or suffer ongoing human rights abuses at the hands of the Sri Lankan authorities, if he was returned to Sri Lanka (‘Ground 7’).

49    His Honour found that none of the additional grounds were made out. He held that the fourth ground did not set out what wrong test the Tribunal applied or the way it was biased, meaning no jurisdictional error was established.

50    The primary judge found that the fifth ground must fail because the Tribunal concluded as a matter of fact that the appellant was not of interest to the Sri Lankan authorities and was not to be imputed with pro-LTTE opinions. He stated that this conclusion was based on “lengthy consideration of the relevant evidence and country information” and for the Court to arrive at a different view would mean engaging in fact-finding for the purposes of merits review which is impermissible for a Court conducting judicial review of the Tribunal’s decision, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 (Brennan CJ, Toohey, McHugh and Gummow JJ).

51    In finding the sixth ground was not made out, the primary judge noted that the Tribunal expressly considered if the data breach gave rise to the appellant being of interest, adverse or otherwise, to the Sri Lankan government. His Honour stated that the Tribunal did not accept that there was a real chance the appellant would face serious harm because of the data breach if he returned to Sri Lanka in the reasonably foreseeable future.

52    In relation to the seventh ground the primary judge again stated that the POT Act was irrelevant and that it was not the Court’s task to engage in fact-finding: Wu Shan Liang.

53    At the Federal Circuit Court hearing the appellant also handed up further written submissions which stated:

1. The Second Respondent followed the directions of the First Respondent in regard to the assessment of the situation in Sri Lanka.

2. Hence, the Second Respondent went by the assessment given by the Department of Foreign Affairs and Trade and did not in this process give the needed weightage to the reports from other international organisations like Amnesty International.

3. Reference was made by the Second Respondent only to the Immigration and Emigration Act of Sri Lanka and failed to apply and study the provisions of the Prevention of Terrorism Act under which most the human right abuses were committed by the armed forces and this has now been made a part of normal law of the country. Earlier, it was only operative for a few years. All the arrest and detention by the Sri Lankan armed forces are made under the provisions of this Act. All the arrests and detentions that I suffered was due to this Act, which gives tremendous powers to the armed forces to arrest and detain and such acts cannot be reviewed by the law courts of Sri Lanka.

4. This is reason why I submit that there was judicial error made by the Second Respondent.

5. The present situation in Sri Lanka is the same as when the Second Respondent examined my claims. In fact the government of Sri Lanka is failing to hold a proper inquiry into human right abuses done by the armed forces on the Sri Lankan Tamils on a large scale.

6. I have a fear that my name is in the data of the Sri Lankan armed forces and authorities, and that I will be arrested and detained under the Prevention of Terrorism Act.

7. The Commissioner of Human Rights of the UNHCR on a recent visit to Sri Lanka had stated as reported in the international media that no action had been taken by the Sri Lankan government to investigate human right abuses in that country, committed by the armed forces.

8. I, therefore, have a well-founded fear of retuning to Sri Lanka mainly due to the fact that I fear that I will be investigated under the Prevention of Terrorism Act as a perceived supporter of the Liberation of Tamil Tigers of Tamil Elam and therefore one who stands for a independent state for the Sri Lankan Tamils in the North and East of the country.

54    The primary judge noted that this submission could arguably give rise to further grounds of judicial review as follows:

a)    that the Tribunal failed to conduct a proper review of the Delegate’s Decision because it adopted the reasons of the Delegate with respect to the assessment of the situation in Sri Lanka (‘Ground 8’);

b)    that other than DFAT Reports, the Tribunal failed to have regard to recent and relevant country information, or failed to give any or any sufficient weight to recent and relevant country information, including ‘reports from other international organisations like Amnesty International’ (‘Ground 9’); and

c)    that the Tribunal failed to have regard to the POT Act, and to human rights abuses committed by the Sri Lankan authorities under the POT Act, in relation to the applicant as a person who would be a person perceived to support the LTTE, and therefore one who stands for an independent state for Sri Lankan Tamils in the North and East of Sri Lanka (‘Ground 10’).

55    The primary judge found with respect to ground eight that an assertion that the Tribunal adopted the reasons of the delegate regarding the situation in Sri Lanka and thus failed to conduct a proper review was “wholly at odds” with the Tribunal’s decision. In finding that the Tribunal conducted a thorough and independent assessment of the situation in Sri Lanka, his Honour said the Tribunal had:

(1)    set out the application for review including all of the relevant background and claims made by the applicant up to and including at the Tribunal hearing: CB 266-273 at [1]-[34];

(2)    set out independent country information as indicated: CB 273-279 at [35]-[47];

(3)    set out the relevant law with respect to the refugee and complementary protection criterion and noted the requirement to take account of policy guidelines by reason of a Ministerial Direction under s 499 of the Act: CB 279-281 at [48]-[62];

(4)    set out its consideration of the claims and evidence by reference to the country of reference, findings on credibility, the appellant’s claims, both as to his refugee and complementary protection claims, and drew conclusions in respect thereof: CB 281-290 at [63]-[114],

56    In considering the ninth ground, the primary judge noted that it was well established that the selection and weight given to country information was a matter for the Tribunal, citing NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13] (Gray, Tamberlin and Lander JJ). His Honour said it was fair to observe that the Tribunal placed considerable emphasis on the Department of Foreign Affairs and Trade reports it referred to, but that it was entitled to do this because the reports were relevant and relatively recent. He noted that the Tribunal also had regard to other reports from international organisations. The primary judge held no jurisdictional error was established here.

57    In dismissing the final ground the primary judge again stated that the POT Act was irrelevant and the Tribunal was not obliged to have regard to its terms.

58    The primary judge concluded that none of the grounds of review were successful and dismissed the judicial review application.

APPEAL TO this court

59    The appellant’s notice of appeal states his appeal is with regard to the whole Federal Circuit Court judgment and contains a single ground of appeal:

Jurisdictional error – due to not following the law/or facts presented in the evidence

60    The appellant also filed an affidavit in support of his appeal where he stated:

(1)    I am the Appellant to the Federal Court of Australia from the decision of the Federal Circuit Court of Australia dated 30th September 2016 in case no PEG145 of 2015, ALD15 Applicant v Minister for Immigration and Border Protection First Respondent and Administrative Appeals Tribunal. Second Respondent.

(2)    The First and Second Respondent fell into jurisdictional error by the way of facts, law and regulations, in examining my case for a protection visa under the Immigration Act of 1958.

(3)    In this regard reference is made to the following paragraphs of the judgement delivered on the 30th September 2016 paragraphs: 2C1, 2CII, 2CIII, 2CIV, 2CVI, 2CVII, 2CVIII 4€, 5C, 5D, 5E, 7A, 8C, 10A, 11C, 12A, 12B, 12F and 12G.

(4)    In this context I have a well-founded fear of retuning of retuning to Sri Lanka for fear of persecution under the Prevention of Terrorism Act as a failed asylum seeker who had a perceived part in the Tamil revolt for self-determination under the UN Charter.

61    The appellant did not file submissions in the appeal.

62    On 6 February 2018, the Minister filed an outline of submission which relevantly states in regard to the appeal before this Court:

38    The task of the FCC was to determine whether the Tribunal’s decision was affected by jurisdictional error: section 474 of the Migration Act 1958 (the Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The task of this Court is to determine whether the judgment of the FCC is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11].

39    Although an appeal to the Federal Court is an appeal by way of rehearing, it remains necessary to demonstrate an error in the judgment appealed from. As the Full Court has explained, ‘an appeal by way of rehearing … does not mean it is an opportunity to revisit the decision of the Tribunal. Save for exceptional cases, the task of a court on an appeal by way of rehearing is to correct error on the part of the primary judge’: Rawsthorne v Minister for Immigration and Citizenship (2013) 140 ALD 524, 529 [28] (Cowdrey, Katzmann and Farrell JJ); cited in BZAHB v Minister for Immigration and Border Protection [2015] FCA 1205 at [33] (Edelman J).

40    The single ground of appeal does not identify any appealable error in the judgment of the Federal Circuit Court nor does it demonstrate any jurisdictional error in the Tribunal’s decision. Furthermore, the paragraphs referred to by the appellant simply relate to the primary judge’s recount of background of the matter and the Tribunal’s findings. At its highest, the ground merely seeks to re-agitate the arguments advanced before the primary judge without identifying any error in the primary Judge’s clear findings on the evidence. As the primary judge held, no jurisdictional error is disclosed in the Tribunal’s assessment of the material before it. The appellant has not otherwise established an appealable error on the part of the primary judge.

41    For these reasons, the first respondent submits that these proposed grounds do not raise a reasonably arguable case of appealable error in the primary Judge’s decision.

63    At the hearing, the appellant was assisted by an interpreter. He handed up some written submissions in his name which he said had been prepared by the Tamil Association, he having advised them of his circumstances.

64    He was also invited to make any other submissions on his grounds of appeal but indicated that he could not afford to hire a lawyer and the Tamil Association had not provided any legal analysis of the decision of the primary judge.

65    On behalf of the Minister, it was submitted that there were no questions raised in the written submissions handed up that identified any legal error, and that the document further agitated the questions of merit so far as the Tribunal was concerned.

Consideration

66    This is a case where, despite the submissions both oral and in writing made by the appellant, I cannot detect any error in the decision of the primary judge.

67    As may be seen from the grounds of appeal set out above, the appellant has merely asserted very generally that the first and second respondent “fell into jurisdictional error” by the way of facts, law and regulations in examining his case for a protection visa.

68    While certain paragraphs of the decision of the primary judge are adverted to, in all instances the appellant has taken issue with findings of fact made by the Tribunal and recounted by the primary judge.

69    I have set out in some detail above, the reasons given by the primary judge for dismissing the judicial review application. It is not necessary to repeat them in any detail.

70    The general assertion of jurisdictional error was not particularised in the first ground before his Honour. The reasons of the primary judge in rejecting this ground are unassailable.

71    No questions of bias expressly arose in this Court, that being the second of the grounds in the Court below. There is nothing to support this claim, as the primary judge found.

72    So far as the third ground in the Court below is concerned, identifying a wrong issue or a wrong question, as the primary judge found after a careful analysis, no jurisdictional error is identifiable from the Tribunal’s decision. His Honour is correct in so finding.

73    Indeed, when one turns to the Tribunal’s decision, which has been set out in some detail above, the Tribunal provided the appellant with ample opportunities to develop his case, including by way of further submissions, before finding against him.

74    It is clear that the appellant was considered, on reasonable grounds explained in the Tribunal’s decision record, to be an unreliable witness in respect of key issues.

75    In all of these circumstances, no jurisdictional error is made out in relation to the primary judge’s reasons.

76    As a result, the continued assertion of the appellant that he has a well-founded fear of returning to Sri Lanka for fear of persecution under the POT Act as a failed asylum seeker, who had a perceived part in the Tamil revolt for self-determination under the United Nations Charter, is not material when the Court comes to consider whether, in fact, any jurisdictional error in the decision of the primary judge (or the Tribunal before that) is evident.

77    For these reasons, the appeal should be dismissed.

CONCLUSIONS AND ORDERS

78    For the reasons given above, the Court makes the following orders:

(1)    The appeal be dismissed.

(2)    The appellant pay the costs of the first respondent, to be assessed if not agreed.

Associate:

Dated:    15 February 2018