FEDERAL COURT OF AUSTRALIA

BKB15 v Minister for Immigration and Border Protection [2018] FCA 770

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to amend the Notice of Appeal is refused.

2.    The appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent, either as agreed or taxed.

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

REASONS FOR JUDGMENT

1    The Appellant in the present proceeding, identified by the pseudonym BKB15, is a citizen of Sri Lanka.

2    The Appellant arrived in Australia as an unauthorised boat arrival in June 2012. In November 2012, he applied for a Protection (Class XA) visa. That application was refused by a delegate of the Respondent Minister for Immigration and Border Protection in July 2013. The Appellant then sought review of the delegate’s decision. The Refugee Review Tribunal (the “Tribunal”) affirmed the decision not to grant him a Protection visa in June 2015.

3    The Appellant then applied to the Federal Circuit Court of Australia for review of the Tribunal’s decision. The Amended Application as filed in that Court set forth the Grounds of Application there relied upon as follows (without alteration):

Ground 1

The decision of the Tribunal:

(a) Is affected by an error of law; and

(b) Denied the applicant procedural fairness.

The Tribunal committed jurisdictional error by failing to afford the applicant the opportunity to explain inconsistencies in his evidence.

…

Ground 2

I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

The Tribunal committed jurisdictional error by failing to give reasons for a particular finding.

…

Following Ground 1 were thirteen separate Particulars specified in sub-paragraphs (a) to (m). Following Ground 2 there were three separate Particulars specified in sub-paragraphs (a) to (c).

4    Before the Federal Circuit Court, the Appellant was represented by a solicitor. The Federal Circuit Court conducted a hearing in December 2017 and published reasons for its decision in January 2018: BKB15 v Minister for Immigration and Border Protection [2018] FCCA 143. That Court dismissed the Amended Application.

5    The Appellant now appeals to this Court. The Notice of Appeal as filed in February 2018 states as the sole Ground of Appeal the following (without alteration):

The Federal Court Judge his Honour did commit legal errors when dismissing the proceedings. The Judge failed to consider all of the grounds raised in the proper and fair manner.

The reference to the “Federal Court Judge” has been understood to mean the Federal Circuit Court Judge. But nothing turns on that erroneous description.

6    Shortly before the hearing of the appeal, however, the Appellant filed a document headed “Applicant’s Submissions to the Federal Court”. Notwithstanding the manner in which that document was headed, it was in substance a proposed amendment to the Notice of Appeal. The two proposed Grounds identified there were expressed (without alteration) as follows:

Ground 1 (AMENDED)

The Tribunal erred in its assessment that the applicant’s brother was not a “captain” in the LTTE, the Tribunal failed to consider relevant considerations before reaching this finding at [CB 261].

…

Ground 2 (AMENDED)

The Tribunal failed to put the applicant on notice that “two photographs” provided by the applicant had been “photo shopped”.

Particulars were provided in respect to each of these two Grounds. The reference to “[CB 261]” appears to be a reference to para [58] of the Tribunal’s reasons for decision. The reference to the photos having been “photo shopped” is a reference to para [56] of the Tribunal’s reasons.

7    The Appellant appeared before this Court unrepresented. He had the assistance of an interpreter. The Respondent Minister was represented by Counsel.

8    The sole Ground of Appeal as previously set forth in the Notice of Appeal has been construed as an argument that the Federal Circuit Court Judge erred in rejecting each of the two Grounds of Application as they were expressed in the Amended Application before that Court. The Submissions filed by the Appellant have been construed as an application for leave to amend the Notice of Appeal. That application is rejected as neither of the proposed two Grounds have any merit.

9    The appeal is to be dismissed with costs.

Inconsistencies in the evidence?

10    The challenge made before the Federal Circuit Court asserting a failure to afford an opportunity to explain “inconsistencies in [the] evidence” identified the treatment of a series of paragraphs in the Tribunal’s reasons for decision.

11    Those paragraphs are included in the following extract (without alteration):

CONSIDERATION OF CLAIMS AND EVIDENCE

Background

20.    The applicant is aged [XXX] and was born on [XXX] in, [XXX], Sri Lanka.

Country of reference

…

Summary of the applicant’s claims for protection

22.    In 2004 the applicant’s brother [XXX] was conscripted to fight with the LTTE and in 2007 the family was informed that he had had been killed.

23.    In 2007, after he was informed of his brother’s death, the applicant was approached by the people’s Liberation Organisation of Tamil Eelam (PLOTE) and was asked to join them. He refused and they threatened to shoot him. They said that if he did not join they would presume that he supported the LTTE. He decided to leave Sri Lanka and went to Malaysia to work.

24.    He returned to Sri Lanka in November 2011 as he was told that it was safe. In April 2012 men who the applicant believed were CID came looking for him because they suspected he supported the LTTE because his bother did and because former PLOTE members had informed the CID that he was a supporter of the LTTE. The applicant was at work at a textile factory when they came. As the CID kept looking for him he left Sri Lanka on 13 June 2012.

25.    The applicant feared he would be:

•    Harmed or killed by the Sri Lankan government or affiliated parties due to his imputed pro-LTTE profile

•    Seriously harmed or killed as a Tamil who has fled Sri Lanka illegally

26.    It was submitted on the applicant’s behalf that he feared harm due to:

•    His Tamil race

•    His imputed political opinion of support for the LTTE and opposition to the government of Sri Lanka.

•    He will be perceived to be opposed to the government because of his:

•    Tamil ethnicity

•    Status as a failed asylum seeker

•    His membership of the particular social group –failed asylum seeker returning to Sri Lanka

…

Assessment of the applicant’s claims to be a refugee

52.    The Tribunal accepts that the applicant is Tamil and that from 1996 he lived in [XXX] in the Northern Province of Sri Lanka.

53.    The delegate stated in her decision record that she had serious credibility concerns regarding several aspects of the applicant’s claims and she did not find him to be a generally credible witness. The Tribunal also has concerns about the veracity of many aspects of the applicant’s evidence. The Tribunal noted that he contradicted himself, many aspect of his evidence were far-fetched or implausible and he had not mentioned important aspects of his claims in his entry interview. The Tribunal does not accept that he fact he was “young’ as his entry interview attributed to his failure to outline his claims then.

54.    The Tribunal acknowledges that when assessing credibility, it is important to be sensitive to the difficulties often faced by asylum seekers. The Tribunal accepts that the process of seeking protection and the giving of evidence can be stressful and consequently the applicant may have difficulty providing his evidence in a concise and contextual manner. The Tribunal accepts that sometimes timelines can be inconsistent as a result. A person should not be required to provide an unrealistic degree of precision and detail in statements and accepts that an experience of trauma may affect a person’s ability to recall specific events and details. The benefit of the doubt should be given to asylum seekers who are generally credible but who are for instance, unable to otherwise substantiate all of their claims. However, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. …

Brother’s forcible recruitment to the LTTE

55.    In his entry interview the applicant claimed that his brother, [XXX] was abducted in 2004 and was shot in 2007 and they did not know who shot him. He said that people were harassing him because they suspected his brother was in the movement. In his protection visa application he indicated that [his brother] was forcible recruited by the LTTE.

56.    Although the applicant’s family was living in a government controlled IDP camp the Tribunal accepts that it is possible that his brother was forcible recruited at this time. In his evidence to the Tribunal he claimed that in 2013 whilst living in Australia he discovered his brother’s photo on a pro LTTE website and found out that he was a Captain. He provided the delegate with a printout of the website but it is in Tamil. He provided two photographs of a person who is of similar appearance to the person in the LTTE website photograph. However in these photographs purported taken at different times the shot of the person’s head is identical as if it had been photo shopped onto the body in the other picture. The applicant also provided pictures of him with his brother and parents but he and his brother are too young to enable a comparison between these photos and the photos on the pro-LTTE website.

57.    In submission to the Tribunal the applicant provided a copy of the coroner’s report relating to his brother’s death. The report is dated 26 July 2013 and indicates his brother died from a gunshot wound.

58.    The Tribunal accepts that the applicant’s brother was forcible recruited by the LTTE and that he died in 2007 from gunshot wounds. The Tribunal does not accept on the material before it that he was a captain in the LTTE or that his picture is on a pro LTTE website. The Tribunal does not accept that the applicant’s brother’s recruitment by the LTTE has caused him or the family any difficulties with the Sri Lankan authorities.

The applicant’s dealings with PLOTE

59.    As noted in the delegate’s decision PLOTE was an LTTE splinter group largely wiped out by the LTTE in 1986 but maintained armed cadres at some level in Sri Lanka. Mapping Militant Organizations notes:

By 1985, PLOTE had peaked militarily. Soon thereafter, the LTTE turned on PLOTE and began attacking them, reducing their size dramatically by mid-1987. As a result PLOTE, unlike the LTTE, accepted the 1987 agreement between India and Sri Lanka. Since then, PLOTE has fought alongside Sri Lankan forces against the LTTE. As of early 2000, the group is reported to still be active as a small, pro-government paramilitary organization and minor political party. PLOTE, however, denies that it is a paramilitary group and argues instead that it is merely an independent political party.

… In particular, PLOTE cooperates with the government in its stronghold of [XXX] where it was tasked with identifying LTTE spies for the Sri Lankan army

60.    In his entry interview he said that after he returned to Sri Lanka from Malaysia he was threatened by the ‘other movement’ which he clarified to be EPDP, EPRLF, TELO and PLOTE and the also the army. He feared that one or all of these groups would have killed him if he had not left Sri Lanka. He never mentioned being approached by the CID.

61.    In his protection visa application he was sure which group it is that approached him. He claimed that he was approached by the PLOTE but it occurred in the same year his brother was killed not when he returned from Malaysia. In his protection visa application he claims that after he returned from Malaysia he was approached by the CID. The Tribunal regards this as a significant discrepancy.

(Footnotes omitted, emphasis in original.)

The decision of the Federal Circuit Court – the rejection of Grounds 1 and 2

12    The reasons for decision of the Federal Circuit Court expose a separate consideration of Grounds 1 and 2 of the Amended Application.

13    In respect to Ground 1, those reasons expose the attempt made by the Federal Circuit Court Judge to grapple with what were, with respect, ill-expressed challenges. Those reasons state in part as follows:

Ground 1

[18]    The principal proposition in ground 1 was that the Tribunal failed to give the applicant the opportunity to explain inconsistencies in his evidence and thereby fell into jurisdictional error.

…

[21]    Pausing at that point, none of those particulars subjoined to paragraphs (a) to (e) gave any insight into the way in which the applicant made any attempt to demonstrate the validity of his principal proposition, namely, that the Tribunal fell into jurisdictional error by failing to give the applicant the opportunity to explain inconsistencies in his evidence. None of the matters asserted in grounds 1(a) to (e) demonstrated jurisdictional error in my view, nor even raised a proper ground for any such conclusion.

The Judge then went on to separately address Ground 1(m) which was expressed as follows:

However, the Tribunal failed to ask the applicant to expand on the aspects of his account which it doubted, which were significant to its ultimate decision, and to ask the applicant why his account should be accepted.

With respect to this aspect of the claim, the Federal Circuit Court Judge concluded as follows:

[22]    In ground 1(m) the applicant asserted that the Tribunal failed to ask the applicant to expand on the aspects of his account which the Tribunal doubted and to ask the applicant why his account should be accepted. Without understanding to which account the applicant referred, that subparagraph of ground 1 was a little abstract. It seemed that the contention in ground 1(m) related to the information recorded between subparagraphs 1(f) and 1(l). It also seemed that (and I say “it seemed” because the point was not well advanced, despite the amended application being prepared by the applicant’s solicitor) that the applicant’s real grievance lay in the fact that the Tribunal did not invite the applicant to expand on matters that it said it doubted. The applicant highlighted the Tribunal’s finding that a lack of mention of the CID in the applicant’s entry interview was a significant discrepancy in the applicant’s evidence.

[23]    In other words, a fair reading of the particulars subjoined to ground 1 of the applicant’s amended application gave no particular insight into the nature of the alleged jurisdictional error.

14    Concurrence is expressed with respect to these reasons provided by the primary Judge. Such reasoning exposes no error.

15    Ground 2 of the Amended Application before the Federal Circuit Court asserted a failure to give reasons for a particular finding made and the Particulars provided referred specifically to para [58] of the reasons for decision of the Tribunal.

16    With respect to this second Ground, the Federal Circuit Court Judge concluded as follows:

Ground 2

[33]    As with ground 1, the particulars subjoined to ground 2 (especially the first two) gave no insight into the way the applicant said that the Tribunal fell into jurisdictional error by failing to give reasons for the particular finding that the applicant impugned. At its highest, ground 2(c) contained the contention that the Tribunal did not discuss the difficulties the applicant said he and his family had with Sri Lankan authorities.

…

[35]    To my mind, the applicant’s contentions ignored the fact that, in reality, the applicant was inviting me to undertake a merits review of the matters to which the Tribunal gave proper forensic consideration. The Tribunal was required to assess a variety of matters for the purposes of its consideration of the applicant’s claims to protection for a Convention reason and as well as his claims for complementary protection. The Tribunal did precisely that.

17    Concurrence is also expressed with respect to these reasons provided by the primary Judge. Again, such reasoning exposes no error.

18    The Notice of Appeal as filed in February 2018 is thus to be dismissed. It raises no appellable error.

The proposed amended Grounds of Appeal

19    Left to be resolved is the presumed application to amend the Notice of Appeal and to substitute the two Grounds as set forth in the submissions filed by the Appellant.

20    It is unnecessary to canvas in any great detail the circumstances in which an appellant may be granted leave to amend a Notice of Appeal to raise grounds either different to or differently expressed than in a Notice of Appeal or to raise arguments not previously canvassed before the primary Judge.

21    In very summary form, the starting point is the fundamental proposition that a party is normally bound by the conduct of his case at first instance: University of Wollongong v Metwally (No2) (1985) 59 ALJR 481 at 483 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ. But leave to amend may be granted where it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] to [48], (2004) 238 FCR 588 at 598 to 599 per Kiefel, Weinberg and Stone JJ. It is not in the interests of justice to grant leave in circumstances where (inter alia) a proposed ground lacks merit and where no adequate explanation is provided as to why the proposed new ground was not raised below: cf. DCH16 v Minister for Immigration and Border Protection [2017] FCA 932 at [73] per Barker J. In considering an application for leave to amend to raise a new ground it is not necessary to “enter upon a full consideration of the grounds” because “[t]o do so would make the requirement for leave meaningless”: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [24] per Heerey, Moore and Goldberg JJ.

22    To the extent that the Submissions filed by the Appellant can be construed as an application for leave to amend the existing Notice of Appeal, leave to amend is refused because:

    there was no explanation provided by the Appellant as to why the two proposed new Grounds were not previously relied upon before the Federal Circuit Court, especially in circumstances where the Appellant was then represented; and

    neither of the Grounds has any self-evident merit.

It should nevertheless be recognised that the first of the two proposed new Grounds may be construed as but a reformulation of the Grounds previously relied upon before the Federal Circuit Court and the challenge there made to para [58] of the reasons of the Tribunal. The proposed second new Ground, however, is a new argument to the extent that it seeks to rely upon an asserted denial of procedural fairness by reason of the Appellant not being put on notice as to the observation made by the Tribunal that the photographs appeared to be “photo shopped.”

23    As to the conclusion that the Grounds have no self-evident merit, it is respectfully considered that there is no substance in the argument that the Tribunal either “erred in its assessment” that the brother was not a “captain” in the LTTE nor in the argument that the Tribunal “failed to consider relevant considerations”, those considerations including the fact that the photograph the subject of the Particulars provided having a caption which had not been translated.

24    The “assessment” made by the Tribunal and its finding (at para [58]) that the brother was not a “captain” was a finding of fact open to it on the evidence. Nor can it be contended that the Tribunal failed to consider the submissions being made when those submissions were expressly addressed and resolved at paras [55] to [58] of the Tribunal’s reasons.

25    Nor is there any substance in the proposed second argument that the Tribunal erred by failing to put the Appellant on notice of its view that the “two photographs” may have been “photo shopped”. The fact is that the Appellant had been on notice from the outset that an issue to be addressed was the genuineness of the photographs he had made available in support of his claims and put on notice as to whether they were photographs of his brother. A submission made on behalf of the Appellant to the delegate in April 2013 attached a number of documents, including a photograph of the brother. That submission set forth the Appellant’s instructions that “the captions describe [the brother] as Captain [XXX], which is the title conferred by the LTTE after [the brother] obtained martyrdom and was killed”. In assessing this submission, the delegate concluded (inter alia) (without alteration):

In subsequent submission the applicant states that his brother was known as Captain [XXX], which his agent states is “the title conferred by the LTTE after [the brother] obtained martyrdom and was killed.” Whilst the applicant has provided a photograph of a person purporting to be his brother, I have been unable to place any weight on this information due to a lack of supporting evidence, and the applicant’s changing and inconsistent testimony in this regard. I also find that this photograph could be uploaded on the internet by any person, and place no relevance to the applicant. I will however assess the whether the applicant’s brother fighting with the LTTE would … place the applicant at risk of harm under ‘Is the Fear Well Founded?’ below.

26    These findings prompted a further submission to be made to the Tribunal, including a submission that the Appellant “maintains that the photograph is of his brother, his brother was known to the authorities for his involvement in the LTTE and that he Is now wanted by the CID for his brother’s involvement with the LTTE” (without alteration). Further photographs were provided in a presumed attempt to bolster the submission made. The submission with respect to the photographs concluded with the statement that “[w]e submit that these photographs are evidence that the photograph of the young man in the LTTE uniform is [the brother] and that therefore [the Appellant] will be imputed with a pro-LTTE political opinion due to his brother’s involvement with the LTTE”. The Tribunal resolved this further submission adversely to the Appellant at para [56] and [58] of its reasons.

27    Although the expression “photo shopped” was first employed by the Tribunal, there was no question that the Appellant knew that the genuineness of the photographs was in issue and it rested upon him to adduce such evidence as he saw fit – and such evidence as was available to him – to support his claims. There is no procedural unfairness in an administrative decision-maker rejecting claims advanced for resolution where the applicant knows that he must prove the claim: Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83, (2009) 247 FCR 404 at 418. Emmett, Kenny and Jacobson JJ there concluded:

[60]    … there is no unfairness where a person affected knows what he is required to prove to the decision-maker and is given the opportunity to do so. An applicant cannot complain if his application is rejected because the decision-maker, without notice to him, rejects what he puts forward …

See also: SZTKV v Minister for Immigration and Border Protection [2014] FCA 903 at [27] to [28] per Siopis J. The concern of procedural fairness, moreover, is “to avoid practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [37], (2003) 214 CLR 1 at 14 per Gleeson CJ. There is no demonstrable “practical injustice” in the circumstances of the present case. When asked during the course of the present hearing before this Court what else could be said in addition to what was put to the Tribunal to support the submission that the photographs were genuine, the Appellant maintained that all of the photographs that were available to him had been provided. Any other relevant family photographs had been destroyed.

28    Had an express application been made to amend the Grounds of Appeal, that application would accordingly have been refused.

The appellate jurisdiction being exercised

29    The jurisdiction of this Court which is presently being exercised is the appellate jurisdiction conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth).

30    That appellate jurisdiction is in the nature of a rehearing and is exercised for the correction of error and is not exercised as simply affording an unsuccessful party a “second go”: Poulet Frais Pty Ltd v Silver Fox Co Pty Ltd [2005] FCAFC 131 at [45], (2005) 220 ALR 211 at 220 per Branson, Nicholson and Jacobson JJ. Appeals from decisions of the Federal Circuit Court arising under the Migration Act 1958 (Cth) are in no different position: NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 at [31] per Graham J; SZMSF v Minister for Immigration and Citizenship [2010] FCA 585 at [24] per Flick J; BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [4] per Gilmour J; BQH15 v Minister for Immigration and Border Protection [2018] FCA 159 at [25] Gleeson J.

31    Although the general principle may be clear, the manner in which the appellate jurisdiction is in practice exercised in many cases arising under the Migration Act is markedly different. The practice is in large part a product of the fact that many claimants for visas that may be conferred under that Act are unrepresented, sometimes both before the Federal Circuit Court and this Court on appeal. In more limited circumstances, difficulties are confronted by reason of the manner in which a Judge of the Federal Circuit Court has attempted to discharge the functions entrusted to that Court.

32    Whatever the source of the difficulties confronted, this Court attempts in practice to ensure that an unrepresented Appellant is not prejudiced by his lack of legal training or by reason of English not being a language that an Appellant properly understands or speaks. In many cases, those representing the Respondent Minister make submissions directed to both the absence of appellable error and also the absence of error committed on the part of the Tribunal whose decision has been reviewed by the Federal Circuit Court.

33    In many cases, this Court shuns the shackles imposed by the principles underlying the exercise of the appellate function and indeed gives an unrepresented Appellant a “second go”.

34    The difficulty presented by appellants being unrepresented nevertheless persists and will not go away without being addressed. In the past it has been recognised that however convenient it may be for this Court to “fill the gap” where there is an inadequacy in the way that proceeding has been dealt with before it reaches this Court, for this Court to routinely do so “would not be consistent with the processes of review as prescribed by the legislature”: SZKLO v Minister for Immigration and Citizenship [2008] FCA 735 at [41], (2008) 247 ALR 582 at 590 per Flick J. That sentiment has been endorsed by others in recognition of the fact that for this Court to do so would “erode the appellate nature of this Court’s jurisdiction”: AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 at [26] per Perram J.

35    The frequency with which this Court in practice pursues a course of discharging the functions properly entrusted to a primary Judge is such that it is respectfully considered that the Commonwealth legislature should expressly consider the problems posed by unrepresented appellants in this particular jurisdiction. It is, with respect, a highly questionable allocation of the limited financial resources available to this Court for it to be put in the position, in practice, of doing again that which has been entrusted by the legislature to the Federal Circuit Court.

36    If this Court were to confine its attention to discerning appellable error in the reasons of the Federal Circuit Court – without also considering the merits of a visa claimant’s case – it may be regarded by the wider community as abhorrent to the proper administration of justice overall.

The absence of error – be it appellable or other error

37    The practice followed in many other cases has, regrettably, been embarked upon in the present proceeding.

38    Having embarked upon that course, it is concluded that there has been neither:

    jurisdictional error committed by the Tribunal; nor

    appellable error committed by the primary Judge.

That is so whether reference is made to the Grounds as formulated in the Amended Application before the Federal Circuit Court, in the Notice of Appeal filed in February 2018 or the Grounds as sought to be reformulated in the Appellants’ submissions.

39    As to the former conclusion, the Tribunal was unquestionably critical of the Appellant’s credibility, as was the delegate. Paragraph [53] of the Tribunal’s reasons records that assessment. In reaching an adverse assessment as to credibility, the Tribunal’s reasons record an acknowledgment (at para [54]) of the need “to be sensitive to the difficulties often faced by asylum seekers”. Each of the findings made by the Tribunal founded upon its adverse assessment as to credibility, it is concluded, was a finding of fact which was open to it. None of those findings appear to be a finding which was perverse or unreasonable. The challenges made to those findings before the Federal Circuit Court are more properly characterised as impermissible challenges to factual conclusions and impermissible challenges to the merits of the decision made as opposed to any jurisdictional error.

40    As to the absence of appellable error on the part of the primary Judge, it is respectfully concluded that no appellable error is discernible in circumstances where:

    the Grounds relied upon were properly characterised by the primary Judge as containing “a mix of submission, propositions of law and details alleged to support the ground advanced” ([2018] FCCA 143 at [19]);

    the Grounds, in particular Ground 1(m) and Ground 2, lacked sufficient specificity; and

    the Grounds, at least in part, relied upon references to judicial authority without any real attempt to relate those authorities to the facts as found by the Tribunal.

41    With respect to the Grounds of Application as formulated before the Federal Circuit Court, underlying Ground 1 remained the fundamental allegation that the Tribunal had committed jurisdictional error “by failing to afford the applicant the opportunity to explain inconsistencies in his evidence”. If any consideration as to the factual basis upon which the Tribunal resolved those inconsistencies is left to one side, there is no basis upon which a finding could be made that the Tribunal failed to allow the Appellant an opportunity to be heard. The Appellant appeared before the Tribunal and then gave evidence and presented arguments in support of his claims. He then appeared with the assistance of an interpreter. There is nothing on the face of the Tribunal’s reasons to expose any inadequacy in the opportunity then extended. Nor was there any evidence before the primary Judge to support any allegation as to any meaningful constraint upon the opportunity to be heard at the hearing before the Tribunal to question the adequacy of that opportunity.

42    As to Ground 2, and the complaint there expressed as to the inadequacy of the reasoning in para [58], there is little more than the Tribunal could do other than to express its findings that it could not accept the Applicant’s claims there addressed. To the extent that Ground 2 relies upon a failure on the part of the Tribunal “to discuss the difficulties the applicant alleged he and his family had with the Sri Lankan authorities”, there was no requirement imposed upon the Tribunal to set forth its reasoning and make findings on all matters that may have been raised by a claimant. The obligation is for the Tribunal to make findings and provide reasons in respect to the matters material to its reasoning process: cf. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [68] to [69], (2001) 206 CLR 323 at 346 per McHugh, Gummow and Hayne JJ.

CONCLUSIONS

43    The liberty has been taken of extracting considerable portions of both the reasons for decision of the Tribunal and those of the Judge whose decision is the subject of this appeal. That has been done to serve two purposes, namely:

    to expose for consideration the detail to which both the Tribunal went and the Federal Circuit Court Judge went to set forth the basis upon which each proceeded; and

    to expose for separate consideration by this Court the arguments sought to be agitated before the primary Judge.

Although the task of this Court is to consider whether the reasons for decision of the primary Judge expose appellable error, and not the task of considering afresh the arguments previously advanced as though the hearing at first instance was of little relevance, the separate consideration given by this Court to the Appellants claims may provide some assurance to him that his case has been properly considered.

44    It is concluded that:

    the reasons for decision of the Refugee Review Tribunal record a proper consideration of the claims made;

and, more importantly:

    there is no discernible appellable error on the part of the primary Judge.

45    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The application for leave to amend the Notice of Appeal is refused.

2.    The appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent, either as agreed or taxed.

Associate:

Dated:    30 May 2018