FEDERAL COURT OF AUSTRALIA

ANO15 v Minister for Home Affairs [2018] FCA 1519

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

INTRODUCTION

1    Before the Court is an appeal against the decision of the Federal Circuit Court in ANO15 v Minister for Immigration & Anor [2018] FCCA 205. The primary Judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (which, at the relevant time, was the Refugee Review Tribunal) (the Tribunal), which had in turn affirmed a decision of a delegate of the Minister for Home Affairs (the Minister) not to grant the appellant a Protection (Class XA) visa.

BACKGROUND

2    The appellant is a Sri Lankan citizen who, on 18 July 2012, arrived at Cocos Islands as an unauthorised maritime arrival, where he was detained by immigration officials. On 9 January 2013, the appellant was granted a bridging visa and was released from immigration detention.

3    The appellant was able to apply for a protection visa on 14 February 2013. The appellant is a Tamil who practices Catholicism. The basis of the appellant’s application for a protection visa related to a number of events that he claimed had occurred between 2006 and 2012 in Sri Lanka, being:

    The appellant’s brother was killed, shot on a roadside near a highway, in 2006 and the appellant believed that his brother was killed either by a government group or the Karuna Group. Following the death of the appellant’s brother, the appellant’s family moved away from their village because they were afraid that the appellant’s brother had been targeted.

    In 2008, the appellant was riding his bike to a New Years’ celebration. The appellant stated that he was stopped by eight men in a white van from the Criminal Investigations Department (the CID), following which the appellant said that he was taken to a building, interrogated about his knowledge of the Liberation Tigers of Tamil Eelam (LTTE) and beaten.

    In June 2010, the appellant went to his employer’s house. The Sri Lankan Army was there, and they had beaten the appellant’s employer and five other employees, because they believed that the appellant’s employer, being a rich man, must have had weapons in the house. The appellant claimed to have also been beaten on this occasion.

    The appellant was at a playground with his daughter in April 2011 when the Sri Lankan Army arrived and rounded up men and women for questions. The appellant was questioned in relation to his affiliation either with the LTTE or the Karuna Group.

    In October 2011, the appellant was working as a bus driver when he was stopped by officers of the CID, who directed him to attend their office for questioning. The appellant did not do so and did not return to work for ten days because he was fearful and had heard of other people being taken away and beaten by the authorities. When the appellant returned to work, he began driving a different route.

    In November 2011, the appellant recommenced driving on his original bus route. Over the next two months, the appellant was stopped by the Sri Lankan Army ten times and, on three occasions, the appellant was asked for money or was made to buy things for the officers.

    The appellant heard news that 250 Tamil people were taken away by the Sri Lankan Army in March 2012, and it was not known what had happened to them.

4    As a result of those events, the appellant believed that if he returned to Sri Lanka, he would be at risk or facing serious harm by the Sri Lankan Army, the CID and the Karuna Group, and that he would be persecuted for travelling illegally to Australia and for his imputed political opinion as a suspected LTTE member.

5    The appellant’s protection visa application was refused by a delegate of the Minister, who was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36 of the Migration Act 1958 (Cth) (the Act).

6    The appellant applied to the Tribunal for review of the delegate’s decision and attended a hearing at the Tribunal on 9 April 2015, at which he was represented by his migration agent.

7    Although the Tribunal considered that the appellant had provided generally consistent evidence in relation to his background, family composition, education and employment history, the Tribunal was concerned that the appellant had given inconsistent and different evidence throughout the various stages of his protection visa application and the review thereof. Notwithstanding the Tribunal’s numerous concerns regarding the appellant’s credibility as a witness, the Tribunal accepted some of the appellant’s claims, including that the appellant’s brother was killed by a gunshot wound in 2006, and that the appellant was kidnapped, questioned, threatened and beaten in January 2008. The Tribunal also accepted that the appellant’s employer’s house may have been searched by the armed forces in 2010.

8    However, the Tribunal was ultimately of the view that the appellant had fabricated many of his claims in order to support his application, and that the appellant had not told the truth in relation to the critical aspects of his claims. As the Tribunal was not satisfied that the appellant satisfied relevant criteria in ss 36(2)(a) or (aa) for the grant of a protection visa, it affirmed the decision of the delegate to refuse to grant the appellant a protection visa.

the federal circuit court proceedings

9    The appellant applied for judicial review of the Tribunal’s decision in the Federal Circuit Court on 21 April 2015. The primary Judge adjourned the final hearing of the matter on multiple occasions to allow for decisions of the Federal Court and High Court to be delivered prior to giving a final decision in the appellant’s matter. As a result of those adjournments, the appellant filed an amended show cause application on 27 July 2015, and a further amended show cause application on 12 July 2017.

10    The appellant’s grounds of review in the further amended application, the subject of the final hearing before the primary Judge, were:

1.     The Minister erred in law in not following the proper procedures in determination of the application made by the Applicant.

Particulars (inter alia)

a.    The Tribunal erred in deciding that the Statutory Declarations made by the Applicant should have contained all the facts in relation to his application. It is unreasonable to conclude that because information was not provided in the Statutory declaration, but provided during the interview the Applicant lacked credibility. It is known the people make multiple statutory declarations which may add further evidence. The Tribunal could only make conclusions on credibility if there were contradictions in the statutory declaration and the information provided in the interview.

b.    The delegate had indicated that the Applicant’s account of events was largely consistent with that given in his previous interviews with the department, but the Tribunal appears to be totally contradicting giving a different view. This only indicates that the whole judgment of credibility is subjective instead of objective.

2.     The Tribunal erred in law by failing to take into consideration UNHCR guidelines where when evidence is given and accepted by the Tribunal that the Applicants brother was shot by the LTTE, there is a distinct co relation in that the mere killing of the Applicant’s brother would have associated the Applicant with his brother that he would also be persecuted because of his relationship to his brother.

a.     The fact the Applicant was able to travel freely before the time when the applicant became associated with political party has been used to indicate that the Applicant was never in a position of persecution and therefore all his subsequent statements lack credibility. The same applied for his ability to get a passport. The Tribunal failed to take into account that persecution occurred when the Applicant is identified, which only happens in the area the Applicant was active in politics. Addition of several unrelated events were used to reduce the credibility of the Applicant.

3.     The Minister erred in not taking into consideration relevant information in making the decision.

    Particulars inter alia:

a.    The Applicant has provided details of several country information reports that supported the claims of the Applicant. It is important that this information to be co related with the experience of the Applicant, with respect to the persecution of supporters of opposite political parties. Further the situation in Sri Lanka is always dynamic and not consistent. The Applicant has provided evidence of latest country information which supports the applicant. This was rejected.

b.    That there are several paramilitary groups (included Tamil groups) and political thugs that detain, threaten or attack the member or those associating with the opposition parties and the claims of the Applicant are plausible. It is obvious from the incidents that the persecution does not come from one source but from variable independent sources. Because of this the Applicant there is a denial of capacity to earn a livelihood and a capacity to exist.

c.    There is undisputed evidence of incidents experienced and narrated by the Applicant the if taken in toto would quality the Applicant for protection both under s91R(1), s91R (b) and (1c) of the Migration Act 1958 (Cth). It is not sufficient for the Tribunal to merely mention the incidents and pass it as incredible.

4.     Complementary Protection Criterion

The Tribunal had not provided definite or substantive reasons to determine that the Applicants do not qualify under the Complementary Protection criteria. The standard established by the Tribunal was unsatisfactorily rigid and high.

(Errors in original.)

11    In summary, the primary Judge made the following findings in relation to the appellant’s grounds of review in the Federal Circuit Court:

    Ground 1a: The primary Judge found that this ground misrepresented the Tribunal’s findings concerning the appellant’s statutory declaration. The Tribunal, rather, had taken issue with the inconsistency in the statutory declaration and the appellant’s later oral evidence, concluding, as it was entitled to, that the oral evidence was fabricated.

    Ground 1b: Contrary to the appellant’s submissions, the Tribunal had accepted some but not all of the appellant’s claims. The Tribunal did not contradict itself by doing so and only directed its criticism to what it found were embellishments or fabrication.

    Ground 2: There was no basis on which to say that the Tribunal had subverted the UNHCR guidelines. In any event, the UNHCR guidelines are simply guidelines and are in no way binding. The primary Judge also considered that there was no basis for finding that the Tribunal had failed to comply with its statutory natural justice obligations.

    Ground 3: Ground 3 actually meant that the Tribunal erred in not taking into consideration relevant information in making the decision. The Tribunal had looked at all country information, and stated that it had taken into account information other than from such sources as the United Nations and the Department of Foreign Affairs and Trade. The contention of the appellant was, in substance, that the information he advanced was not consistent with the ultimate result and therefore the Tribunal must have failed to take it into account. In this respect the appellant effectively sought an impermissible merits review.

    Ground 4: There was no error in the manner in which the Tribunal made its decision as the Tribunal had had regard to the complementary protection criteria and had addressed why the Tribunal considered that those criteria had not been satisfied. The conclusion of the Tribunal was open to it.

12    It followed that, in his Honour’s view, the grounds of review lacked merit.

the appeal to this court

13    The appellant has relied on two grounds in his notice of appeal:

Ground 1

1.     The FCC Judge committed jurisdictional error when dismissing proceedings in the FCC.

Ground 2

2.    No reasons have been published yet by the FCC Judge.

14    At the hearing the appellant handed up an outline of written submissions, which the appellant indicated had been prepared by a lawyer. I made an Order that the document be filed, notwithstanding that the time for the filing of written submissions by the appellant had passed.

15    The appellant’s written submissions outlined grounds of appeal that were not strictly articulated in the notice of appeal and the appellant did not seek to amend his notice of appeal. Further, the appellant’s written submissions concerned arguments that were not put before the Federal Circuit Court. Accordingly, the appellant requires leave to rely on the grounds stated at paragraph 4 of the written submissions, being:

The decision of the Tribunal is affected by jurisdictional error, and thereby:

a.     deprived the appellant of the meaningful hearing to which he was entitled under s 425 of the Migration Act 1958 (Cth) (Act); and

b.    further and alternatively, constructively failed to exercise its jurisdiction to review the delegate’s decision because the Tribunal misunderstood the appellant’s claims and evidence.

c.    The decision is unreasonable.

16    Paragraph 2 of the appellant’s written submissions also raised an issue pertaining to the quality of the interpretation at the hearing before the Tribunal. The appellant notes that his submissions were provided late because it had been difficult, slow and expensive to gather evidence on the errors in the interpretation before the Tribunal. The appellant stated that this was so because the hearings were long, the audio quality was poor and the services are generally expensive. No issue as to the quality of the interpretation in the Tribunal were raised before the Federal Circuit Court.

17    Finally, the appellant also raised at the hearing that he had problems with his memory. It appeared that by such statements the appellant was raising a possible issue that the Tribunal did not consider this in undertaking the hearing before it.

Application for adjournment

18    Although it was not specifically requested by the appellant, it appeared from some of his statements during the hearing that he was, in fact, seeking to adjourn the hearing of the appeal.

19    In particular, I note the statement of the appellant that he had only received the appeal book 14 days before the hearing at his home address, and then specified that he had received it on 26 July 2018. The appellant did not understand the appeal, as English is not his first language, but he stated that he discussed it with his lawyer.

20    At the hearing of the appeal, however, Ms Helsdon for the Minister provided correspondence in the form of an email and letter to the appellant, enclosing the appeal book, dated 26 June 2018. That correspondence was marked as Exhibit 1(R) in the appeal.

21    When asked whether he wanted to add anything to the written submissions handed up in Court, and if he wanted to rely on the written submissions, the appellant stated that he also needed to talk to his lawyer, who intended to make additional submissions. At a later point during the hearing, the appellant stated that an incident in relation to his finding a weapon was a really important point, but that he could not elaborate unless his lawyer was present.

22    While I sympathise with litigants seeking to prosecute appeals in a language other than their first language and in a difficult area of law, no grounds of substance were advanced to justify adjourning the hearing of the appeal. The appellant clearly received the appeal book in advance of the hearing of the appeal – on the material before the Court he received it sometime on or around 26 June 2018. It may be that the appellant could have benefited from legal representation, however he appeared in person, in circumstances where his arguments appeared to have had the benefit of legal advice, and there was nothing before me indicating any prospect of him arranging legal representation in this appeal.

23    In the circumstances I proceeded to hear the appeal.

Leave to rely on additional grounds of appeal

24    The principles regarding whether leave should be granted to rely on additional grounds of appeal that were not argued before the primary Judge are well-established. An appellate Court will permit an appellant to raise new arguments only where it is expedient in the interests of justice to do so: see Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510, Primary Health Care Limited v Commonwealth of Australia [2017] FCAFC 174 and Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; (2017) 255 FCR 486. This will usually entail at least consideration of whether there is an explanation for the failure to raise the grounds before the Federal Circuit Court, whether the respondent will suffer prejudice as a result of the new grounds being agitated, and whether the grounds have sufficient merit.

25    The Minister accepted that he would not suffer any prejudice if leave were granted, and was able to provide a substantive response to the appellant’s additional grounds at the hearing.

26    However, the appellant has not directly offered an explanation as to why these grounds were not argued before the Federal Circuit Court. As to this consideration, I also note that the appellant was assisted by a representative in the Federal Circuit Court and appears to have been provided with some degree of legal advice in preparation for this hearing.

27    In summary, I do not consider that the additional grounds on which the appellant sought to rely have sufficient merit to warrant a grant of leave.

28    In support of the appellant’s complaint that the Tribunal failed to comply with its obligations under s 425 of the Act, the appellant contended, in summary, as follows:

    The Tribunal came with “an apprehended decision” to refuse the appellant’s application before it.

    The Tribunal focused too heavily on finding inconsistencies in the appellant’s claims rather than on whether the appellant satisfied the relevant criteria for a protection visa.

    The appellant had trouble with his memory and was unable to give accounts because of the separation from his family.

29    Examining the proposed grounds of appeal and the submissions together, however:

    A high standard of proof is required to establish a claim of apprehended bias. It would be practically impossible to do this in the absence of transcripts of the proceedings before the Tribunal. The Tribunal’s decision record and reasons do not demonstrate that the test for apprehended bias has been met.

    To the extent that the appellant claims he was denied a meaningful hearing because of the quality of translation before the Tribunal, there is no evidence before the Court to substantiate either way whether the translation service provided in the Tribunal was adequate.

    The Tribunal did have regard to what the appellant described as trouble with his memory at [37] of its reasons for the decision, and had regard to this in considering the inconsistencies in the appellant’s evidence.

    Contrary to the submission of the appellant that the Tribunal misunderstood his case – it is apparent from its detailed reasoning that the Tribunal did understand his case but accepted only some of his claims.

    The appellant sought to rely on statements in his written submissions relating to his brother’s death, the incident at his employer’s home and an incident at a park, to explain further various elements of his claim. However, in its reasons the Tribunal concluded that the appellant had fabricated some elements of the claim. The appellant’s submissions on this point only expressed disagreement with the findings of the Tribunal in relation to the appellant’s claims and credibility. These submissions are essentially an invitation to engage the Court in impermissible merits review.

30    The appellant also submitted that the Tribunal erred in deciding that the appellant’s statutory declaration should have contained all of the facts in relation to his application, even though the appellant had submitted the statutory declaration as a summary of his claims and not as an exhaustive statement. This issue was argued before the primary Judge in ground of review 1(a). As his Honour explained, the Tribunal found the statutory declaration should have contained relevant matters and had all the relevant facts explaining why the appellant would be targeted on his return to Sri Lanka, and no reasonable or sufficient explanation was given by the appellant to the Tribunal as to why there were inconsistencies between the statutory declaration and later oral evidence of the appellant. As his Honour noted, in light of these inconsistencies it was open to the Tribunal to conclude that subsequent oral evidence was fabricated.

31    No error is evident in his Honour’s reasoning in this respect.

32    Finally, as to the proposed ground of appeal referable to legal unreasonableness, the appellant has not advanced in oral or written submissions any basis for contending that the decision of the Tribunal was unreasonable. Rather, as the Minister submitted, by this ground the appellant appears only to take issue with the outcome of the Tribunal’s merits review decision. In the absence of any particularisation as to why the decision was legally unreasonable, this ground is evidently without merit.

33    It is appropriate to refuse the appellant leave to rely on the proposed grounds of appeal in these circumstances.

The grounds in the notice of appeal

34    In respect of the grounds of appeal that did appear in the notice of appeal, the Minister submitted that the appellant has failed to particularise any error on the part of the primary Judge, or indeed any jurisdictional error on the part of the Tribunal. The Minister further submitted that, even in the absence of particularisation by the appellant in his grounds of appeal, the decision of the primary Judge does not reveal appellable error and accordingly the primary Judge was correct to find that the Tribunal’s decision was not affected by jurisdictional error.

35    The Minister submits that the first ground of appeal is not sufficiently particularised, such that it is possible to find that the primary Judge erred in some respect or that the Tribunal fell into jurisdictional error. I agree. I also note that this ground has been drafted so as to allege jurisdictional error on the part of the primary Judge, rather than the Tribunal. No basis on which the primary Judge failed to constructively exercise the Court’s jurisdiction has been advanced by the appellant. This ground of appeal is without merit.

36    In the second ground of appeal the appellant claims that no reasons for judgment were published by the primary Judge. It is not in dispute however that his Honour delivered his reasons ex tempore on 24 January 2018, and further that those reasons were certified and uploaded on the Commonwealth Courts Portal on 3 April 2018. The appellant has not since sought to amend the notice of appeal to remove this ground. This ground of appeal is also without merit.

conclusion

37    In the circumstances, it is inappropriate to grant leave for the appellant to rely on the additional grounds of appeal in the written outline of submissions provided at the hearing. Further the grounds of appeal that do appear in the notice of appeal are without merit and do not disclose any error on the part of the primary Judge or, indeed, on the part of the Tribunal.

38    The appropriate order is that the appeal be dismissed with costs.

Associate:

Dated:    11 October 2018