FEDERAL COURT OF AUSTRALIA

BPI17 v Minister for Immigration and Border Protection (No 2) [2020] FCA 252

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

3.    Leave to rely on the new grounds of appeal raised in the submissions provided to the Court on 13 February and 3 March 2020 be refused.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia made on 18 September 2019 dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), made on 3 April 2017. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).

2    The appellant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia on 12 April 2017. The application was filed pursuant to s 476 of the Act which grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to assessing jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

3    On 12 February 2018, the Federal Circuit Court dismissed the application summarily pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth): BPI17 v Minister for Immigration [2018] FCCA 356. On 19 February 2018, the appellant applied to the Federal Court for leave to appeal from the Federal Circuit Court’s decision. On 8 May 2018, Charlesworth J allowed that appeal: BPI17 v Minister for Immigration and Border Protection [2019] FCA 637. Her Honour concluded that “the primary judge dismissed the application for judicial review too lightly or misapplied the test applicable on an application for summary judgment” (at [33]). Accordingly, her Honour remitted the matter to the Federal Circuit Court, differently constituted, for the hearing and determination of the application for judicial review of the Tribunal’s decision.

4    On remitter, the Federal Circuit Court was not satisfied that the appellant had demonstrated jurisdictional error and dismissed the application: BPI17 v Minister for Immigration [2019] FCCA 2657.

5    The appellant appeals from that decision of the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth). The appellant’s notice of appeal states a single ground of appeal, that the decision of the Federal Circuit Court is affected by jurisdictional error. I understand the ground to mean that the Federal Circuit Court erred in failing to find that the decision of the Tribunal is affected by jurisdictional error. Three particulars of the alleged error are given, which reproduce the particulars of jurisdictional error raised before the Federal Circuit Court. The particulars are as follows (errors in original):

(a) The tribunal was required to consider if the applicant had a well founded fear of persecution or a real risk of significant harm in the reasonably foreseeable future if he returned to Sri Lanka. It was required to consider if there was a real chance or a real possibility of the applicant suffering persecution or harm upon his return and the AAT has formed a mindset that his claim was contrived and then failed to properly address the issue of his fear of UNP political opponents and not taken into account the profile of his father in law. Subsequently, it was the manner in which the findings were arrived at by the tribunal and it was not open for the tribunal to make such a finding and the Court erred by affirming that finding.

(b) The tribunal has given scant consideration to his fears of persecution because he was a Buddhist who converted to Christianity and not considered the opportunities he would have to practice his religion openly and without fear of repercussions from the nationalistic Buddhist organisations and the court has erred by affirming its decision.

(c) The tribunal has not properly considered the alternative criterion in s.36(2)(aa), that is, whether there are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm, given his religious & political beliefs and the court has erred by affirming that finding.

6    By written submissions dated 12 February 2020, the appellant raised a number of new contentions as follows:

(a)    First, the Tribunal did not give any consideration to the second written submission from the appellant’s second migration agent.

(b)    Second, the Tribunal “omitted to get certain country information and new claims which the Applicant’s Solicitor had put to it during Tribunal Application AND country situation should be considered now as the current President is Godabya Rajapaksha, who is the brother of Mahinda Rajapaksha (a former President) who was mainly involved in the political matters to which the Applicant has previously referred to”.

(c)    Third, the Tribunal’s finding at [65] of its reasons, that the appellant travelled from Australia to Singapore for business purposes, is incorrect. The appellant noted that his protection visa application dated 14 February 2014, at question 34, stated the purpose of the travel was to extend his visa for re-entry into Australia.

(d)    Fourth, the appellant said that he did not receive the appeal book until 12 February 2020, which was after the time the Minister was required to serve the appeal book.

(e)    Fifth, the Tribunal erred at [22] of its reasons in recording the delegate’s finding that the appellant travelled to Australia in December 2013. The appellant said that he applied for a visa in December 2012 to attend a cricket match but he didn’t travel at that time. He subsequently used the visa to travel in 2013 with the intention of applying for a protection visa.

7    The appeal was listed for hearing on 26 February 2020. The appellant filed a further submission on that date applying for an adjournment on the bases that he had not received the appeal book in time and he did not have legal representation. The submission also reiterated two of the new issues in the submissions dated 12 February 2020.

8    As to legal representation, the appellant stated that he could not afford to engage a lawyer. While the inability to obtain legal assistance is disadvantageous to the appellant, it is well settled that, in civil proceedings such as these, the rules of procedural fairness do not extend to requiring the provision of legal representation: NSW v Canellis (1994) 181 CLR 309 at 329 per Mason CJ, Dawson, Toohey and McHugh JJ; Elliott v ASIC (2004) 10 VR 369 at 412; ASIC v Reid (No 1) (2006) 151 FCR 540 at 545; Foster v ACCC [2012] FCA 953 at [18]–[19]; SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244 at [30].

9    As to the service of the appeal book, on 2 October 2019 the Court made orders requiring the Minister to serve the appeal book on the appellant 15 business days before the hearing date, which was 5 February 2020. For reasons that are not known, and through no fault of the Minister, it appears that the appellant may not have received the appeal book until 12 February 2020. In an affidavit affirmed 24 February 2020, a legal assistant employed by the Minister’s solicitors, Corey Jade Antonowicz, deposed that:

(a)    the Minister’s solicitors served a copy of the appeal book by sending it by ordinary post to the appellant’s address for service on 21 January 2020;

(b)    on 28 January 2020, the appellant sent an email to the Minister’s solicitors stating that he was yet to receive the appeal book;

(c)    on 4 February 2020, the Minister’s solicitors asked the appellant to confirm his address for service and whether he had received the appeal book as at that date;

(d)    on 11 February 2020, the appellant sent an email to the Minister’s solicitors stating that he still had not received a copy of the appeal book; and

(e)    on 11 February 2020, the Minister’s solicitors sent a further copy of the appeal book to the appellant by registered post.

10    It therefore appears that the appellant did not receive the appeal book until 10 business days before the hearing date, rather than 15 business days. In the circumstances, I adjourned the hearing for 1 week and gave the appellant leave to file a further submission by 3 March 2020.

11    The appellant filed a further submission on that date. The submission repeated a number of issues already raised in the appellant’s notice of appeal, and in the written submissions dated 12 February 2020 (both of which are set out above). The submission also raised the following additional contentions:

(a)    First, the Tribunal erred by “failing to conduct the hearing in a manner that was fair and just. The Tribunal made findings where there was no evidence to base such a finding and further, the Tribunal made decisions which were not logical.” The appellant included particulars in support of this contention to the effect that the Tribunal failed to “try to learn about the political pattern in Sri Lanka where many members cross over to the opposing party”.

(b)    The appellant contended that the Tribunal erred by failing “to consider and made an error about the previous migration agent for not having raised such claims and my delay my application for protection visa as I was collecting my evidence (eg – photos) later, that same migration agent MARA licence was cancelled due to misconduct”.

12    The appellant’s submissions filed on 3 March 2020 also stated that the appellant relied on his written submissions made on 12 January 2018, 16 February 2018, 15 July 2019, 12 February 2020 and 26 February 2020 and his affidavit filed on 19 February 2018. In relation to those documents, I note that:

(a)    The submissions made on 12 January 2018 and the affidavit filed on 19 February 2018 were made in relation to the summary judgment application before the Federal Circuit Court and were superseded by the appellant’s submissions dated 15 July 2019 at the second Federal Circuit Court hearing.

(b)    The appeal book did not contain any submissions dated 16 February 2018. At the hearing, I asked the appellant whether he could identify any such submissions. The appellant replied that he would need to look for them at home. I gave the appellant leave to provide any such submissions to the Court after the hearing, to ensure that all submissions that were before the primary judge were also before the Court on this appeal. The appellant subsequently provided to the Court a copy of the draft notice of appeal dated 16 February 2018 in relation to the appellant’s appeal from the Federal Circuit Court’s decision of 12 February 2018 summarily dismissing the appellant’s application for judicial review. The grounds set out in that draft notice of appeal were considered by Charlesworth J in her Honour’s decision allowing that appeal. The grounds are irrelevant to the present appeal.

(c)    The submissions made on 15 July 2019 were the submissions made to the primary judge. In considering the appeal, I have had regard to the submissions dated 15 July 2019, 12 and 26 February 2020 and 3 March 2020.

13    The appellant appeared at the hearing of the appeal and made brief submissions with the assistance of an interpreter.

A preliminary question

14    It is apparent from the record that the principal submissions advanced by the appellant before the primary judge were the submissions dated 15 July 2019. As discussed below, a central contention advanced by the appellant in those submissions, under review ground (a), was that the Tribunal’s reasons gave rise to an apprehension of bias.

15    The primary judge’s reasons correctly set out the appellant’s grounds of review. However, the reasons make no express reference to the appellant’s submissions of 15 July 2019 and do not address the question of apprehended bias. Instead, the reasons refer to (and extract) the appellant’s submissions dated 12 January 2018 (filed on 15 January 2018) which were submissions filed in connection with the first hearing before the Federal Circuit Court for summary dismissal.

16    There is no doubt that the primary judge sought to address the appellant’s grounds of review, and did so in light of the appellant’s submissions dated 12 January 2018 as well as the Minister’s submissions. I also observe that the primary judge carefully examined the Tribunal’s reasons and considered what it understood to be the appellant’s challenges to those reasons. However, having read the primary judge’s reasons carefully, I have reached the view that his Honour did not address the contentions raised in the appellant’s submissions dated 15 July 2019, including particularly the contention concerning apprehended bias. As a consequence, the primary judge erred in failing to afford the appellant a fair hearing: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. I also consider the primary judge’s failure to be material to the outcome. While there was significant overlap in the matters raised by the appellant in his submissions of 12 January 2018 and 15 July 2019, the later submissions were more detailed and, as already noted, raised a contention of apprehended bias. I consider that the primary judge’s failure to address those submissions entitles the appellant to a new hearing.

17    A question then arises whether, in the circumstances of this case, this Court should remit the matter to the Federal Circuit Court for rehearing or determine the question whether the Tribunal’s decision is affected by jurisdictional error, pursuant to the Court’s powers under ss 24 and 28 of the Federal Court of Australia Act 1976 (Cth). That question has arisen in the context of migration decisions on a number of occasions, including SZKLO v Minister for Immigration and Citizenship (2008) 102 ALD 115 (SZKLO), AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452 (AAM15), SZULE v Minister for Immigration and Border Protection [2019] FCA 2136 (SZULE) and very recently in EDI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 171 (EDI16). In each of SZKLO (at [41]), AAM15 (at [14]) and SZULE (at [48]ff), the Court expressed the view that it is generally undesirable for the Federal Court, in its appellate jurisdiction, to determine grounds of review that were not addressed by the Federal Circuit Court, as to do so would undermine the appellate nature of the Federal Court’s jurisdiction and would be inconsistent with the processes of review as prescribed by the legislature. Nevertheless, in a given case there may be considerations that point in the opposite direction. In SZULE, Flick J observed (at [52]):

But in such cases the purity of the legislative scheme is in fact frequently sacrificed by this Court in order to ensure that justice is done as between the litigants. Considerations as to the proper administration of justice frequently dictate that an appeal should be dismissed if grounds of review are found by this Court on appeal to expose no error: e.g. CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150 at [93], (2018) 265 FCR 572 at 599 per Collier, Markovic and Lee JJ. To remit these cases to the Circuit Court constituted by a different Judge would only be to endorse a consideration of the case by three or more Judges – one being the primary Judge who has expressed either very inadequate reasons or no reasons; the second being a Judge (or three Judges) of this Court hearing the appeal; the third being a different Judge of the Circuit Court hearing the proceeding upon remittal to that Court; and the fourth being, potentially, another Judge of this Court hearing a second appeal. Neither the party seeking review, nor the Minister, should be forced to follow such a torturous route in their quest for justice.

18    I respectfully agree with the conclusion of Wheelahan J in EDI16 (at [32]) that “the authorities show that there are no hard and fast rules as to when it would be appropriate for this Court on appeal to embark upon a consideration of arguments that the Court below, in error, had failed to consider. What order is appropriate will depend upon the circumstances of the individual case: SZULE at [43]”.

19    In the present case, I consider that the appropriate course is for this Court to determine the appellant’s grounds of review in light of the appellant’s submissions dated 15 July 2019 and the submissions filed in this Court. In the circumstances of this case, I consider that adopting that course is procedurally fair to the appellant and promotes the interests of justice by facilitating the resolution of the dispute as quickly, inexpensively and efficiently as possible. The relevant circumstances are the following:

(a)    First, the contentions advanced by the appellant in his submissions dated 15 July 2019 were addressed by the Minister in his submissions before the primary judge dated 18 July 2019 and 19 August 2019. Accordingly, the parties have joined issue on the contentions advanced by the appellant before the primary judge, and the appellant has been on notice of the Minister’s arguments and contentions since that time.

(b)    Second, the appellant’s first set of submissions filed in this Court on the appeal did not refer to, nor reproduce, the appellant’s submissions of 15 July 2019. Despite that, the Minister anticipated that the appellant may seek to rely on those earlier submissions in this appeal and the Minister’s submissions dated 18 February 2020 addressed the appellant’s submissions of 15 July 2019. Thus, when the appellant expressly referred to and relied upon its submissions of 15 July 2019 in its third set of submissions filed in this Court, there was no need for the Minister to file any further submissions. The opposing contentions had been identified in submissions filed in the Federal Circuit Court and had been identified in the submissions filed in this Court.

(c)    Third, in determining this preliminary issue, it has been necessary for the Court to give detailed consideration to the appellant’s submissions dated 15 July 2019 and the Minister’s opposing submissions, in order to understand the issues raised before the primary judge and the disposition of the issues by the primary judge. In the circumstances, the just resolution of the issues in dispute as inexpensively and quickly as possible favours the determination of the issues by this Court.

(d)    Fourth, a compounding factor in this case is that it has already generated two Federal Circuit Court hearings and a Federal Court hearing. The present hearing is the fourth judicial hearing in relation to the original Tribunal proceeding. Unless required by the interests of justice, it is undesirable that the matter be remitted to the Federal Circuit Court with the possibility, if the Federal Circuit Court were to dismiss the application, that there would be a further appeal to this Court.

20    Accordingly, the remainder of these reasons address the appellant’s contentions as originally advanced before the Federal Circuit Court and as supplemented on this appeal. For the reasons that follow, I find that the appellant’s submissions dated 15 July 2019, if considered by the Tribunal, would not have made a difference to the outcome and that the appellant has not otherwise established that the Tribunal’s decision is affected by jurisdictional error. I accordingly dismiss the appeal.

Background

21    The appellant is a male citizen of Sri Lanka.

22    In making his application for a protection visa, the appellant has been required to articulate his claims on a number of occasions. It is relevant to set out the various claims made by the appellant on each of those occasions, as they bear upon the Tribunal’s adverse credibility findings.

23    The appellant’s visa application sent to the Department on 14 February 2014 records that the appellant is of Sinhalese ethnicity and Buddhist religion. He was born in 1971 in Colombo, received 14 years of education and has been continuously employed throughout his adult life in Sri Lanka. He has travelled to Australia on 3 occasions, in 1998, 2008 and 2013. On the third occasion, he remained in Australia for 3 months from 25 July 2013 to 25 October 2013. He then travelled to Singapore for 3 weeks and returned to Australia on 14 November 2013. The visa application states that he travelled from Australia to Singapore in order to get an extension on his Australian visa. Although the appellant then returned to Australia on 14 November 2013, he did not lodge an application for a protection visa until 14 February 2014.

24    In the visa application, the appellant stated that he left Sri Lanka in July 2013 because of death threats received from his ex-wife’s family and “underworld people”. The appellant provided the following background:

(a)    He married his first wife in June 2005. At that time, the appellant was conducting a successful business selling motor vehicles. His first wife was 17 years younger than the appellant. His then father-in-law is well connected in politics.

(b)    The appellant conducted his business through a company called Katsuki Auto Traders Pty Ltd, importing vehicles from Japan and Singapore. His wife became a director of the company.

(c)    The marriage was not happy and his first wife decided to leave and sought a divorce. His first wife and her family demanded money from the appellant as part of the divorce. Ultimately, the appellant agreed to pay a smaller amount than demanded, on the basis that his business was not going well. The family said that they would demand more if his business improved.

(d)    From 2009, the appellant conducted his business through a new company called Hiruni Motors Pty Ltd.

(e)    The appellant met his second wife and they married in January 2011 at St Thomas Church. A daughter was born at the end of 2011.

(f)    The appellant’s business improved. By the beginning of 2013, the appellant began building a new house. The news spread and his ex-wife’s family began to harass him for money. Unidentified persons visited his workplace, showed him weapons, warned him not to go to the police and threatened to kidnap his daughter.

(g)    In June 2013, the appellant was abducted by armed men, driven away in a van and held for 2 hours. The men demanded money and gave the appellant 2 months to obtain it.

(h)    The appellant travelled to Australia in July 2013 to escape the threats, travelling on a tourist visa that he had previously obtained.

(i)    Since travelling to Australia, the appellant’s second wife has received threats.

(j)    The appellant fears for his life and those of his family. He believes that he will not receive protection in Sri Lanka because his ex-father-in-law is well connected in politics and the police.

25    In a subsequent undated written statement titled “Applicant’s Additional Claims”, the appellant reiterated the above claims and added the following details:

(a)    His ex-father-in-law was a Member of Parliament from 2001. He has a very close relationship with Mr Ranil Wickremasingha who is a member of the United National Party (UNP). Mr Wickremasingha attended the appellant’s wedding to his first wife and signed as a witness. At that time, he was the opposition leader in the Sri Lankan parliament.

(b)    After the presidential election in Sri Lanka on 8 January 2015, the government changed and Mr Maithripala Sirisena became president and Mr Wickremasingha became Prime Minister.

(c)    When the appellant was abducted in June 2013, he was hit once. The appellant signed some blank cheques and gave them to his abductors.

26    The delegate’s decision dated 4 May 2015 records that, at an interview held by the Department of Immigration and Border Protection on 17 March 2015, the appellant again reiterated the foregoing claims and made the following additional claims:

(a)    A few days after his departure, his wife spotted an unmarked car in front of his house and rang the police. The appellant believes the car belonged to his ex-father-in-law’s men.

(b)    His wife also mentioned that she received some calls and some people were looking for him and asked for his whereabouts.

(c)    The appellant did not immediately apply for protection when he arrived in Australia as he was hoping the situation would improve.

(d)    There would be no guarantee of the appellant’s safety if he relocated to another part of Sri Lanka.

27    On 4 May 2015, the delegate refused the appellant’s visa application and on 19 May 2015 the appellant applied to the Tribunal for review of the delegate’s decision.

28    The appellant provided the Tribunal with a written statement dated 7 February 2017 which contained materially different claims. In summary, those claims were as follows:

(a)    In Sri Lanka, politics has been dominated by two main parties, the UNP and the Sri Lanka Freedom Party (SLFP), which in 1994 became the People’s Alliance (PA). The appellant’s father was a member and supporter of the UNP. The appellant also became a supporter.

(b)    The PA has often been involved with the criminal underworld.

(c)    The appellant’s ex-father-in-law has influence and political power. That is illustrated by the fact that the appellant’s wedding to his first wife was attended by Mahinda Rajapaksa, the then Prime Minister and future President of Sri Lanka, Mr Wickremasingha, the current Prime Minister and UNP leader, and Karu Jayasuriya, the current Speaker of the Sri Lankan parliament.

(d)    At that time, the PA was in power and Mrs Chandrika Kumaratunga was the then President of Sri Lanka. She was replaced by Mr Rajapaksa at the presidential elections in November 2005.

(e)    The appellant actively supported the UNP. However, his ex-father-in-law asked him to support the PA because they were in power. The appellant refused which caused annoyance to his ex-father-in-law. Over time, their relationship became strained.

(f)    The appellant actively supported the UNP during the 2010 elections. He received threats and harassment and believed that his ex-father-in-law was behind the majority of those threats.

(g)    After the appellant remarried in 2011, his business picked up and he purchased land to build a house. His ex-father-in-law subsequently resumed his threats and harassment and used his political influence to harm the appellant for being a strong supporter of the UNP and for not paying a proper property settlement to his daughter. For instance, the cars that the appellant was importing from overseas would be held in customs for a very long time or would go missing.

(h)    The appellant stated that his religion was Roman Catholic and that he had converted from Buddhism to Catholicism in 2011 when he married his second wife, who was Roman Catholic. This religious conversion was not well received by his parents and relatives, who disowned him and he had very little contact with them after his marriage. Sri Lanka is a Buddhist country and conversion to another religion, especially Christianity, is frowned upon by Buddhists, especially the fundamentalist Buddhists, who have in the last few years become a very strong organisation. The appellant believes that he will face discrimination when people learn of his conversion to Christianity.

(i)    The appellant believes that, if returned to Sri Lanka, he will face significant harm (within the meaning of s 36(2)(aa) of the Act) from the political forces that are associated with his ex-father-in-law, Mr Wickremasingha and Mr Jayasuriya, which also include the police, because the appellant has been a member and financial supporter of the UNP.

29    In the written statement, the appellant said that he had mentioned most of the above claims to his previous migration agent, but was told that he did not need to go into detail, as he could mention all of this when interviewed. The appellant said that, as the agent attended the interview, the appellant was of the belief that the agent would raise these issues. The appellant now believes that he was not properly advised and that the full extent of his claims has not been properly put before the Department.

30    The appellant’s written statement was accompanied by various documents. One of the documents recorded that the appellant’s ex-father-in-law had stood for elections between 2001 and 2010 on behalf of the UNP.

Tribunal decision

31    The Tribunal set out in some detail the claims that had been made by the appellant. In the course of its reasons, the Tribunal highlighted what it considered to be inconsistencies in the claims made by the appellant, as well as the making of new claims over time. Those matters were a significant reason for the Tribunal making adverse credibility findings in respect of the appellant’s claims.

32    The Tribunal highlighted that, in the appellant’s statement to the Tribunal, the appellant had made a new claim of fearing harm because of his and his family’s political affiliation to the UNP. The Tribunal noted that that claim had not been made by the appellant in his visa application, his written statement titled “Applicant’s Additional Claims” (despite giving emphasis to his ex-father-in-law’s political connections), or in his interview with the Department (at [36] – [38]). The Tribunal recorded that, at the hearing, it had asked if the appellant was a member of the UNP and the appellant stated that he was. When the Tribunal asked the appellant whether he had a membership card, the appellant altered his evidence to state that he was only a supporter of the UNP, and not a member (at [39]).

33    As to the appellant’s claim that he had told his previous migration agent about his UNP involvement, but was told not to go into detail, the Tribunal noted that the appellant’s visa application was detailed and included a considerable amount of information about his circumstances and difficulties he claimed to have with his ex-father-in-law. The Tribunal also noted that the appellant himself had written his application but had not mentioned any involvement with the UNP. Indeed, the application referred to the fact that his ex-father-in-law was politically connected, but made no reference to the appellant’s political activities on behalf of the UNP (at [40]).

34    The Tribunal did not accept the appellant’s explanation for not referring to his UNP involvement in his visa application, and only raising it for the first time before the Tribunal, and concluded that the claim was not a true claim and that the appellant had contrived the claim in an attempt to strengthen his refugee convention claims (at [46] and [47]).

35    The Tribunal also highlighted an inconsistency in the appellant’s claims concerning his ex-father-in-law’s political affiliation. The documentary evidence provided by the appellant showed that the appellant’s ex-father-in-law had previously stood for and been elected as a member of parliament for the UNP, the political party opposed to the PA. The information provided by the appellant demonstrated that his ex-father-in-law had been involved with the UNP for an extended period of time, including between 2001 and 2011 (at [49]). Given that evidence, the Tribunal rejected the appellant’s claim that his ex-father-in-law had been angry at the appellant for supporting the UNP (at [50]).

36    The Tribunal stated that it had significant concerns regarding the overall credibility of the appellant arising from what it found to be false claims relating to the UNP (at [51]).

37    The Tribunal concluded that the appellant would not face a real chance of serious harm or a real risk of significant harm arising from any involvement with or support for the UNP (at [52]).

38    As to the appellant’s claims relating to his conversion to Christianity, the Tribunal observed that this was a new claim raised for the first time before the Tribunal. The Tribunal made the following findings about the claim (at [54] – [62]):

(a)    The claim contradicted a statement in the appellant’s visa application that his religion was Buddhism.

(b)    The appellant stated that he could only get married in a church if he was a Christian, which the Tribunal accepted as a reasonable argument.

(c)    The appellant could not recall when he had converted and said that he had gone to one class before converting.

(d)    The appellant was vague about his involvement in Christianity.

(e)    When asked about the discrimination he had experienced as a Christian, the appellant stated that his family did not support his conversion and he had been ostracised by them and was not invited to family events. He had only remained in contact with his mother.

(f)    The appellant claimed that Buddhist monks could cause problems and there were strong sentiments from nationalist Buddhist groups in society. The Tribunal asked if the appellant had ever been affected by such community sentiments and the appellant stated that he had not been.

(g)    The appellant claimed that he had been discriminated against in business because of his religion. However, the Tribunal noted that the appellant had claimed that, since his marriage to his second wife, his business had improved and the appellant agreed with that.

(h)    The appellant identified his religion and his place of marriage at the time of his visa application and made no reference to any conversion or any issues that had arisen from any conversion, including problems with his family, at that time. Nor did he make reference to the conversion at any time in the visa application process before the Department.

39    The Tribunal concluded that any difficulties the appellant had with his family since his conversion do not constitute serious harm or significant harm as defined in the Act (at [62]) and that the appellant would not face a real chance of serious harm or a real risk of significant harm arising from his being a convert or a practising Christian in Sri Lanka (at [63]).

40    In relation to the appellant’s initial claims arising out of his divorce from his first wife, the Tribunal took into account the appellant’s delay in making those claims after arriving in Australia, relying on Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 (at 349). When questioned why he did not apply for a protection visa when he arrived in Australia at the first instance, given the appellant’s claim that he feared for his life, the appellant stated that he could not find a suitable lawyer, he had been in hiding and did not want to expose himself, including to the Sri Lankan community in Australia. The Tribunal found that explanation to be contrived and that the appellant’s delay demonstrated that he had limited concern for his welfare upon return to Sri Lanka (at [68] – [69]).

41    The Tribunal rejected the appellant’s initial claims based on its adverse credibility findings, referred to above, and also based on the inconsistencies in the initial claims. It is unnecessary to detail all of the inconsistencies relied on by the Tribunal and it is fair to say that some are more significant than others. The more significant matters concerned the appellant’s apparent prosperity in the period to 2009, when the appellant claimed that his business was not succeeding and that he had persuaded his first wife and ex-father-in-law to accept a smaller divorce settlement because of his lack of funds. The Tribunal found that that central claim was contradicted by the statement in his visa application that, from August 2009, he was the managing director of Hiruni Motors, drawing a salary and profits from the company (at [77]), his evidence to the Tribunal that he had sold his house in 2009 (at [79]) and the evidence of the appellant’s significant overseas travel from late-2007 to mid-2009 (at [80]).

42    Ultimately, the Tribunal concluded that the appellant would not face a real chance of serious harm arising from any interaction with his ex-father-in-law or people acting on his behalf, now and in the reasonably foreseeable future, and that the appellant does not have a well foundedfear of persecution for that reason (at [95]). On the same basis, the Tribunal concluded that the appellant would not face a real risk of significant harm for that reason (at [96]).

Federal Circuit Court Decision

43    The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia pursuant to s 476 of the Act. The grounds of review were as set out earlier, which are relied on in this appeal.

44    In respect of ground (a), the primary judge concluded that the Tribunal was entitled to make adverse credibility findings against the appellant, having regard to the large number of factual inconsistencies in the appellant’s claims (at [37]) and the appellant’s delay in seeking protection in Australia in 2013 (at [38]).

45    In respect of ground (b), the primary judge rejected the contention that the Tribunal had given “scant consideration” to the appellant’s claim to fear persecution if returned to Sri Lanka because he had been a Buddhist who had converted to Christianity. The primary judge observed that the Tribunal had considered this claim at [53] – [63] of its reasons.

46    In respect of ground (c), the primary judge rejected the contention that the Tribunal failed to appropriately engage with the appellant’s claims that he was deserving of complementary protection. The primary judge observed that the same findings underpinned the Tribunal’s conclusion with respect to the refugee criterion in s 36(2)(a) and the complementary protection criteria.

Consideration of appeal grounds

Appeal ground (a) – apprehended bias

47    The central contention in appeal ground (a) is that the Tribunal “formed a mindset” that the appellant’s claim was contrived and then failed to properly address his fear of UNP political opponents and did not take into account the profile of his ex-father-in-law.

48    In respect of this ground, the appellant’s written submissions dated 15 July 2019 were largely directed to the contention that the Tribunal’s decision gave rise to apprehended bias. The appellant relied on many authorities concerning apprehended bias including Johnson v Johnson (2000) 201 CLR 488 at 492-493 [11]-[12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294 per Mason, Murphy, Brennan, Deane and Dawson JJ; and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345 [6]-[8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

49    While the appellant correctly stated the legal principles concerning apprehended bias, he did not correctly apply them. The basis for the submission that the Tribunal’s decision gave rise to a risk of apprehended bias was the appellant’s disagreement with the Tribunal’s factual findings. The submissions criticised the Tribunal’s observations about the evidence and factual findings. The difficulty with the appellant’s submissions is that they do not demonstrate that any of the findings made by the Tribunal gave the appearance of bias. They merely join issue with the Tribunal’s findings as a matter of fact and criticise the Tribunal for not accepting the appellant’s explanations for apparent inconsistencies in his evidence.

50    I accept the Minister’s submissions that the rule against bias does not require the absence of any predisposition or inclination for or against an argument or conclusion (see for example Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia Legeng) at [72] per Gleeson CJ and Gummow J). The underlying principle is that the Tribunal ought to have (and be perceived to have) an open mind, not that it must have an empty mind (see for example Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at [38], citing R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554; Jia Legeng at [72]). Put another way, “[t]he question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion”: Jia Legeng at [71]. Thus, the appellant must show that the bystander might reasonably apprehend that the Tribunal might have been so committed to a particular conclusion as to be incapable of alteration, whatever evidence or arguments the appellant might present: Sharma v Minister for Immigration and Border Protection (2017) 256 FCR 1 (Sharma) at [23]. In making an evaluative judgment as to whether the Tribunal’s conduct gives rise to apprehended bias, the Court must recognise that the Tribunal is entitled to engage in a “robust and forthright testing” of an applicant’s claims and evidence (see for example SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [24]). In that context, it is apt to have regard to the inquisitorial role of the Tribunal, which the bystander is taken to be aware of: Sharma at [24]. In NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264, Allsop J (as his Honour then was) observed at [19] (Moore and Tamberlin JJ agreeing):

The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.

51    I reject the appellant’s contention that the Tribunal failed to engage meaningfully with his claims. As summarised above, the Tribunal assessed the appellant’s claims, including those relating to his fear of harm based on his and his family’s affiliation to the UNP and the political influence exerted by his ex-father-in-law, in detail and at considerable length. The appellant did not identify any particular aspect of his claims that was not considered by the Tribunal. Ultimately, the appellant’s complaint is that the Tribunal did not accept his claims and found that the appellant had fabricated many aspects of his claims.

52    Adverse credibility findings are not immune from judicial review, but to establish jurisdictional error it is ordinarily necessary to show that the findings were based on illogical or irrational findings or inferences of fact: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 per Gleeson CJ and McHugh J and at 657 per Gummow J; Re Minister for Immigration and Multicultural Affairs; ex parte applicant S20/2002 (2003) 73 ALD 1 at [5] per Gleeson CJ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 at [37] – [38] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS). However, judicial review does not involve mere merits review – it is not enough for the question of fact to be one on which reasonable minds may differ: SZMDS at [96] and [130] per Crennan and Bell JJ; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at 122.

53    In his submissions dated 15 July 2019, the appellant made the following specific criticisms of the Tribunal’s reasons. In my view, none of the criticisms identify jurisdictional error:

(a)    The appellant criticised the Tribunal’s statement at [51] that it had significant concerns regarding the overall credibility of the appellant arising from what the Tribunal found to be false claims concerning the appellant’s support for the UNP (submissions para 4). The criticism does not identify jurisdictional error. It is not irrational or perverse for a decision maker not to be positively satisfied of claim B where the decision maker has found that the witness has contrived claim A.

(b)        The appellant criticised the Tribunal’s reasoning at [64] – [69] as to its concerns about the appellant’s delay in applying for a protection visa (submissions para 5). In my view, the Tribunal’s reasoning was open to it.

(c)        The appellant referred to the Tribunal’s reasons at [71] where it characterised the appellant’s evidence to have been threatened in the past as “quite vague and contradictory”, but did not explain why the finding was erroneous (submissions at para 6). The appellant then expressed concern about the Tribunal’s discussion at [72] concerning photographic evidence of his first marriage, on the basis that the Tribunal’s statements were an adverse credibility finding. The concern was misplaced. It is clear from [72] that the Tribunal accepted the appellant’s evidence (including in light of the photographic evidence) as to his first marriage.

(d)        The appellant referred to the Tribunal’s statement at [73] that the appellant was vague as to when divorce proceedings commenced (submissions at para 7). Despite that, the Tribunal accepted the date on which the divorce occurred. There is no jurisdictional error in the finding.

(e)        The appellant criticised the Tribunal’s statement at [76] that it had noted that it was “somewhat unusual” that the appellant’s wife would be a co-director of the appellant’s company, Kitsuki Auto Traders, at a time that was “near the end of the relationship” (submissions at para 8). The Tribunal’s statement appears to be the Tribunal recounting, in narrative fashion, its testing of evidence at the hearing. The Tribunal did not ultimately reject this evidence.

(f)    The appellant criticised the Tribunal’s findings at [77] regarding the timing of his operation of his second company, Hiruni Motors (submissions at para 9). In my view, the Tribunal’s reasoning was open to it. The Tribunal’s concern was with the inconsistency between the appellant’s different claims as to when he started operating the second company that he created in July 2009. He stated that he “did not operate the company for some time [until 2011] to show that he did not have much money”, and yet elsewhere stated that he drew a salary and profits for the company since August 2009. No error has been shown in the Tribunal’s finding.

(g)    The appellant criticised the Tribunal's reasoning at [78] regarding whether his business was doing well (submissions at paras 10 and 11). The appellant had said he had sought to “limit the car stock on show, so as to demonstrate that he was not doing well”. But the Tribunal found that other evidence provided by the appellant contradicted that claim, specifically photographs of the car yard showing a full yard of vehicles and car advertisements. In my view, it was open to the Tribunal to find that the evidence did not support the appellant’s claim that he was not successful in business at that time. The appellant has not demonstrated error in the Tribunal’s findings.

(h)    The appellant criticised the Tribunal’s reasoning at [79] concerning the sale of the appellant’s home in 2009 and the appellant’s explanation to his ex-father-in-law that the appellant had to settle with the bank (submissions at para 12). The appellant submitted that the Tribunal failed to explain why it did not accept the appellant’s evidence concerning his interactions with his ex-father-in-law at that time. The criticism must be rejected. It is apparent from the Tribunal’s reasons that it found the appellant’s evidence implausible. The implausibility arose from the claims that the appellant’s ex-father-in-law was aggressively seeking money from the appellant and yet, when the appellant received a large sum of money from the sale of his home, the father-in-law was satisfied with a statement from the appellant that the money had to be paid to the bank. In my view, it was open to the Tribunal not to be satisfied about the appellant’s claims in light of the totality of the evidence given by the appellant and the overall doubts over the appellant’s credibility (previously expressed by the Tribunal).

(i)    The appellant criticised the Tribunal’s reasoning at [84] where the Tribunal found that the evidence showed that the appellant’s business had continued to do well and that that was likely to have been apparent to people who were interested in the appellant (submissions at para 14). The appellant’s criticism is based on the incorrect premise that the Tribunal’s reasoning at [84] was directed to the period after 2011 (when the appellant conceded that his business was doing well). The Tribunal’s reasoning was directed to the period between 2009 and 2011 when the appellant claimed his business was not doing well. The Tribunal did not accept the appellant’s claim having regard to the information available to it and, in my view, was open to it.

(j)    Later in his submissions (at para 16), the appellant returned to the Tribunal’s finding that the appellant’s claims about his support of the UNP, and his ex-father-in-law’s animosity to him by reason of that support, were false. The appellant submitted that he had explained to the Tribunal why he had not raised those claims before the delegate, that his migration agent had advised him that it was not necessary, and that that explanation was not implausible. The Tribunal considered the appellant’s claim and his explanation for the delay in raising the claim at [37] to [51], the key aspects of which are set out above. In my view, the Tribunal’s reasoning on that question cannot be regarded as legally unreasonable or illogical. The fact that the appellant’s explanation of the delay in making the claim is “not implausible” does not demonstrate jurisdictional error on the part of the Tribunal. The Tribunal’s finding that the claim was fabricated was open to it.

(k)    The appellant submitted that the Tribunal failed to take into account the fact that his ex-father-in-law was a highly influential politician, illustrated by the fact that the then Prime Minister and future President of Sri Lanka, Mahinda Rajapaksa, and the current Prime Minister and UNP leader (as at the date of the Tribunal hearing), Ranil Wickremasingha, were present at the appellant’s wedding (submissions at paras 28 and 29). That submission is incorrect. The Tribunal accepted that the appellant’s ex-father-in-law was a UNP politician and that then President Rajapaksa and now Prime Minister Wickremasingha attended the appellant’s wedding (at [25] and [49]).

Appeal ground (b) – conversion to Christianity

54    By ground (b), the appellant contended that the Tribunal gave scant consideration to his fears of persecution because he was a Buddhist who converted to Christianity. The appellant’s written submissions dated 15 July 2019 did not elaborate on that contention.

55    As noted above, the primary judge rejected that contention, observing that the Tribunal had considered this claim at [53] – [63] of its reasons. I agree with his Honour’s conclusion. After noting various inadequacies in the appellant’s evidence concerning his claimed conversion to Christianity, the Tribunal ultimately concluded, based on the appellant’s evidence and the available country information, that any difficulties the appellant has had with his family since his conversion does not constitute serious harm or significant harm as defined in the Act (at [62]). The Tribunal considered the claim and no error has been shown in the Tribunal’s conclusion.

Appeal ground (c) – complementary protection

56    By appeal ground (c), the appellant contended that the Tribunal did not properly consider the complementary protection criterion in s 36(2)(aa). The appellant contended in the written submissions dated 15 July 2019 that the Tribunal ought to have considered whether, if returned to Sri Lanka, the appellant would be at risk of harm as a failed asylum seeker and from being detained through the influence of his ex-father-in-law.

57    The appellant had not raised the claim of fearing harm as a failed asylum seeker before the Tribunal and accordingly it was not considered by the Tribunal. Accordingly, there was no error in the Tribunal failing to consider such a claim. In relation to the claim of fearing harm from being detained through the influence of his ex-father-in-law, the primary judge rejected the contention that the Tribunal failed to consider the claim under the complementary protection criteria. The primary judge observed that the same findings underpinned the Tribunal’s conclusion with respect to the refugee criterion in s 36(2)(a) and the complementary protection criteria in s 36(2)(aa). I agree with his Honour’s conclusion. The Tribunal rejected the factual premise of the appellant’s contention that the appellant’s ex-father-in-law would seek to harm him in the future (at [98]). No error has been shown in that factual finding.

58    The appellant has failed to demonstrate jurisdictional error in the Tribunal’s reasons based on grounds (a) to (c), taking into account the appellant’s submissions of 15 July 2019.

Consideration of new grounds of appeal

59    As noted above, the appellant raised additional grounds in the written submissions provided to the Court on 13 February and 3 March 2020.

60    Leave to advance the new grounds is required. The usual approach of the Court in migration appeals such as the present was described by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 in the following terms (at [48]):

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

61    The appellant was not represented before the Federal Circuit Court, which explains his failure to raise the grounds below. For the following reasons, though, I consider that the new grounds have no merit and I therefore refuse leave for them to be raised on this appeal.

Submissions dated 13 February 2020

62    As noted earlier, by written submissions filed on 13 February 2020, the appellant sought to raise four new contentions or grounds of appeal. The appellant also objected to the late receipt of the appeal book, but that objection was cured by an adjournment of the hearing of the appeal.

63    The first ground is that the Tribunal did not consider the appellant’s “second written submission from the second migration agent”. This is a reference to the appellant’s written statement dated 7 February 2017 (which was provided to the Tribunal by letter dated 8 February 2017) referred to above. In that submission, the appellant raised, for the first time, his claims that he was a supporter of the UNP and that that support, and his refusal to support a rival political party, were the cause of his ex-father-in-law’s threats and harassment. Contrary to the appellant’s contention, it is apparent that the Tribunal did consider that submission. The Tribunal quoted the submission at length (at [26]) and engaged with that submission in its reasons. As explained above, the Tribunal disbelieved the new claims made in that submission, partly as a result of the failure of the appellant to raise the claims at an earlier stage of his application and partly as a result of inconsistencies in the claims made. In my view, there is no substance to this new ground.

64    The second ground is that the Tribunal erred by failing to “get certain country information and new claims” which the appellant’s solicitor had put to the Tribunal. The ground is difficult to understand, and the appellant did not make any meaningful submissions in relation to the ground at the hearing of the appeal. The appellant was not represented by a solicitor before the Tribunal, and the reference to the appellant’s solicitor must be intended to be a reference to the appellant’s migration agent. It is wholly unclear what country information the Tribunal failed to “get”. In so far as the complaint is that the Tribunal failed to consider the country information and claims provided to it by the appellant’s migration agent on 8 February 2017, the complaint must be rejected. As noted in the preceding paragraph, the Tribunal set out the new claims at [26] of its reasons and referred to the additional personal and country information provided by the appellant at [25] and [27] of its reasons. The Tribunal assessed those claims at [36] – [52] of its reasons. In my view, this new ground lacks merit.

65    The third ground is that the Tribunal erred in finding (at [65] – [67]) that the appellant travelled to Singapore in October 2013 for business reasons, rather than travelling for the purpose of renewing his tourist visa. The appellant relied on the fact that, at question 34 of his visa application, he stated that the purpose of his travel to Singapore was to extend his visa for re-entry to Australia. There are a number of difficulties with this ground. First and foremost, the appellant gave inconsistent reasons for travelling to Singapore in October 2013 in his visa application. It is correct that, at question 34, the appellant stated that the purpose of his travel to Singapore was to extend his visa for re-entry to Australia. However, at question 45, the appellant stated that the purpose of the travel to Singapore was for business. At [65] – [67], the Tribunal recorded the two different explanations for the travel to Singapore. The Tribunal concluded that the true purpose of the travel was business. In reaching that conclusion, the Tribunal took account of the length of time that the appellant remained in Singapore (3 weeks) and the fact that the appellant did not apply for a protection visa immediately upon return to Australia but waited a further 3 months. In my view, that finding was open to the Tribunal and is not affected by jurisdictional error. This new ground lacks merit.

66    The fourth ground is that the Tribunal erred at [22] of its reasons where the Tribunal stated:

The delegate included some further information regarding his claims.

In December 2013 he travelled to Australia to attend a cricket match and to save his life from his father-in-law and his men who want to harm him.

67    It can be seen that the Tribunal reproduced a part of the delegate’s decision in which the delegate recorded what it understood to be the appellant’s circumstances and claims. The appellant contended that that the circumstances were incorrectly recorded by the delegate. The appellant applied for a tourist visa in December 2012 to attend a cricket match in Australia, but he did not travel at that time. The appellant then used that visa when he came to Australia in July 2013.

68    The appellant’s complaint about the delegate’s finding can be accepted as far as it goes. It is correct that the evidence indicates that the appellant had applied for a tourist visa on 20 December 2012, which he was granted on 7 January 2013 and which expired on 7 January 2014, and that the appellant travelled to Australia in July 2013. However, the review does not concern the delegate’s decision. It concerns the Tribunal’s decision. The Tribunal did not adopt the delegate’s finding as its own. The Tribunal correctly recorded the appellant’s travel dates (at [21] and [65] of its reasons) and the Tribunal records the appellant’s claim that he had earlier obtained, but not used, a tourist visa (at [26] of its reasons). The Tribunal does not make any finding that contradicts those facts. In my view, the appellant has not shown error in the Tribunal’s findings and this proposed ground has no merit.

Submissions dated 3 March 2020

69    As noted earlier, by written submissions dated 3 March 2020, the appellant raised two new contentions or grounds of appeal.

70    The first contention is that the Tribunal erred by “failing to conduct the hearing in a manner that was fair and just. The Tribunal made findings where there was no evidence to base such a finding and further, the Tribunal made decisions which were not logical.” The appellant provided the following particulars in support of that contention:

Supporting UNP. Why father in law was against me supporting the UNP as he is an active member of the UNP. Tribunal did not even try to learn about the political pattern in Sri Lanka where many members cross over to the opposing party. For example, the current President – who was elected into power late 2019, took revenge on the previous government by getting a former member arrested.

71    The particulars appear to be a criticism of the Tribunal’s rejection (at [50]) of the appellant’s claim that his ex-father-in-law was angry at him for supporting the UNP. However, the particulars do not identify any jurisdictional error on the part of the Tribunal in rejecting that claim. They merely express disagreement with the factual finding made by the Tribunal. As discussed earlier in the context of ground (a) and the appellant’s submissions dated 15 July 2019, in my view the Tribunal had a rational basis for rejecting the appellant’s claim arising from the delay in the appellant raising the claim (about his political affiliation with the UNP) and the inconsistency in the claim (the evidence showed that the appellant’s ex-father-in-law had also been affiliated with the UNP between 2001 and 2011). No new issue is raised by the submission.

72    The second contention is that the Tribunal erred by failing “to consider and made an error about the previous migration agent for not having raised such claims and delay my application for protection visa as I was collecting my evidence (eg – photos) later, that same migration agent MARA licence was cancelled due to misconduct”. At the hearing, the appellant withdrew the submission that his migration agent’s licence had been cancelled due to misconduct. In relation to the balance of the contention, the appellant referred to paragraph 23 of the Federal Circuit Court decision, where the primary judge addresses the Tribunal’s reasoning with respect to the appellant’s claims that his and his family’s political affiliation to the UNP caused the animosity from his ex-father-in-law. The appellant’s criticism of this aspect of the Tribunal’s reasons has also been discussed earlier in the context of ground (a) and the appellant’s submissions dated 15 July 2019. As noted above, the Tribunal rejected this aspect of the appellant’s claim in part because of the delay in the appellant raising the claim. The appellant sought to explain the delay on the basis of advice he had received from his migration agent. The Tribunal rejected that explanation. The Tribunal did not accept that the appellant would fail to mention his and his family’s political affiliation to the UNP in circumstances where he took the opportunity to explain his fear of harm from his ex-father-in-law and his ex-father-in-law’s political connections, as well as providing information about the UNP and politics in Sri Lanka (at [46]). In my view, the finding was open to the Tribunal in that it had a rational basis.

Conclusion

73    In conclusion, none of the matters raised by the appellant demonstrate jurisdictional error on the part of the Tribunal. In those circumstances, the apparent failure of the primary judge to consider the appellant’s submissions dated 15 July 2019 did not make any difference to the outcome. For the reasons given, I refuse leave for the appellant to raise the new grounds of appeal as they have no merit, and I dismiss the appeal and order that the appellant pay the Minister’s costs.

Associate:

Dated:    12 March 2020