Federal Court of Australia

SZTKE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1582

ORDERS

THE COURT ORDERS THAT:

1.    Leave be refused to rely upon ground 2 in the further amended notice of appeal dated 8 September 2021 and filed by leave on 15 September 2021.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia). By those orders the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal, the second respondent, was dismissed with costs. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse the grant of a protection visa to the appellant. That was the second Tribunal decision, a prior decision of the former Refugee Review Tribunal (RRT) having been quashed.

2    The appellant, a citizen of Sri Lanka, arrived in Australia by boat in mid-2012 and applied for a protection visa later that year. His initial claims were in a statutory declaration accompanying his application. The claims that he made dealt with events in the period leading up to his departure from Sri Lanka to come to Australia and may be summarised as follows.

3    In 2009, he was injured during a shelling attack during the war between the Sri Lankan Army (SLA) and the Liberation Tigers of Tamil Eelam (LTTE), but could not seek immediate medical treatment. The following month, the SLA was rounding up people in the area and as part of that he was taken to a military detention camp. About a week later, he was interrogated and as part of that assaulted with batons, with that being repeated a few days later. A month or so after that, he was released, after his family paid a bribe. At the time of being released, he was told by camp officials to avoid being seen as he did not have documents to show he had been released. He felt traumatised and feared for his life, so decided to leave Sri Lanka and go to India. He returned to Sir Lanka less than a year later in 2010 as his family told him things had improved slightly and they wanted him home. A month or so later, plain-clothed men came to the family business and asked for him, were told he no longer worked there, and told a sibling to advise them if he returned. After that incident he stopped working for the family business. About 18 months later in 2012, people who had been released from the camp started being rounded up again, including a friend who has not been seen since. The appellant feared for his safety, including that he would be rounded up again or would disappear, and thought he could not remain in Sri Lanka. The next month he began making arrangements to leave and soon after that in mid-2012 he left Sri Lanka by boat for Australia.

4    The above claims were subject to scrutiny by the Minister’s delegate, with some inconsistencies emerging and aspects of the claims changing throughout the questioning process. The RRT noted that the appellant stated that neither he nor any family members had any connection with the LTTE or other Tamil groups. That statement assumed some significance before the Tribunal, before the primary judge, and in this appeal.

5    The main reason that the appellant’s visa application failed was that the delegate, after considering country information, did not accept that he was of ongoing interest to the Sri Lankan authorities because of any imputed association with the LTTE prior to his departure. The delegate was also satisfied that the appellant did not fit the profile of returned Tamils whom the Sri Lankan authorities would be interested in because of any real or perceived link with the LTTE. Nor was the delegate satisfied that there was a real risk of the appellant facing significant harm as a necessary and foreseeable consequence of being returned to Sri Lanka so as to give rise to complementary protection obligations.

6    The delegate’s decision was affirmed by the RRT, and an application for judicial review failed in the Federal Circuit Court. As an additional claim, he told the RRT he had undertaken compulsory training with the LTTE, but did not make any claims of being a member of the LTTE or of being a combatant in the civil conflict. The RRT decision was quashed by a judge of this Court and remitted to be heard and determined afresh. That re-determination was done by the Administrative Appeals Tribunal. As part of that process, the Tribunal advised the appellant’s migration agent that he should provide a written submission setting out all claims made and maintained. Part of the response was the provision of a one-page witness statement for a witness who was called at the subsequent Tribunal hearing.

7    The burden of the witness statement was that the appellant was a casual friend whom he had met in Sri Lanka in 2007, and later met again in Sydney and continued the friendship. The statement said that:

(1)    in 2007 the witness was working for the LTTE as a driver, transporting LTTE fighters, food, medicine and sometimes materials, and on occasion was required to carry back wounded or killed LTTE fighters;

(2)    around that time, as a driver the witness picked up the appellant “several times and took him to his workplace”; and

(3)    the witness was able to confirm that the appellant was a member of the LTTE.

8    The appellant’s claims before the Tribunal included those before the delegate, but were made fundamentally and qualitatively different by the addition of a new claim that he was a former member and combatant in the LTTE from 2007, and that the injury he had sustained two years later in 2009 was as a member of the LTTE.

9    The appellant attended a hearing of the Tribunal in June 2016. He provided to the Tribunal written submissions, a letter from the Tamil Coordination Committee of May 2016 concerning Tamil diaspora activities in Australia, a report by a mental health social worker dated 18 May 2016 which contained the first reference to the claim to be a member and combatant of the LTTE, and certain other documents. He also provided post-hearing submissions and items of country information on the situation in Sri Lanka.

10    Towards the end of the Tribunal hearing the appellant stated that in 2007 he undertook compulsory training with the LTTE when he was in their controlled area, that one person from every home had to join the LTTE and that he had done so. He said he received training in operating a mortar which was the activity he was engaged in when he was injured two years later in 2009. He relied upon the 2016 social work report where the author stated that the appellant had disclosed that he had been a member of the LTTE since he was 18 and had not mentioned this because he feared being detained and deported to Sri Lanka, raising this for the first time in person at the Tribunal hearing in June 2016. As noted above, he had told the RRT he had undertaken compulsory training, but had not made any claims of being a member of the LTTE or of being a combatant in the civil conflict.

11    The Tribunal accepted the appellant’s age, Tamil ethnicity, that he was born in the northern area of Sri Lanka, and that he and his family moved from place to place in the north and east to avoid the military conflict between the LTTE and the SLA during the years of civil conflict. The Tribunal also accepted that close relatives may have once been suspected of LTTE involvement, but stated that the evidence indicated that they were living in Sri Lanka and did not currently have any problems with authorities. The key reasons of the Tribunal relevant to this appeal were as follows:

[28]    The delegate’s decision record notes that the applicant stated that neither he nor any family members had any connection to the LTTE or other Tamil groups. He claimed that his family had avoided being in the LTTE by one older brother moving to [a town] in 1998 and living with an aunt because the LTTE had been recruiting at that time. He stated that his younger brother … had moved to [the town] in 1999, though later returned to [another town] during a period of peace. His brother in [another country] had been suspected of being in the LTTE as he had been living in the [the other town] and it was mandatory at the time to go through training with the LTTE. The applicant was born in the [the second town] but had obtained a card that said he was born in [the first town]. He claimed his deceased father had been a supporter of the LTTE.

…

[38]    The applicant brought a witness to the hearing who claimed he was of Tamil ethnicity and that he came to Australia in 2012 and that he had applied for a protection visa. He claimed he was a driver for the LTTE in 2007 and that he had transported the applicant and other members [between two towns] in his truck. He stated that he had not had any other contact with the applicant in Sri Lanka and they happened to meet each other in 2013 at a local function in the community centre in [a suburb of Sydney].

[39]    The applicant also provided a social work report where the author of the report stated that he had been referred in February 2016 for counselling. That report indicated that he had disclosed that he had been a member of the LTTE since he was 18 years of age and that he had not mentioned this when he was in detention in Australia because he feared he would be detained and deported to Sri Lanka.

[40]    The applicant agreed that he had not mentioned his claim that he was member of the LTTE and a combatant until he attended the Tribunal hearing on 1 June 2016. He had told the previous Member that he had undertaken compulsory training but had not made any claims of being a member of the LTTE or a combatant in the civil conflict.

[41]     He stated that he had not mentioned this claim earlier in [the] application or review process because he feared that he might be taken into detention if he admitted his LTTE membership. He agreed that he had the advice of a representative from the time he made his protection visa application in 2012. However, he did not explain why he had now decided to disclose this information if he was afraid of being taken into detention.

[42]    The Tribunal has considered the evidence of the applicant carefully and taken into account the evidence given by his witness and the [social worker’s] evidence provided on 18 May 2016. It accepts that the applicant was born in [a town] and that he lived in an LTTE controlled area through much of the civil conflict. It also accepts that the applicant may have gone through compulsory training with the LTTE during the time he lived in [another area]. However, it does not accept that he became a member of the LTTE or that he was a combatant for the period of time he claims.

[43]    The applicant first made the claim that he attended compulsory LTTE training at the Tribunal hearing in 2013 and then later made the claim that he had been a member and combatant in 2016. At the interview with the delegate and in the Tribunal hearing he emphatically stated that he had not been a member of the LTTE and that, other than for his cousin, none of his family members had been members of the LTTE. By way of explanation for his earlier evidence he stated that he was afraid that he would be taken into detention in Australia if he admitted his involvement in the LTTE, however, if this was so, he did not explain why he decided to disclose this information at the Tribunal hearing in June 2016.

[44]    Further the Tribunal found his account of involvement as a combatant in the conflict to be vague and lacking in detail. He claimed he belonged to a unit and they moved around a lot but could not recall from where they operated.

[45]    The applicant found it very difficult to give any detail of his claims of membership of the LTTE or his involvement in combat. It did not appear that he could recall any relevant details of the period between 2007 and 2009 and the Tribunal does not consider he satisfactorily accounted for his movements in that period.

[46]    The Tribunal finds that the applicant may have undergone compulsory LTTE training including weapon training and may have attended a military camp run by the LTTE in 2007. The Tribunal has given no weight to the evidence given by the witness. The Tribunal did not find that his evidence that he recalled the applicant from one contact in 2007 when the applicant was apparently in a group of 10 other group members was reliable. The Tribunal does not accept that the applicant was a member of the LTTE or that he was a combatant from 2007 until March 2009.

…

[58]    The Tribunal does not accept the account of events given at the Tribunal hearing in June 2016. It considers that the applicant has changed his evidence to be consistent with his new claim that he was a member of the LTTE and a combatant at the time of the shelling incident. However, his earlier evidence was consistent with his initial claims and the Tribunal prefers that account of events to that given at the later Tribunal hearing.

…

[88]    The applicant’s representative made submissions that the applicant had been involved in Tamil activities in Australia following his arrival. He referred to a letter from the Tamil Association, which indicated that he was involved in a protest in Canberra against the visit by the Sri Lankan Foreign Minister. He stated that photographs of the protesters were taken by Sri Lankan authorities. He also stated that the applicant attended Tamil activities on Australia Day. As this appeared to be in the nature of a social event the Tribunal put it to him this did not appear to be particularly controversial. The applicant also attended Martyrs celebrations. He claimed these activities were monitored.

…

[132]    The applicant claims to attend activities organised by the Tamil Co-ordination Committee in Australia. These involve attendance at social events, a protest against the Sri Lankan government and attendance at Martyrs/Remembrance Day.

[133]    Whilst the Tribunal accepts that the applicant may attend these events it does not consider that attendance at these events, on its own, would give him a profile which would be adverse. There is no evidence that he is an activist involved in separatist activities and the Tribunal does not accept that he would face a real chance of harm for reasons of his attendance at Tamil diaspora activities.

12    Before the primary judge, the appellant was represented by counsel, who has since died. His then counsel pressed two out of six grounds of review. Those two grounds are in substance pressed on appeal, one having been abandoned and then sought to be reinstated. Leave is sought to advance a further ground that was never raised before his Honour.

Ground 1 (ground of review 5 before the primary judge)

13    The fifth ground of review before the primary judge asserted jurisdictional error by the Tribunal in assessing the evidence of the appellant’s witness, including denial of procedural fairness, a breach of s 425 of the Migration Act 1958 (Cth) and/or irrationality or illogicality. The primary judge essentially dismissed this ground of review as constituting no more than an available assessment of the witness’s evidence. The application of s 425 did not arise because this concerned a new claim of involvement with the LTTE not made before the delegate and new evidence in support of that claim. There was no issue of denial of procedural fairness in the process of evidence being taken and assessed. The primary judge also recorded the appellant’s counsel as conceding that the witness must have given evidence to the effect that he had only come into contact with the appellant once in 2007 when the witness saw the appellant in a group of 10 other group members. This was drawn from the Tribunal’s reasons at [38] and [46]. It is apparent that there was no transcript of the Tribunal hearing before the primary judge.

14    The primary judge characterised the witness’s oral evidence before the Tribunal as qualifying and restricting his witness statement. That is, his Honour inferred, the witness must have moved from the assertion that he had picked up the appellant several times, to an assertion that he had only one contact with the appellant in 2007 in the company of 10 other persons. Before his Honour, counsel asserted that the Tribunal was irrational, illogical or unreasonable in finding that the evidence was not reliable by reason of being based on only one contact with the appellant in a group of 10 others. The substance of that argument is maintained on appeal.

15    The primary judge cited and quoted from MZZGE v Minister for Home Affairs [2019] FCAFC 72 at [22] (which summarised Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]-[132], and Fattah v Minister for Home Affairs [2019] FCAFC 31; 268 FCR 33 at [45]) as to what might constitute irrationality or irrationality sufficient to give rise to jurisdictional error. The examples of irrationality drawn from those authorities referred to in MZZGE were no rational or logical decision-maker being able to have arrived at the decision on the same evidence, there being no logical connection between the evidence and inferences drawn, or there being an irrational or illogical step in reasoning which at least can be shown to have affected a material conclusion. This ground cannot be made out if logical or rational or reasonable minds might merely adopt different reasoning.

16    The primary judge applied MZZGE in reaching the following conclusions on this topic:

[32]    Assuming for present purposes that illogicality, irrationality or legal unreasonableness in connection with a mere finding of fact could establish jurisdictional error leading to the quashing of the Tribunal decision in this case, in my view there is no such illogicality, irrationality or legal unreasonableness.

[33]    [The witness] had originally stated in his Written Statement that he had “picked up the applicant several times and took him to his workplace”, without any suggestion that he was in the company of others. At the hearing before the Tribunal [the witness] gave evidence that he had transported the Applicant only once when he was in a group of 10 other group members. In coming to the view that [the witness’] evidence was not reliable in establishing that the Applicant was a combatant member of the LTTE, the Tribunal reasoned within a range of possible logical and intelligible justifications. Changes or inconsistencies in evidence given by a party or a witness which are not minor or trivial can rationally lead to an inference that the person’s evidence is not reliable. Here the changes in [the witness’] evidence were not minor or trivial. Whilst credibility findings must be made on probative material and logical grounds and are amenable to judicial review on jurisdictional error grounds, it remains the case that, as stated by McHugh J in Minister for Immigration and Multicultural Affairs, Re; Ex Parte Durairajasingham (2000) 168 ALR 407 at 423 [67]:

[67] …If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed...

[34]    In my opinion, the Tribunal’s view was not one which no logical or rational decision-maker could arrive at on the same evidence and it must in any event be seen, in the context of the Tribunal’s rejection for other reasons that are not attacked, that the Applicant was [ever] a member of the LTTE and its conclusion at [58] of its Decision Record that it did not accept the Applicant’s account of events given at the Tribunal hearing and considered that he had changed his evidence to be consistent with his new claim that he was a combatant member of the LTTE.

17    On appeal, review ground 5 is recast without objection by the Minister. It asserts that the finding concerning the reliability of the appellant’s witness at [46] of the Tribunal’s reasons lacked a logical basis and was material to the outcome. It also asserts that the primary judge had erred in not finding jurisdictional error upon this basis. The appellant relies upon the observations of the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [36]-[40]. The burden of [38] is that the fact-finding role of the Tribunal does not preclude challenges to credit or other factual findings on recognised grounds such as reaching a finding without any logical or probative basis, unreasonableness or jurisdictional error.

18    In support of this ground of appeal, the appellant adduced evidence of a transcript of the Tribunal hearing. This included this segment of the witness’ evidence manually transcribed by his solicitor by reference to an audio recording of the hearing, to which no objection was taken. That evidence was as follows (some minor typographical errors corrected):

Member: Can you tell me how you first met um the applicant?

Interpreter: 2007. When I was in LTTE. I have actually transported his team from one place to other.

Member: So where did you transport them from?

Interpreter: From [one town to another town].

Member: Ok so were you the driver were you?

Interpreter: Yes.

Member: Driver of a truck or a van?

Interpreter: Small truck.

Member: How many people did you take?

Interpreter: Fifteen to ten, different numbers every day we transport.

Member: OK and so um you knew him as someone in a team, that came to [a town]?

Interpreter: Yes, he was--

Member: Did you have any contact with him after he came to [the town]?

Interpreter: No no.

Member: So did you have any other contact with him at all?

Interpreter: No.

Member: OK. And so how did you meet up again?

Interpreter: After I came here, at Pendle Hill, at Pendle Hill here, when I went to the community Church, sorry community centre and the church when I went there, that’s where I met him.

Member: OK and when was that?

Interpreter: 2013.

Member: And have you had any contact with each other since then?

Interpreter: No. Whenever we meet they will speak.

Member: Is there anything else you want to tell me?

Interpreter: Um when I was in LTTE I knew that he is in LTTE he was in LTTE as well. And after I came here I found out. And that’s it, I know.

Member: Alright. Are there any other questions that you would like me to ask this witness?

Agent: That’s all.

19    The appellant’s own evidence on this topic was not inconsistent with his witness’s evidence. He said the witness was the driver of the vehicle who took him as one of 10 or 11 people from one town to another (being some distance apart).

20    The substance of the appellant’s argument was that giving no weight to the evidence of his witness was devoid of logic. However, the argument, presented at some length and with many factual assertions, at no point rose higher than suggesting ways and means by which a different conclusion could have been reached by the Tribunal. None of those arguments, which do not warrant repeating in letter and verse, demonstrated that the Tribunal’s reasons had the necessary impugned quality of or akin to being an irrational conclusion in the senses set out in MZZGE. As the primary judge correctly concluded, the Tribunal’s view was not one that no logical or rational decision-maker could arrive at. There was nothing wrong with the Tribunal effectively concluding that the witness’s claim to remember the appellant from a single encounter amongst a group of 10 others was unreliable.

21    It follows that this ground of appeal must fail.

Proposed ground 2 (advanced for the first time the week before the appeal hearing)

22    The appellant seeks leave to rely upon the following ground of appeal:

The credibility finding concerning the unreliability of the evidence of the totality of evidence concerning the Appellant’s claimed service within the LTTE from paragraphs [42]-[46], which was based on a rejection of the Appellant’s evidence and the giving of no weight to the witness evidence, was affected by

a.    failure to have regard to significant elements of the Appellant’s evidence concerning his claimed service in the LTTE

b.    lacked a logical basis and was material to the outcome: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[40]

23    There is no dispute that this ground was not before the primary judge, although the appellant’s solicitor describes it as being necessary, effectively building on ground 1 considered above. Leave is therefore required.

24    In Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, O’Bryan J (with whom Katzmann J agreed, Derrington J dissenting on the exercise of the discretion) said:

[110]    It is common ground that, since this issue was not raised below, leave is required to raise it on the appeal. The grant of leave is discretionary. Considerations that are relevant to the exercise of the discretion have been stated many times. As recently observed by Allsop CJ, though, the ultimate question is the interests of justice and “care is always necessary in a discretion of this kind not to over-conceptualise or over-categorise matters, which, in any particular case, may be seen to affect the interest of justice, into categories of consideration to be applied as rules or as a set of rules”: MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [2].

[111]    The starting point remains the importance to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial: Coulton v Holcombe (1986) 162 CLR 1 at 7. Nevertheless, an appellate court may allow a point to be raised for the first time on appeal where it is expedient and in the interests of justice and where the new ground could not have been met by calling evidence and would not have resulted in the case being differently conducted: Water Board v Moustakas (1988) 180 CLR 491 at 497. The usual approach of the Court in migration cases 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.

[112]    As the above cases emphasise, the merit of any proposed new ground is an important consideration to the grant of leave. This does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to decide whether the proposed new appeal ground has a reasonable prospect of success: NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [31].

25    Leave was granted in Tohi for three reasons. All of the evidence necessary to advance the point had been adduced at trial so as to minimise any prejudice to the Minister; the best interests of a child were directly in issue as a mandatory consideration in relation to the revocation of the cancellation of a visa on character grounds; and, the appeal ground had sufficient apparent merit (even though it did not ultimately succeed).

26    By contrast, in this appeal, at the impressionistic level of consideration appropriate for deciding whether leave should be granted, this ground of review (advanced as a ground of appeal) does not have readily apparent merit. The plain terms of this ground of appeal as pleaded and the appellant’s arguments in support of them, assessed in a way falling short of full consideration of the merits, indicate that the prospects of success are poor. The pleaded ground is replete with references to factual detail which strongly suggests delving into the merits of the factual assessment carried out by the Tribunal.

27    The appellant’s submissions, in keeping with the ground as pleaded, entailed subjecting the Tribunal’s reasons to line-by-line scrutiny with a very strong flavour of seeking merits review. The appellant took issue with how the evidence was summarised by comparing the transcript of the appellant’s evidence with the Tribunal’s reasons summarising aspects of it. The appellant took issue with expression, inclusion and exclusion of some of the details of what the appellant had said.

28    In contrast, the Tribunal’s reasons, read as a whole, even in the context of the hearing transcript, do not contain any obvious error or failure to describe what the evidence was. Rather, the reasons did not address certain details, and did not carry out an abstract analysis of material that was not a direct part of the evidence given. The criticisms made also include reliance on a range of contextual considerations, such as the overall effect of the civil war, and what might have been inferred from such background material.

29    The appellant was represented by experienced migration law counsel before the primary judge. No explanation has been attempted for the ground not being raised in the court below.

30    It has not been difficult to conclude that this ground of appeal would likely have received short shrift had it been advanced before the primary judge. There is no sufficient basis for the grant of leave. No explanation was provided for the ground not being advanced at the trial stage. The ground has no obvious merit and thus an absence of reasonable prospects of success. Leave is therefore refused to advance it for the first time on appeal.

Ground 3 (ground of review 2 before the primary judge)

31    Ground of review 2 before the primary judge asserted jurisdictional error on the part of the Tribunal when it found that there was no evidence that the appellant was an activist in relation to Tamil diaspora activities in Australia. The ground asserted that the correct question had not been asked, there had been a failure to take into account the Tamil Coordination Committee letter and the Tribunal had ignored the appellant’s activist activities in Australia.

32    The submissions by the appellant’s counsel before the primary judge did not align well with the ground of review, asserting that the appellant had not said he was an activist, but rather had merely been involved activities which would give rise to problems for him should he return to Sri Lanka. This ground as argued failed because the appellant had expressly claimed in his migration agent’s submissions before the Tribunal that he was an active participant in Tamil diaspora activities, an assertion also contained in the Tamil Coordination Committee letter. Those claims of being an activist had been rejected by the Tribunal.

33    The ground of appeal in the original notice of appeal and in an amended notice of appeal were the same as those before the primary judge. The ground of appeal in the further amended notice of appeal is pared back, relying verbatim upon only one of the three particulars of the ground of review as it was before the primary judge, with further detailed particulars, and with arguments advanced being somewhat different in their focus. The written submissions for the appellant, and a prior email from his solicitor, indicated that the ground in the amended notice of appeal was not pressed, but this was resiled from in the subsequent further amended notice of appeal and in a further email from the appellant’s solicitor. The Minister objected to the ground being revived at such a late stage. I decline to give effect to that objection. The appellant does not require leave to advance on appeal an aspect of a ground of review agitated before the primary judge given that it is sufficiently similar in substance and in the nature of the point being taken, even if the process of abandonment and reinstatement was regrettable and not to be encouraged.

34    The point now advanced turns on a comparison between the language in a part of the letter from the Tamil Coordination Committee of 24 May 2016, and the Tribunal’s findings at [88] and [132]-[133], reproduced at [11] above. The body of the letter said:

This letter is to state that [the appellant and his address] is an active participant in all of the activities conducted by the Tamil Coordination Committee (TCC) since 2012. In this time, [the appellant] has participated in numerous protests and events that support Tamil rights in Sri Lanka.

To highlight some of the key activities [the appellant] has participated in, they are listed below.

-    [The appellant] has taken part in every annual Australia Day event for Tamils held at Binalong Oval, Toongabbie since his arrival. Approximately 5000 Tamil Australians gather at this oval yearly to celebrate Australia Day. This is a family event with sports, stalls and various other entertainment.

-    [The appellant] has taken part in all the protests in both Sydney and Canberra to ask for an international investigation into war crimes against the Sri Lankan government. [The appellant] has also been in the frontline with other Tamil community members to protest the visit of Sri Lankan High Commissioner and alleged war criminal Admiral Thisara Samarasinghe in Australia. In this instance, Sri Lankan authorities had video-graphed and taken photos of the whole event.

-    [The appellant] is an active participant in annual Tamil events such as, Martyrs / Remembrance Day (Maaveerar Naal – Nov27) and Mullivaaikkaal Day (May 18th). It is noted that Sri Lankan authorities closely monitor, gather intelligence about these events and also try their maximum diplomatic powers to stop these events.

35    After referring to the submissions before the Tribunal and before his Honour, and quoting the Tribunal’s reasons at [88] and [132]-[133], the primary judge concluded at [27]:

In other words, the Tribunal did not accept that the Applicant would face a real chance of harm because of his attendance at Tamil diaspora activities in Australia, and in my view Ground 2 fails to establish that the Tribunal committed jurisdictional error, either in the terms of Ground 2 itself or anything submitted in support of Ground 2, either in Mr Kumar’s Written Submissions or as put forward by him at the hearing. The Tribunal did not fail to consider this claim and did not fail “to ask the correct questions” in relation to it, nor did it fail to take into account the letter from the People Coordinator for Australia of the TCC.

36    The ground of appeal asserts that the primary judge erred in failing to find that the Tribunal decision was affected by jurisdictional error when it found that the appellant had attended only one protest. It asserts that the Tribunal fell into this error by failing to take into account the second dash point reproduced above, and in its consideration of the nature and type of protest activities participated in by him and his prominent role in the frontline of those protests.

37    The substance of the first aspect of this ground turns on [88] and [132] of the Tribunal’s reasons. The argument advanced is that the second dash point above refers to “protests” as a plural in both Sydney and Canberra, yet the Tribunal’s reasons refer to only a single protest. The problem with this argument is that it fails to comprehend the difference between the material advanced in support of the claim made and the submissions that were made based upon that material. The Tribunal’s reasons at [88] are referring to the submissions made by the appellant’s representative, relying upon the letter, rather than the letter itself. The focus of the relevant part of that submission was on the second sentence in the second dash point, not the first sentence. That focus is understandable because the first sentence referred only fleetingly to the protests in both Sydney and Canberra, with no information about when they had taken place, or what the role or conduct of the appellant had been, and made no reference to the protestors being recorded. By contrast, the second sentence referred to the appellant being in the frontline with other Tamil community members to protest the visit referred to, and to that event being recorded by Sri Lankan officials. The Tribunal was entitled to correspondingly focus at [132] on the single more detailed incident that was relied upon, rather than the other incidents, some of which were not relied upon.

38    The substance of the second aspect of this ground takes issue with the conclusion reached by the Tribunal at [133] that while the appellant may attend the events summarised at [132], reflecting the letter, it did not consider that attendance alone would give him a profile that would be adverse. This was because it concluded that there was no evidence that he was an activist involved in separatist activities, and it did not accept that he would face a real chance of harm for reasons of attendance at Tamil diaspora activities. The substance of the argument is that the Tribunal should have given greater weight to the appellant’s frontline role, and to the protest being recorded. The problem with this argument is that it is no more than an appeal to merits review. While doubtless the Tribunal could have given more weight to those factors, it was not obliged to do so, and there was nothing illogical or irrational in not reasoning to the conclusion that the appellant sought.

39    The appellant has failed to establish any error at all on the part of the Tribunal, or any such error that amounted to a jurisdictional error, let alone any such error that was erroneously not detected by the primary judge. This ground of appeal must therefore fail.

Conclusion

40    As grounds 1 and 3 have failed, and leave has been refused to rely upon ground 2, the appeal must be dismissed with costs.

Associate:

Dated:    17 December 2021