AUF16 v Minister for Immigration and Border Protection
[2019] FCA 694
•17 May 2019
FEDERAL COURT OF AUSTRALIA
AUF16 v Minister for Immigration and Border Protection [2019] FCA 694
Appeal from: AUF16 v Minister for Immigration & Anor [2018] FCCA 3828 File number: VID 3 of 2019 Judge: WHEELAHAN J Date of judgment: 17 May 2019 Catchwords: MIGRATION – appeal from Federal Circuit Court – grounds of appeal general and unparticularised – application to raise new grounds of appeal refused on that basis – no error identified in Federal Circuit Court decision – appeal dismissed. Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration and Border Protection v Tesic (2017) 251 FCR 23 Date of hearing: 13 May 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 32 Counsel for the Appellant: The appellant appeared in person. Counsel for the First Respondent: Ms X Teo Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent filed a submitting appearance. ORDERS
VID 3 of 2019 BETWEEN: AUF16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
WHEELAHAN J
DATE OF ORDER:
17 MAY 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal, to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WHEELAHAN J:
Introduction
The appellant is a citizen of Sri Lanka who arrived at Christmas Island by boat on 3 August 2012. The appellant applied for a protection visa under s 65 of the Migration Act 1958 (Cth) on 18 December 2012. The application was refused by a delegate of the first respondent (Minister) on 21 February 2014. The appellant appeals a decision of the Federal Circuit Court of Australia dated 20 December 2018, which dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal dated 23 March 2016, which had affirmed the decision of the delegate of the Minister.
The appellant was unrepresented before the Federal Circuit Court, and was also unrepresented on the appeal to this Court. At the hearing of the appeal in this Court, the appellant addressed the Court through an interpreter.
Background
The appellant is of Tamil ethnicity. He claimed that, throughout his life, he had been denied basic human rights and opportunities by reason of his Tamil ethnicity. The appellant claimed that in recent times, the Sri Lankan government had introduced a program by which it was repopulating Tamil areas with Sinhalese, and that it was confiscating family lands, and giving the land to the Sinhala to use. The appellant claimed that the government was destroying temples, mosques and churches that affected his ability to pray, and follow his Hindu faith. The appellant claimed that in March 2012, he was stopped by the Sri Lankan Army (SLA), taken to their camp, and questioned about his association with the Liberation Tigers of Tamil Eelan (LTTE). The appellant claimed that the SLA released him after he had stated that he had no association with the LTTE, and that they told him that they would call him later. The appellant claimed that in June 2012 the SLA came to his home and asked his mother of his whereabouts. She told them that the appellant was at work, and they requested that the appellant attend their camp for further questioning. The appellant claimed that he did not comply with this directive and that the SLA then came to his home again two days later, and took him to their camp. He claimed that the SLA interrogated him and tortured him during this period of time. The appellant claimed that the SLA detained him for one day, and upon his release told him that they would call him when they required to see him, and that the SLA then attended his home on five to six further occasions, where they would interview him, seeking further details about him and whether he was going to work or not. The appellant claimed that the SLA threatened him with “abduction in a white van”. The appellant claimed that he remained fearful for his life, and in July of 2012 arranged transport to Australia by boat. The appellant claimed to fear that the Sri Lankan authorities will arrest and kill him on suspicion of his involvement in the past with the LTTE, and feared being abducted or shot in Sri Lanka as a Tamil. The appellant claimed that he had heard that he would be killed if he returned to Sri Lanka, and that the authorities in Sri Lanka would not protect him, because he was a Tamil. The appellant claimed that the police in Sri Lanka are all Sinhalese, and opposed to Tamils. The appellant claimed that he could not relocate anywhere within Sri Lanka, and that he believed that he would face ongoing threats from the Sri Lankan Government, and on this basis was fearful for his life and safety.
The decision of the Administrative Appeals Tribunal
On 25 February 2014, and following the delegate’s rejection of his application for protection, the appellant applied to the Tribunal (at that time, the Refugee Review Tribunal) for review of the delegate’s decision.
A legal representative of the appellant provided the Tribunal with written submissions dated 10 March 2016. In those submissions, the appellant’s claims were stated as follows –
1.His race/ethnicity as a Tamil;
2.His real and/or implied political opinion as a sympathiser or supporter of the LTTE or as someone seen to oppose the Sri Lankan government by holding Tamil separatist views or views supporting a renewal of hostilities against the government of Sri Lanka;
3.His membership of a particular social group including:
a. Failed asylum seekers;
b. Failed asylum seekers who have departed Sri Lanka illegally;
c. Failed asylum seekers who have spent a lengthy period of time in a Western country;
d. Tamils who are subject to bail conditions and/or who are being prosecuted for a criminal offence;
e. Family members of an LTTE member.
Much of the written submissions made on behalf of the appellant before the Tribunal concerned country information regarding the political climate in Sri Lanka. Amongst the submissions made was a submission that it was highly likely that upon his return to Sri Lanka the appellant would be detained and questioned under the Sri Lankan Immigrants and Emigrants Act 1949, and faced an increased risk of indefinite detention on account of his suspected link to the LTTE, during which he would be at serious risk of physical assault and torture. Alternatively, it was submitted that –
Even if, as per the standard procedures, [the appellant] is granted bail within a few days of returning, he will likely be subjected to closer monitoring than an ordinary Tamil returnee by the local authorities.
The Tribunal conducted a hearing on 15 March 2016 at which the appellant gave evidence with the assistance of a Tamil interpreter. The appellant was represented at the hearing before the Tribunal.
The Tribunal did not accept the appellant’s claims. The Tribunal considered that there were inconsistencies in the appellant’s accounts, and that other aspects of his claims were implausible. As to the inconsistencies –
(1)The Tribunal asked the appellant at the hearing when he first had problems with the authorities. The appellant claimed that the problems first occurred in June 2012 when the Army was investigating people who had been in refugee camps, and they had come and taken him. The Tribunal considered that this was not consistent with the appellant’s claim in his statutory declaration attached to his protection visa application that in March 2012 he was stopped by the SLA and taken to an Army camp and questioned about this association with the LTTE.
(2)Allied to the above inconsistency was that in his statutory declaration, the appellant had claimed that the SLA had visited his home in June 2012, when he was not there and requested that he attend the camp for further questioning, after which the SLA came two days later and took him to the camp. The Tribunal stated that the appellant had failed to mention during the hearing any visit by the SLA to his home when he was not there and the request to attend the Army camp prior to then being taken to the Army camp, and considered this to be an inconsistency.
(3)The appellant claimed at the hearing that he was detained for two days when he was taken to the Army camp in June 2012, however in his statutory declaration he claimed that he had been kept for one day.
(4)At the hearing, the appellant claimed that he was released from the camp because his parents went there and wept and begged the superior officer to release him, but this information had not appeared in his statutory declaration.
(5)At the hearing, the appellant claimed that about one week after his release from the SLA camp in June 2012, he saw and heard the SLA coming to his home, and ran out the back door and hid in the jungle behind his house, and claimed that after a week he went to his sister’s house and stayed there. The Tribunal stated that there was nothing in the appellant’s statutory declaration about going into hiding, or staying at his sister’s house after such an incident. The Tribunal observed that in his statutory declaration, and in contrast to the evidence that the appellant gave at the hearing, he claimed that after he was released from spending one day at the Army camp in June 2012, the SLA had attended his home five to six times and on each occasion they would interview him seeking further details.
(6)The Tribunal stated that when these matters were put to the appellant during the hearing, his response was that he forgets dates. The Tribunal stated that the problems identified in the appellant’s evidence were more than discrepancies in dates, but extended to a different account of what the appellant claimed to have been his personal experiences in Sri Lanka which motivated him to leave the country.
(7)The Tribunal also noted that according to the submission from the appellant’s legal representative to the Tribunal, it was stated that the appellant feared persecution by reason of his membership of a particular social group of “family members of an LTTE member”. The Tribunal put to the appellant at the hearing that there was nothing in his evidence, including during the hearing, to suggest that he had a family member who was a member of the LTTE, or that he had any fear in relation to this familial connection with an LTTE member, and that the appellant had failed to raise this particular claim until the Tribunal asked him directly at the conclusion of the hearing if he had family members who are members of the LTTE. When the Tribunal did ask the appellant, he stated that his aunt’s daughter was in the LTTE movement, and stated that he had been reluctant to give this information. The Tribunal also noted that, while the appellant had claimed during the hearing that it was his aunt’s daughter who was an LTTE member, according to the written submission from the appellant’s legal adviser the day before the hearing, the appellant had claimed that he had been the target of ongoing reporting, harassment, intimidation and threats of serious harm in Sri Lanka owing to his father’s links to the LTTE as a suspected fighter.
(8)The Tribunal also noted that the appellant had raised during the hearing a claim that he feared that he would be harmed if he returned to Sri Lanka by reason of his Hindu religion. The appellant claimed that “they” had destroyed all the Hindu temples, and were establishing Buddhist temples. When asked if he was able to practise his religion before he departed Sri Lanka, the appellant said that he was not, and stated that there were temples, but he could not go because the Army was monitoring the people and that they were now destroying the temples and using the premises for Buddhist practise. The Tribunal was critical of the appellant on the basis that it considered there was nothing in his evidence prior to the hearing suggesting that he had not been able to practise his Hindu faith in the past in Sri Lanka, and that although the appellant had claimed in his statutory declaration that “they” are destroying temples, mosques and churches which affected his ability to pray and follow his faith accordingly, the Tribunal considered that there was nothing in the appellant’s evidence prior to the hearing to suggest that he was unable to go to the temple, or was prevented from practising his faith as he had claimed in the hearing.
The Tribunal found other aspects of the appellant’s evidence, variously, implausible, and unconvincing. The Tribunal did not accept that the appellant was ever of any interest to the authorities in Sri Lanka, and it did not accept that after the appellant departed Sri Lanka that there were any visits made to the appellant’s home in June 2013 and January 2016 inquiring about his whereabouts, as the appellant had claimed.
In relation to complementary protection considerations, the Tribunal was satisfied that, based on country information, the appellant did not face a serious risk of harm, by torture or otherwise, as a failed asylum seeker. The Tribunal found that the appellant did not satisfy the complementary protection criteria, observing that on the basis of independent country information, it did not accept that there was a real risk of the appellant being arbitrarily deprived of his life, subjected to the death penalty, tortured or subjected to cruel or inhumane or degrading treatment or punishment from the Sri Lankan authorities or anyone else because of his Tamil ethnicity, an imputed political opinion, or his membership of a particular social group of young Tamil males from the North or any combination of these factors. Further, while the Tribunal accepted that the appellant would likely face arrest on charges of leaving the country illegally, and that he might be detained briefly prior to being released on bail, and might face a penalty, the Tribunal found on the basis of country information that the appellant would not face a real risk of being significantly harmed during such process.
The application to the Federal Circuit Court of Australia
By an application dated 7 April 2016 to the Federal Circuit Court, the appellant sought judicial review of the Tribunal’s decision on the grounds that it was affected by jurisdictional error, that he had been denied procedural fairness, and that the Tribunal had not properly considered the complementary protection criteria. The appellant’s grounds of review were as follows –
1.The decision of the Administrative Appeals Tribunal (Refugee Division) is affected by jurisdictional error.
Particulars
a. The tribunal was obliged to ask the applicant why he had said his aunt’s daughter had connections to the LTTE, when his adviser had previously stated it was his father who had connections to the LTTE. The applicant should have been given the opportunity to explain the discrepancy, as familial connections was an [sic] very relevant consideration for the tribunal to consider.
b. The tribunal has misconstrued the meaning of s 91R of the act, and/or by failing to take into account the Sinhalisation of the north.
2.The Tribunal failed to accord the applicant procedural fairness as required by s.425(1) of the Act.
Particulars
a. The Tribunal’s conclusion or assumption that the Applicant or his family or someone else would be able and willing to provide the guarantee required for the Applicant’s bail was ‘adverse’ to the Applicant and was ‘not open on the known material.’
b. The Tribunal did not give the Applicant ‘the opportunity of ascertaining’ that issue or the opportunity ‘to be informed of the nature and content of adverse material’ in relation to that issue:
c. The issue of whether a family member would act as a guarantor for the Applicant was a ‘crucial link’ in the Tribunal’s chain of reasoning, which the Tribunal had to identify to the Applicant in order to comply with s.425.
3.The Tribunal has not properly considered the alternative criterion in s36(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.
As I stated earlier, the appellant was unrepresented before the Federal Circuit Court. Each of the three grounds was rejected by the primary judge. The primary judge’s reasons were as follows –
Ground one
17. By ground one the applicant alleged that the tribunal erred by -
a)failing to ask him why he believed his aunt’s daughter had LTTE connections; and
b)misconstruing s 9lR of the Act by failing to consider the “Sinhalisation of the north” (the applicant’s words).
18.As to ground 1(a), contrary to the applicant’s allegation, the tribunal put to the applicant whether a member of his family was a member of the LTTE. The applicant was therefore provided with the opportunity to give evidence in respect of that issue. The tribunal is under no obligation to identify the significance of the questions it puts to an applicant or the ultimate matter in issue to which those questions go. The tribunal is not required therefore to descend into all the underlying factual matters of each issue when meeting its obligations under s 425 of the Act.
19.To the extent the applicant alleged a breach of s 424A of the Act, the tribunal was under no obligation to put to the applicant its thought processes, subjective appraisals or preliminary views, including any views it may have had regarding the credibility of the applicant’s claims.
20.Moreover, the tribunal’s rejection of the applicant’s claim that he had a family member in the LTTE was open to it given the applicant’s delay in raising the claim as well as the inconsistent nature of the applicant’s evidence.
21.In relation to ground 1(b), the applicant provided no particulars of how the tribunal misconstrued s 91R of the Act. That provision (prior to its repeal) defined ‘persecution’ for the purposes of s 36(2). The tribunal considered between paragraphs 31 and 34 of its reasons the claim regarding the alleged “Sinhalisation of the north” (the applicant’s words) and ultimately found at paragraph 34 of its reasons that this policy had not continued following the election of President Siresena of Sri Lanka. The tribunal also found that this policy did not constitute serious harm in the first place.
22.Ground one was devoid of merit. I reject it.
Ground two
23.The applicant contended that the tribunal failed to comply with s 425(1) of the Act by reason the tribunal’s alleged failure to put to the applicant the issue of whether one of the applicant’s family members could guarantee the applicant’s bail, which the applicant submitted was a crucial link in the tribunal’s chain of reasoning.
24.Section 425 of the Act imposes a requirement on the tribunal to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. But as the High Court emphasised in SZBEL, the duty created by s 425 does not extend to a requirement for the tribunal to provide a running commentary. A distinction exists between drawing to an applicant’s attention an ‘issue’ which is of importance as opposed to a factual finding which may be made in relation to that issue. A further qualification upon the obligations imposed by s 425 was the one identified in Applicant A125, referred to above.
25.At paragraph 56 of its reasons the tribunal found that the applicant would likely face arrest on charges of leaving the country illegally and that he may be detained briefly before being released on bail. The tribunal also found at paragraph 57 that the applicant or his family would have the means to pay any fine which may be imposed on him for departing the country illegally. Those findings were open to the tribunal.
26.There was no suggestion in the tribunal’s reasons that it made a finding to the effect that a financial surety would be required in order to procure the applicant’s release on bail.
27.Those findings were open to the tribunal on the known material. That material included -
a)the applicant’s submission that the standard procedure provided for persons to be released on bail; and
b)evidence given by the applicant that his family owned a farm on which the applicant was previously employed in which context it may be readily inferred that the applicant’s family had financial means (even if limited) leading to the tribunal’s finding at paragraph 34 of its reasons that there was nothing to suggest that the land had been confiscated.
28.Further, the tribunal at paragraph 40 of its reasons expressly drew those matters to the applicant’s attention by putting to him the DFAT report of 18 December 2015. It is apparent from the tribunal’s reasons at paragraph 40 that the conclusions the tribunal expressed at paragraphs 56 and 57 of its reasons drew upon the content of that report.
29.It seemed to me that no error of the kind identified in Minister for Immigration and Border Protection v SZTQS arose. Rather, on the particular facts of this case, the tribunal was entitled to make the findings it did without further raising any issues with the applicant regarding whether any of his family members would act as guarantors in respect of the provision of bail.
30.Alternatively, it was put that if I detected error on the part of the tribunal with respect to ground two, I should not in any event exercise my discretion to remit the matter to the tribunal. That was because the tribunal’s rejection of the applicant’s claim rested on two separate and independent findings.
31.The tribunal found at paragraph 58 of its reasons that any consequences the applicant may face for departing the country illegally would not constitute significant harm for the purposes of s 36(2)(aa) because there was no evidence of any intention on the part of the authorities to inflict pain, suffering or extreme humiliation on the applicant.
32.Those findings were unconnected with the tribunal’s consideration of the circumstances in which the applicant may be released on bail.
33.Ground two is dismissed.
Ground three
34.By ground three the applicant contended that the tribunal did not properly consider the alternative criterion in s 36(2)(aa), being the complementary protection criterion.
35.No particulars were given in respect of that ground. In any event, the tribunal’s consideration of the complementary protection criterion was detailed and comprehensive. There was no basis for impugning that aspect of the tribunal’s decision especially in the absence of particulars of the allegation.
36.Ground three is dismissed.
[Footnotes omitted]
The appeal to this Court
By his notice of appeal to this Court the appellant advanced the following grounds of appeal –
The decision of the Federal Circuit Court is affected by jurisdictional error
Particulars
i.The AAT in making its decision took into account irrelevant factors
ii.The AAT in making its decision failed to take into account relevant factors, especially the issue of scarring and how it is viewed by the Sri Lankan authorities and what problems the applicant would face if arrested and detained.
iii.The issue of Complementary protection provisions was not dealt with properly.
iv.The AAT failed to take into account relevant Country Information.
I shall treat the four paragraphs under the particulars of the appellant’s ground of appeal as raising separate grounds of appeal, and I shall treat the appellant’s reference to “jurisdictional error” in the covering words as being a reference to appealable error by the Federal Circuit Court.
The appellant did not file any written submissions in this Court. He had been given an opportunity to do so: by order of a registrar of the Court of 6 February 2019 the appellant was required to file and serve a written outline of submissions no later than ten business days before the hearing date.
At the hearing of the appeal the appellant proffered some documents, which were three bundles of newspaper and internet articles. Two of the bundles related to the bomb blasts in Sri Lanka at Easter. I understood the appellant to submit to the Court that he had attempted to submit the documents to the Federal Circuit Court. This could not have been the case in relation to the bundles of articles that post-dated the decision of the Federal Circuit Court, which was given on 20 December 2018. I ruled that I would not receive the documents as evidence on the appeal on the grounds that I did not consider them relevant to whether there was any error in the decisions of the Federal Circuit Court or the Tribunal: see, Minister for Immigration and Border Protection v Tesic (2017) 251 FCR 23 at [54]-[55].
The appellant submitted that if he had to go back to his country, he would face death. He submitted that he had said the same thing in the Federal Circuit Court and in the Tribunal, but that non-one had listened to him. I explained to the appellant that I could not re-hear the case that was before the Administrative Appeals Tribunal, and that my role was not to evaluate the facts that were before the Administrative Appeals Tribunal, except to the limited extent that some legal error might be identified. I then directed the appellant’s attention to each of the four paragraphs of particulars of his ground of appeal, and invited submissions about each one.
Consideration
Ground of appeal 1
By ground 1, the appellant claimed that the Tribunal, in making its decision, took into account irrelevant factors. When I raised the general terms of ground 1 with the appellant at the hearing, and its failure to specify what irrelevant factors he alleged the Tribunal took into account, the appellant stated (T11/1‑4) –
During the interview, I did not have a good interpreter. And not only that, I was also having a flu at the time and, because of that, he could not understand what I was saying and the tribunal member thought that I’m scared or confused while I’m answering.
The appellant indicated that there was nothing else he wished to say about ground 1.
The appellant requires leave to raise a matter that was not before the Federal Circuit Court. Ground 1 does not reflect any ground of review that was raised before the Federal Circuit Court. Other problems with the first ground are that it lacks any precision, and it does not in terms allege any error by the Federal Circuit Court. The appellant’s claim that he did not have a good interpreter, and was suffering from the ‘flu’ at the time of the Tribunal hearing with the consequence that the Tribunal member did not understand what he was saying, were not issues raised before the Federal Circuit Court. For these reasons, I do not consider that the first ground of appeal has any merit. I do not give leave to the appellant to raise it, and in any event I would reject it.
Ground of appeal 2
The second ground of appeal alleges that the Tribunal failed to take into account relevant factors, and “especially” –
(1)the issue of scarring and how it is viewed by the Sri Lankan authorities; and
(2)what problems the applicant would face if arrested and detained.
I shall address the two specific matters raised by the second ground. Like the first ground, the second ground does not reflect any ground of review raised before the Federal Circuit Court, and does not in terms identify any error in the decision of the primary judge. In relation to the “issue of scarring”, this is not a matter that had been referred to in any other material documents before the Court. I asked the appellant to what he was referring, to which the appellant responded (T11/24‑27) –
I did not mean to say it was scarring. I meant to say I was tortured, I was beaten up, and that’s what I have said since the beginning. I was taken to an army camp and I was beaten up and tortured. And that’s my evidence since the beginning, your Honour.
In relation to the second component of ground 2, namely, “problems the applicant would face if arrested and detained”, the appellant does not specify what relevant factors he alleges the Tribunal failed to take into account. At the hearing I asked the appellant to explain the reference to which he responded (T11/32‑34) –
Because I lived under LTTE-controlled area, in a Tamil-majority area, if I had to go back, they might be suspicious of me and because of that reason they could arrest me.
To the extent that the second ground of appeal raises the claim that the Tribunal failed to take into account relevant claims, as indicated above, the Tribunal rejected the substance of the appellant’s claims. Further, on the basis of country information and its finding that the appellant had not experienced any problems in the past because of his Tamil ethnicity or any suspected or perceived association with the LTTE, the Tribunal rejected the claim that the appellant would face any real chance of serious harm, now or in the reasonably foreseeable future. Further, as stated at [10] above, the Tribunal also considered and rejected the appellant’s claim that he would face serious or significant harm upon his return to Sri Lanka as a failed asylum seeker.
The appellant has not identified any error of a jurisdictional nature in relation to the appellant’s claims as to problems he might face if arrested and detained upon his return to Sri Lanka. Nor has the appellant identified any error in the primary judge’s consideration of these matters in rejecting grounds 2 and 3 of the appellant’s application for judicial review. On my review of the material that was before the primary judge, I conclude that there was no error in the primary judge’s rejection of ground 2.
Ground of appeal 3
Ground 3 claims that, “the issue of complementary protection provisions is not dealt with properly”. This ground also is expressed in broad, imprecise terms. I invited the appellant to say whether there was anything about the issue of complementary protection that he wished to raise with the Court, to which he responded by submitting that there was severe religious tension back in his country, and that people were being arrested and detained for no reason. The appellant submitted that the temples were under the army’s control, because the government was worried that people would place bombs in the temples, and that people were scared of going out. The appellant also submitted that he was concerned by the bombing incident in Sri Lanka at Easter.
Ground of appeal 3 as drafted has some correspondence with the third ground of review that was before the Federal Circuit Court. This ground was rejected by the primary judge on the basis that no particulars had been given in respect of the ground, and that in any event the Tribunal’s consideration of the complementary protection criteria was detailed and comprehensive. None of the appellant’s submissions to this Court addressed any suggested error by the primary judge. I conclude that there was no error in the primary judge’s reasons for rejecting the third ground of review.
Ground of appeal 4
The fourth ground of appeal alleges that the Tribunal failed to take into account relevant country information. This ground is imprecise, and does not reflect any ground of review raised before the Federal Circuit Court. In the absence of the identification of what country information the appellant alleges the Tribunal failed to take into account, I am unable to evaluate the merit of this claim, including questions of materiality.
At the hearing, I invited the appellant to identify what country information he alleged the Tribunal failed to take into account, to which he responded (T13/45 – T14/2) –
When I was at the AAT interview I was trying to explain them the current country situation and how it would affect me, but the officer said that he’s not obliged to hear my evidence, and he said he knows about the country and … the information.
I then drew the appellant’s attention to a 29 page submission from his legal adviser to the Tribunal which contained country information, and informed the appellant that to engage with his ground of appeal he had to identify what country information was not taken into account. The appellant then stated that the Tribunal did not understand the things he was saying because he was having an issue with his nose, so that the Tribunal could have misunderstood his words. I then pressed the appellant to identify any country information that he claimed was not taken into account, to which he responded (T15/23-27) –
In my evidence I have told them that I lived under LTTE-controlled area for more than 30 years and, because of this reason, the government is suspicious of me that I could be a member of LTTE. And that can cause me trouble in the future if I had to go back. And the Tribunal did not take this into consideration.
The Tribunal found that the appellant was never of any interest to the authorities in Sri Lanka, and did not accept that the appellant faced a real chance of serious harm due to his suspected links to the LTTE or for reasons of a real or imputed political opinion as a sympathiser or supporter of the LTTE. The oral submissions of the appellant in relation to ground of appeal 4 do not relate to any ground of review raised before the primary judge. The claim that the Tribunal stopped him from giving evidence about country information is unsupported, and apparently raised for the first time. I note that the appellant was represented before the Tribunal by a legal representative who had made a written submission addressing country information. The materiality of the appellant’s claim that the Tribunal stopped him from giving evidence about country information is not addressed. Otherwise, the oral submissions invite merits review. I am therefore not satisfied that there is any merit in ground 4, and I am not satisfied that it is in the interests of justice to permit the appellant to raise this ground, and I refuse leave to the appellant to do so.
Conclusion
The appeal will be dismissed with costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan. Associate:
Dated: 17 May 2019
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