DDH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 101
•17 February 2021
FEDERAL COURT OF AUSTRALIA
DDH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 101
Appeal from: DDH16 v Minister for Immigration [2020] FCCA 1138 File number: NSD 637 of 2020 Judgment of: PERRAM J Date of judgment: 17 February 2021 Catchwords: MIGRATION – appeal from Federal Circuit Court dismissal of judicial review application of Administrative Appeals Tribunal (‘Tribunal’) decision – where Appellant alleged Tribunal failed to consider his involvement with Liberation Tigers of Tamil Eelam – whether Tribunal failed to afford Appellant procedural fairness
PRACTICE AND PROCEDURE – application for leave to file amended notice of appeal – where Appellant represented at first instance and on appeal
EVIDENCE – where Appellant sought to lead evidence from himself and an interpreter – whether Court should exercise discretion to admit fresh evidence on appeal
Legislation: Migration Act 1958 (Cth) ss 424A, 425 Cases cited: Minister forImmigration and Citizenship vSZNVW [2010] FCAFC 41; 183 FCR 575
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 48 Date of hearing: 18 December 2020 Solicitor for the Appellant: Mr D Taylor of Sydney West Legal and Migration Counsel for the First Respondent: Mr M Cleary Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 637 of 2020 BETWEEN: DDH16
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
PERRAM J
DATE OF ORDER:
17 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The Appellant is refused leave to file an amended notice of appeal.
2.Grounds 3(a)-(d) and 7(b) of the Appellant’s proposed amended notice of appeal annexed to Mr Taylor’s affidavit dated 9 December 2020 stand as the notice of appeal.
3.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
INTRODUCTION
This is an appeal from the Federal Circuit Court orders made on 15 May 2020: DDH16 v Minister for Immigration [2020] FCCA 1138. The Appellant’s proceeding in that court was dismissed with costs. He now appeals to this Court. The hearing of the appeal was listed for oral argument on 18 December 2020. Shortly before it was to be heard the Appellant’s solicitor, Mr Taylor, served on the First Respondent’s solicitor a proposed amended notice of appeal and four affidavits. When the hearing commenced the Appellant sought leave to rely upon these materials. This evidence principally went to:
·show in greater detail the Appellant’s claim that he had been raped and assaulted by two soldiers whilst in Sri Lanka; and
·demonstrate that there were errors of interpretation at the hearing before the Tribunal.
I refused that application and said that I would give reasons for this at the time I gave judgment on the appeal itself. Those reasons appear at the end of these reasons. For reasons also given there I directed that grounds 3(a)-(d) and 7(b) of the proposed amended notice of appeal stand as the notice of appeal.
BACKGROUND
The Appellant is a citizen of Sri Lanka who applied for a protection (Class XA) visa. His claim for protection was initially based on the fact that as a young Tamil male he would be perceived as being associated with the Liberation Tigers of Tamil Eelam (‘LTTE’) and would therefore suffer persecution if returned to Sri Lanka. The delegate dealing with the application rejected this claim. The Appellant sought a review in the Administrative Appeals Tribunal (‘the Tribunal’). The day before the Tribunal hearing, he changed his case so that he now claimed that he and his family (which included a number of siblings) were either members of the LTTE or involved with it. He said that the reason he had not previously mentioned this was that he was concerned about the consequences to him if this became known to the Australian Security Intelligence Organisation (‘ASIO’). The Tribunal thought the Appellant’s account was not credible and, as such, concluded that he was not entitled to a protection visa (or for that matter complementary protection).
GROUND 3(A)-(D)
This ground was as follows:
3. The Second Respondent breached section 425 of the Migration Act 1958 (Cth).
Particulars
a. The Second Respondent said that
(a) “The Tribunal was concerned that the applicant also gave inconsistent evidence about his work in Sri Lanka” at paragraph 66;(b) “changing details about his siblings paragraph 73-84; (c) “Changing inconsistent/not credible evidence about his detention” paragraph 85 to 92; (d) willingness to return to his village after claims of torture paragraph 100 to 104(in fact he went to Vavuniya not his village)b. The findings played a part in the Second Respondent’s decision on the application for review.
c. These questions were not raised by the delegate of the First Respondent because it was not an issue before them.
d. These questions were not clearly put to the Applicant by the Second respondent.
As drafted this does not make any sense. The written submissions in support of this ground are as follows:
Ground 3
8.The applicant repeats submissions above (at ground 2) in relation to the applicant’s rape claims. The applicant would have been able to give the evidence provided by him by way of his affidavit of 8th December 2020 had he been given a fair opportunity.
9.The Tribunal was not conducted for the first four hours with any indication to the applicant that his rape claims were to be the subject of questioning by the Tribunal. In this regard there was no indication to him that this claim was also disbelieved by the Tribunal.
10.The Tribunal putting to the appellant at page 357 lines 38-40 that he would not have returned to his family if he had been tortured could not include sexual assault.
These submissions reference the submissions made in relation to ground 2 which state the following:
4.The Tribunal acted as if it was unaware of the applicant’s rape claims in its questioning of the applicant through the course of the Tribunal hearing. The Constitution of the Tribunal by a female member and provision of a female Tamil interpreter in a male rape matter was inappropriate considering the sensitivity of the matter. Given that the appeal hearing was 4 and a half hours long, the power imbalance of the Tribunal with respect to the appellant, the failure of the Tribunal to ask questions of the applicant about his rape being a matter of great shame, distress, and stigma to the appellant, materially affected the provision of evidence to the Tribunal about this matter.
5.The Tribunal did not act in a way which evinced an appreciation that the appellant had evidence to provide about the details of his rape.
6. The Tribunal acted in a way that was insensitive to the applicant’s rape claim.
7.It is never appropriate to role up consideration of beating and rape as being the same thing.
Hence as the argument was developed in written submissions it was primarily related back to the rape issue. The point was that the Tribunal had been constituted by a female member and with a female interpreter. This had been procedurally unfair on the Appellant who had felt ashamed to tell the Tribunal of the details of his rape by the two soldiers. Further the Tribunal ought to have done more to elicit details of the rape from the Appellant. In addition, when the issue of the sexual assault was reached this was some four and a half hours into the Tribunal hearing and it was reasonable to suppose that the Appellant had been cross-examined up hill and down dale by that point and was wearied by the experience, a circumstance which can only have been aggravated by the translation difficulties with the interpreter (and her gender). The Appellant was also not made aware that his rape claim would not be believed by the Tribunal and the Tribunal member conflated the issues of assault and rape. All in all, it was not a hearing which was procedurally fair for the Appellant.
The difficulty with the argument in that form is that it was not run at trial. As I explain below in relation to ground 2 of the proposed amended notice of appeal, it is not appropriate now to permit this argument to be raised on appeal. Much of the argument just described falls within that rubric. I have considered how much of ground 3(a)-(d) can be rescued from this difficulty but the answer is that since I do not really understand what the ground means this is difficult. It is particularly difficult, because I do not see how the matters which appear in the ground (or in the submissions) have anything to do with s 425 of the Migration Act 1958 (Cth) (‘the Act’). It provides:
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
This provision has been interpreted as requiring that there be a real hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 (‘SCAR’). Consequently, the provision has been held to be engaged where the standard of interpretation at a hearing is such that one can say that a hearing has not really occurred: Minister forImmigration and Citizenship vSZNVW [2010] FCAFC 41; 183 FCR 575 (‘SZNVW’) at [73]. So too, where a hearing is affected by the fraud of some third party, it is s 425 of the Act which has been held to be engaged. The effect of the fraud deprives the hearing which took place of the quality of being a hearing: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189.
I have some difficulties with the reasoning in SCAR which I explained in SZNVW at [75]-[83]. But even taking the most generous view of s 425 of the Act and the SCAR line of cases, I do not see how the above argument – whatever it is – can be accommodated under the canopy of s 425. I raised this with Mr Taylor but his submissions about it did not assist me.
I reject ground 3(a)-(d).
GROUND 7(B)
This ground is as follows:
7.The Second Respondent engaged in legal error by failing to consider a claim or component integer for the Convention reasons thereof. The Tribunal did not consider the claims of being
(a) a Tamil fisherman in [the Applicant’s village](b) sibling of the former LTTE members(c) cumulative grounds.a.The applicant’s evidence in this regard about the applicant’s siblings being in the LTTE area was misinterpreted by the interpreter.
Ground 7(b) is a contention that the Tribunal failed to consider the Appellant’s claim that he was a sibling of former LTTE members. The written submission of the Appellant on this ground was as follows:
The Tribunal failed to give the applicant notice or opportunity to respond to its concerns, or otherwise failed to consider an integer claim by the applicant, that the reason he did not previously raise in a timely manner his claims about his own family involvement in the LTTE was fear of adverse action from ASIO.
This submission appears to differ slightly from the ground it is in support of. Insofar as the ground is that the Tribunal failed to consider his claim that some of his siblings were members of the LTTE, this must fail on the facts. The Appellant’s position before the delegate was that neither he nor his family were linked to the LTTE. The day before the hearing in the Tribunal he changed this position and then claimed that most of his family were either members of the LTTE or were connected with it. The reason he did not raise this claim earlier was because he was concerned that to disclose his links with a group that has been designated by the Sri Lankan government as a terrorist organisation might have led to an adverse security assessment by ASIO or had consequences if he were returned to Sri Lanka.
The Tribunal set out the Appellant’s claims about his siblings at [44]-[50] and then analysed them in detail at [73]-[84]. It felt the inconsistencies within his account of the role of his siblings undermined his credibility: [83]-[84]. At [123] it summarised the concerns it had about the Appellant’s credibility. These included the doubts it had about his evidence about his siblings but also included a number of other areas of concern. It concluded that he was not a witness of truth. It is thus impossible to say that his claims about his siblings were not considered. They were considered in detail and not accepted.
If, on the other hand, ground 7(b) is to be treated as being that the Tribunal failed to consider his claim that he had not raised his family’s involvement with the LTTE because he was concerned about adverse action by ASIO then the ground must also fail. The Tribunal recorded at [38] that the Appellant submitted that ‘he did not previously mention his involvement, and his family’s involvement, with the LTTE, because he was advised by friends that it was likely to cause problems in Australia.’ It also noted at [51] that his fear of ‘triggering security concerns’ had been raised in a post-hearing submission provided on his behalf and that the Appellant had said during the hearing that he feared if he disclosed his family’s ties to the LTTE then his application process would be dragged out. At [71]-[72] the Tribunal considered the Appellant’s explanation for why he had not raised his family’s roles until the day before the hearing and rejected it. It is therefore not correct to say that this claim, assuming it be an integer in the relevant sense, was not considered.
The written submission also claims that the Appellant was not given an opportunity by the Tribunal to respond to the concerns the Tribunal had about the fact that the Appellant had not previously raised his links to the LTTE. Section 424A of the Act states the circumstances in which the Tribunal must provide applicants with opportunities to respond to information:
424A Information and invitation given in writing by Tribunal
(1)Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
…
Under s 424A the Tribunal is obliged, where it ‘considers’ in the relevant way, to invite an applicant to comment on or respond to the information in question. While ‘information’ is not defined in the Act, it has been established that it must contain in terms a ‘rejection, denial or undermining’ of an applicant’s claims to be entitled to the grant of the visa, with the claims to be understood as the criteria for the visa sought: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 (‘SZBYR’) at 1195 [17]. Here the information the Appellant is suggesting that he was not provided with an opportunity to respond to is the Tribunal’s concerns about his claims. However, a Tribunal’s internal process of reasoning or doubts is not information within the meaning of s 424A: SZBYR at 1195 [18]. There was no obligation on the Tribunal to provide the Appellant with an opportunity to respond to its concerns about his delay in raising his connections to the LTTE. Accordingly, ground 7(b) fails.
Since these are the only grounds before the Court, the appeal must fail.
THE PROPOSED AMENDED NOTICE OF APPEAL AND THE FOUR FRESH AFFIDAVITS
The first affidavit was made by Mr Taylor on 9 December 2020. Mr Taylor explained that he had been somewhat busy preparing a number of pro bono habeas corpus matters in the Federal Circuit Court with expected hearing dates of 8, 10, 16 and 18 December 2020. In addition, he also informed the Court that some significant and distressing personal events had occurred in his family during August 2020 and October 2020, the knock-on effects of which had continued to impair his preparations for this and other matters. As events had transpired, he had only been able to take evidence from the Appellant on the evening of 8 December 2020. Mr Taylor also annexed to his affidavit the proposed amended notice of appeal.
In my opinion, this affidavit should be received on an interlocutory basis as supporting the application for leave to file the proposed amended notice of appeal and as supporting an application to receive fresh evidence from Ms Noeline Harendran and from the Appellant himself.
The second affidavit was made by Ms Harendran on 7 December 2020. Ms Harendran is a Sri Lankan Tamil interpreter and has provided her services as such in this Court, the Federal Circuit Court and in the Tribunal. She was provided with a copy of the audio recording of the Appellant’s hearing before the Tribunal. The hearing in the Tribunal was conducted with the benefit of another Tamil interpreter. Using the recording of the hearing she prepared an alternative translation of some parts of the hearing. In her opinion, the interpreter at the review hearing did not speak the Northern Sri Lankan Tamil dialect spoken by the Appellant and the interpretation had been afflicted with some errors. In particular, Ms Harendran thought that when the Appellant had said the word ‘lyakkam’ (meaning LTTE) the interpreter in the hearing had interpreted this as ‘army’. Thus when the Appellant had said (in Tamil) ‘We were in the LTTE controlled area’ this had been misrendered into ‘…they were living in the army control area’. Similarly, when the Tribunal had said ‘suspected you or knew’ this had been rendered into Tamil as only ‘suspected’. Thus when the Tribunal had said ‘You suggested that the army suspected you [or] knew that you were assisting the LTTE…’ this had been rendered into Tamil as ‘You said that they were suspicious of you because you were helping the LTTE…’
The third affidavit was made by the Appellant on 7 December 2020. In this affidavit he explained that his counsel at trial in the Federal Circuit Court had been the late Mr Ashok Kumar who had passed away on 19 September 2019. The Appellant had been unable to have access to his files since his death. This affidavit may put to one side. As I indicated at the hearing, the demise of Mr Kumar is known to the Court and I am prepared to infer that the retrieval of files from the deceased estate might not be straightforward. The First Respondent’s counsel also indicated that his client did not oppose the Court approaching the applications and the appeal itself on that basis.
The fourth affidavit was made by the Appellant on 8 December 2020. By way of short background, one of the Appellant’s proposed arguments in this Court concerns the fact that he was sexually assaulted by the army. This claim was made to the delegate and to the Tribunal. The delegate did not deal with it but the Tribunal did, although in a way which the Appellant claims was perfunctory. Not a lot of time was devoted by the Tribunal to the issue of the sexual assault and this brevity of analysis forms the basis for some of the submissions made in this Court. In this affidavit the Appellant explains that both the case officer and the Tribunal member were women and that he had felt ashamed to explain the circumstances of his rape to them. The contention that he felt ashamed to explain the sexual assault in more detail forms the platform for an argument based on principles of procedural fairness which Mr Taylor sought to pursue in this Court. Returning to the affidavit, the Appellant set out in detail what he said had happened to him at the hands of the two Sri Lankan male soldiers he claims raped him. There is no need to set out these details for present purposes other than in a summary way. The incident consisted of four distinct, serious and degrading acts of rape together with multiple assaults which left him with scarring. He had wished to show this scarring to the Tribunal but it did not think it would be assisted by seeing it since it thought the scarring could have been caused by a number of matters.
Like Ms Harendran, the Appellant did not think that the interpreter at the Tribunal spoke his dialect of Tamil. In his 8 December 2020 affidavit, the Appellant says the interpreter was Indian which, if so, I assume probably means she was from Tamil Nadu, the southernmost state of India. He had not felt able to indicate during the Tribunal hearing that he thought there was a difficulty with the interpreter.
Turning then to the proposed notice of appeal, ground 1 is that the Federal Circuit Court erred in finding that the Appellant had said that the Sri Lankan authorities ‘knew’ of his involvement in the LTTE rather than suspected it. This ground relates to the evidence of Ms Harendran. The genesis of the problem appears to be [89] in the Tribunal’s reasons where it first used that word in inverted commas in the following way:
The Tribunal considers it unlikely that the applicant was not asked about his family members [by the army] given his claims about the involvement of his family members, and the family home, and given his claim to the Tribunal at the hearing that (at his first encounter) the army “knew” that he was involved with the LTTE.
It was said that this finding was crucial to the reasons of the Tribunal and this appears to be a reasonable observation. This finding was in turn picked up at [37] of the Federal Circuit Court’s reasons where the paragraph was produced essentially verbatim. The court then returned to the topic at [96] in the second and third sentence:
As the Tribunal stated in its reasons, it raised with the Applicant its concerns regarding his evidence about his detention, including the fact that while he claimed he had been detained, he said that he was never questioned about his family’s LTTE links despite his claims that they were very involved with the LTTE and that the army knew this (transcript, p.66). The Tribunal also raised its concern that while the Applicant claimed that the authorities knew that he was assisting the LTTE, he was never charged or detained for any long period of time (transcript, pp.66-67).
The argument now sought to be made is that the particular part of the transcript before the Tribunal upon which the Tribunal’s finding was based did not provide evidence that the army ‘knew’ that he was involved with the LTTE. The relevant portion was at p 66 of the transcript:
M: It's not just your brother it is your sister they are members
S:Yes but they were living in the army control area. They didn't ask me I don't know why and I don't know whether they knew about them or not
M:You suggested that the army suspected you they knew that you were assisting the LTTE or involved but you never charged or detained for any length or any long period of time
S:When they took me to the camp and beat me I escaped from them. They didn't release me I actually escaped
However, Mr Taylor submits that when Ms Harendran’s evidence is brought to account the second question by the Tribunal should be read as follows:
M: You said that they were suspicious of you because you were helping the LTTE however they didn’t actually detain you for a long period of time or lots of days.
I am not sure one can get evidence about what the Appellant had said from this exchange, especially when the answer he gave to the Tribunal appears not to have been entirely responsive. However, the opening words of the Tribunal’s second question ‘You suggested that the army suspected you…’ gives a clue to what was happening in the Tribunal. It suggests that the Tribunal was asking the Appellant about something he had already said. Recourse to the transcript confirms this to be so. At p 64.09-19 this exchange occurred:
M: Can you tell me what you fear would happen to you if you return?
S: First there is threat to my life
M: From who
S: From the government army
M: Why?
S: Because they are thinking that I am LTTE
In fact, to read the whole of the transcript from pp 64-67 is to see that the Appellant was clearly claiming that the army believed he was a member of the LTTE and that the Tribunal was teasing out the various consequences that such membership would entail for the Appellant and his family. Indeed, standing back from this, it is clear that the army’s belief that he was a member of the LTTE was the backbone of the Appellant’s claim for protection. Because of this he claimed he would be at risk of harm if returned to Sri Lanka. He sought to prove that risk, as the passage above shows, by demonstrating that not only was he involved with the LTTE, but that the army believed he was a member of the LTTE.
Contrary to Mr Taylor’s submissions, the Tribunal did not find at [89] that the army knew he was involved with the LTTE. What it actually found at [89] was that it was unlikely that the Appellant would not have been asked about the involvement of his family members if, as he claimed, the army knew that he was involved with the LTTE (or, on Ms Harendran’s evidence, that it suspected that he was involved with the LTTE). The question therefore of whether there was any evidence for the finding at [89] that the army knew he was involved with the LTTE fails at the threshold because there was no such finding. In any event, given that the Appellant was trying to prove that he faced a risk of persecution because of the army’s belief that he was involved with the LTTE, it makes no sense to complain about a finding to that effect.
I would therefore refuse leave to raise this ground on appeal for three reasons. First, it makes no sense on analysis. Secondly, assuming in the Appellant’s favour the alleged error in interpretation at p 66, this must be immaterial because of what was said at p 64, ie, that the Appellant said that the army believed he was a member of the LTTE. This is unsurprising since this was the Appellant’s basic case (as it had become by the day before the hearing in the Tribunal). Thirdly, if the matter was to be raised it should have been raised at trial where the Appellant was represented by counsel. There was some speculation at the appeal hearing as to why it had not been raised until now with there being some support for the idea that it had not previously been thought of. In any event, it would be inappropriate to permit the ground now to be raised. For the same reason, there is no utility in receiving Ms Harendran’s evidence.
Turning then to ground 2 of the proposed notice of appeal, this was in substance that the Tribunal had: erred in subsuming the rape claims with the assault claims; denied the Appellant procedural fairness by its constitution with a member who was a woman; not given the Appellant an opportunity to present his evidence in relation to the rape claims; and, failed to give adequate reasons for not needing to hear the details of the rape claims. The first, third and fourth aspects of this are insubstantial. As to the first, it is apparent from the Appellant’s affidavit of 8 December 2020 that the assaults occurred during the rape so treating them other than as a single episode would have been odd. The third aspect does not accurately depict what occurred at the Tribunal hearing, where the Appellant did raise the rape claims and the member responded by asking him to elaborate on them at pp 75-76. As to the fourth aspect, the Tribunal made no administrative decision not to hear the details of the rape allegation. It is difficult to detect in what sense it could have failed to give adequate reasons for a decision it did not make.
It is, of course, to the second aspect of this ground that the Appellant’s affidavit of 8 December 2020 relates. It may be an interesting question whether the constitution of a tribunal with a person of one gender might result in a denial of procedural fairness where an applicant of another gender is making rape allegations. I do not see, however, why this point could not have been raised at the hearing in the Federal Circuit Court where the Appellant was represented by counsel. Further, Mr Taylor has been on the record in this Court since he filed the notice of appeal on 9 June 2020. Accepting, as I do, the misfortunes which befell Mr Taylor in August and October 2020, this still does not explain what happened between 9 June and August 2020. Making the assumption that the matter was not raised in the Federal Circuit Court because the late Mr Kumar did not think of it (the scenario most favourable to the Appellant), that does not appear a sufficient explanation to warrant the raising of a fresh ground on appeal which could have been pursued at trial and doing so less than 10 days before the appeal. As it has been said before, this Court is not a trial court in protection visa cases, that original jurisdiction having been taken off it long ago. Whilst it remains possible to raise matters on appeal which were not argued below the exercise of the jurisdiction to do so is necessarily informed by this Court’s limited original jurisdiction.
A grant of leave being inappropriate in relation to this ground, it follows that there would be no utility in receiving the Appellant’s affidavit on this topic (dated 8 December 2020).
I turn then to proposed ground 3. The First Respondent accepted that grounds 3(a)-(d) were in fact raised in the court below and did not oppose leave being granted in relation to them. I have dealt with grounds 3(a)-(d) above as I directed that they form part of the notice of appeal. Attention can therefore be confined to grounds 3(e)-(g). In substance grounds 3(e) and (f) relate to the translation issue dealt with under ground 1 and the rape and opportunity to respond issues dealt with under grounds 2 and 7(b). For the reasons already given, I decline the Appellant leave to raise them now. Ground 3(g) is as follows:
The Tribunal appeared unaware of the applicant’s rape claim through the course of the Tribunal hearing until the appellant brought up his previous claim himself after four hours.
It is difficult to see that this goes anywhere. The Tribunal was aware of the rape claim at the hearing. It does not matter, from a legal perspective, at which moment during the hearing this occurred.
Ground 4 of the proposed amended notice of appeal is essentially the same, for present purposes, as grounds 1 and 2 and I reject it for the same reasons.
Proposed ground 5 relates to the Appellant’s scars. The Tribunal noted the Appellant’s claim to have scars but reasoned (at [122]) that scars might arise from several causes. The Appellant did not pursue a case about this at trial. However, on appeal he now wishes to say that the Tribunal should have pursued this line of questioning on the basis that it presented as an obvious line of inquiry especially where the Appellant had offered to show the scarring during his interview with the delegate. It was now said that the scarring was the essence of the Appellant’s claims and that the Appellant had wished to show the scarring to the Tribunal. At the hearing of the amendment application, it became apparent that this was because the scarring was linked to the rape of the Appellant and, indeed, had occurred during that rape (as explained above). If the line of inquiry had been pursued, so went the argument, then the details of the rape would have become clear to the Tribunal. But this does not follow. The Tribunal declined to attach weight to the scars because it thought that they could have been caused in a number of ways and would therefore be of limited use in corroborating the Appellant’s account of his rape. That reasoning is not challenged. It is difficult to see why looking at the Appellant’s scars could have had any impact on the Tribunal’s reasoning process.
Proposed ground 6 was that the conduct of the Tribunal in relation to the details of the Appellant’s rape claims gave rise to a reasonable apprehension of bias on its part. This was for two reasons. First, the Tribunal had said to the Appellant ‘I don’t even know if you are from [a city]’ (I have removed the reference to the city’s actual name to reduce the risk that these reasons might identify the Appellant to the Sri Lankan authorities). Secondly, the Tribunal had given him the impression that nothing he had said would be believed. It was said that the reasonable apprehension of bias inhibited the Appellant from explaining the rape claim.
I do not think the first question by itself could give rise to a reasonable apprehension of bias nor do I think that the way in which the Tribunal dealt with the sexual assault claim does so either. Here it was said that the Tribunal had demonstrated ‘complete disinterest’ in the rape claims but I do not think that disinterest shows an apprehension of bias. For completeness, the Appellant did not submit that a reading of the transcript as a whole alongside the Tribunal’s reasons might have suggested such a relentless degree of incredulity on the Tribunal’s part as itself to invite disbelief and hence to give rise to an apprehension of bias. Such an argument would have required submissions focussed on the details of the transcript and the reasons. At the end of the day, it is not the role of this Court to recraft the way Mr Taylor put this case into something which is more plausible from a lawyer’s perspective. The Appellant is represented and the First Respondent was only required to meet the case put.
As put, the argument was focussed on the question about the city and the rape claim. So articulated, the argument seems not to be a strong one. Given the matter was not raised at trial I do not think it would be appropriate to permit it now to be raised.
The First Respondent did not oppose ground 7(b) (which I have addressed above) and ground 7(a) was not actually included in the proposed amended notice of appeal being interlineated. There was a second ground ‘7a’ which turned, however, on the interpretation issue, which I have dealt with above. I therefore grant leave for ground 7(b) but not 7(a) or 7a.
Proposed ground 8 was as follows:
The Tribunal failed to give the applicant notice or opportunity to respond to its concerns, or otherwise failed to consider an integer claim of the applicant, that the reason he did not previously raise claims in a timely manner about his own and his family involvement in the LTTE was fear of adverse action from ASIO [page 354].
In terms of the proposed ground of appeal the Appellant certainly said to the Tribunal that one of the reasons he had not mentioned his involvement with the LTTE in his claim for a protection visa was his concern about adverse action from ASIO. I have explained above that this claim was in fact dealt with by the Tribunal. The written submission on this ground refers to the Tribunal being affected by interpretation errors and raised essentially the same issue as proposed ground 1. This does not appear to be related to proposed ground 8. For the reasons I have just given, the proposed ground 8 has no prospects and I decline to grant leave to pursue it.
It was for those reasons that I declined to grant leave to file the proposed amended notice of appeal or to permit the Appellant to use the affidavit of the interpreter or the affidavit of the Appellant dated 8 December 2020 (although I will permit Mr Taylor’s affidavit to be relied upon and the affidavit of the Appellant dated 7 December 2020). Formally, that conclusion would leave the original notice of appeal in place. However, as I have said the First Respondent did not oppose a grant of leave in respect of grounds 3(a)-(d) and ground 7(b). Rather than granting the Appellant leave to file an amended notice of appeal raising only those grounds the course I took was to dispense with the need for the filing of an amended notice of appeal and to direct instead that grounds 3(a)-(d) and 7(b) contained in the proposed notice of appeal attached to Mr Taylor’s affidavit should stand as the notice of appeal. I made that direction at the hearing but will formalise it with a direction published with these reasons.
ORDERS
The following orders should be made:
(1)The Appellant is refused leave to file an amended notice of appeal.
(2)Grounds 3(a)-(d) and 7(b) of the Appellant’s proposed amended notice of appeal annexed to Mr Taylor’s affidavit dated 9 December 2020 stand as the notice of appeal.
(3)The appeal be dismissed with costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram. Associate:
Dated: 17 February 2021
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