Merits of the proposed appeal
32 The proposed grounds of appeal are expressed as follows:
1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.
2. The Federal Circuit Court failed to take into consideration that the Tribunal's decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim.
33 I understand the initials "FM" in paragraph 1 to refer to the Federal Circuit Court. Insofar as the ground of appeal alleges that the Federal Circuit Court Judge "failed to consider" that the Tribunal's decision was "manifestly unreasonable" the ground cannot possibly succeed. The Federal Circuit Court Judge clearly gave consideration to that issue.
34 I proceed on the alternative basis that the ground of appeal intends instead to allege that the Federal Circuit Court erred in that it failed to identify that that Tribunal's decision was affected by legal unreasonableness in the sense described by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. That articulation of the ground of appeal reflects ground 2 of the grounds of review argued before the Federal Circuit Court. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (Stretton), Allsop CJ said:
[11] The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
[12] Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
35 The relevant principles were emphasised more recently by the Full Court in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 (Eden):
[59] Second, the Court's task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at 363[66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 90 ALJR 197 at 203[23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).
[60] Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an 'outcome focused' conclusion without any specific jurisdictional error being identified: Li at 350[27]-351[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ).
36 The Federal Circuit Court Judge held that Tribunal did not ignore "the aspect of persecution and harm" attending the applicant's claims, as alleged in the grounds of review before it, and as now sought to be alleged on appeal. Particularly, the Judge held, in my view, correctly, that s 91R of the Act had no application because the Tribunal did not accept the factual claims the applicant had made about the persecution he alleged he had suffered in the past. The learned Judge held that the Tribunal had made adverse findings as to the applicant's credibility and had drawn conclusions from country information that were open to it, resulting in its critical finding that the applicant's brother had not been a member of the LTTE as the applicant had claimed. The Federal Circuit Court clearly did not err in determining that that was a finding that was open to the Tribunal to make. The grounds of review before the Federal Circuit Court impermissibly sought to have that Court substitute its own view of the merits of the Tribunal's decision in the manner proscribed in the passages from Eden and Stretton to which I have referred above.
37 As to the second proposed ground of appeal, the ground raises issues that were not argued before the Federal Circuit Court. An application for leave to introduce the new ground would be bound to fail insofar as it alleges that the Federal Circuit Court "failed to take into consideration that the Tribunal's decision was unjust". It formed no part of the jurisdiction of the Federal Circuit Court to determine whether the Tribunal's decision was "unjust". If the word "unjust" is intended as a reference to legal unreasonableness, that ground is already advanced in paragraph 1 of the proposed Notice of Appeal and is, as I have said, plainly hopeless. If the word "unjust" is intended to incorporate all conceivable jurisdictional errors, the ground is impermissibly broad and "starkly uninformative": SQMB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 165 at 4 [10], (Finn, Emmett and Bennett JJ).
38 Even if the applicant were granted leave to introduce a ground of appeal alleging that the Tribunal failed to take into consideration the "full gravity" and consequences of the applicant's claims, that ground, too, would be bound to fail. The Tribunal correctly summarised the applicant's claims in its reasons. The Tribunal proceeded on the basis that the claims, if found to be true, were arguably sufficient to fulfil the criteria for the grant of a protection visa. However, it rejected the critical fact underpinning all of the applicant's claims, namely that the applicant's brother had been involved with the LTTE and presently remained a person of interest to Sri Lankan authorities. As I have said, the Federal Circuit Court Judge did not err in finding that it was open to the Tribunal to reject that critical aspect of the applicant's claims. Having rejected the claims on questions of fact, the Tribunal was obliged, under s 65 of the Act, to affirm the delegate's decision because there was no basis upon which the Tribunal could be satisfied that the applicant had a well-founded fear of persecution by virtue of a political opinion imputed to him in connection with his brother's activities. Relatedly, the Tribunal held that the applicant would not be discriminated against in the application of laws that imposed consequences upon failed asylum seekers returning to Sri Lanka.
39 When invited to make submissions as to why the proposed grounds of appeal had sufficient merit to justify the grant of an extension of time, the applicant could do no more than to criticise the merits of the Tribunal's factual findings. That is perhaps not surprising, having regard to the applicant's status as a self-represented litigant. Even on an impressionistic examination of the merits of the kind described by Mortimer J in MZABP, the proposed appeal is so plainly hopeless that an extension of time in which to commence it should not be granted.