CCB15 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-03-20|Before: Mortimer J

The appellant be granted leave to rely on the proposed amended notice of appeal filed in Court on 27 February 2018.
The appeal be dismissed.
The appellant pay the first respondent's costs, to be fixed in the lump sum of $5,500. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MORTIMER J: 1 The appellant appeals from orders made by the Federal Circuit Court on 28 August 2017, dismissing his application for judicial review: see CCB15 v Minister for Immigration and Border Protection & Anor [2017] FCCA 1001. The decision in respect of which the appellant had sought judicial review was a decision of the Administrative Appeals Tribunal made on 23 September 2015, after a considerable amount of time, the appellant having filed his application for review on 13 August 2013. The appellant's review was part heard by one Refugee Review Tribunal member, and then (following the amalgamation of the RRT and the Administrative Appeals Tribunal) the Tribunal was reconstituted and the review was completed by a different Tribunal member. The appellant had challenged the reconstitution process as part of his grounds of review before the Federal Circuit Court. 2 The appellant was represented by a migration agent during the Administrative Appeals Tribunal review, and was legally represented before the Federal Circuit Court. However he represented himself on this appeal. 3 The Federal Circuit Court's reasons for decision are comprehensive, and I do not propose to repeat all the details of the appellant's claims, and the decision-making concerning them.

The Administrative Appeals Tribunal review 4 At [16] of its reasons, the Tribunal summarised the appellant's protection claims in the following way: The applicant's representative provided a submission to the Tribunal in which it was submitted that the applicant fears harm upon his return to Sri Lanka because of his ethnicity; his imputed political·opinion against the government as a pro Tamil separatist due to his involvement with the TNA; and his membership of particular social groups of failed asylum seekers. 5 As the Tribunal noted in its reasons at [27], during the Tribunal hearing, held on 2 September 2015, the appellant also confirmed that he feared harm in Sri Lanka because of his brother-in-law's involvement with the Liberation Tigers of Tamil Eelam. He gave an account of his brother-in-law having joined the LTTE, then having been killed in the final assault by Sri Lankan military on the LTTE in 2001. 6 The Tribunal did not accept any of the appellant's claims, including the claim made based on his brother in law's involvement with the LTTE. At [20] it summarised its reasons for rejecting his claims and affirming the decision under review in the following way: Having considered all of the evidence, the Tribunal does not accept that the applicant has given a truthful account of his experiences in Sri Lanka and his reasons for leaving Sri Lanka. The Tribunal does not accept that the applicant had any involvement with the TNA, apart from possibly voting for it, and does not accept any of his claims to have been threatened or harmed by the TMVP (the Karuna group) or that he genuinely fears harm for this reason upon his return to Sri Lanka. Nor is the Tribunal satisfied that the applicant has ever been imputed with a pro-LTTE opinion or considered to be a supporter of Tamil separatist groups. The Tribunal is also not satisfied that there is a real chance that the applicant will suffer harm upon his return to Sri Lanka as a result of his ethnicity as a Tamil, his actual or imputed political opinion or because of his membership of a particular social group. The Tribunal considers that the applicant has manufactured his claims in an attempt to establish a basis for protection in Australia. 7 In support of his claims the appellant had submitted two documents in the Tamil language to the first respondent, prior to the delegate having made the initial decision. The way the Tribunal dealt with these two documents featured prominently in his judicial review claim and in his appeal. One document was described as "Extract from an Information Book of the Police Station" dated 20 April 2009, and the other was described as a letter, dated 16 August 2012, by a Member of Parliament of the Batticaloa District. The former document was also described in various parts of the Federal Circuit Court's reasons as the "Police Extract". 8 The Federal Circuit Court noted in its reasons at [27]-[32] that there was some confusion generated by the process adopted of having the documents interpreted but not translated in written form. The Federal Circuit Court found the interpreter at the Tribunal hearing translated the letter from the Member of Parliament, but then simply summarised the content of the Police Station extract. The Federal Circuit Court set out what it identified as the interpreter's summary as to the latter as: It is about the anonymous people who came looking for him so he did not know who they were and he filed an entry. 9 The Federal Circuit Court made the following findings about what occurred at the hearing and in the Tribunal's reasoning about these documents: The applicant was given an opportunity at the hearing to tell the Tribunal what each of the documents, including the Police Extract, said. Whilst the Tribunal did not request a verbatim translation of the Police Extract, there was no reason (let alone a duty) for it to have requested it, having regard to the applicant's evidence of what it contained; that is, it contained a report by him to the police concerning the anonymous people who came looking for him (as referred to in the letter from the Member of Parliament). 10 The Tribunal found (at [26]) the documents were not genuine, and did not accept the appellant's claims about his activities in the Tamil National Alliance. 11 There are some factual errors in the Federal Circuit Court reasons, which are not material to any ground of appeal, but which do need to be corrected.

The Federal Circuit Court judicial review 12 The appellant pressed four original grounds of review before the Federal Circuit Court, and four new grounds. Each was rejected by the Federal Circuit Court, in what I have already described as comprehensive reasoning. For the purposes of the appeal, I only refer to those parts of the Federal Circuit Court's decision relevant to the grounds of appeal in this Court.

The appeal to this Court 13 Although he was represented by a solicitor before the Federal Circuit Court, the appellant was unrepresented on the appeal. He does not speak or write English, and had the assistance of an interpreter at the hearing of the appeal. In answer to a question from the Court, the appellant stated that he did not attend the Federal Circuit Court hearing, only his lawyer did, so he could not say anything about the Federal Circuit Court hearing. 14 The appellant's notice of appeal to this Court contained a single ground of appeal, which contended that the Federal Circuit Court judge had: …failed to identify a legal error as pointed in the amended application and written submissions made by the applicant's representative. 15 The particulars given to this relied on Grounds 6 to 9 of the judicial review application before the Federal Circuit Court: namely, three of the four new grounds pressed before the Federal Circuit Court. 16 On 19 February 2018 the appellant filed written submissions, in which he stated he did not wish to press the ground of appeal as set out in his notice, and instead: I wish to seek leave from the Federal Court Judge to amend the Notice of appeal from the FCC application. I wish to present the following Grounds for consideration. 17 His submissions then set out four grounds of appeal, with supporting submissions for each, although some of the submissions were described as "Particulars". 18 No proposed amended notice of appeal was filed. 19 At the hearing, I asked the appellant about these submissions. He stated that a friend had prepared them for him. After hearing from the Minister's counsel, I decided it was appropriate to have the appellant complete a proposed amended notice of appeal in Court and that I would give leave for it to be filed in Court, on the basis that it incorporated only the four grounds set out in his submissions, which the Minister's submissions have addressed. The interpreter assisted the appellant by completing in English the relevant forms, as did counsel for the Minister. The appellant signed the form. The Court is grateful for their assistance to the appellant. By this process, there was at least a proposed amended notice of appeal before the Court. 20 Accordingly, the appeal was conducted on the basis of those four grounds of appeal only. I set each of them out below. 21 The Minister had addressed the proposed grounds in his written submissions, but objected to leave being granted to the appellant to rely on them. The objections were primarily on the basis that the grounds had no merit, but counsel also referred to the existence of general prejudice to the functioning of the appellate system in this Court. I deal with this submission at [22-24] below.

Leave to rely on the proposed amended notice of appeal 22 The Minister submits leave to rely on the amended grounds of appeal should be refused. Correctly, the Minister identifies that the merits of the amended grounds is a consideration in determining whether to grant leave. In the present case however, I consider it is more appropriate, and best serves the interests of the administration of justice, if the appellant is permitted to rely on the grounds that he notified the Minister and the Court were the grounds he wished to press. The Minister has had time to address them, and has done so. It is more appropriate the Court substantively determine what the appellant has now identified as the issues in dispute between the parties on the appeal, and do so on a final basis, rather than refusing leave to appeal. 23 The Minister relied on a decision of the Full Court in MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 (Lander, Jessup and Middleton JJ) at [64] where the Full Court identified the significant public interest in the timely and effective disposal of litigation, referring to the reasons of Gyles J in the Full Court decision of IYER v Minister for Immigration and Multicultural Affairs [2001] FCA 929; 192 ALR 71 at [62]. 24 It can be accepted at a level of general principle that the timely and effective disposal of litigation is a matter which may sometimes affect the exercise of the Court's discretion in relation to leave to amend grounds of appeal. Much will depend on the particular factual circumstances. Here, the appeal was at final hearing stage, the parties were present, the Minister had prepared submissions to answer the proposed amended grounds, and no adjournment was sought. In my opinion in those circumstances, and taking into account that the appellant had not prepared the submissions himself (which may explain the absence of a proposed amended notice of appeal), I consider the course which best advances the interests of the administration of justice, including the timely disposal of litigation, is for the Court to proceed on the basis of the amended grounds and finally determine them.

Some factual matters 25 The Minister's counsel responsibly accepted that at least one of two factual errors in the Federal Circuit Court reasons might have been attributable to the submissions made by the Minister to the Federal Circuit Court. It is necessary to identify the two errors which have become apparent. 26 The first is in paragraph [32(c)] of the Federal Circuit Court reasons. It is not the case that the appellant made a claim to fear harm from the LTTE, as that paragraph suggests. Rather, he claimed to fear harm from the Sri Lankan military and from paramilitary groups in Sri Lanka. That was how the Tribunal dealt with his claims, so that the slight misstatement by the Federal Circuit Court is of no material consequence. This was the error the Minister's counsel accepted had appeared in the Minister's own submissions to the Federal Circuit Court. 27 The second error appears in [30] of the Federal Circuit Court reasons, to which I have referred at [8] above. As I note above, the Federal Circuit Court attributes this statement to the interpreter. In fact, as the Minister's counsel correctly pointed out, on the evidence before the Federal Circuit Court it was the appellant himself (obviously with through the interpreter) who gave the Tribunal this description of the Police Extract. This would seem to be confirmed by the way the Tribunal member then asks the next question, which is directed at the appellant, I infer because he was the one who had explained the content of the Police Extract. 28 Neither of these small factual errors have any bearing on the outcome of the grounds of appeal.

Ground 1 29 The appellant contends the Federal Circuit Court erred in determining the Tribunal had sufficient knowledge of the contents of the Police Extract, especially given the confusion in the Tribunal's reasons at [11] between the letter and the Police Extract. To reiterate, as the Federal Circuit Court found, the confusion was that what the Tribunal described in that paragraph as the "report" was, in reality, the contents of the Member of Parliament's letter. The appellant submitted that the Federal Circuit Court judge "made an error in concluding that the Tribunal learned enough about the Police Extract to understand what was in it." 30 I do not consider any material error in the Federal Circuit Court's reasoning has been proven. I agree with the learned Federal Circuit Court judge that the Tribunal had, as it turns out through the appellant himself, sufficient information about the Police Extract to determine, in the context of the other evidence on review, how the summary about that document could inform the issues on review. In any event, the appellant's affidavit evidence tendered to the Federal Circuit Court incorporated a translation of this extract which was substantively equivalent. It is true that [11] of the Tribunal's reasons does not disclose that it was the appellant who provided the summary of the Police Extract to the Tribunal. However, the fact that this is what did occur means the appellant was able to summarise the contents of the document for the Tribunal in his own words. 31 Give the basis set out in the Tribunal's reasons for not believing the appellant, it was open to the Tribunal to find (at [26]) that these documents were not genuine and not to give weight to their contents (whether actual or summarised). 32 This ground should be rejected.

Ground 2 33 This ground also concerned the Police Extract and whether the Tribunal had sufficient understanding of the document to reject it as not genuine. The appellant contends that the Federal Circuit Court made factual findings founded on an assumption which was not open to it. That is because, the appellant contends, the Federal Circuit Court drew its own conclusions - as it if were the trier of fact - about aspects of the appellant's claims, and what the interpreter meant by the use of the word "report", in relation to the Police Extract. 34 I do not accept these contentions. The Federal Circuit Court made findings about the material the Tribunal had before it, and how it used that material in reaching its conclusions, that is all. That is part of its function on judicial review. The use by the Federal Circuit Court of the term "appears" - which the appellant's submissions criticise - is nothing more than as a shorthand way of the learned judge being cautious in characterising what the Tribunal found.

Ground 3 35 This ground also concerns the Police Extract, and contends the Federal Circuit Court made a "legal error", again in relation to its reasoning about alleged errors arising from the Tribunal's treatment of the Police Extract. This ground focusses on [57] of the Federal Circuit Court reasoning: The Tribunal was aware that the Extract from an information book of the police station dated 20 April 2009 was an important document, pivotal to the applicant's claims for protection and due to this reason appears to have used the services of the interpreter who was present during the hearing to translate two documents. The Tribunal states that the interpreter translated the Police Extract from an information book of the police station dated 20 April 2009. However, the transcript of the audio recording does not reveal that the interpreter translated the contents of this document to any extent. 36 The appellant appears to challenge in particular the last sentence, on the basis that the Federal Circuit Court erred in using the audio recording as a foundation to make this finding. His submissions contend an audio recording could tell the Federal Circuit Court judge nothing about a "translation" which is not, he contends, a "vocal" act, in contrast to "interpretation". 37 The distinction sought to be made between interpretation and translation has no bearing on any alleged error by the learned Federal Circuit Court judge. His Honour went to considerable lengths by listening to the audio recording, and plainly did so to satisfy himself that there was nothing missed by the Tribunal in its reasons, given that the fact that the two documents were only in Tamil in hard copy. 38 His Honour's finding about what is "revealed" by the audio confirms what the Tribunal recorded in its reasons, and that was the purpose of his Honour's inquiry. This was an assiduous approach for his Honour to take and no error is revealed in the way he expresses his findings at [57] of his reasons about the Police Extract, despite what is now acknowledged to be the factual error - also apparent in [57] - that the Federal Circuit Court understood the statement about the contents of the Police Extract was made by the interpreter when it was made by the appellant.

Ground 4 39 Ground 4 is also described as a "legal error" contention, in respect of the Federal Circuit Court's reasoning. The appellant contends "the FCC judge appears to have made an assumption that 'anonymous people' referred in both documents were the same people". This contention relates to [67] and [68] of the Federal Circuit Court reasons: The applicant contends that it was an integer of the applicant's claims, and not considered by the Tribunal, that anonymous people were looking for him. The Minister submits that there is no substance to this ground. It appears from the transcript that the claim that anonymous people were looking for him was a matter referred to both in the letter from the Member of Parliament as well as in the Police Extract. Nevertheless, the Tribunal was cognisant of the assertion, as reference is made to the claim at [11]. From the transcript, in particular at page 5, lines 1-3, the applicant's claim that anonymous people were looking for him was part of his claim that he feared harm as a perceived supporter of the LTTE due to his being a TNA sympathiser. The Tribunal dealt with this claim. As the Full Federal Court said in Applicant WAEE v Minister for Immigration: The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. The applicant's assertion that anonymous people were looking for him was subsumed in the Tribunal's findings regarding the applicant's association with the TNA. (citations omitted) 40 There is nothing in the Tribunal's reasons, nor in any evidence identified by the appellant, that indicates it was clear the appellant was referring to different groups of "anonymous people" in his evidence and claims before the Tribunal. In any event, there is no "assumption" by the Federal Circuit Court in its reasons. Rather, the learned judge refers to the uncontentious fact that both documents contained a reference of this kind, and the Tribunal dealt with the claim as the appellant had expressed it, including in reliance on these two documents. The Federal Circuit Court found, at [67] that the Tribunal was "cognisant of the assertion", and there is no error in that finding. 41 The Minister submits (at [35] of his written submissions): Notably, as implicitly suggested by the primary judge, the appellant never claimed that he feared harm from anonymous people for reasons which he did not understand. Rather, as the primary judge recorded, he claimed that he feared harm arising from his activities on behalf of the TNA. He had also claimed more recently that he may be imputed with political opinions due his brother in law having allegedly been involved in the LTTE (but noting this was not the context in which the documents had been provided to the Department). In any event, there is no doubt that the AAT understood both those claims and expressly rejected them. 42 I accept that submission. The role of these "anonymous people" and any potential risk of harm to the appellant was never clearly spelled out by the appellant to the Tribunal. The appellant's contentions in this ground of appeal about some kind of difference between groups of "anonymous people" draws no support from the evidence he gave to the Tribunal, nor the documents he produced. I can see no jurisdictional error in the way the Tribunal dealt with his claims, and no error in the Federal Circuit Court's reasons on this matter.

Conclusion 43 The appeal must be dismissed. There is no basis for anything but the usual order as to costs. At the hearing of the appeal the Minister was given leave to file in Court an affidavit setting out the basis for a costs order in his favour in the lump sum of $5,500. I am satisfied that sum is appropriate, based on that affidavit. There will be a costs order in that sum. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.

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