CFK15 v Minister for Immigration and Border Protection

THE TRIBUNAL 13 The Tribunal hearing took place on 19 August 2015, and the applicant appeared before the Tribunal and gave evidence with the assistance of an interpreter in the Tamil and English languages. 14 In response to questioning by the Tribunal, the applicant agreed that the situation in Sri Lanka had changed following the end of the civil war with the defeat and dismantling of the LTTE separatist movement in 2009 by the Sri Lankan government. He stated that he no longer feared harm from the Sri Lankan army but rather from anti-LTTE groups who he said continued to seek his uncle. The Tribunal observed that the applicant had retreated from some of the claims he had originally made. As to the potential impact of this "retreat" on the applicant's credibility, the Tribunal stated that it would give the applicant the "benefit of the doubt" on the basis of the circumstances in Sri Lanka having changed and the applicant having better informed himself of the actual circumstances. 15 The Tribunal accepted that the applicant's family was displaced twice and fled to a refugee camp in India and that the applicant was harassed and detained by the Sri Lankan army in 2008, and also that he had been detained in 2011 in relation to his national identity card. 16 The Tribunal was also prepared to accept that unidentified persons had come to his family's house and inquired about the whereabouts of the applicant's uncle in about November 2011. 17 However, there were other aspects of the applicant's evidence which the Tribunal was not prepared to accept. The Tribunal did not accept the applicant's evidence that he was assaulted and threatened by people who were searching for his uncle in December 2011; and did not accept his evidence about his abduction whilst playing cricket and his subsequent escape from the white van. The Tribunal found that the applicant's evidence was implausible and that he had "fabricated" those claims. 18 The Tribunal found that although there was evidence that the Tamils, as an ethnic group, face some discrimination in Sri Lanka, the discrimination does not rise to the level of persecution of the Tamil population. Although the Tribunal accepted the applicant's evidence in respect of some of the events he relied on, it was not satisfied that the applicant faced a real chance of serious harm for reasons of his Tamil ethnicity if he were to return to Sri Lanka. 19 Further, the Tribunal concluded that, having regard to all of the evidence, the applicant had not been politically active or outspoken and that he was not now of adverse interest to the Sri Lankan authorities or any anti-LTTE groups (such as the Karuna group) or anyone else by reason of his association with his uncle or the activities of his uncle a number of years ago, or by reason of an actual or imputed pro-LTTE political opinion. 20 The Tribunal adopted country information which stated that the Karuna group, despite having its roots in the separatist conflict and politics, appeared to have "abandoned its political and paramilitary activities" and to the extent that it still existed, appeared to "focus on criminal activities". The Tribunal concluded that the risk of harm to the applicant from the Karuna group was remote and that the applicant was at no heightened risk of harm from criminal activities of that group than any other citizen of Sri Lanka. 21 The Tribunal was not satisfied that the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth) on the basis of the refugee criterion or on complementary protection grounds.

THE FEDERAL CIRCUIT COURT 22 On 26 October 2015, the applicant brought an application for a constitutional writ within the Federal Circuit Court's jurisdiction, pursuant to s 476 of the Migration Act. The applicant relied on the following grounds of review before the Federal Circuit Court: 1. Not following the rules of natural justice. 2. Error of law on the face of the record. 3. Review of delegated legislation on grounds of ultra-virus [sic]. 23 The grounds of review were not supported by particulars and despite having the opportunity to file an amended application, supporting affidavits and an outline of submissions, the applicant did not do so. 24 The primary judge found that the applicant's failure to particularise the grounds of review and the absence of evidence from which particulars might be drawn was sufficient to warrant dismissal of the application. 25 In any event, the primary judge went on to consider briefly each of the grounds and concluded that none of the three grounds of review revealed any jurisdictional error by the Tribunal.

Application for an extension of time to appeal 26 On 6 September 2016, the applicant brought an application for an extension of time to appeal to this Court. 27 The notice of appeal should have been filed and served within 21 days after the date of the Federal Circuit Court's judgment, namely, by 2 September 2016 (r 36.03 of the Federal Court Rules 2011). Accordingly, the application for an extension of time was filed four days after the expiry of the appeal period. 28 In support of his application, the applicant deposed that his failure to exercise his right of appeal within the time limit resulted from his inability to understand court procedure, lack of proficiency in the English language and the fact that he was not represented by a lawyer. The applicant has subsequently obtained legal representation for the purpose of the proceeding in this Court. 29 On 6 September 2016, the applicant filed a draft notice of appeal containing some brief proposed grounds of appeal. 30 On 14 December 2016 (subsequent to the applicant obtaining legal representation), the applicant filed a supplementary draft notice of appeal containing three proposed amended grounds of appeal. The applicant now pursues only the following two of those proposed amended grounds: 1. The learned Federal Circuit Court Judge erred in finding that the decision of the Administrative Appeals Tribunal (AAT) was not vitiated by jurisdictional error, whereas the learned Judge ought to have held that the Tribunal's decision was so vitiated in rejecting the Appellant's central claims on credibility grounds, including that he had "fabricated" an aspect of his claim, while ignoring independent documentary material from the Human Rights Commission of Sri Lanka and International Committee of the Red Cross which corroborated certain of the Appellant's claims, which would or could have otherwise affected the Tribunal's disposition on credibility grounds. 2. The learned Federal Circuit Court Judge erred in finding that the decision of the AAT was not vitiated by jurisdictional error, whereas the learned Judge ought to have held that the Tribunal's decision was so vitiated in misconstruing the Appellant's claims to protection as other than membership of a particular social group comprising family members of financiers of the former Liberation Tigers of Tamil Elam, and that thereby the AAT constructively failed to exercise jurisdiction, alternatively denied the Appellant procedural fairness. 31 Neither of the proposed amended grounds of appeal is founded on a ground of review which had been raised before the Federal Circuit Court. The Court is reluctant on appeal to permit an appellant to rely upon a ground of appeal which is founded on a matter not raised in the court below. The Court will only allow a party to ventilate such a matter on appeal where it would be expedient in the interests of justice to do so (VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48]). An important consideration in determining whether to permit a ground of appeal founded on a matter not taken below to be raised on appeal, is whether the proposed ground of appeal has sufficient merit to warrant the Court permitting it to be agitated on appeal. 32 I will consider the merits of each of the two proposed amended grounds of appeal relied on by the applicant.

The first proposed amended ground of appeal 33 Under this proposed amended ground of appeal, the applicant contended that the Tribunal had fallen into jurisdictional error because it had made adverse credibility findings in respect of parts of the applicant's evidence, but had failed to refer to the two documents referred to at [7] above, namely, the Sri Lankan Human Rights Commission letter and the International Red Cross letter, which supported the applicant's claims to have been arrested by the Sri Lankan army in 2008. 34 The applicant observed that the Tribunal had not accepted the applicant's evidence as to the visit of unidentified men to his family's house in December 2011, and evidence about his abduction by five men whilst he was playing cricket and his subsequent escape from those men (see, [9], [10] and [17] above) and had described that aspect of the applicant's evidence as "fabricated". The applicant contended that the two documents were corroborative of the applicant's credibility as a witness, and it was a jurisdictional error for the Tribunal to have made adverse credibility findings about those parts of the applicant's evidence without having first referred to the "corroborative documents". This was a jurisdictional error, said the applicant, because had the Tribunal considered the documents, the corroborative nature of those documents may have affected, to the applicant's benefit, the Tribunal's view of the applicant's credibility in respect of those aspects of his evidence which the Tribunal rejected as having been "fabricated". 35 In my view, this proposed amended ground of appeal does not have sufficient prospects of success to warrant granting the applicant leave to amend his proposed grounds of appeal to include this ground. Both of the documents were produced to support his claim to have been detained by the Sri Lankan army in 2008. Each of the documents states that the applicant was detained at the Trincomalee District Police Station in 2008. In light of the fact that the Tribunal accepted the applicant's claims on this issue, there was no jurisdictional error on the part of the Tribunal in failing to refer to the documents which corroborated the applicant's claims on this issue. As the Full Court has said in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46], it is not incumbent upon the Tribunal to refer to each item of evidence which is produced before it. This is particularly so in light of the fact that the delegate had also accepted that evidence, and so this question was not really in issue before the Tribunal. 36 Further, the fact that the Tribunal did not refer to the documents in dealing with the events of 2008, did not mean that the Tribunal, thereby, fell into jurisdictional error by rejecting the applicant's evidence in relation to the events which the applicant claimed occurred some three years later. The Tribunal specifically explained why it rejected the applicant's evidence about those events. The Tribunal explained that the evidence was inconsistent with country information about the activities of the Karuna group and the Sri Lankan authorities and that it was implausible. 37 In my view, that was a finding which was open to the Tribunal. A Tribunal does not fall into jurisdictional error because it accepts some parts of an applicant's evidence but rejects other parts of an applicant's evidence on the basis of the implausibility of that part of the evidence, or for some other reason affecting the credibility of that part of the applicant's evidence. 38 In my view, the proposed amended ground of appeal, in essence, seeks to engage upon an impermissible review of the Tribunal's fact finding process. The proposed amended ground of appeal does not enjoy sufficient prospects of success to permit the applicant to amend his proposed grounds of appeal to raise this proposed ground of appeal.

The second proposed amended ground of appeal 39 By the second proposed amended ground of appeal, the applicant seeks to raise another ground of review which was not before the primary judge. 40 The proposed ground of appeal contended that the Tribunal fell into jurisdictional error by failing to recognise and deal with a claim that the applicant feared harm as a member of a particular social group, namely, "a family member of a former financier of the LTTE who has fled Sri Lanka". 41 The applicant contended that the threshold task of the Tribunal was to identify correctly the "particular social group" relevant to the applicant's claim for protection and that the Tribunal had failed to do so. The applicant contended that this failure by the Tribunal amounted to jurisdictional error. The applicant relied on the case of Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389. In that case, the High Court held that the Tribunal had fallen into jurisdictional error because it had mischaracterised the particular social group into which the Dranichnikovs claimed that they fell. 42 The applicant did not expressly formulate his claim before the Tribunal as one based on his being a member of the particular social group now identified by the applicant. And, it is the case that the Tribunal did not in terms assess the applicant's claim by reference to a claim that the applicant feared harm on that basis. 43 However, in my view, the failure by the Tribunal to assess the applicant's claim for a protection visa on that basis, did not amount to a jurisdictional error. This is because, whilst not characterising the applicant's claim in that way, the Tribunal, nevertheless, dealt with the claims expressly made by the applicant, and those claims contained all of the component elements which would have constituted a claim had it been expressly made by reference to the "particular social group" now identified by the applicant. 44 The applicant's claim that his uncle had been president of the Fishing Society, was a leader in his community, had raised money and given it to the LTTE, and had fled Sri Lanka for India was at the forefront of the applicant's application. The applicant claimed that these circumstances caused him to fear harm from the Sri Lankan authorities and also the Karuna group, and the Tribunal considered those claims on their merits. 45 Thus, the Tribunal considered the applicant's claim that he feared harm from the Sri Lankan authorities by being imputed as a supporter of the LTTE because of the association with his uncle and his uncle's activities. In dealing with that claim, the Tribunal referred specifically to country information which stated that those who may be at risk of being harmed included persons who were "former LTTE combatants or 'cadres'; other former LTTE supporters, LTTE fundraisers, and persons with family links or who are dependent on or otherwise closely related to persons with the above profiles". 46 The Tribunal then accepted that on the basis of that country information, the applicant may have been under suspicion by the Sri Lankan security agencies and may have attracted past monitoring attention by the Sri Lankan authorities. However, the Tribunal went on to say that it considered that: [A]ny suspicion of links the applicant may have been suspected of having to the LTTE through his uncle, has been removed as a result of the Sri Lankan authorities' past inquiries and questioning of the applicant. 47 Further, the Tribunal gave detailed consideration to the applicant's claim that he feared harm from members of the Karuna group by reason of his association with his uncle. In considering that claim, the Tribunal expressly observed that the applicant had claimed that the Karuna group's interest in his uncle was "due to his uncle having provided financial support to the LTTE through the fishing society". The applicant also relied in support of this claim on his suspicion that the men who he claimed had come to his family's house in December 2011 inquiring about his uncle and who had then assaulted him at his family's house were members of the Karuna group. 48 As mentioned, the Tribunal did not accept that that incident had occurred. At [53], the Tribunal's record states: The Tribunal finds that the applicant has fabricated this aspect of his claim, and having regard to all of the evidence, it concludes that he is not of adverse interest to the Sri Lankan authorities, or the Karuna, or to anyone else now for the activities of his uncle performed some six years or more ago. 49 In my view, the circumstances of this case are similar to those in the case of MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 (MZYPO). 50 In MZYPO, the applicant, as in this case, sought to amend his proposed grounds of appeal to contend that the Tribunal had failed to consider the applicant's claim that he feared harm by reason of being a member of a particular social group, namely, "young Tamil males from north Sri Lanka". 51 The Full Court rejected the application to amend on the basis that the proposed ground of appeal was not of sufficient merit to permit the applicant to argue on appeal a ground of review which was not raised before the primary judge. 52 At [107], Jessup J observed as follows: Turning to the second question, (whether the grounds now sought to be introduced clearly have merit), the first such ground is expressed as follows: 2. The Federal Magistrate erred in failing to consider and find that the Second Respondent denied the Appellant procedural fairness, by reason of her failure to consider an integer of the claim of the Appellant, namely his alleged persecution by reason of his membership of a particular social group being young Tamil males from north Sri Lanka. The gravamen of this ground, it seems, would be that the reviewer did not, in terms, identify "young Tamil males from North Sri Lanka" as a "particular social group" for the purposes of the Refugees Convention, and then consider the appellant's claimed fear of persecution against that circumstance. In my view, there would be no substance in such a ground of appeal. That the appellant feared persecution because he was a young male from northern Sri Lanka lay at the core of his case before the reviewer. The reviewer gave the merits of that case her earnest and detailed consideration: indeed, the contrary was not submitted on the present appeal. The reviewer addressed the question of whether the appellant's fear of persecution was justified by reference to the very circumstance upon which he now relies. That she did not categorise the circumstance as involving membership of a "particular social group" is, in my view, a matter of no present consequence. Any submission on behalf of the appellant that the way the reviewer proceeded involved a constructive failure to exercise jurisdiction would, in my view, have negligible prospects of success. 53 In my view, these observations of Jessup J have application to the circumstances of this case. It is apparent from the Tribunal's record that the Tribunal, as did the reviewer in MZYPO, addressed in detail the applicant's claims to fear harm arising from his relationship to his uncle who had been a fundraiser for the LTTE. As in MZYPO, the fact that the Tribunal did not categorise the circumstances of the applicant's claims as involving membership of a "particular social group" was "a matter of no present consequence". 54 I would observe that Dranichnikov is distinguishable. In that case, unlike this case, the Tribunal's mischaracterisation of the "particular social group" relevant to the Dranichnikovs' claim meant that the Tribunal did not consider all of the constituent elements of the claim, had it been properly characterised. 55 Accordingly, the proposed ground of appeal does not have sufficient merit to warrant giving the applicant leave to amend his proposed grounds of appeal, to include this as a potential ground of appeal. 56 No argument was advanced in support of the original proposed grounds of appeal. They are, in any event, without merit. 57 Accordingly, the application for an extension of time to appeal is dismissed. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.