CNN15 v Minister for Immigration and Border Protection

Notice of Appeal 12 The notice of appeal contains the following grounds: (1) "I think the Decision maker did not consider all of the evidence or did not take into account relevant consideration or based the Decision on wrong information. (2) I think the Decision is affected by bias. (3) I think the Decision maker misinterpreted the law." 13 It is apparent that none of these grounds is an articulation by the appellant of any appellable error by the primary judge. It is not clear whether the "Decision maker" is intended to refer to the Tribunal or the primary judge. If it be the Tribunal, and I consider this the more likely position, then, as the Minister submits, this alone is a sufficient basis for the appeal to be dismissed, as such a fundamental deficiency in a notice of appeal is not a mere matter of form, as no original jurisdiction is vested in the Federal Court of Australia to review errors perceived to have been committed by the Tribunal: see SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 at [6]-[7]. 14 Even if it is a reference to the judgment of the primary judge being in error because his Honour did not conclude that the Tribunal had committed one or other of the errors alleged, the appeal would still have to be dismissed: SZJHE at [8]. 15 The appellant did not file written submissions but made brief oral submissions none of which sought to advance any of the grounds pleaded. Rather he made submissions in the most general terms that he did not agree with the finding (by the delegate and later affirmed by the Tribunal) that he was not at risk of harm should he be returned to Vietnam. 16 He described the human rights situation in Vietnam as getting worse, with beatings of Christians who gathered to conduct "prayer sessions". He said that he too had been beaten and oppressed which is why he had left Vietnam in order to seek refugee status. He said that his province in Vietnam was a "hot point" in politics and that religious freedom was absent. He then spoke anecdotally about the ill treatment and imprisonment of some unnamed failed asylum seekers upon their return to Vietnam. 17 These submissions amount to an impermissible merits review and are confronted by unassailable factual findings by the Tribunal, challenged unsuccessfully before the primary judge, rejecting the appellant's claims as to what gave rise to his asserted fears of harm. 18 It is sufficient, in this respect, to set out paragraphs [18] and [19] of the reasons of the primary judge. 18. As can be seen from this narrative the applicant made significant new claims at different stages or at a late stage of the process, particularly the claim, subsequently withdrawn, that he had been arrested, and claims that, following confrontations at the church, he received a summons or letters of invitation from the police, that the police had visited his home on multiple occasions looking for him before he left Vietnam and the claim that he was on a blacklist of government opponents which prevented him travelling outside his province to obtain work. 19. These matters were raised relatively late and after the applicant had, with legal or professional assistance, completed a statutory declaration that did not mention them and in the case of his second statutory declaration, also prepared with professional assistance, did not mention that he was on a blacklist of government opponents. These matters raised obvious and serious questions about the applicant's credibility and suggested he may not be telling the truth. After considering the applicant's explanations, including those relating to stress, anxiety and poor mental health, the Tribunal did not accept that the applicant was ever involved in confrontations with the police or the applicant's claims more generally about frequent confrontations between police and parishioners at the applicant's church. The Tribunal did not accept that he was ever summonsed by the police or sent letters inviting him to go to the police or that he refused to go to the police out of fear. It did not accept that he feared that the authorities would take action against him, that he was on any list of opponents or that he was of any adverse interest to the Vietnamese authorities. In essence, the Tribunal did not accept that the applicant had a profile that led him to come to the attention of the Vietnamese authorities or that he suffered any of the claimed harm. 19 Nonetheless, I will consider the individual grounds in turn.

Ground 1 - Decision maker did not consider all of the evidence/did not take into account relevant considerations/based the decision on wrong information 20 This ground is unparticularised as to just what evidence it is alleged was not considered by the Tribunal or what relevant considerations the appellant alleges the Tribunal did not take into account, or as to what "wrong information" the Tribunal is alleged to have based its decision upon. 21 This first ground of appeal is merely an unparticularised assertion of jurisdictional error. As was said in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]: (This ground is) an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969. 22 The first ground therefore fails.

Ground 2 - Decision is affected by bias 23 Again, this ground is unparticularised and was, as I mentioned, not the subject of any submissions by the appellant. It falls to be dismissed on this basis alone. 24 An allegation of bias must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507 per Gleeson CJ and Gummow J at 531 [69] and Kirby J at 546 [127]. 25 Moreover, Ground 2 is a repetition of the third ground of application in the application as originally filed in the Federal Circuit Court. The unparticularised allegation of bias was not pursued in the amended application before that Court. The appellant cannot now seek to rely upon such an allegation which was not an issue advanced before the primary judge. This ground fails.

Ground 3 - Decision-maker misinterpreted the law 26 This ground too is unparticularised, and may be dismissed on this basis. 27 Further, Ground 3 repeats ground 4 of the application in the original application in the Court below which, again, was not pursued in the amended application. Accordingly, the appellant may not pursue this ground before this Court. 28 Ground 3 fails

Orders 29 For these reasons, the appeal will be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.