FEDERAL COURT OF AUSTRALIA

MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1

THE COURT ORDERS THAT:

1.    The application for leave to amend the notice of appeal be dismissed.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the application for leave to amend the notice of appeal, and the appeal, on a party party basis.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LANDER AND MIDDLETON JJ

1    This is an appeal from an order of a Federal Magistrate made on 18 April 2012 dismissing the appellant’s application for judicial review of a decision made by an Independent Merits Reviewer on 4 July 2011.

2    The appellant applied to a judge of the Court for leave to amend the appellant’s notice of appeal. That application and the appeal were referred to this Court by that judge.

3    The appellant was born in Sri Lanka on 26 May 1981 and is a Tamil. He lived in Sri Lanka from the date of his birth until 2006 when he left Sri Lanka and resided in a refugee camp in India, before returning to Sri Lanka for several years and leaving again in 2010.

4    He travelled to Australia by boat, but the boat was intercepted and on 11 May 2010 the appellant was taken to Christmas Island. On 23 May 2010, the appellant was interviewed by the Department in order that he might provide reasons why he should not be removed from Australia.

5    Because the appellant was a person who had entered Australia at an “excised offshore place”, namely Christmas Island, and became an unlawful non-citizen because of that entry, the appellant was an “offshore entry person” as defined in s 5 of the Migration Act 1958 (Cth) (the Act).

6    The Act provides that an offshore entry person cannot make a valid application for a visa if the offshore entry person is in Australia and is an unlawful non-citizen: s 46A(1). The appellant, therefore, could not make a valid application for a protection visa under s 36(2)(a). The Minister for Immigration and Citizenship (Minister) is only able to consider a valid application for a visa and is prohibited from considering an application that is not a valid application: s 47(3).

7    However, the appellant was entitled to apply to the Department of Immigration and Citizenship (Department) for a Refugee Status Assessment (RSA), which he did on 6 August 2010, claiming to be a refugee within the meaning of s 36(2)(a) of the Act. The administrative arrangements that lead to the Department making RSAs are explained in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 from 342.

8    On 29 September 2010, a case manager of the Department provided an RSA in which he concluded that the appellant did not have a well-founded fear of persecution by the Sri Lankan authorities for reasons of his political opinion or his race.

9    On 28 October 2010, the appellant sought an Independent Merits Review (IMR) by an Independent Merits Reviewer (the second respondent) of that RSA. That procedure is also explained in Plaintiff M61/2010E v Commonwealth of Australia, from 342.

10    On 9 February 2011, the appellant’s migration officer wrote to the second respondent and made submissions in support of the appellant’s claims for protection.

11    On 16 April 2011, the appellant attended an IMR interview in the company of an interpreter.

12    On 7 June 2011, the appellant’s migration agent provided further submissions to the second respondent.

13    On 4 July 2011, the second respondent recommended that the appellant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees (Refugees Convention) as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Protocol).

14    On 4 August 2011, the appellant brought a proceeding in the Federal Magistrates Court seeking a judicial review of the second respondent’s decision and sought the following orders:

1.    A declaration that the recommendation of the Independent Merits Reviewer was not made in accordance with law, by reason of the grounds of this application.

2.    An injunction restraining the Minister, by himself or by his Department, officers, delegates, or agents, from relying upon the recommendation of the Independent Merits Reviewer.

3.    That the first respondent pay the applicant’s costs.

4.    Such further orders the Court deems fit.

15    The grounds of the application were:

That the decision of the second respondent, the Independent Merits Reviewer, was affected by legal error.

16    On 14 October 2011, the Migration Amendment (Complementary Protection) Act 2011 (Cth) (the Amendment Act) was assented to, but the relevant provisions in that Act did not come into effect until 24 March 2012. The Amendment Act introduced a new criterion in addition to the criteria in s 36(2) for the grant of a protection visa: Item 12 of Schedule 1 to the Amendment Act.

17    On 12 April 2012, the appellant was granted a Temporary Safe Haven (subclass 449) visa, which was valid until 19 April 2012. On the same day, he was granted a Bridging E (subclass 050) visa, which was valid until 12 October 2012.

18    The grant of those visas meant that the appellant became a lawful non-citizen: s 13(1). Therefore, s 46A ceased to apply to the appellant, because s 46A(1)(b) was no longer satisfied. However, although s 46A ceased to apply to the appellant, subdivision AJ of Division 3 of Part 2, which deals with Temporary Safe Haven visas, did apply. That subdivision applies to a non-citizen who either holds a Temporary Safe Haven visa (s 91J(a)) or has not left Australia since ceasing to hold a Temporary Safe Haven visa (s 91J(b)).

19    Because the appellant was a lawful non-citizen, he was released from detention.

20    Because subdivision AJ of Division 3 of Part 2 of the Act applied to the appellant, the appellant was prevented from making a valid application for any visa other than a Temporary Safe Haven visa (s 91K) unless the Minister was of the opinion that it was in the public interest to determine that s 91K did not apply to the appellant: s 91L(1). Section 91L is in pari materia to s 46A.

21    The Minister has not made a determination that s 91K not apply to the appellant. The power to make a determination under s 91L(1) can only be exercised by the Minister personally: s 91L(2). The power is not compellable in that the Minister does not have a duty to consider whether to exercise the power under s 91L(1), whether requested to do so by the non-citizen, or by any other person, or in any other circumstances: s 91L(6).

22    On 18 April 2012, the appellant, unrepresented, appeared before the Federal Magistrate who recorded that the appellant was unable to expand on the stated ground in the application to which we have already referred and was, therefore, unable to prosecute his case in any sensible manner.

23    In ex tempore reasons, the Federal Magistrate dismissed the appellant’s application.

24    On 9 May 2012, and before the appellant could obtain access to the Federal Magistrate’s ex tempore reasons, the appellant filed a notice of appeal. The ground of appeal, the particulars, and the orders sought on the appeal were:

Grounds of appeal

1.    There was an error in the application of law.

PARTICULARS

1.    The reasons provided by the Second Respondent to the First Respondent in support of the Second Respondent’s recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical nor rational.

2.    Further grounds of appeal will be provided once the written reasons for the learned Federal Magistrates (sic) decision have been provided.

Orders sought

1.    The appeal be upheld.

2.    An injunction restraining the First Respondent from removing the Appellant from Australia until a refugee status assessment is undertaken in which procedural fairness is afforded.

3.    A declaration that, in recommending the First Respondent that the Appellant was not a person to whom Australia has protection obligations, the Second Respondent failed to observe the requirements of procedural fairness.

4.    An order that the first respondent pay the Appellant’s costs in this court and in the court below.

25    On 18 May 2012, the written reasons of the Federal Magistrate were made available to the parties.

26    On 24 August 2012, the appellant, represented by his current solicitors, filed an interlocutory application seeking to amend the appellant’s notice of appeal by amending the grounds of appeal and the orders sought (the first proposed amended notice of appeal). That application was, as we have said, referred into this Court by a judge of the Court and was considered by this Court at the same time as the appeal itself.

27    At the hearing of the appeal, the appellant sought to propound an amended notice of appeal that differed from the first proposed amended notice of appeal placed before the single judge (the second proposed amended notice of appeal), but nothing turns on that.

28    As the appellant’s application for leave to amend the notice of appeal developed, the second proposed amended notice of appeal, which had been provided to this Court, underwent further amendment.

29    For the reasons that follow, we would dismiss the application for leave to amend the notice of appeal. We would also dismiss the appeal.

30    The grounds of appeal in the second proposed amended notice of appeal were:

1.    The Federal Magistrate erred in failing to consider and find that:

a.    the second respondent;

b.    alternatively, the First Respondent cannot lawfully rely upon the recommendation of the Second Respondent when determining an application of the Appellant for a protection visa and / or making a decision concerning the same, because that recommendation;

failed to take into account a relevant consideration, namely the Appellant’s claims to complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth)

the First Respondent could not lawfully act on the recommendation of the Second Respondent because that recommendation failed to take into account a relevant consideration for the First Respondent, namely the Appellant’s claims to complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”). The First Respondent was obliged to take s 36(2)(aa) of the Act and the Appellant’s claims thereunder into account from 24 March 2012 notwithstanding that the Second Respondent had not been obliged to take into account s 36(2)(aa) of the Act and the Appellant’s said claims at the time the Second Respondent made her recommendation.

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.

3.    The Federal Magistrate erred in failing to consider and find that the Ssecond Rrespondent’s decision gave rise to an apprehension of bias because she referred to the Liberation Tigers of Tamil Eelam as a “terrorist organisation”.

31    The orders sought in the second proposed amended notice of appeal were:

1.    A declaration that, in recommending to the First Respondent that the Appellant was not a person to whom Australia has protection obligations, the Second Respondent made an error of law, in that she did not the First Respondent cannot act according to law on the recommendation of the Second Respondent because, by acting on that recommendation, the First Respondent would fail to take into account a relevant consideration for the First Respondent, namely the Appellant’s claims pursuant to s 36(2)(aa) of the Migration Act 1958 (Cth).

2.    The orders made by the Federal Magistrates Court on 18 April 2012 be set aside, and in lieu thereof, the following orders be made in the nature of a writ of:

i.    certiorari to quash the decision recommendation of the Second Respondent dated 4 July 2011;

ii.    mandamus, directing the First Respondent to hear and determine the Aappellant’s application according to law.

3.    An injunction restraining the Ffirst Rrespondent, by himself or by his Department, officers, delegates or agents, from actrelying upon the recommendation of the Second Respondent.

4.    The Respondents pay the Appellant’s costs of the appeal and of the proceedings before the Federal Magistrates Court.

5.    Any other orders as the Court deems fit.

32    The Court indicated at the hearing that the Court would decide upon the application for leave to amend the notice of appeal when we considered the appeal.

33    During the course of the application for leave to amend the notice of appeal, the appellant’s counsel handed up a document, which contained the orders he proposed should be made after the hearing of the application for leave to amend the notice of appeal and the appeal.

34    The orders the appellant said should be made were:

The Court:

1.    Orders that:

a.    leave to rely on the proposed amended application dated 13 September 2012 be granted;

b.    the appeal be allowed;

c.    the orders made by the learned Federal Magistrate on 18 April 2012 be set aside; and

d.    the First Respondent pay the Appellant’s costs of the appeal.

2.    Declares that

a.    [ground 1] the Appellant’s claims must be assessed under s 36(2)(aa) of the Migration Act 1958 (Cth), and taken into account by the First Respondent; and

b.    [ground 2 and / or 3] in recommending to the First Respondent that the Appellant was not a person to whom Australia has protection obligations, the Second Respondent failed to observe the requirements of procedural fairness.

3.    Grants an injunction restraining the First Respondent, by himself or by his Department, officers, delegates or agents, from acting:

a.    [ground 2 and / or 3] on the recommendation of the Second Respondent; and

b.    [ground 1] without the Appellant’s claims being assessed under s 36(2)(aa) of the Migration Act 1958 (Cth); or

c.    [ground 1] on any other recommendation unless it assesses the Appellant’s claims under s 36(2)(aa) of the Migration Act 1958 (Cth).

35    The orders that the appellant contended for in that document differed from the orders sought in the second proposed amended notice of appeal and bore no resemblance to the orders sought before the Federal Magistrate.

36    At the time that the second respondent carried out her review, and gave her recommendation on 4 July 2011, s 36(2)(aa) of the Act, which was contained in the Amendment Act, had not been enacted. It came into force on 24 March 2012. Item 12 of Schedule 1 to the Amendment Act provided that after s 36(2)(a) of the Act would be inserted:

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) to whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …

37    Although s 36(2)(aa) was originally inserted in that form in the Act, Item 7 of Schedule 1 of the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) amended s 36(2)(aa), by omitting the words “to whom” and substituting the words “in respect of whom”, which is the form in which that subsection and s 36(2)(a) now appear.

38    There were a number of consequential amendments in the Amendment Act. For example, “significant harm” was the subject of amendments introduced in s 36(2A), (2B) and (2C) of the Act. “Torture”, “cruel or inhumane treatment or punishment”, and “degrading treatment or punishment”, all of which are mentioned in s 36(2A), were new definitions inserted in s 5 of the Act. Subsection 36(4) and (5) of the Act were repealed and substituted by s 36(4), (5) and (5A).

39    The new criterion of s 36(2)(aa) is described as “complementary protection”.

40    Section 36(2)(aa) is only engaged if the person who has applied for a protection visa cannot satisfy the criterion in s 36(2)(a).

41    Although the appellant made no submissions to the Federal Magistrate and, therefore, did not rely upon the second respondent’s failure to have regard to s 36(2)(aa) as a ground for jurisdictional error, the appellant sought in the first sentence of ground 1 of the second proposed amended notice of appeal to raise such an issue.

42    Ground 1 suffered from the problem that the error sought to be relied upon was not an error that could have been committed by the second respondent at the time that the recommendation was made because at that time s 36(2)(aa) had not been enacted. Therefore, the second respondent had no duty to consider that paragraph. The Minister also had no duty to consider s 36(2)(aa) at the time the Minister received the second respondent’s recommendation.

43    It might be, as was contended by the appellant, that the Minister was obliged to have regard to the provisions of s 36(2)(aa) after it was enacted, but it cannot be said that the second respondent, or the Minister, had such an obligation before the paragraph was enacted.

44    The second sentence in ground 1 of the second proposed amended notice of appeal raises a different issue to the first sentence in the same ground.

45    The appellant complains of the Minister’s failure to have regard to s 36(2)(aa) after its enactment. That was not the issue before the Federal Magistrate. When the proceeding in the Federal Magistrates Court was commenced on 4 August 2011, s 36(2)(aa) had still not been enacted. It was enacted on 24 March 2012, a little more than three weeks before the appellant’s application was heard by the Federal Magistrate.

46    In fact, the Minister was not asked to consider the appellant’s claim for protection based upon s 36(2)(aa) until after the Federal Magistrate dismissed the appellant’s claim.

47    The appellant now complains that the Minister has breached his duty by refusing or failing to have regard to the criterion in s 36(2)(aa). That refusal or failure, if there be one, has or did not occur until after the Federal Magistrate dismissed the appellant’s proceeding. Any inaction by the Minister has nothing whatsoever to do with the second respondent’s recommendation.

48    The Minister claims that he is under no duty to consider the appellant’s claim for protection under s 36(2)(aa) because s 36(2)(aa) does not apply to the appellant. In that regard he relies upon Item 35 of Schedule 1 of the Amendment Act.

49    The Minister argues that if he is wrong about the application of s 36(2)(aa) that in any event he has caused the appellant’s claims to be assessed against that criterion. The Minister says that on 14 May 2012, a departmental officer assessed the appellant’s claims against the Post Review Protection Claims guidelines and found that the appellant did not satisfy the criterion.

50    Whether the appellant is entitled to make a claim for protection relying upon s 36(2)(aa) is not without difficulty because of the provisions of Item 35 of Schedule 1 to the Amendment Act, which provides:

The amendments made by this Schedule apply in relation to an application for a protection visa (within the meaning of the Migration Act 1958):

(a)    that is made on or after the day on which this item commences; or

(b)    that is not finally determined (within the meaning of subsection 5(9) of that Act) before the day on which this item commences.

51    The appellant had not made an application for a protection visa before 24 March 2012 so, apparently, paragraph (b) would not apply. The appellant has not made, and has not been able to make, a valid application for a protection visa since 24 March 2012, because during the period between 24 March 2012 and 12 April 2012 he was an offshore entry person who was in Australia and an unlawful non-citizen (s 46A); and, since 12 April 2012, because he is a non-citizen who has held a Temporary Safe Haven visa and has not left Australia since ceasing to hold a Temporary Safe Haven visa (ss 91J, 91K).

52    Unless the Minister exercises the non-compellable personal power in s 91L of the Act, the appellant cannot make a valid application for a protection visa. The Minister argues that Item 35 of Schedule 1 of the Amendment Act provides that s 36(2)(aa) of the Act does not apply to the appellant.

53    The appellant may argue that the Minister has to have the appellant’s claim for a protection visa under s 36(2)(aa) assessed in the same manner as his claim for a protection visa under s 36(2)(a) because of the decision of the High Court in Plaintiff M61/2010E v Commonwealth of Australia, but that is not a matter that we have to consider now because during the hearing the appellant abandoned the application to amend the notice of appeal to include ground 1. In those circumstances, no more needs to be said about that ground.

54    During the hearing, the appellant conceded that the decision in Plaintiff M61/2010E v Commonwealth of Australia meant that the appellant could not be entitled to the relief in paragraph 2 of the orders sought in the second proposed amended notice of appeal. It was also conceded that the injunction sought in paragraph 3 could not be made in the terms sought. Lastly, the appellant conceded that he would not be entitled to the declaration in the terms sought in the second proposed amended notice of appeal.

55    The second and third grounds contained more orthodox complaints in relation to a merits review of a delegate of the Minister, who decided that the appellant’s claim for a protection visa had not been made out.

56    The second respondent was reviewing a decision of the Minister’s delegate as to whether the appellant’s claim that he was entitled to Australia’s protection obligations was established. The appellant’s claim to be entitled to Australia’s protection obligations would be established if the appellant was a person to whom Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol applied. The appellant would have to be a person who had a well-founded fear of persecution for a Convention reason.

57    The second respondent was not, however, reviewing, as does the Refugee Review Tribunal (RRT), a decision of the Minister’s delegate to refuse an application for a protection visa. For reasons earlier stated, the appellant, being an offshore person, could not make a valid application for a protection visa.

58    The importance of highlighting the distinction is because of the relief that is available, on judicial review, to a claimant for refugee status compared to an applicant for a protection visa. If jurisdictional error is established and a court needs to consider relief, the court will, in the case of an applicant for a protection visa, quash the RRT’s decision and remit the successful applicant’s application for a protection visa to the RRT for further consideration according to law.

59    However, in a case of this kind where the second respondent is considering a claim for refugee status as distinct from an application for a protection visa, certiorari and mandamus are not available: Plaintiff M61/2010E v Commonwealth of Australia at [99]-[104]. That is because, as the High Court explained, the Minister does not have a duty to consider whether to exercise the power in s 46A. Therefore, mandamus does not lie. Because mandamus does not lie, certiorari has no utility. The relief that may be given is a declaration and that would be in a form identifying the error made by the Reviewer that gave rise to jurisdictional error.

60    Neither ground 2 or 3 was relied upon in support of the application for judicial review before the Federal Magistrate. They have been raised for the first time on this appeal.

61    The appellant contended that the appellant should be entitled to propound those grounds on this appeal because it is expedient in the interests of justice to do so: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46].

62    The appellant, it was said, did not put the two grounds and arguments on these grounds to the Federal Magistrate because the appellant was unrepresented and has a poor command of the English language. It was pointed out that the Federal Magistrate himself said that the appellant was “really unable to prosecute his case in any sensible manner”. It was contended that the appellant would suffer serious consequences if he were to be returned to Sri Lanka in breach of Australia’s protection obligations.

63    In IYER v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71, an appellant who had sought a protection visa sought to raise five grounds on appeal, which had not been raised before the primary judge. Justice Gyles said that it was contrary to principle to simply put aside and ignore the judgment at first instance and allow an appellant to ask the Full Court on appeal to judicially review a decision of the RRT de novo: at [61].

64    He also said that it was wrong to analyse an appellant’s application to raise a matter for the first time on appeal as requiring a balance of prejudice between the appellant and the Minister. In public law matters it can always be said that no actual prejudice, apart from costs, has been suffered by the Minister, but that the appellant was liable to suffer prejudice. That is to overlook the “significant public interest in the timely and effective disposal of litigation”: at [62].

65    In IYER v Minister for Immigration and Multicultural Affairs, the appellant had been represented before the primary judge. In this case, the appellant was unrepresented before the Federal Magistrate and put no submissions at all.

66    In our opinion, if there was some merit in grounds 2 and 3, this would be a case where it would be expedient in the interests of justice to allow the grounds to be put for the first time.

67    However, we do not mean to say that appellants in administrative law matters of the kind with which this Court is concerned are entitled to think that they can put forward any new argument that occurs to their legal advisers on the appeal, whether or not it has been put before the Court at first instance.

68    All arguments, which an applicant wishes to put before the Court, must be put before the Court at first instance to be dealt with by that Court. The parties in a proceeding are entitled to expect that the opposing party, if an applicant, will have put all arguments upon which that applicant claims to be entitled to any relief or, if a respondent, will have put all defences upon which that respondent relies for dismissing the application. The Full Court is entitled to have the benefit of the reasons for judgment of the Court at first instance in respect of all arguments, in conducting its rehearing of the appeal. Although on this application we are inclined to decide the application by reference to the merits of the proposed new grounds, it cannot be thought that this Court should proceed on that basis in all cases. If the Court were compelled to consider an application of this kind by reference to whether or not the application would succeed, then that would have the de facto result that an appellant could raise any ground the appellant liked without reference to the arguments put before the Court at first instance.

69    The appellant claimed, in ground 2 of the second proposed amended notice of appeal, that the second respondent failed to have regard to his claim that he had a well-founded fear of persecution as a “young Tamil [male] from north Sri Lanka”, which was a particular social group. He claimed that the second respondent recited the claim in her recommendation at paragraph 47, but failed to consider it.

70    The appellant contended, and the Minister demurred, that on a merits review the Reviewer has an obligation to consider an applicant’s claim as against every particular reason that would justify concluding that the applicant has a well-founded fear of persecution: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63].

71    The question this ground raises is whether the appellant’s claim, as identified, was assessed within the wider claim that the appellant feared persecution because he was a young Tamil male from Navatkuli Jaffna District, who had been suspected in the past by the army of an affiliation with the Liberation Tigers of Tamil Eelam (LTTE). The Minister contended that that claim had been addressed and the second respondent had found that the appellant would not have a well-founded fear of persecution on account of that claim. The Minister contended that the narrower claim was encompassed by the second respondent’s finding in respect of the wider claim. In our opinion, that contention must be accepted.

72    The second respondent identified, at paragraph 81 of her reasons, the appellant’s claim as a fear of persecution “on the basis that he is a young Tamil male from Jaffna District who has been suspected in the past by the army of an affiliation with the LTTE”.

73    The appellant was a young Tamil in that he was 28 years of age when he left Sri Lanka for the second time. He came from the Jaffna District, which is in the north of Sri Lanka.

74    The question for this claim was whether he was suspected by the army of being a member or supporter of LTTE.

75    The second respondent did not accept the appellant’s claims that in 2006 he been interrogated, stripped and beaten by the army because he was thought to be an LTTE member. Instead, she found that he was detained by the army with other tractor drivers for the purpose of the army gathering intelligence.

76    She rejected the appellant’s claim that in 2009/2010 he was visited by the army 15 times. She found he was questioned by the army on three occasions in total and that he had not suffered any ill treatment at the hands of the army. She found that if he were to return to Sri Lanka he would not be at threat by the army or by the LTTE, and that if the latter were a threat, the Sri Lankan authorities would provide protection.

77    The second respondent found that the appellant could not be suspected of being an LTTE member or supporter. She found that historically he had not been considered to have any association with the LTTE.

78    By finding that he did not have a well-founded fear of persecution by reason of his Tamil ethnicity, reputed political opinion, or purported membership or association with the LTTE, the second respondent addressed the claim that the appellant claimed was made.

79    The second ground, if allowed, would not be made out.

80    The third ground related to an expression used in the second respondent’s reasons at paragraph 33. She said whilst recording what the appellant said:

He did this work for three years, and for 6-7 months he worked for the terrorist organisation the LTTE.

81    The appellant has seized on the reference to the LTTE as being a terrorist organisation, which he claims has never been so described in Australia or in Australian law. The appellant contended that the description given to the LTTE indicated that the second respondent should be found to have acted in a manner giving rise to a reasonable apprehension of bias.

82    The statement made by the second respondent was what she was told was said by the appellant. The interpreter translated the appellant’s account and said that the appellant referred to the LTTE as a terrorist organisation.

83    The inclusion of the phrase in the second respondent’s reasons was merely to describe what she was told was said by the appellant. It is not the second respondent’s description of the LTTE but her account of what the appellant said.

84    The appellant contended that the second respondent was told by the interpreter that the appellant used the expression “terrorist organisation” but that was an interpreting error and that the second respondent should have realised that at the time the appellant gave his evidence and ensured that his evidence was correctly interpreted. The appellant contended that her failure in that regard should be seen as part of the circumstances giving rise to an apprehension of bias.

85    The test of reasonable apprehension of bias is settled and well known. Reasonable apprehension of bias will be found if a fair-minded lay observer, who is properly informed as to the nature of the decision to be made, the matters in issue and the conduct complained of, might think that the decision-maker might not bring a fair and impartial mind to the making of the decision: Minister for Immigration and Citizenship v SZQHH (2012) FCAFC 45 at [37].

86    It was not contended on the appeal that the reasons of a decision maker could not support a claim of apprehension of bias. It was not contended that apprehension of bias was limited to a period of time before a decision-maker’s decision was published. It was accepted by the Minister that the reasons might disclose an apprehension of bias, but the Minister contended that in this case the reasons did not do so.

87    In this case, the second respondent merely recounted what she was told. She did not make a finding to that effect nor did she measure the appellant’s claims against a terrorist organisation. In due course, she found that the appellant was neither a member or supporter of LTTE and nor was he thought to be a member or supporter of LTTE by the army.

88    A fair-minded lay observer who knew all these circumstances would not possibly think that the decision-maker might not bring a fair and impartial mind to the exercise of decision-making.

89    The third proposed ground cannot be upheld.

90    It follows that none of the three proposed grounds (the first of which was abandoned by counsel during the hearing) can be made out. In those circumstances the application for leave to amend the notice of appeal should be dismissed.

91    No other grounds were argued in relation to the notice of appeal filed in the Court on 9 May 2012.

92    It follows that the appeal should be dismissed. The appellant must pay the Minister’s costs of the application for leave to amend the notice of appeal, and the appeal, on a party and party basis.

Associate:

Dated:    18 January 2013

REASONS FOR JUDGMENT

Jessup J

93    This is an appeal from a judgment of the Federal Magistrates Court of Australia given on 18 April 2012, whereby the appellant’s application for remedies of the kind referred to in s 75(v) of The Constitution, which that court had jurisdiction to grant under s 476 of the Migration Act 1958 (Cth), was dismissed. The remedies sought by the appellant related to a recommendation of an Independent Merits Reviewer (“the reviewer”), given on 4 July 2011, that the appellant not be recognised as a person to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“Refugees Convention”).

94    The appellant’s application in the Federal Magistrates Court, which was lodged by himself rather than by a legal practitioner on his behalf, recited one ground only in support of the remedies which he sought, namely, that the recommendation of the reviewer “was affected by legal error”. The appellant represented himself at the hearing before the Federal Magistrates Court on 18 April 2012. According to the Federal Magistrate, the appellant provided no particulars as to the legal error which he alleged, and, indeed, had not had the benefit of a translation of the reviewer’s reasons for her recommendation. His Honour said that the appellant was “really unable to prosecute his case in any sensible manner”. His Honour took the view that, in those circumstances, it fell upon the court “to have a very critical look at the reasons of the [reviewer] with an eye to seeing whether an error can be found.” Proceeding in that way, his Honour was unable to find any error in the reviewer’s reasons. His Honour held that there was only “one possible order” that he could make, namely, to dismiss the appellant’s application.

95    On 9 May 2012, the appellant lodged his appeal in this court. His Notice of Appeal contained a single ground, namely, that there was “an error in the application of law”. He particularised that ground only by asserting that the reviewer’s reasons “were neither logical nor rational”, but added that further grounds of appeal would be provided once the Federal Magistrate’s written reasons for judgment had become available (although pronounced ex tempore on 18 April 2012, it seems that his Honour’s reasons were published in written form on 18 May 2012).

96    By 24 August 2012, the appellant was represented by solicitors. On his behalf, on that date they filed an Interlocutory Application to amend the appellant’s grounds of appeal by abandoning any suggestion that the reasons of the reviewer were neither logical nor rational, and by introducing three new grounds, the second and third of which were 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.

3.    The Federal Magistrate erred in failing to consider and find that the second respondent’s decision gave rise to an apprehension of bias because she referred to the Liberation Tigers of Tamil Eelam as a “terrorist organisation”.

The second respondent was, and is, the reviewer.

97    On 30 August 2012, a Judge of the court ordered, pursuant to s 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth) that the appellant’s application to amend, and the appeal itself, be adjourned to the next sittings of the Full Court. By reason of that order, the appeal came before the Full Court as presently constituted.

98    Although the appellant, again through his solicitors, gave notice of a variation in his application to amend of 24 August 2012, that affected only the first proposed ground of appeal. Save for a minor stylistic change, the two grounds which I have set out above were not affected, and they came before the Full Court for consideration in that form.

99    During the course of the submissions made on behalf of the appellant at the hearing of the appeal, counsel for the appellant abandoned the application to amend insofar as it related to the first ground. For that reason, I have not set out the terms of that ground in these reasons. Because it was abandoned, the first ground became, and thereafter remained, irrelevant to the matters which we must now consider.

100    The question which remains is whether either or both of the appellant’s proposed second or third grounds should be introduced by way of amendment, and if so, whether the appellant is entitled to succeed on his appeal by reference to the ground or grounds so introduced. Those grounds were the only ones upon which the appellant relied, and were argued on the merits. For that reason, I consider that we are well-placed to consider the likely prospect of the grounds sought to be introduced, to the extent that that becomes a relevant consideration on the application to amend.

101    In VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158, the Full Court said (at [46]-[48]):

46.    In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

47.    In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

48.    The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

In the present case, it was not suggested that the respondents to the appeal would suffer prejudice were the appellant to be permitted to rely upon the two grounds of appeal now sought to be introduced. The questions remaining, therefore, are whether the appellant has advanced an adequate explanation for his failure to take these grounds before the Federal Magistrates Court, and whether the grounds clearly have merit.

102    As to the first question, it is said on behalf of the appellant that his English is poor, that he does not have any legal training and (adopting the terminology of the Federal Magistrate) that he was unable to prosecute his case below in any sensible manner. I would accept that the appellant’s English is poor and that he does not have any legal training. However, whether these circumstances make a relevant contribution to the provision of an adequate explanation for the failure of the appellant to raise the proposed grounds before the Federal Magistrate is another question altogether.

103    In May 2010, the appellant used “Vrachnas Lawyers”, of Stalbridge Chambers, 443 Little Collins Street, Melbourne, to make written representations on his behalf in support of his claim to be recognised as a refugee in the Refugee Status Assessment then being conducted in relation to him by the Department of Immigration and Citizenship. After that assessment had been determined unfavourably to the appellant in September 2010, Vrachnas Lawyers were the appellant’s authorised agents for the purposes of his application before the reviewer. By letter dated 9 February 2011, they made detailed written submissions on the appellant’s behalf. They made further such submissions on 7 June 2011. That was about a month before the reviewer made her decision on the appellant’s case, but it was the appellant in his own name, rather than Vrachnas Lawyers on his behalf, who lodged the application for judicial review in the Federal Magistrates Court on 4 August 2011.

104    The appellant’s application was not heard by the Federal Magistrates Court until 18 April 2012. In the Federal Magistrate’s reasons pronounced ex tempore on that day, and published in written form on 18 May 2012, his Honour said:

7.    On the question of whether the Applicant has been given adequate opportunity to prepare a case for hearing today, I note that he acknowledged receipt of a green book (Court Book) some long time ago. It is highly probable it would have been in November 2011 because that green book was sent under cover of a letter from the Minister’s legal advisors dated 22 November 2011. In addition, in July 2011, he was sent the recommendation and the statement of reasons of the [reviewer]. He was further sent advice as to what he should do to get appropriate legal advice, Of all these things I am satisfied.

8.    He said that he sought legal assistance but, for some reason or other, without indicating why, he was refused assistance. It is obvious that he was not forthcoming as to why. From my own knowledge, I know that there is capacity at Scherger to get appropriate interpreters and to follow through with legal aid, in particular, for the provision of legal advice. But he comes here today asking me to accept that he was unable to get advice and interpreters and I can only conclude that he sat on his hands in relation to this significant matter and did not prepare for the hearing, as it was in his capacity to do so.

On the present appeal, no evidence was filed which would challenge or controvert the conclusions expressed by the Federal Magistrate as set out above. Indeed, counsel for the appellant made no reference to those conclusions in submissions advanced on his behalf. When they were drawn to counsels’ attention during the conduct of the appeal, counsel were unable to advance any satisfactory challenge to them.

105    As will appear presently, the two grounds now sought to be introduced by the appellant are based wholly upon the terms of the written reasons of the reviewer given on 4 July 2011. Further, they are both purely legal grounds, consisting as they do of administrative law arguments which were always available to the appellant to the extent that he had competent legal representation. It is not as though either of the grounds depend upon factual information which became available only some time after the reviewer’s decision.

106    In my view, it is clear beyond argument that the appellant has advanced no satisfactory explanation for his omission to raise the proposed grounds before the Federal Magistrate in April 2012. To the extent that that omission is said to have been the result of the appellant’s lack of legal representation, it should be clear from what I have set out above that I would not accept the premise, unsupported by evidence either before the Federal Magistrate or before this Full Court as it was, that the appellant did not, during the relevant period, have access to professional assistance at least to the extent necessary to formulate and to explain the grounds which ought then to have been raised.

107    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.

108    The other ground which the appellant seeks to introduce by amendment is expressed as follows:

3.    The Federal Magistrate erred in failing to consider and find that the second respondent’s decision gave rise to an apprehension of bias because she referred to the Liberation Tigers of Tamil Eelam as a “terrorist organisation”.

That the reference to the Liberation Tigers of Tamil Eelam as a “terrorist organisation” by the reviewer would give rise to an apprehension of bias against the appellant on her part, without more, is a proposition of the correctness of which I would need to be persuaded. However,

the likely fate of a ground such as that which the appellant seeks to introduce is to be perceived at a much more basic level. The passage in the reviewer’s reasons of which the appellant complained was as follows:

When the claimant left school in 2003 he obtained work tractor driving for a family friend who lived near his house named Johnson. He did this work for three years, and for 6-7 months he worked for the terrorist organisation the LTTE. This was continuous work which started around April 2004. The LTTE arranged with the claimant’s boss, Johnson for the work to be done. The claimant was directed by Johnson to do the work. When questioned, the claimant said that he could not have refused the work. He further qualified this by adding that it was the ceasefire time and there was not the expectation that there would be any problems flowing from doing this work. The work was to do with the construction of the martyrs’ cemetery. The tractor work he was required to do involved the moving of sand and cement for the construction of tombs. There were about 6 other tractor drivers involved and [sic] but they did not work for the same person as the claimant. The claimant confirmed that his employer was paid for the work and he was paid by his employer. I discussed with the claimant his previous statements. I asked why he would have said it was only 3 months intermittent wok. The claimant replied that this was wrong. He had worked 6 months continuously for the LTTE.

The reference to the “terrorist organisation” appears in the second sentence of this passage. It is clear, not only from the terms of the passage itself but also from the surrounding context, that the reviewer was here going no further than summarising the statements which the appellant himself had made to her. On the present appeal, he provided no additional evidence such as would displace what reasonably appears from the text of the reasons themselves, namely, that the expression “terrorist organisation” was his own. On the application for amendment, the appellant relied only on the reviewer’s reasons, and, in my view, those reasons provide no basis for any such apprehension of bias as he now desires to allege.

109    As explained above, the appellant’s proposed new grounds of appeal would be quite unlikely to succeed, and he has no satisfactory explanation for not having advanced corresponding grounds in his case before the Federal Magistrate. I would, therefore, refuse his application to make those amendments to his Notice of Appeal.

110     There was no other basis upon which the appellant challenged the decision of his Honour below. In my opinion, therefore, the appeal must be dismissed. I would adopt the conventional course of awarding the successful first respondent his costs.

Associate:

Dated:    18 January 2013