FEDERAL COURT OF AUSTRALIA

MZZCT v Minister for Immigration and Border Protection [2013] FCA 1379

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The name of the first respondent be amended to ‘Minister for Immigration and Border Protection’.

3.    The appellant pay the first respondent’s costs to be taxed.

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

REASONS FOR JUDGMENT

1    By notice of appeal filed on 29 July 2013 the appellant appeals from a decision of a judge of the Federal Circuit Court of Australia delivered on 12 July 2013 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 October 2012.

background and claims

2    The appellant is a citizen of Sri Lanka who arrived in Australia on 12 September 2010. On 11 October 2010 the appellant applied for a protection visa. A delegate of the first respondent made a decision to refuse the application for the visa on 19 September 2011. The appellant applied to the Tribunal for review of the delegate’s decision on 10 October 2011.

3    The appellant claimed to have attracted the adverse attention of the Sri Lankan security forces due to his deceased brother’s conscription by the Liberation Tigers of Tamil Eelam (“LTTE”), to his employment by a regional newspaper in Jaffna and to his other brother’s work as a human rights activist. The appellant claimed that he and his family were harassed and intimidated, that he and his brother were detained, and that he received death threats. The appellant claimed that he and his family were suspicious that his father’s death was not due to a vehicle accident at work as claimed but that he had been murdered by the LTTE due to his failure to follow LTTE orders. After the appellant was detained and accused of being a LTTE supporter for the second time, the appellant claimed that he and his family fled to India where they became registered as refugees.

4    The appellant claimed to have returned to Sri Lanka on 23 August 2010 after securing a job. He claimed that he was interrogated at the airport and that he was identified as a recent returnee on his commute to Jaffna and had been beaten, tortured and arrested as a suspect in a suicide attack on the Defence Secretary. The appellant claimed to have escaped, booked a flight to Australia and fled roughly two weeks later.

the tribunal’s decision

5    The Tribunal did not find the appellant’s claims to be plausible, specifically those regarding the events that led up to his escape from Sri Lanka in 2010. It did not believe that he would be able to depart through the airport in Sri Lanka if he had been detained and mistreated as he claimed and accordingly, the Tribunal noted its reservations about the appellant’s credibility.

6    After considering recent country information in relation to Sri Lanka, the Tribunal did not accept that the appellant would be imputed with a political opinion to the extent that he would be targeted by the Sri Lankan government and security forces in Colombo. In making this finding, the Tribunal referred to country information that indicated that only actual or perceived opponents of the Sri Lankan government or supporters of the LTTE face a real risk of significant harm in Colombo. The Tribunal found that the appellant had only expressed his political opinion infrequently and haphazardly in the past, and it believed that he would continue to do so in the future. As a result, the Tribunal found that the risk of harm to him upon his return would be remote.

7    The Tribunal also had regard to the appellant’s tertiary education and previous employment in the banking sector in finding that the appellant did not satisfy the complementary protection criteria.

the proceedings in the federal circuit court of australia

8    In his application to the Federal Circuit Court, the appellant relied on the following ground:

1.    The Tribunal denied the applicant procedural fairness and did not comply with s 425(1) of the Migration Act.

The ground of appeal was followed by particulars which, in summary, were that:

•    the way the Tribunal dealt with the application led the Tribunal to deal unfairly with the issue of where the applicant would live in Sri Lanka, should he return;

•    the Tribunal had failed to give the applicant a proper opportunity to indicate that if he returned to Sri Lanka he would in fact live in the Jaffna region, where he would face persecution.

The His Honour found that the Tribunal’s decision had made clear that the Tribunal was going to analyse his claims for protection on the basis that he would live in Colombo if he returned to Sri Lanka. His Honour also found that the appellant did have the opportunity to assert that he was going to live in Jaffna, but that he failed to do so. In such circumstances, his Honour found no procedural unfairness and the application was dismissed.

the appeal proceeding

9    By notice of appeal filed on 29 July 2013, the appellant relies on the following grounds:

1.    The Court below erred in finding that the Refugee Review Tribunal had not failed to properly consider the Appellant’s claims under s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (“the Act”).

2.    The Court below erred in finding that it was open to the Tribunal to decide that applicant can relocate the Colombo.

3.    The Tribunal member did not adequately consider my claims under the Complementary Protection ground. The Tribunal failed to consider my claims cumulatively including the claim of Tamil Diaspora and my activities in Australia including the photographs appeared in the paper regarding my participation in the LTTE’s Great Hero’s events in Melbourne and my back ground as a family member of a LTTE dead cadre. The Tribunal failed to assess my activities in Australia under section 36(2)(aa) of the Migration Act 1958.

4.    The Tribunal did not ask relevant questions as to my claim of fear under the ground of religion despite mentioned in the submission to the Tribunal.

The third and fourth grounds of appeal had not previously been raised before the Federal Circuit Court Judge and the first respondent submitted that leave ought not be given to the appellant to raise these new grounds. I will deal with the first two grounds before turning to whether leave should be granted to raise the two new grounds and, if so, to whether the grounds are adequately made out.

10    The first ground of appeal is that the court below erred in finding that the Tribunal had not failed properly to consider the appellant’s claims under s 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”). The basis of this ground was that the Tribunal had not adequately considered the particular serious harm that the appellant said he would face because of his membership of a particular group and because of the ongoing developments in Sri Lanka. The difficulty with the appellant’s argument is not that the Tribunal, or Federal Circuit Court Judge, had not considered his complaint but, rather, that it did not accept what had been claimed. The appellant had claimed before the Tribunal, and before the Federal Circuit Court Judge, that he belonged to a social group likely to face mistreatment upon his return, but the Tribunal rejected that claim as his Honour recorded in his reasons for judgment below. The claim was considered both by the Tribunal and by his Honour but rejected by each upon the material available. Accordingly, the first ground of appeal as developed at the hearing before me is not established.

11    The terms of the first ground of appeal, however, were expressed more broadly in the notice of appeal than was advanced orally by the appellant at the hearing of the appeal. Indeed, it was dealt with by the first respondent in written submissions as part of the matter raised under the second ground of appeal, namely, that the court below had erred in finding it open for the Tribunal “to decide that the applicant can relocate to Columbo”. This specific complaint, whether falling only within ground two or within both the first and second grounds of appeal, was put in various ways by the appellant. The ground was expressed in the notice of appeal as being an error in finding an ability for the appellant to relocate to Columbo and at the hearing it was expressed in terms of an error in treating Columbo as the appellant’s home town.

12    The ground, however, is not made out however it is expressed. The Tribunal was not mistaken about Columbo being the appellant’s home area but found, adversely to the appellant, that he could resume residence in Columbo. During the course of the hearing the Tribunal addressed the appellant saying:

Now, another matter I have to consider in assessing the risk of harm to you on your return to Sri Lanka is where – whether there is anywhere in Sri Lanka you could safely live. Now, I have to say, based on what you’ve told me, I would see – I mean the last place you lived for any significant period of time in Sri Lanka was in Columbo. So I would regard Columbo as a place that, if you were to return to Sri Lanka, you would then resume your residence. Would you like to say something about that?

This passage was set out in the reasons of Judge Burchardt and accepted by his Honour as the basis upon which the Tribunal was going to analyse the appellant’s claim for protection, namely, “on the footing that he was living in Columbo”. There was, thus, no error of finding that Columbo was the appellant’s “home area” since no such finding was made. Nor was there an error in finding that the appellant could not relocate to Columbo since there had been evidence of the appellant having last lived there for a period of time.

13    The third and fourth grounds of appeal had not been raised before the Federal Circuit Court Judge and the appellant requires leave for the grounds to be raised. The considerations relevant to the grant of leave have frequently been considered. In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 the 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] (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.

Previously the Court had said in VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 129 FCR 168 at 177 [26]:

It is therefore necessary to consider whether it is expedient in the interests of justice to allow the new ground to be argued and determined. In the present case, the interests of justice require reference to a number of considerations, namely, the appellant's prospects of success on the appeal on the new argument, the explanation given by the appellant for failing to raise the argument before the primary judge, the prejudice to the respondent in allowing the appellant to raise the new argument, the potentially serious consequences to the appellant if leave to amend is refused, and the integrity of the appellate process.

The need for leave to raise new grounds of appeal is not a mere formality. The integrity of proceedings at first instance is compromised if leave to raise new points on appeal is granted without sufficient justification. Parties to litigation conduct proceedings on a basis which must be assumed final and as the basis to be maintained on appeal. The need for an explanation when an appellant seeks to raise a point in an appeal which had not been raised at first instance is in part designed to ensure that forensic advantage is not inappropriately obtained by some deliberate failure to raise a point at first instance or that some opportunistic advantage not be obtained as a result of the way in which the case was conducted and decided at first instance.

14    The only explanation given by the appellant on appeal for the new points not having been raised below was an unsupported claim that he had not been properly informed by his migration agent about the matters he subsequently sought to rely upon as grounds three and four. However, there was nothing shown to establish that claim. The appellant had been represented by counsel and solicitors at the hearing before the learned Federal Circuit Court Judge. Previously he had been represented by a migration agent before the Tribunal. The issues raised before the Federal Circuit Court may have been more limited than they were before the Tribunal, but there is nothing beyond the appellant’s assertion at the appeal before me to support the claim that he had not adequately been informed of any of the matters he sought to raise as fresh grounds. The appellant did not provide evidence from his previous advisers, either by them directly or by what he had actually been advised by them, to provide substance to an otherwise unsubstantiated claim. Accordingly, I do not find the appellant to have sufficiently explained the reason why the grounds he now wishes to rely on had not previously been raised.

15    A factor relevant to whether to grant leave is the prospects of succeeding upon the new grounds sought to be raised. The additional grounds which the appellant seeks to raise in the appeal, however, do not have sufficient merit to warrant a grant of leave. The appellant’s proposed third ground of appeal is unlikely to succeed because the Tribunal correctly set out the relevant legislative framework and found the appellant’s case to fail upon the facts. The Tribunal did not accept that the appellant, as a tertiary educated Tamil man who worked in the banking sector in Sri Lanka, faced a real risk that he would be arbitrarily deprived of his life, or that the death penalty would be carried out on him or that he would be subjected to torture. It found that he would not be, nor be perceived to be, an opponent of the Sri Lankan Government or a supporter of the LTTE to a degree that would attract a risk of harm. It dealt with each of the other bases upon which the appellant had claimed that he would face a risk of harm and found against him on the evidence. It was not satisfied that there was a real risk that any harassment or discrimination would be faced because of his Tamil ethnicity that would amount to cruel or inhumane treatment. It did not accept that he had a profile that would attract the adverse attention of the Sri Lankan authorities. The Tribunal also did not accept that the appellant would be identified as a failed asylum seeker on his return to Sri Lanka nor did it accept that there was a real chance of serious harm on his return as a failed asylum seeker. Each of the claims failed individually and, therefore, would necessarily have failed cumulatively.

16    The fourth proposed ground of appeal is also unlikely to succeed. That complaint is that the Tribunal itself did not ask relevant questions about his claim of fear by virtue of his religion. The appellant was represented at the hearing before the Tribunal and nothing was identified by the appellant on appeal that the Tribunal ought to have asked concerning the appellant’s adherence to the Hindu faith. The decision of the delegate before that of the Tribunal had specifically rejected the appellant’s claim of having been a victim of persecution in the past by reason which included his religion. The Tribunal noted this and went on to observe:

In a submission made by the representative…it is claimed the applicant fears harm on the basis of his Hindu religion. At the hearing the Tribunal summarised the reasons the applicant feared harm in Sri Lanka and asked the applicant whether he feared being harmed for any other reason. The Tribunal’s summary did not include a claim that the applicant feared harm because of his religion and the applicant did not state that he did so at any time during the hearing. Accordingly, the Tribunal does not accept that the applicant claims to fear harm on the basis of his Hindu religion.

The materials before the Tribunal do not suggest any further questions which should or could have been asked of the appellant which it had failed to ask as claimed in the proposed ground four of the appeal.

17    Accordingly, the appeal will be dismissed.

Associate:

Dated:    18 December 2013