FEDERAL COURT OF AUSTRALIA

MZZHW v Minister for Immigration and Border Protection [2014] FCA 868

THE COURT ORDERS THAT:

1.    The appellant’s application filed 23 May 2014 to amend the notice of appeal be granted.

2.    The appeal be dismissed.

3.    The appellant pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

1    The appellant in this proceeding seeks to appeal from the judgment and orders of the Federal Circuit Court made on 21 November 2013. The appeal first came on for hearing on 22 May 2014 but was adjourned to permit the appellant to file an application for leave to amend the notice of appeal which had been filed on 11 December 2013. The appellant then filed an interlocutory application and a draft amended notice of appeal dated 23 May 2014.

2    The grounds which the appellant now seeks to rely upon are different from those in the application which she had initially made on 11 December 2013. Her 23 May 2014 application seeks to delete the whole of the grounds in the original application and to substitute them with two grounds which overlap, but are different from, the grounds originally relied upon. Rule 36.11(2)(b) permits a party to seek leave of the Court to amend grounds of an appeal. Counsel for the Minister contends that the proposed new grounds articulated in the draft amended notice of appeal “were not squarely before the Federal Circuit Court” and that leave should not be granted.

3    Whether to grant leave requires a consideration of (a) whether it is expedient in the interests of justice that leave be granted, (b) whether there is real prejudice to the respondent in granting leave, and (c) whether there is an adequate explanation for the failure to have taken the point previously: MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 [61]-[66], [70]-[101]. In VUAX v Minister for Immigration and Multicultural and 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.

The Minister accepts that no prejudice will be suffered if leave is granted which cannot be compensated by a costs order apart from inconvenience. An explanation was provided by the appellant that she had not sought legal assistance in the appeal because of the mistaken belief that she would be granted a spouse visa on a different application and would not need to appeal. The explanation may not be sufficient but in this case the Minister did not challenge it as satisfactory in the circumstances. The Minister’s case was, rather, that whether it was expedient that leave should be granted required some consideration of the merits of the new grounds sought to be relied upon and that the new grounds had no merit.

4    The first proposed new ground of appeal is that the Tribunal failed to consider a claim made under s 36(2)(aa) of the Migration Act 1958 (Cth) that there was a real risk that she would suffer significant harm if returned to Sri Lanka on the basis of her fear of reprisal because of her involvement in a play concerning “Grease Devils”. The ground, as articulated in her application, was:

1.    The Federal Circuit Court erred in failing to find that the decision of the RRT was affected by jurisdictional error on the ground that the Refugee Review Tribunal did not afford the appellant procedural fairness, in that:

a.    The Federal Circuit Court embarked upon a consideration of whether there was any failure by the Refugee Review Tribunal to afford the appellant procedural fairness.

b.    The Federal Circuit Court concluded that there was no such failure.

c.    The Federal Circuit Court erred in making this conclusion because:

i.    The appellant made a claim before the Refugee Review Tribunal that there was a real risk that she would suffer significant harm if returned to Sri Lanka within the meaning of s 36(2)(aa) of the Migration Act 1958 (Cth), on the basis of her fear of reprisal for her involvement in a play concerning "grease devils".

ii.    The Refugee Review Tribunal did not consider this claim in assessing whether the appellant was owed protection obligations within the meaning of s 36(2)(aa) of the Migration Act 1958 (Cth).

iii.    The Refugee Review Tribunal failed to consider an integer of the appellant's claim and therefore did not afford the appellant procedural fairness (Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319, [90]).

d.    Had the Federal Circuit Court had [sic] reached the correct conclusion, that the Refugee Review Tribunal did not afford the appellant procedural fairness, it would have found that the decision of the Refugee Review Tribunal was affected by jurisdictional error.

This ground, as articulated, may not have been as originally articulated before the Federal Circuit Court but was engaged in the proceeding before her Honour. The first ground of the application before her Honour was that the Tribunal “did not afford [the applicant] procedural fairness”. Amongst the matters drawn to her Honour’s attention in that regard was the appellant’s participation as an actor in the play “Grease Devils”. Her Honour set out at [15] parts of the paragraphs from the decision of the Tribunal summarising discussions between the Tribunal and the appellant including the Tribunal’s consideration of the relevance of the appellant’s participation in the play in April 2011. The issue now sought to be raised may not have been as precisely focused as may have been desirable but was sufficiently engaged to make it expedient in the interests of justice to allow the claim to be raised for this application.

5    The criterion for a protection visa under s 36(2)(a) includes the fact that the applicant is a person “in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”. Section 36(2)(aa) adds a separate, and independent, basis for protection, namely that the applicant is:

a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of 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.

The fundamental requirement of this criterion is a real risk of the applicant suffering significant harm as a necessary and foreseeable consequence of being removed from Australia. The facts necessary to establish that criterion were considered by the Tribunal and rejected.

6    The applicant’s statutory declaration to the Tribunal had said:

I believe if I return to Sri Lanka I would face a real chance of being persecuted by the Sri Lanka army for reason of my Tamil race, and also as I am a young Tamil girl who has lived in the Vanni and more recently has come to the adverse attention of the Sri Lankan army/authorities due to my involvement in “Vilippu”. I believe I would be seriously harmed if returned, just as they severely beat [X] and [Y].

The reference to “Vilippu” is a reference to the play “Grease Devils” and the Tribunal considered the claim but did not accept her assertions about the risks to her arising from her involvement in the play. The learned judge in the Federal Circuit Court specifically referred to this at [6] saying:

The Tribunal accepted that the applicant had been an actor in a play about "grease devils". However, the Tribunal did not find the applicant's account of what occurred after the staging of the play to be credible. The Tribunal did not accept that the authorities had searched for the applicant, and did not accept that the applicant faced a real chance of persecution by reason of her participation in the play.

That conclusion is supported by a consideration of the decision of the Tribunal. The Tribunal did not accept as credible her claim that the CID were looking for her following her involvement in the play. At [97] the Tribunal said:

For the purpose of this decision, I accept that the group staged a play “Vilippu” which dealt with the problem of “Grease Devils”. While I note that the applicant claims to be a member of the group, I note she was living an hour’s drive away from the village and returned home on weekends and in the holidays. I accept, however, that she had some involvement in the play. I did not find the applicant to be reliable when discussing the aftermath of the play. I note that she has claimed that two male actors were detained, beaten and tortured after the play and that they have subsequently sought asylum abroad. Even if I accept that the two men were beaten and tortured because of their involvement in the play it does not follow that the applicant is at risk of serious harm because of her own involvement. I note that I have found above that the applicant was not credible when discussing this claim. I also note that the applicant was confused about the Sri Lankan agency that she said had begun searching for her after the play. She first said that it was the Army and then said it was the CID. The applicant claimed that the CID, who were based in Vavuniya, the town where the applicant was living and studying, travelled for an hour to go to her parent’s house looking for her on a weekly basis and that they also went to her brother’s house to look for her. I do not accept this to be credible. At the hearing I put to the applicant the difficulties I was having in accepting her account of the visits by the CID. I also put to the applicant that the fact that she had been able to obtain a passport and leave Sri Lanka legally indicated to me that she was not of interest to the Sri Lankan authorities.

The Tribunal also found that there was no credible evidence to support her claim that she was searched for by the Sri Lankan authorities as a result of her involvement in the play. At [100] the Tribunal said:

I find that while the youth group to which the applicant belonged stage a play in which she had some role that there is no credible evidence to support the applicant’s claim that she was searched for by the Sri Lankan authorities as a result.

The Tribunal expressly found at [99] that it “[did] not accept the applicant’s claim that she faces serious harm because she is a young Tamil female born in LTTE territory and involved in the play ‘Vilippu’”. The finding that no harm as claimed was suffered was relevant also to a complementary protection claim of believing that there was a real risk of significant harm for the purposes of s 36(2)(aa): SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125, [32]. The claim for complimentary protection under s 36(2)(aa) could not survive the Tribunal’s findings: SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774, [56].

7    Counsel for the appellant also contended that what the Tribunal did not consider, however, was whether the appellant had a claim for complementary protection arising as a consequence of the Tribunal (a) having accepted the appellant’s involvement as one of the three lead actors in the play and (b) not having rejected the applicant’s claim that the other two of the three lead actors had been beaten and tortured because of their involvement in the play. In that regard counsel for the appellant referred to the statutory declaration the appellant had made in support of her application for protection where, at [41], she had said:

[41].     As the situation was getting worse and also as there was the possibility of being harmed due to my previous involvement in the “Vilippu” and also as I was a young Tamil girl who lived closed to the Menik Camp I decided to flee Sri Lanka along with my brother [X].

Counsel also relied upon the sentence in [97] of the Tribunal’s reasons in which the Tribunal said:

Even if I accept that the two men were beaten and tortured because of their involvement in the play it does not follow that the applicant is at risk of serious harm because of her own involvement.

The ground as articulated by counsel in oral submission differs from the way the ground was articulated in the amended ground sought to be relied upon. The amended ground had stated that the Tribunal’s failure had been to have considered her fear on the “basis of her involvement in [the] play” whilst in oral submission the failure was said to be in not considering the claim on the basis of her involvement in the play as a consequence of the beatings and harm to the other two lead actors. However, a fair reading of the Tribunal’s reasons does not warrant the conclusion that the Tribunal had not considered the integer as articulated. The Tribunal did not accept the appellant’s contention and explained in the sentence quoted from [97] why it did not accept her more focussed claim even if it had accepted the evidentiary basis upon which it had been made. The sentence relied upon was part of the explanation for rejection of the claim even if the Tribunal had found her evidence to be credible. The first ground sought to be relied upon by the appellant, therefore, does not succeed.

8    The second ground sought to be relied upon by the appellant is that the Federal Circuit Court ought to have found that the Tribunal had applied the wrong legal test. The ground as now articulated is that the Tribunal’s error was revealed by giving reasons for the conclusion that there was not a real risk that the appellant would suffer significant harm if returned to Sri Lanka. The appellant contends that the test under s 36(2)(aa) “does not require attention to the reason for which there exists any real risk that the person will suffer significant harm if removed to a receiving country”.

9    The claim as articulated was not put before the Federal Circuit Court on appeal from the Tribunal. The appellant had, however, claimed in the appeal to the Federal Circuit Court that the Refugee Review Tribunal had “applied the wrong legal test”. Her Honour noted that the applicant’s affidavit in support of the application had simply said that the Tribunal “applied the wrong legal test” and had given no particulars in the application or the affidavit in support. Written submissions were required by her Honour but, as her Honour observed at [13], the written submissions did not address the issues raised in the application but simply sought to challenge the merits of the Tribunal’s decision. Her Honour recorded at [19] that the applicant was asked to elaborate on her claims at the hearing before the Federal Circuit Court but concluded (at [20]) that the applicant had not substantiated the two matters raised in her application. At [21] her Honour said:

The Tribunal set out in its reasons the relevant legal tests. The statement of those tests was accurate and the application of those tests seems to me have been accurate as well. In relation to procedural fairness, there does not appear to have been any relevant failure. The Tribunal did alert the applicant to a number of issues during the course of the hearing. The Tribunal gave the applicant's advisor the opportunity to provide post-hearing written submissions. The applicant provided a post-hearing statutory declaration, but no written submissions were provided. When the due date for the written submissions had passed, the Tribunal went to the trouble of contacting the applicant's adviser to enquire whether any written submissions would be forthcoming, and the adviser said that no such written submissions would be provided.

A consideration of the Tribunal’s reasons support her Honour’s conclusions.

10    The Tribunal’s finding of a lack of real risk of the appellant suffering significant harm if returned to Sri Lanka was a conclusion based upon reasons which it, appropriately, sought to give. It is true that s 36(2)(aa) does not require a finding of a real risk to be based upon a specified reason, but it does require a finding. The reasons given by the Tribunal explained why it had found against the appellant and it was appropriate and proper for the Tribunal to have done so. The appellant had, before the Tribunal, made a claim of there being a real risk that she would suffer significant harm if removed to a receiving Country. A finding to that effect required some factual foundation and in seeking to evaluate its foundation, the Tribunal specifically asked the applicant why she thought there was a real risk that she would suffer significant harm. That inquiry was, indeed, specifically made in respect of her claim for “complementary protection”. At [67] the Tribunal recorded:

On complementary protection, I asked why the applicant thought that there was a real risk that she would suffer significant harm if she were to return to Sri Lanka now or in the reasonably foreseeable future. The applicant said that she is a woman, and young, so she is afraid. I said that given that young women make up a significant proportion of the Sri Lankan population I wondered why she thought she was at real risk. She said it was because she had left the country and had been sent back. I said that very large numbers of young Sri Lankan women travel overseas to work legally or illegally. I asked if she was saying that all of those young women are at risk. She said that she cannot go back because she is a young woman who has had problems. I asked if she had any other concerns about going back. She repeated the claims were discussing exhaustively during the hearing. I asked if she could relocate. She said she could not. I asked if she was more at risk than other Sri Lankan women. She said that the problems for Tamils have gone but that she still has a fear. I asked if she did not have those problems that we had discussed, would she be able to go back. She said that she would still be afraid to go back.

The formal conclusion of the Tribunal at [120] was not limited to any specific reason which had been operative in the Tribunal’s decision or in her submissions. Her claim for complementary protection was considered by the Tribunal specifically at [112]-[118] where the Tribunal reached its conclusion and explained why it did not accept what the appellant had contended. In doing so the Tribunal explained its reasons by words which gave context, content and meaning to the claim and included reference to the appellant’s youth and gender. What appears in those paragraphs is not an erroneous consideration of the complementary protection grounds by reference to convention criteria but a contextualized explanation of the reasons for rejection of the complementary protection claims in light of the specific matters which had been urged by the appellant. The reasons for its conclusion reveal no error in application of the legal test for the purposes of s 36(2)(aa) as her Honour in the Federal Circuit Court correctly concluded. The reasons given by the Tribunal were in explanation for its conclusion that it did not find the existence of the fact necessary to enliven the provision in light of the facts which the appellant had advanced in favour of her application.

11    The application for leave to amend the notice of appeal will be granted but the appeal will, accordingly, be dismissed.

Associate:

Dated:    15 August 2014