FEDERAL COURT OF AUSTRALIA

WZARV v Minister for Immigration and Border Protection [2014] FCA 894

THE COURT ORDERS THAT:

1.    Leave to amend the grounds of appeal is granted.

2.    The appeal is dismissed.

3.    The appellant pay the costs of the first respondent to be taxed if not agreed.

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

REASONS FOR JUDGMENT

THE APPEAL

1    The appellant appeals a decision of the Federal Circuit Court of Australia (FCC) by which his application for judicial review of an Independent Merits Review was dismissed (WZARV v Minister for Immigration & Anor [2013] FCCA 1556).

THE STATUTORY PROVISIONS

2    This appeal concerns the treatment of a claim for complementary protection under of s 36 of the Migration Act 1958 (Cth) (Act) which relevantly provides as follows:

36    Protection visas

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)    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; or

…

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

…

BACKGROUND

3    The appellant is a Sri Lankan citizen who entered Australia by boat and was taken to Christmas Island on 7 November 2010 where he applied for a Refugee Status Assessment (RSA) on 21 December 2010 following an entry interview on 12 December 2010. In the course of that interview he explained that he was a Sri Lankan citizen of Tamil ethnicity, born in the Northern Province in 1985. He claimed that he was forced to do one day’s training with the Liberation Tigers of Tamil Eelam (LTTE) in 2008. He claimed to have been injured in a bomb blast later that year. In the following year, he worked as a security guard for the United Nations High Commissioner for Refugees (UNHCR). In 2010, he was employed by a non-governmental organisation (NGO), the Swiss Foundation for Mine Action, to remove mines.

4    The appellant asserted that he was detained by the Sri Lankan Army (SLA) in 2009 at the Vavuniya camp, but his father managed to pay a bribe in order to secure his release. He also claimed he was detained and beaten on 10 June 2010 after his arrest while waiting at a bus shelter. After this detention he claimed that SLA officers came to his house on a number of occasions asking for him.

5    For the purpose of the RSA, he appointed a migration agent. The RSA was supported by a statutory declaration dated on 23 January 2011 in which he expanded upon the claims for protection made in his entry interview. He also raised a new claim that the SLA had come to his mother’s house on 1 January 2011 looking for him.

6    An RSA officer interviewed the appellant in relation to his claims on 26 January 2011. The appellant provided the officer with copies of various documents intended to support his claim, including a UNHCR Asylum seeker certificate dated 11 August 2010, a photograph of him with another person, documents from the Swiss Foundation for Mine Action, various birth, marriage and death certificates, documents from Roxy Agencies Security Services, various medical reports, various letters of support and recommendation and documents relating to a complaint made to the Human Rights Commission of Sri Lanka by his father-in-law.

7    The RSA officer was not satisfied that the appellant had been targeted by the SLA because he had worked for NGOs. The RSA officer was also not satisfied that the appellant was of any adverse interest to the Sri Lankan authorities and that he would face harm as a suspected LTTE supporter if he returned to Sri Lanka. He was, therefore, not satisfied that the appellant was a person to whom Australia owed protection obligations. Therefore, on 21 April 2011, the appellant was informed that he had been assessed as not meeting the Convention definition of a refugee.

INDEPENDENT MERITS REVIEW

8    The appellant next applied for an Independent Merits Review of the decision of the RSA officer on 10 May 2011. By a letter dated 18 October 2011, the appellant’s representative made written submissions which reiterated the claims by the appellant for refugee protection. The letter referred to various independent country information said to support those claims.

9    An interview was conducted on 7 May 2012 in Perth by the independent merits reviewer, the second respondent (IMR).

10    After this interview and by letter dated 22 May 2012, the IMR informed the appellant of various suggested inconsistencies in his account and extended an invitation to the appellant to comment on those inconsistencies. In particular, the IMR pointed to the inconsistencies in the appellant’s evidence concerning his place of residence in Sri Lanka, his experiences in detention and the events which followed his detention. The appellant was also invited to comment on the available country information before the IMR relating to the type of people who are suspected of LTTE involvement by the Sri Lankan authorities and the treatment by Sri Lankan authorities of Tamils generally and failed asylum seekers in particular.

11    By a letter from his representative dated 22 June 2012, the appellant’s representative responded. Further country information in support of his claims for protection was provided. Two additional copies of documents from the Swiss Foundation for Mine Action relating to his employment at that organisation were also provided.

12    On 21 September 2012, supported by a 50 page statement of reasons, the IMR recommended that the appellant was not a person to whom Australia owed protection obligations.

13    In her statement of reasons, the IMR explained the different bases of a potential claim by referring to the alternate basis of claims under s 36(2) of the Act, to the Regulations (Pt 866), Art 14(2) of the 1951 Convention Relating to the Status of Refugees, opened for signature on 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) as amended by the 1967 Protocol Relating to the Status of Refugees, opened for signature on 31 January 1967, 606 UNTS 267 (entered into force on 4 October 1967) (Refugees Convention) and the numerous High Court cased considering the relevant definitions as well as qualifications under the Act in s 91S and s 91R. She continued to summarise the legal elements of the two components of the appellant’s claim, which I have set out in full. There is no suggestion of any error having been made in this analysis (at [10]-[24]):

10.    There are four key elements to the Convention definition of refugee. First, the person must be outside his or her country.

11.    Second, the person must fear persecution. Persecution must involve 'serious harm' to the individual: s 91R(l)(b). The expression 'serious harm' includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the individual’s capacity to subsist: s 91R(2) of the Act. Persecution must also involve systematic and discriminatory conduct: s 91R(l)(c). Persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. The persecution must have an official quality, in the sense that it is official, or officially tolerated or not controllable by the authorities of the country of nationality. The threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the person from persecution.

12.    Third, the persecution which the person fears must be for one or more of the reasons contained in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase 'for reasons of’ refers to the motivation for inflicting persecution. A Convention reason or reasons must constitute the essential and significant motivation for the persecution feared, even if there are multiple motivations: s 91R(l)(a) of the Act.

13.    Fourth, a person's fear of persecution for a Convention reason must be a 'well-founded' fear. A person has a well-founded fear of persecution under the Convention if he or she has a genuine fear founded upon a 'real chance' of relevant persecution. A fear is well-founded if there is a real, substantial basis for it, but not if it is merely assumed or based on speculation. A real chance is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. Further, past experiences of persecution may assist in assessing the likelihood of future persecution, but they are not necessary to a fear being well­ founded.

In addition, a person must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality, or if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.

Section 36(2)(aa): Complementary Protection

14.    If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if the person is a non-citizen in Australia 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 person being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s36(2)(aa) (the complementary protection criterion).

15.    'Significant harm' for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. 'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment ', and 'torture', are further defined in s 5(1) of the Act.

16.    A person will suffer 'significant harm' if they will be subjected to torture: s 36(2A)(c). 'Torture' is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person. The pain or suffering must be intentionally inflicted. Furthermore, it must be inflicted for one of five purposes: for the purpose of obtaining from the person or a third person information or a confession; for the purpose of punishing the person for an act which they or a third person committed or is suspected of having committed; for the purpose of intimidating or coercing the person or a third person; for any purpose related to one of those purposes; or for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (the Covenant).

17.    However, under s 5(1) of the Act, 'torture' does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

18.    'Cruel or inhuman treatment or punishment' for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is inflicted on a person, so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. The pain or suffering must be intentionally inflicted.

19.    However, 'cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the Covenant), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. Article 7 of the Covenant prohibits torture and cruel, inhuman or degrading treatment or punishment.

20.    ‘Degrading treatment or punishment’ for the purposes of s 36(2A)(e) is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

21.    Under the Act, 'degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the Covenant), nor one that causes, and is intended cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. Article 7 of the Covenant prohibits torture and cruel, inhuman or degrading treatment or punishment.

22.    There are certain circumstances in which there is taken not to be a real risk that a person will suffer significant harm in a country. These arise where it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that the person will suffer significant harm; where the person could obtain, from an authority of the country, protection such that there would not be a real risk that the person will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the individual personally: s 36(2B) of the Act.

Other provisions of the Act

23.    Subsection 36(2) of the Act is qualified by ss 36(3), (4), (5) and (5A) of the Act. Where a non-citizen in Australia has a right to enter and reside in a third country, Australia is taken not to have protection obligations if the non-citizen has not availed himself or herself of that right: s 36(3).

24    However, that preclusion does not apply if the conditions in either s 36(4), (5) or (5A) are satisfied. If the non-citizen has a well-founded fear of Convention-related persecution in the third country, or a well-founded fear that the third country will refoule the person to another country where he or she has such a fear, s 36(3) does not apply: ss 36(4)(a) and (5). Similarly, if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing him or herself of the right in the third country, there is a real risk he or she will suffer significant harm in that country, or another country to which he or she may be returned by the third country, s 36(3) does not apply: s 36(4)(b) and (5A).

14    The IMR found that the appellant was a ‘polite and cooperative’ witness who might be suffering from anxiety and accepted that he was a Tamil from the Northern Province of Sri Lanka who had departed the country on a valid passport in his own name. The IMR also accepted as plausible the appellant’s claims that he was forced to undergo a day’s training with the LTTE, was interned in a SLA camp in 2009 and had been employed by the UNHCR and the Swiss Foundation for Mine Action.

Credit concerns

15    Beyond this, the IMR rejected much of the appellant’s evidence about the events that he claimed took place between 2009 and his departure in 2010 and described his accounts as being ‘continuously inconsistent, changeable and at times implausible’. The IMR found that the appellant’s evidence about his displacement, his cousin being forced to fight for the LTTE and his own reasons for avoiding conscription were ‘vaguely expressed’ and implausible. The IMR did not accept that his details were recorded as a LTTE member and found that his evidence about the assistance he was forced to give the LTTE was ‘contradictory’, ‘superficial’ and ‘insubstantial’. The IMR also found his evidence in relation to the appellant’s claim that he feared harm arising from his previous work for the UNHCR and the Swiss Foundation for Mine Action to have been ‘changeable and incoherent’. The IMR did not accept that he held any credible fear of harm because of his former employment with these organisations and did not accept that he did not have a lawfully obtained identity card for his local area.

16    Significantly, the IMR rejected the appellant’s claim that he had been arrested, detained or tortured on 10 June 2010 for being a suspected LTTE supporter. His evidence concerning this incident was described as being ‘incoherent’, ‘changeable’, ‘illogical’ and ‘ultimately implausible’. As a consequence, the IMR rejected the appellant’s claims which flowed from that event, namely, that the authorities had made enquiries of him with his family members or that he was otherwise of adverse interest to the authorities prior to his departure from Sri Lanka. The IMR placed no weight on the documents which indicated that the appellant’s father had made a complaint to the Human Rights Commission of Sri Lanka.

Country information

17    The IMR also relied upon available country information. It indicated that people suspected of being currently or previously affiliated with the LTTE were at risk of harm from the Sri Lankan authorities and its affiliates. The IMR also accepted that it was likely that the appellant would be interviewed by Sri Lankan authorities on his return, but that country information indicated that such questioning would usually be completed in a matter of hours and that the appellant would not have a profile which indicated that he would be suspected of being a LTTE supporter. The IMR also found that, whilst a process of ‘Sinhalisation’ was being undertaken by the authorities in the north of Sri Lanka, this did not indicate that the appellant was at risk of ‘serious harm’ for reasons of his ethnicity. The IMR was satisfied that there was only a remote chance that he would face harm upon his return to Sri Lanka for reasons connected with his Tamil ethnicity, past LTTE training, work for the UNHCR and/or the Swiss Foundation for Mine Action or his application for asylum in Australia. She was not satisfied that the appellant had established a well-founded fear of persecution.

18    The IMR then conducted a two stage analysis which is criticised by the appellant in the manner discussed below. Having found that the appellant was not a person to whom Australia owed protection obligations under the Refugees Convention within the meaning of s 36(2)(a) the Act, the IMR then proceeded to consider whether he satisfied the complementary protection criteria set out in s 36(2)(aa) of the Act. She noted that the appellant made no claims other than those advanced as part of his refugee claim and reiterated the factual findings made in relation to those claims. In the context of assessing whether his claims met the complementary protection criteria, she found that whilst the appellant was likely to be questioned by Sri Lankan authorities on his return, he did not possess characteristics which would bring him to the adverse attention of the authorities, either being a suspected LTTE supporter or for any other reason. She was also not satisfied that such questioning and/or monitoring by the authorities would amount to ‘intentionally inflicting mental or physical pain or suffering’ on the appellant, or that it was ‘their intention to cause [him] extreme humiliation that is unreasonable’ or any other form of significant harm. The IMR was therefore not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there was a real risk that the appellant would suffer significant harm.

BEFORE THE FEDERAL CIRCUIT COURT

19    The appellant sought judicial review of the decision of the IMR in the FCC. As is often the case, he was not legally represented at his application. A social worker on his behalf when the matter was first before the FCC sought an adjournment in order to enable him to obtain pro bono legal representation. The primary judge declined that application.

20    The only specified grounds for the application for judicial review were ‘jurisdictional error’ without any amplification. His Honour noted that the affidavit in support of the application for the adjournment added nothing. He also noted that the original application was filed on 5 November 2012, interlocutory orders were made on 3 December 2012 for the filing of further documents and the matter was listed for hearing on 25 March 2013. It was relisted on 28 July 2013 such that the actual hearing date was over six months after the original filing of the application.

21    There was a generalised complaint for the appellant by letter to the FCC of 18 July 2013 and a further letter of 23 July 2013 accompanying a statutory declaration indicating that the appellant had then been unable to obtain the services of a lawyer. He sought a pro bono lawyer. Mr David Blades of Counsel informed the FCC on 24 July 2013 by a letter to the Registrar that he may be willing to assist pro bono if his Honour were minded to adjourn once more and to grant the pro bono referral. Mr Blades had been contacted only on 22 July 2013 and had not been formally briefed and could not appear in any capacity.

22    The adjournment application was opposed for the Minister on the basis that the appellant had had eight months in which to arrange legal representation which was a perfectly sufficient opportunity.

23    His Honour agreed, rejecting the adjournment application in light of the considerable delay, but also more importantly, after taking into account a number of factors including fairness considerations (to the appellant) and the fact that there was no entitlement to legal representation in the FCC. His Honour summarised the position thus (at [20]-[23]):

20.    Counsel’s submission that there was no utility in the referral because it might lead to a conclusion by the pro bono lawyer that the matter had no merits, and that further and in any event the decision of the Reviewer did not disclose any error, likewise needs to be approached with caution. At the time I was entertaining the application for an adjournment. I had read the decision and looked (although not in great detail) at the Court Book materials. Self-evidently, I had not formed any final views as to the merits of the matter.

21.    Nonetheless, it must be said that at the stage that I was then at, the application for pro bono relief seemed to me one that faced considerable difficulty, inasmuch as the materials on the reading I had then undertaken of them, did not appear to suggest any significant merit in the applicant’s case however it might be formulated. I noted that in any event Mr Blades had only indicated a preparedness to consider representing the applicant, and not a concluded determination to do so.

22.    The Court also has to consider the orderly administration of justice. The first respondent at one level of analysis is not prejudiced by the delay occasioned by an adjournment although self-evidently the chances of the applicant being able to pay any costs order would be extremely debatable. Nonetheless, an adjournment would disrupt the listings of the Court as the matter would have to be listed again and, presumably, at some reasonably proximate point given the nature of the case. All of these are additional considerations that I took into account.

23.    In all the circumstances it seemed to me, as I indicated at the time, inappropriate to grant the adjournment and for these reasons I did not do so.

24    As will be seen below, complaint is raised as to the refusal to adjourn.

25    The primary judge considered the grounds of complaint at some length. In particular, he examined materials which had been annexed to the 18 July 2013 letter including a document from the Bishop of Mannar, apparently dated 3 December 2012, saying it was his considered opinion that it was highly dangerous for asylum seekers from the north and east of Sri Lanka to be sent back to Sri Lanka in the prevailing political situation in those regions. His Honour also referred to a document from the Secretary Generals Panel of Experts on Accountability in Sri Lanka and a page from the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka. The letter claimed that the IMR proceedings did not give the appellant an opportunity to explain his case fully, there had been bias and faults found in his submissions which had no sound basis. It also said that he had to flee from his country, was troubled in his mind and was not in a proper mental condition to understand what was going on.

26    As his Honour noted, those documents were not before the IMR and could not form the basis of any new ground of a judicial review application. His Honour did consider the submissions as to lack of adequate consideration of the various submissions and documents which had been before to the IMR.

27    Many of the submissions to the IMR were repeated through the appellant’s representative to his Honour at the hearing, but his Honour was of the view that those submissions went to a merits review rather than to jurisdictional error. His Honour considered and rejected the bias submissions, noting that the IMR had in fact accepted many of the claims that the appellant had advanced. It was also noted there was no evidence to demonstrate that the appellant had been unfit before the IMR. (Those conclusions are not challenged on this appeal.)

28    The primary judge then traversed the matters before the IMR, at least to the extent that he considered those matters to be relevant. He then discussed the IMR’s decision. His Honour concluded that the process of reasoning of the IMR as disclosed by the Freedom from Torture report to UNCAT in November 2011 (Report) was entirely open on the facts as found. His Honour was, however, somewhat concerned about the absence of any detailed reference to a medical certificate ostensibly from 2010 and broadly contemporaneous with the timing of the appellant’s asserted assault. But he did not consider that the absence of detailed consideration of the medical certificate was sufficient to detract from the quality of the IMR’s reasoning. That conclusion is challenged in this appeal.

APPEAL TO THIS COURT

29    The first hearing date of the appeal was vacated pending the outcome of proceeding S297 of 2013 in the High Court.

30    On the relisting of the appeal, the appellant was represented by pro bono counsel, Mr Paul Bodisco. Additionally, the grounds of appeal were considerably amplified. Fresh grounds of appeal sought to be relied upon, in substance, were that:

1.    his Honour should have concluded that the IMR failed to take a relevant consideration into account, namely, the Report suggesting that four failed asylum seekers had been tortured and documenting 15 instances of detention and torture;

2.    his Honour erred in refusing to grant the appellant an adjournment; and

3.    his Honour erred in failing to find jurisdictional error had occurred in circumstances where the appellant had not been on notice that the corroborative medical evidence had been rejected, denying him the opportunity of leading further evidence on this issue.

31    The appeal was supported by an affidavit of Ms Janna Garcia, a university student from New South Wales who affirmed the translation (to the best of her ability) of the compact disc containing the recording of the hearing before the IMR on 7 May 2012.

32    Although counsel for the Minister did not consent to the amendment to the notice of appeal, the parties proceeded as if the matter was to be heard on the basis of the fresh grounds of appeal, supported by the affidavit of Ms Garcia. As to Ms Garcia’s affidavit, counsel for the Minister did not consent to its tender on appeal but did not wish to address the matter further.

33    I should say something about the approach I have taken to the appellant’s application to raise two new grounds that were not raised below on appeal in the FCC. It is necessary to form a view as to the merits of the grounds. This requirement was discussed by Lander J in SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 where on appeal the appellants sought leave to amend the notice of appeal in accordance with a further amended notice of appeal. Lander J noted that it would mean that the appeal court would be considering arguments for itself without the benefit of the opinion of the Court from which the appeal is brought, which he fairly described as being self-evidently unsatisfactory. Lander J continued (at[19]-[26]):

19    It may be accepted that a person who is unrepresented on an application for judicial review is at a disadvantage. Such persons find it difficult to understand the limits of the inquiry on an application for judicial review. Moreover, they often find it difficult to articulate the grounds which might give rise to a successful application. The concept of jurisdictional error is not easy for unrepresented parties to understand.

20    However, that being said, being unrepresented on the application cannot, by itself, be enough to permit the unrepresented party to raise grounds which were not raised in the Federal Magistrates Court. Nor is the fact that the Minister will not suffer any prejudice enough.

21    Parliament has given the Federal Magistrates Court jurisdiction in relation to applications of this kind to the exclusion of this Court: s 476A of the Act. All of the issues which are sought to be ventilated should be addressed at the trial in that Court. Parliament has provided for a right of appeal to this Court and in matters of this kind the appellate jurisdiction of this Court may be exercised by a single Judge: s 25(1AA) of the Federal Court of Australia Act 1976 (Cth). Indeed, that is the case on this appeal.

22    The High Court has made it plain that, ordinarily, a party is confined in its grounds of appeal to matters which have been raised in the Court below. The High Court said in Metwally v University of Wollongong (1985) 60 ALR 68 at 71:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

23    In Coulton v Holcombe (1986) 162 CLR 1, the majority said 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 instances to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

24    The appellate process is to correct error. If a party is entitled to raise issues for the first time on appeal, the appeal court will become de facto the primary court. That is undesirable. It is particularly undesirable where the appellate jurisdiction of the Court is being exercised by a single judge and any right of appeal from that single judge is to the High Court. If a party is entitled to raise an issue for the first time on appeal in this Court, the High Court will be burdened by applications for leave to appeal from judges sitting alone who have not had their decision reviewed. That must be particularly undesirable from the High Court's point of view.

25    Moreover, to allow new grounds of appeal is to defeat the purpose of the legislation which requires that judicial review of a decision of the Refugee Review Tribunal to be within solely the jurisdiction of the Federal Magistrates Court. If new grounds are advanced on appeal, it effectively means that the jurisdiction is being exercised by this Court.

26    Of course, appeals of this kind are particularly sensitive: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788. It is particularly important to the party seeking refugee status that that party's claim be considered by the Tribunal in accordance with law. That said, however, it seems to me that it is necessary to protect the integrity of the appellate jurisdiction that parties be bound by the way in which they conducted their application for judicial review before the Federal Magistrates Court: H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43.

34    Nevertheless Lander J noted at [27]) that the Full Court of this Court has recognised that a residual discretion resides in this Court to allow a party to advance a ground of appeal not advanced before the Court from which the appeal is brought where it is in the interests of justice to do so, citing Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788, Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543, and Metwally v University of Wollongong (1985) 60 ALR 68 (at 71), which provide that a party is bound by the conduct of the party’s case in the Court below except in ‘the most exceptional circumstances’. Lander J noted (at [30]) that:

The Minister has a legitimate interest in the timely disposal of applications for protection visas. There are other public interests, however, to which regard should be had. There are good reasons why this Court should not be made de facto the Court of original jurisdiction when sitting on appeal. Otherwise its role as an intermediate Court of Appeal will be undermined. The High Court should not be burdened by applications for leave to appeal from decisions of this Court which have not been reviewed.

35    In SZKMS, the respondent conceded, as the Minister has in effect before me, that I needed to consider whether any of the grounds had any merit before determining whether or not I should allow the application to amend. In some cases this can be done without delay and in others, such as SZKMS, the exercise is more involved. Lander J described this (at [31]) as a curious result when the Court would otherwise discourage such applications but a result which arises because the Court's overriding duty is to do justice. The reason for the power to allow a party to raise a ground on appeal for the first time is to do justice. Lander J then considered the proposed grounds at some length before determining they had no merit and dismissing the application to amend the notice of appeal. He then also considered the original grounds of appeal and rejected them.

36    As I have indicated, there are cases where proposed new grounds clearly have no merit and amendment to raise the new grounds will be immediately refused. In the present case, while the Minister did oppose raising the new grounds (1) and (3), there was sufficient in the proposed grounds and supporting argument to warrant considerable submissions from counsel and some reflection on the grounds in these reasons. My approach in this situation has been to allow the amended notice of appeal as the amended grounds appear to be self-evidently not wholly without merit, but, for reasons expressed below, to dismiss them.

Submissions in support of the grounds of appeal

Ground 1 – Freedom from Torture report

37    Leave was required to argue the first ground because it had not been raised before the FCC. Leave was sought in relation to this ground and ground 3 in light of the following factors as articulated for the appellant:

a.    The fact that [the appellant], who is not legally trained, was unrepresented [legally] before the [FCC];

b.    The Court’s attention was apparently not drawn to the fact that the material had been expressly articulated to the IMR and dealt only on the limited basis of the test proposed by section 36(2)(a) of the Migration 1958 Act (Cth);

c.    It is an important matter of public policy in light of the vulnerable nature of applicants before the IMR that reviews are carried out according to the law;

d.    The ground sought to be advanced in the amended application is meritorious;

e.    If [the appellant] is not permitted to advance [the] ground, he faced deportation on the basis of a decision that clearly failed to address all elements of his claims for protection; and

f.    It is in the interests of justice to allow [the appellant] to raise [the] new ground, especially in refugee matters of this kind where the sensitivity of the claim requires special care to be taken to ensure [the appellant] is afforded justice.

38    Pro bono counsel for the appellant stressed that both of the statutory tests enunciated in s 36(2) of the Act, that is, the Refugees Convention test and the complementary protection test required application of the ‘real chance’ test as opposed to a ‘balance of probabilities’ test: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 (at [246]-[247] per Lander and Gordon JJ).

39    The appellant submitted that the correct test had not been applied in respect of the complementary protection aspect of the claim.

40    The complaint by the appellant on the first ground, in essence, is that the IMR simply gave ‘lip service’ to the complementary protection basis of the appellant’s claims without independently construing and considering that aspect of the claim and its component integers.

41    It is argued that the IMR had simply rolled up consideration of the complementary protection claim with the migration claim. In particular, the appellant points to part of [212] of the IMR statement of reasons, which is in the following terms:

I have given detailed consideration to reports by NGOs advising of Sri Lankans being tortured, harmed or disappeared upon returning home, particularly that provided by HRW in September 2012 and by Freedom from Torture to UNCAT in November 2011. This latter report advises of nine cases of detention and torture within days to a month of the person’s return and of four where the harm occurred between one and seven years of their return. It also notes that some of these people left by authorised means. However, of the 15 confirmed cases of detention and torture, only four were returning asylum seekers, suggesting that other undisclosed factors were causative…

42    In written submissions in support of ground 1, the appellant argues that the IMR is required to consider the whole of the case put forward by an applicant: Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478 per Katz J (at [31]); W352 v Minister for Immigration & Multicultural Affairs [2002] FCA 398 (French J); MZWPD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1095 per Weinberg J (at [69]); SZGUW v Minister for Immigration & Citizenship [2008] FCA 91 (Jacobson J); SZGUW v Minister for Immigration and Citizenship (2009) 108 ALD 108 (Reeves J). This is so where claims are accepted and the issue is whether a fear of future persecution is well-founded (as in MZWPD), or whether the issue is whether the applicant is to be believed (SZGUW per Reeves J; SZRBX v Minister for Immigration and Citizenship [2013] FCA 404). A decision maker is required to correctly construe and consider claims (and competent integers thereof) made by an applicant or apparent on the face of the material before him: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 per Allsop J (with whom Spender and Merkel JJ agreed) (at [42]); Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 (at [22]-[24], [27]) per Gummow and Callinan JJ; (at [88]-[89]) per Kirby J; (at [95]) per Hayne J.

43    Further, the appellant submits that the IMR’s obligation is not limited to procedural fairness in responding to expressly articulated claims but extends to reviewing the delegate’s decision on the basis of all the materials before it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1.

44    The appellant went on to contend that in dealing with the claim under the alternative criteria posed by complementary protection under s 36(2)(aa) of the Act, the IMR effectively side stepped the issue put in play by the findings by holding (at [219]):

… I have found that neither the Australian or Canadian governments are aware of reports of people being returned to Sri Lanka and harmed by the authorities because of their attempts to seek asylum or their ethnicity despite the numbers of people being returned involuntarily…

45    The appellant argues that by dealing with his claims under complementary protection in this manner, the IMR failed to take relevant considerations into account in circumstances where it was open to the IMR to deal with the complementary protection criteria in a self-contained way. It is said the IMR did not clearly distinguish between the statutory provisions which bear on the complementary protection criteria and those which do not. The argument advanced for the appellant was that the focus on the Refugees Convention matters specific to the test under the Refugee Convention was irrelevant to the test under the complementary protection.

Ground 1

46    In my view, the authorities requiring independent consideration of the various integers of different statutory claims do not suggest that factual findings reached on one integer cannot be adopted in consideration of another integer. That is all that has occurred on this occasion. It is clear that the IMR had regard to her previous findings of fact when considering the complementary protection criteria. This process is supported by the decision in SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 per Robertson, Griffiths and Perry JJ (at [32]-[35]) where their Honours said:

32    In the present case the Assessor did not accept that the appellant was targeted by the Taliban/Kuchis/Pashtuns when travelling on the road from his village to Ghazni City, which was a factual component of the appellant’s claim. The Assessor did not accept that there was a real risk that the appellant would suffer significant harm by Pashtuns/Taliban/Kuchis in relation to his travel on the roads, which was another factual element. The Assessor did not accept that all Hazaras are subject to persecution by the Taliban and Pashtuns. These being the claims put we see no error in so assessing them. We can understand that a claim under the Refugees Convention may fail because, on the facts, harm was suffered but not for a Refugees Convention reason. However, where there is a finding that no harm as claimed was suffered, that finding is relevant to a complementary protection claim, that is, to whether the Minister has substantial grounds for believing there is a real risk of significant harm for the purposes of s 36(2)(aa) of the Act.

33    In our opinion the major premise of the appellant’s submissions is that the reference in [145] of the Assessor’s findings incorporates the entirety of the reasoning of the Assessor, particularly the reasoning at [127] and [133], which refers to Convention reasons, and that therefore the findings in [145] should be read down accordingly. We do not accept that reading of the Assessor’s findings. As we have indicated, in our view [145] adequately sets out the Assessor’s findings of fact. The first sentence of [145] upon which the appellant primarily relies for his major premise is, in our view, an explanation by the Assessor of why it was that she did not accept the appellant’s claims which followed.

34    As to the specific criticisms made by the appellant of [145] of the Assessor’s reasons, read in context and so as to inform as required by Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, we are not persuaded that those references establish that the Assessor impermissibly strayed from addressing the statutory question posed by s 36(2)(aa) in relation to the travelling claim. We accept that to some extent the Assessor was restating what she had earlier found but we do not regard those restatements, in the terms in which they are made in [145], as irrelevant to the s 36(2)(aa) question given the claim made that the routes to and from Ghazni province were insecure and the appellant would suffer significant harm from cruel and inhuman treatment or punishment by the Taliban as a Hazara: see [30] of the Assessor’s reasons and the claim made at page 45 of the appellant’s lawyers’ 46 page submission to the Assessor. For completeness we also note that protection obligations are the subject matter of s 36(2)(aa) and that obtaining protection from an authority of the country is referred to in s 36(2B). Both these provisions form part of the complementary protection criterion for a protection visa.

35    As to SZFSK v Minister for Immigration [2013] FCCA 7, relied on by the appellant at [20] of his written submissions, as Robertson J said in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [57], each case must depend on its own facts and on what the decision-maker’s reasoning in fact was. In the present case, the Assessor specifically addressed the complementary protection claim by reference to the language of the statute and made findings of fact which led to the conclusion that she did not accept the appellant’s claim.

(emphasis added)

47    As part of the preceding analysis, the IMR states that she took into account the Report, saying that she gave detailed consideration to it, but that the vast majority of NGO reports still pinpoint their concerns to people who are suspected of LTTE involvement (at [212]). Significantly, the IMR had earlier (at [201]) concluded that the appellant left Sri Lanka without being suspected of LTTE involvement and it would be ‘plain to the authorities’ that the appellant ‘has had no real involvement with the LTTE’ (at [210]). That was the basis on which the IMR concluded the risk of serious harm to the appellant upon return to Sri Lanka was remote.

48    I am unable to agree with the appellant’s contention that the IMR has confined her consideration of ‘significant harm’ to Refugees Convention based reasons. Rather the IMR has found there is no real chance of the appellant suffering any ‘significant harm’, whether it be ‘serious harm’ (when considering the Refugees Convention) or ‘significant harm’ (when considering complementary protection). There is no legal or logical error and no jurisdictional error in the approach which had been taken by the IMR on this topic.

49    I accept the submissions for the Minister that the analysis by the IMR does not indicate that she failed to take the Report into account along with other country information. She was entitled to give such weight to the Report as she considered appropriate in the circumstances. As submitted for the Minister, the choice and interpretation of country information is a factual matter for the IMR: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 per Gray, Tamberlin and Lander JJ (at [11]-[13]).

50    I would dismiss this ground for the preceding reasons.

Ground 2

51    Unlike the first ground for which leave was required and given to argue, the second ground of appeal squarely arose before the FCC, namely, the question of whether or not an adjournment should have been granted. For the appellant it is argued that the refusal of an adjournment may amount to a denial of procedural fairness where to do so is likely to deny a party a reasonable opportunity to present his or her case: Mijac Investments Pty Ltd v Graham [2009] FCA 303 per Gordon J (at [23]) where her Honour said:

That passage from JL Holdings does not state and should not be taken as stating some general or universal proposition that a party is entitled to an adjournment so long as the opposing party is looked after by an award of costs. As many decisions since JL Holdings have stated, the “attainment of justice” is a goal that is not achieved without a proper consideration of the facts in any given case: Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623, [2]; Cassar v Hans Pet Constructions Pty Ltd [2008] NSWSC 1386, [18]-[24]; Chameleon Mining NL v Murchison Metals Ltd [2009] FCA 137, [9]-[15]; Finerty v Deputy Commissioner of Taxation [2008] FCA 1136, [29]–[31]; Smolle v Australia and New Zealand Banking Group Ltd [2008] FCA 1065, [68]; Williams v Calivil Park Holsteins Pty Ltd [2009] NSWSC 31, [20]-[21]. The basic premise was clearly enunciated by Lindgren J at [52] in Thoo v Kelly (2008) 169 FCR 470:

The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] per Gaudron and Gummow JJ (Bhardwaj); Touma v Saparas [2000] NSWCA 11 at [27]). The procedure that will satisfy the demands of procedural fairness may differ in order “to meet the particular exigencies of the case” (Kioa v West (1985) 159 CLR 550 at 615 per Brennan J). As I stated in Ali v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 41 AAR 410 at [27]:

Ultimately, each complaint of a failure to accord procedural fairness by reason of the refusal of an adjournment turns on its own facts. Whether an adjournment should be granted is a matter within the discretion of the trial Judge (or Tribunal), to be resolved according to the overall requirements of justice in the particular circumstances [citation omitted].

52    The complaint advanced for the appellant is that in the hearing below his Honour, effectively, prejudged the merits of the application in concluding in advance on the adjournment application that there was no ‘significant merit’ in the appellant’s case, however it might be formulated.

53    In my view, this is not a fair reading of the entirety of the commentary by his Honour which I’ve extracted above at [23].

54    In my view, the question of the adjournment application was approached entirely comprehensively and with considerable care before the application was rejected. The isolated reference to which the appellant adverts is but one aspect of the complete analysis. Further, on the grounds as there formulated before his Honour (‘jurisdictional error’), his conclusion was correct.

55    For the Minister it is also contended that the relevance of the proposed ground is unclear as the notice of appeal did not seek that the matter be reheard by the FCC and a procedural error alone would not establish jurisdictional error by the IMR: Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319. In any event, the Minister argues the appellant has not established any error of principle in the sense discussed in House v The King (1936) 55 CLR 499 (at 504-505) as will be required to set aside his Honour’s exercise of discretion to refuse an adjournment.

56    It is unnecessary to consider the Minister’s grounds of opposition to the second ground of appeal. I am satisfied there was no error of principle in any sense on the exercise of a discretion. Certainly forming preliminary views about the merits of the application was well within the range of matters which his Honour was properly entitled to take into account amongst others.

57    The second ground of appeal must fail.

Ground 3

58    The third ground of appeal dealing with corroborative medical evidence and lack of procedural fairness is concerned with the additional observation made in the FCC concerning the failure by the IMR to fully deal with an apparently potentially corroborative piece of evidence as to broken shoulders said to have been suffered by the appellant following a beating.

59    The appellant relies upon Minister for Immigration and Citizenship v SZQHH (2012) 287 ALR 523 per Rares, Flick and Jagot JJ where their Honours said (at [25]):

The principles of procedural fairness require that persons whose interests may be adversely affected receive a fair hearing by the use of an appropriate procedure in the circumstances: SZBEL v Minister for Immigration (2006) 228 CLR 152; 231 ALR 592; 93 ALD 300; [2006] HCA 63 at 160 [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. There the Court said:

“[W]hat is required by procedural fairness is a fair hearing, not a fair outcome”. As Brennan J said, in Attorney-General (NSW) v Quin [(1990) 170 CLR 1 at 35-36]:

“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”

It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.”

60    In written submissions, the appellant argues that at first instance, the appellant was not provided an opportunity to deal with the issues posed by the rejection of the medical certificate as affording corroboration of the appellant’s claims. In the circumstances, it is submitted the appellant was denied the opportunity of leading further evidence of a corroborative nature regarding his claims to have been detained, beaten and tortured by the SLA and police on 10 June 2010. The appellant also contends that, in those circumstances, the denial of procedural fairness is intertwined with the considerations taken into account by his Honour in the concerns regarding the IMR’s lack of regard to the certificates and the possibility they had not been sufficiently dealt with.

61    I am unpersuaded that this ground has merit. What the IMR rejected was that the medical certificate provided ‘credible confirmation’ as to the appellant’s claim of torture in 2010. The complaint asserted for the appellant is that he was not ‘put on notice’ of this possible finding during the interview.

62    Procedural fairness did not require the IMR to set out every detail of her findings for the appellant’s consideration during the interview: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 (at [54]). She was required to advise of any adverse conclusion not obviously open on the known material. She was not required to expose the detail of her thought processes or provisional views for comment: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 per French CJ and Kiefel J (at [9]); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (at [47]-[48]). The review conducted by the IMR was comprehensive. She questioned the appellant in detail at the interview on 7 May 2012, including about the claims of torture in 2010. She wrote to the appellant on 22 May 2012 setting out information which might lead her to conclude, amongst other things, that he ‘was not arrested, detained and assaulted by members of the [SLA] and police’. The appellant could be in no doubt of the need to prove this aspect of his claim. He was clearly put on notice that this claim might not be accepted, and it was obvious that, if so, the medical certificate would not be regarded as being confirmation of it.

63    In any event, the suggestion that the medical evidence clearly corroborated the existence of an injury caused by circumstances which might lead the authorities to consider the appellant was an LTTE supporter was by no means unequivocal.

64    In this regard, there appeared to be two conflicting medical certificates in relation to the appellant’s shoulder injuries, one pertaining to 10 June 2009 and one pertaining to 10 June 2010. The IMR and the primary judge appeared to take the view, in favour of the appellant, that the latter certificate was the one on which the appellant sought to rely. (The 2010 date would fit with the appellant’s claims to have been beaten in June 2010.) The IMR recited a whole range of other reasons (at [198]) for rejecting the allegations that the appellant had been detained, beaten and tortured by the SLA and police in June 2010 and pursued by them thereafter. Having done so, the IMR made the point that she did not accept that the medical certificate (being the second medical certificate with the corrected date) was credible corroboration of those claims (at [199]). As indicated above, it was entirely open to the IMR to reach the conclusion that, for the other expressed reasons, she did not accept the claims and did not consider that the certificate was sufficient to displace that reasoning.

65    As with ground 1, I would permit ground 3 to be raised but dismiss it.

CONCLUSION

66    For the foregoing reasons, the appeal will be dismissed with costs. The orders will be:

1.    Leave to amend the grounds of appeal is granted.

2.    The appeal is dismissed.

3.    The appellant pay the costs of the first respondent to be taxed if not agreed.

Associate:

Dated:    22 August 2014