FEDERAL COURT OF AUSTRALIA

SZSUA v Minister for Immigration and Border Protection [2016] FCA 482

ORDERS

THE COURT ORDERS THAT:

1.    Leave to amend the notice of appeal is refused.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs in a fixed amount of $6,439.

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

REASONS FOR JUDGMENT

1    The appellant is a Sri Lankan national who arrived in Australia on 11 May 2012 as an unauthorised maritime arrival.

2    On 18 December 2015, a Judge of the Federal Circuit Court of Australia (“FCCA”) delivered judgment and made orders dismissing an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) made on 25 March 2013: SZSUA v Minister for Immigration and Border Protection [2015] FCCA 3345 (“FCCA Judgment”). The Tribunal affirmed a decision of a delegate of the Minister made on 19 September 2012 to refuse to grant a Protection (Class XA) visa to the appellant.

3    The appellant was represented by counsel at the hearing in the FCCA. The grounds for judicial review of the Tribunal’s decision by the FCCA were (as written):

1.    The RRT failed to apply section 430 of the Migration Act 1957 (Cth).

Particulars: In dealing with the applicant’s claims for protection pursuant to section 36(2)(aa) of the Migration Act at paragraphs [80] and [81] of the decision, the Tribunal failed to set out the reasons for the decision.

2.    The RRT failed to apply the correct test under section 36(2)(aa) of the Migration Act 1958 (Cth).

Particulars: 1. In dealing with the applicant’s claims for protection pursuant to section 36(2)(aa) of the Migration Act at paragraph [80], the Tribunal drew a distinction between the standards of “real chance or of a real risk”.

2. The RRT has failed to apply the reasoning of the Full Court of the Federal Court of Australia in Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33.

3.    The RRT failed to apply the correct test under section 36(2)(aa) of the Migration Act 1958 (Cth).

Particulars: 1. In dealing with the applicant’s claims for protection pursuant to section 36(2)(aa) of the Migration Act at paragraph [80], the Tribunal conflated the statutory tests pursuant to section 36(2)(a) and section 36(2)(aa) of the Migration Act, importing under complementary protection the burden of identifying the motivation for the infliction of the harm.

4    On 4 January 2016, the appellant filed a notice of appeal from the judgement and orders of the FCCA. The appellant was not represented at the time. The notice of appeal relied on three grounds (as written):

1.    Federal Circuit Court Judge made error.

2.    Federal Circuit Court Judge never took the reasons given by the appellant at the RRT decision.

3.    The error by the RRT is noticeable and no sufficient attention given by the Federal Circuit Court Judge.

5    On 22 April 2016, solicitors acting for the appellant sought to file an amended notice of appeal. The amended notice set out a single ground (“new ground”) which is, as written:

1.    The Tribunal committed jurisdictional error as it failed to assess a claim that was made.

Particulars

i.    At [49] on the basis of the Applicant’s advisor’s submissions the Tribunal recognised that a “new claim” had been made, namely that the Applicant claimed to have a fear of harm as a result of being involuntarily returned to Sri Lanka as a failed asylum seeker.

ii.    The Tribunal erred, as it failed to assess this claim which falls squarely within the scope of the Convention ground of a – Particular Social Group.

6    At the hearing on 4 May 2016, the appellant’s legal representative sought leave to amend the notice of appeal and rely on the new ground. He recognised that the new ground does not engage at all with the reasons of the primary judge although the relief sought is that the orders made by the primary judge be set aside. These reasons therefore do not canvass the FCCA Judgment.

7    The appellant’s legal representative acknowledged that it had been open to the appellant to raise the new ground in the proceedings in the FCCA and the new ground results from the appellant’s changed representation. He submitted that the grant of leave to rely on the new ground would result in minimal prejudice to the Minister because the ground arises from the Tribunal’s statement of decision and reasons dated 25 March 2013 (“Decision Record” or “DR”) and it is not a case where new evidence might have been adduced at the hearing in the FCCA which might have prevented the point from succeeding. He accepted that the merit of the new ground would need to be compelling to satisfy the Court that the interests of justice required that the issue raised by the new ground be argued and decided. He confirmed that if leave to amend the notice of appeal and rely on the new ground was not granted then the appeal should be dismissed as the appellant does not press the grounds set out in the original notice of appeal.

8    The Minister opposed the grant of leave to the appellant to amend the notice of appeal and to rely on the new ground. While the Minister accepted that he suffers no prejudice if leave is granted, counsel for the Minister submitted that lack of prejudice alone was not enough. Counsel submitted that a change of representation is not a sufficient explanation for the failure to raise the new ground in the FCCA and it is not in the interests of justice for leave to be granted because the new ground lacks merit.

Background

9    On 18 June 2012, the appellant participated in an entry interview with an officer from the Department of Immigration and Citizenship (now the Department for Immigration and Border Protection). On 6 August 2012, the Department notified the appellant that the Minister had exercised his power pursuant to s 46A(2) of the Migration Act 1958 (Cth) to permit the appellant to make an application for a Protection (Class XA) visa. The appellant signed an application and made a statutory declaration (“Statutory Declaration”) supporting his claims that same day. He completed the application with the assistance of an advisor, using an interpreter. On 11 August 2012, the appellant participated in an interview with a delegate of the Minister. The delegate refused to grant the visa on 19 September 2012.

Statutory Declaration

10    A summary of the appellant’s claims in his Statutory Declaration are set out at DR [23] as follows (identifying descriptors omitted):

•    When he was growing up there was conflict in his […] village between the government and the LTTE.

•    In 1983 his father took him and his older brother to India to live with their grandmother because the army was killing many Tamil children and he feared for their safety. They travelled to India illegally by boat.

•    He and his brother lived with their grandmother and went to school. Their father paid their expenses. There were no refugee camps at the time and they were not registered as refugees.

•    In 1990 his parents and his other two siblings also moved to India. They lived in a refugee camp and were registered as refugees. However the authorities refused to register the Applicant and his brother on the grounds that they had arrived in 1983.

•    In 1999 his mother died of an illness. His father became depressed and decided to return to Sri Lanka because he was worried about the standard of health care available in India and did not wish to be a burden to the family. He made a return visit to India for two months in 2007.

•    Despite the Applicant’s many years in India the authorities refused to issue him with any documents or with a refugee card. This placed him at risk of police harassment. He suffered mental stress and did not feel safe in India. He could not register his marriage or the birth of his children.

•    He could not return to Sri Lanka because the army, police and CID are still targeting, detaining and investigating young Tamil males who are from the Northern Province where the LTTE was very active and controlled many areas.

•    He does not have a Sri Lanka identity card. The police and army are always asking for this card and he would be detained if he could not produce it. The only document he has is a Sri Lankan birth certificate.

•    A further reason why he does not wish to return to Sri Lanka is that he does not support the government’s treatment of Tamils. Any Tamil who does not support the government and wants to protect Tamil rights and safety is accused by the government, the army and the police of being an LTTE member or supporter.

•    The Sri Lanka authorities will not protect him. They investigate, detain, harass, kidnap and kill Tamils. Their role is to persecute Tamils rather than to protect them.

11    I accept that this is a fair summary of the Statutory Declaration.

tribunal decision

12    The appellant applied to the Tribunal for a review of the delegate’s decision on 26 October 2012. He attended a hearing before the Tribunal on 23 January 2013 to give evidence and present arguments. The appellant was represented in the review by his registered migration agent who attended the hearing.

13    The DR at [48] and [49] report on the following interactions between the appellant’s representatives and the Tribunal (emphasis added):

48    At the advisor’s suggestion I asked the Applicant whether he had ever been associated with anyone in India, on the boat to Australia or in Australia who had any connection with the LTTE. He said he had not.

49    The advisor submitted that:

•    The Applicant did not know whether he had had any association with the LTTE and that it was reasonable to assume that the Sri Lanka authorities would wish to establish this. He had not been screened by the authorities, as the majority of the Tamil population of the North had, and as he had returned from Australia it was very likely that they would interrogate him as to whether or not he had any connection with the LTTE.

•    The Applicant had a problem over his lack of an identity card. He only had his birth certificate and there were features of this document (identified by the Tribunal) which might indicate that it was not genuine. It was possible that if he produced his birth certificate it would be subjected to scrutiny by the authorities, leading them to ask him how he had obtained it and where he had been. Coming to the attention of the authorities puts a person at risk of harm. I noted that when these matters were put to the Applicant he had invited the Tribunal to check the details of his birth certificate with the issuing authorities; if the document was genuine the authorities would be able to establish this very quickly. She submitted this would depend on the individual who was detaining the Applicant at the time.

•    The only other document the Applicant would have on return to Australia would be one issued by the Sri Lanka authorities in Australia: this would put him at risk by identifying him as someone who had been in Australia. Members of the army or the police would make their own decisions as to what they should do with him. I noted that this was a new claim to fear harm – on the grounds that the Applicant was a failed asylum seeker – which he himself had not articulated. She said it was not a claim by the Applicant but country information. She said UNHCR guidance indicates there is no systematic monitoring of the treatment of returned asylum seekers after they return home; it is not known what happens to them. I noted that this was not simply country information but, instead, a new claim to fear harm which, clearly, the Applicant had not articulated when given the opportunity to do so. She said the absence of country information as to what happens to people who are forcibly returned posed the risk. This matter having been raised by the advisor (and the exchanges having been conveyed by the interpreter) I asked the Applicant if he had a fear of harm as a result of being involuntarily returned to Sri Lanka as a failed asylum seeker. He said he did have such a fear, and that if he was not harmed at the airport on return the authorities would harm him later.

Post-hearing submissions

14    The registered migration agent filed post-hearing submissions on 5 February 2013. They are relevantly and accurately summarised at DR [51] as follows (as written, emphasis added):

51.    On 5 February 2013 the Tribunal received a submission from the advisor citing country information and canvassing legal issues. She submits, in summary, that:

•    The Applicant fears persecution in Sri Lanka on the grounds of

•    His Tamil ethnicity;

•    His political opinion opposed to the Sri Lanka government and its treatment of Tamils and imputed political opinion.

•    His membership of the particular social groups consisting of ‘Tamil men originating from the north or east of Sri Lanka’ and/or ‘people suspected or accused of being members of, associating with or supporting the LTTE.’

•    Independent country information supports the Applicant’s claims

•    The government and authorities (paramilitary groups, army, police, CID) are still doing persecuting Tamils on the basis of their ethnicity, actual or imputed political opinion and suspected links with the LTTE. Individual members of these groups are continuing this persecution and the government does not prevent them doing so or provide protection.

•    The authorities are engage in persecuting people such as the Applicant based on their own views about their background and suspected links with the LTTE.

•    The Applicant would be returning to Sri Lanka as a failed asylum seeker. Country information indicates that he would be questioned by the State Intelligence Service and the CID on arrival. This would lead to his ‘almost certain detention and interrogation’ on return and expose him to a real chance of harm during this process. There is no formal or systematic monitoring of returned asylum seekers after they leave the airport and it is not known how authorities treat them.

•    In assessing whether the Applicant is a person of interest to the authorities it is important to remember the serious human rights abuses, lack of transparency and persecution of the Tamil population. It is not possible to establish that the Applicant will not be at risk of persecution or significant harm in future.

•    Country information shows that the Applicant would be at risk of harm as a returned asylum seeker because the Sri Lankan government suspects asylum seekers who have arrived in Australia as having LTTE links. He would be interrogated about aspects of his time in India and Australia with a view to establishing whether these links existed. He would face a risk of serious harm on return through detention and interrogation, during which he would be subjected to human rights abuses including torture.

•    There is no-ongoing system of formal, systematic monitoring of returned asylum seekers.

•    The Applicant could not escape harm by relocating elsewhere within Sri Lanka.

•    The Sri Lanka authorities will not protect the Applicant but are themselves the source of the harm he fears.

•    The Applicant also meets the criterion for complementary protection since he faces a real risk of significant harm on being returned to Sri Lanka, including arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment.

Appellant’s submissions as to merit

15    The DR at [59] sets out the Tribunal’s understanding of the appellant’s claims as follows:

The Applicant claims to fear serious harm in Sri Lanka on the Convention grounds of:

•    His Tamil ethnicity.

•    His political opinion; actual and imputed, opposed to the government.

•    His membership of the particular social group consisting of “Tamil men originating from the north or east of Sri Lanka” and/or “people suspected or accused of being members of, associating with or supporting the LTTE.”

16    The appellant’s representative submitted that although the “new claim” that the appellant was a member of the “Particular Social Group” of failed asylum seekers was not “articulated” or “expressly advanced” by him, it was raised for the first time at the Tribunal hearing as recorded at DR [49] and the fact the Tribunal accepted that “this was a new claim to fear harm” meant that the Tribunal was required to assess that claim. In arriving at its decision the Tribunal is required to deal with the case actually raised by the material or evidence. In contrast to an adversarial proceeding, the Tribunal cannot limit its determination just to the case articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant: see Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157; [2000] FCA 1901 at [114] per Merkel J. The appellant also relies on Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184; [2001] FCA 263.

17    The representative noted that at DR [76], the Tribunal specifically addressed a claim not articulated by the appellant, that is, whether he would be at risk of prosecution for breach of Sri Lanka’s immigration laws by having departed Sri Lanka illegally by boat in 1983, when he was a young child. The Tribunal concluded that he would not face a real chance of serious harm for such a reason. The representative argued that, in contrast, the “new claim” to face harm as a failed asylum seeker was not addressed at all. The representative submitted that it was not enough to refer to the “new claim” in the “summary” set out at DR [77] because that implied that the “new claim” had been dealt with elsewhere when it had not. The DR at [77] provides as follows:

In the light of all the information before the Tribunal I am not satisfied there is a real chance that the Applicant would suffer serious harm in Sri Lanka because of his Tamil ethnicity, his political opinion or his membership of a particular social group. Nor am I satisfied that, whether or not in combination with these Convention grounds, he faces a real chance of harm because of a lack of documentation (including a Sri Lanka identity card), because he has sought protection in Australia or because he may have unlawfully left Sri Lanka in 1983. He does not claim to fear harm in Sri Lanka for any other reason and no other reason is apparent on the face of the information before the Tribunal.

18    The representative submitted that the fact that prior to his arrival in Australia, the appellant had resided in India for 30 years meant that the Tribunal was required to consider his circumstances differently to the more “normal” case of Sri Lankan asylum seekers who arrive in Australia directly from Sri Lanka.

Minister’s submissons as to merit

19    Counsel for the Minister submitted that despite the confusion at the hearing apparent in the third dot point of DR [49], the post hearing submissions lodged with the Tribunal by the appellant’s registered migration agent made it clear that the appellant’s claims for protection are the three set out in the first dot point of DR [51] and at DR [59]. It is clear from the emphasised language in DR [51] (set out at [14] above) that the “failed asylum seeker” claim was made in the context of, and cannot be separated from, his claim to fear harm on the basis of an imputed pro-LTTE political opinion. The claim based on imputed political opinion was considered and rejected by the Tribunal at DR [68]-[72]. At DR [69] the Tribunal found:

As put to the Applicant at the hearing, there is nothing in his personal history which could reasonably be seen as grounds for suspicion by the Sri Lanka authorities that he had any connection with the LTTE. He left Sri Lanka at the age of eight, at a time before the civil war had begun, and has never returned. He states that he has never had anything to do with the LTTE either in India, on the way to Australia or in Australia itself. For that matter, he has never expressed a view in favour of the LTTE in any part of his evidence to the Department or the Tribunal and there is nothing to suggest that he does in fact hold such a view. He does not claim that any of his family members or close relatives has ever been involved with the LTTE or suspected of involvement, and his evidence is that his father remained in government employment until his retirement and now receives a government pension. I have considered the claims that his Tamil ethnicity, the fact of his having travelled to Australia with the aid of a people smuggler and his having sought asylum will also incline the authorities to suspect him of supporting or associating with the LTTE but I am not satisfied that the information before the Tribunal establishes that people do fall under suspicion for these reasons in Sri Lanka.

20     The factual premise which underlies the “failed asylum seeker” claim was rejected and it was therefore unnecessary for the Tribunal to make a separate finding: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [95] per McHugh, Gummow and Hayne JJ. The finding at DR [77] was sufficient to dispose of the “new claim” even if it were accepted that it operated separately from the claim based on imputed political opinion.

Consideraton and disposition

21    The Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [61] per Black CJ, French and Selway JJ. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy: NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] per Allsop J.

22    In this case, the Tribunal member was clearly alive to the need to identify unarticulated claims which might arise in the course of the hearing, however, he was entitled to understand the appellant’s claims as expressed in the 5 February 2013 post-hearing submissions which followed his questioning of the appropriate approach to be taken as set out in DR [49].

23    I accept the Minister’s submissions that despite the language employed by the Tribunal in the third dot point of DR [49], the 5 February 2013 post hearing submissions, which are summarised accurately at DR [51], confirm that the “failed asylum seeker” claim was made in the context of, and cannot be separated from, the appellant’s claim based on his imputed pro-LTTE political opinion. That claim was expressly addressed at DR [69] and [77]. The “failed asylum seeker claim” can only be understood as a stand-alone claim if the Tribunal’s reasons are construed minutely and with a mind attuned to error; such an approach has been consistently rejected by the Courts: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey J, McHugh J and Gummow J.

24    For completeness, I note that the argument that the appellant’s position was different from other asylum seekers returning to Sri Lanka because he had spent 30 years in India and therefore required different consideration was not raised with the Tribunal. I perceive no jurisdictional error by the Tribunal in failing to address a claim in these terms as opposed to on the basis expressly put forward by the appellant who was represented.

25    In the context of migration cases, the Courts have taken the approach that the serious consequences that flow to an appellant from the wrongful refusal of a protection visa warrant careful attention to the merit of the application for judicial review and on appeal, however, the usual considerations nonetheless apply to a determination of whether an application for leave to raise a new ground on appeal should be granted. In considering this issue in MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1, Lander and Middleton JJ said at [63]-[68]:

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

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

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

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

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

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

26    I respectfully adopt this approach. In this case, the appellant was represented in the proceedings in the FCCA. The fact that the appellant has new representation is not a sufficient explanation for the failure to raise in the judicial review proceedings before the FCCA a ground based on interpretation of the Decision Record of the kind which the appellant now seeks to raise.

27    Having regard to my view that the new ground lacks merit, I am not satisfied that the interests of justice demand that leave be granted for the appellant to rely on the new ground. As submitted by the Minister, to grant leave would be to allow the appellant to “advance what is essentially another judicial review application”, undermining the integrity of the appellate process and the process envisaged by the Migration Act at ss 476 and 476A.

28    For the foregoing reasons I was satisfied that leave for the appellant to amend the notice of appeal and to rely on the ground in the amended notice of appeal should be refused and the appeal be dismissed.

Costs

29    The Minister relied on an affidavit of Esther Louise Dwyer sworn 6 May 2016 in support of an application for costs fixed in the amount of $6,439 inclusive of counsel’s fees of $2,750. For the reasons set out in the affidavit, I am satisfied that an order should be made for that amount.

Associate:

Dated:    9 May 2016