FEDERAL COURT OF AUSTRALIA

ARO15 v Minister for Immigration and Border Protection [2016] FCA 1154

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the First Respondent’s costs of and incidental to the appeal to be taxed or agreed.

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

REASONS FOR JUDGMENT

WHITE J:

1    The appellant is a Sri Lankan national who arrived in Australia by boat on 21 July 2012. His application for a protection visa was refused by a delegate of the Minister and that refusal was affirmed on review by the former Refugee Review Tribunal (the RRT).

2    The appellant then sought judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (the Act), in the Federal Circuit Court (the FCC) of the RRT decision. His application raised a single ground for review. The FCC Judge considered that the applicant sought, in effect, a merits review of the RRT decision and had not established any jurisdictional error.

3    The appellant also raised in the FCC a matter which he had not mentioned to the Minister’s delegate or to the RRT. The FCC Judge said in respect of this matter that the appellant was asking the FCC to make its own evaluation of his claims in the light of the new material, a task which was not within the jurisdiction of that Court. Hence, the application for judicial review failed: ARO15 v Minister for Immigration [2016] FCCA 799.

4    The appellant now appeals to this Court. The appellant was unrepresented on the appeal, as he had been at the FCC hearing. Despite the orders made by a Registrar of this Court on 13 May 2016, the appellant did not file and serve a written outline of the submissions which he would make at the appeal hearing.

5    At the conclusion of the hearing, I made an order dismissing the appeal and said that I would provide my reasons later. The following are the reasons for that decision.

6    The appellant’s notice of appeal contains six grounds. A number of observations may be made about these grounds.

7    First, several of the grounds go beyond the matters which the appellant had raised in his application for judicial review in the FCC. To that extent, they constitute an attempt by the appellant to agitate on appeal, matters which he had not argued in the FCC. On an appeal of this kind, such a course is not ordinarily allowed. In particular, when the point proposed to be argued on appeal is a matter which might have been met successfully in the Court below by further evidence by the respondent, an applicant should not be permitted to raise the new ground. In other circumstances, it is for the Court to determine whether it is expedient in the interests of justice for the issue to be argued and decided on the appeal: Coulton v Holcombe (1986) 162 CLR 1 at 7-8; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; (2003) 129 FCR 168 at [23].

8    Secondly, the grounds of appeal indicate that the appellant does not appreciate the role of this Court on an appeal of this kind. It is the correction of any identified error in the proceedings at first instance and not the hearing of the judicial review application afresh. See, eg, Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, (2000) 203 CLR 194 at [21] (Gleeson CJ, Gaudron and Hayne JJ); Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, (2001) 117 FCR 424 (Allsop J as His Honour then was, and with whom Drummond and Mansfield JJ agreed) at [21]-[24]; Australian Competition and Consumer Commission v Australian and New Zealand Banking Group Ltd [2015] FCAFC 103, (2015) 236 FCR 78 at [168]-[169]; JR Consulting & Drafting Pty Ltd v Cummings [2016] FCAFC 20 at [62]. Further, the proper place for the trial on an application for judicial review is the Federal Circuit Court, and not this Court on appeal: SZSPR v Minister for Immigration and Border Protection [2013] FCA 1210; (2013) 139 ALD 109 at [19].

9    Thirdly, it is apparent that the contents of the appellant’s grounds of appeal match to a substantial extent, but not entirely, the grounds of the appeal by the appellant in ATH15 v Minister for Immigration and Border Protection [2016] FCA 1155, the reasons for which I have also published today. The appellant explained that he had carried out some research on the internet by which he had located grounds of appeal which he thought would be “useful” in his case. He emphasised that it was he himself who had carried out that research.

10    On their face, the grounds of appeal in the appellant’s notice of appeal appear to have a template quality about them, but it is possible that they are an amalgam of grounds which the appellant has garnered from diverse sources. In either case, this may be an explanation for the grounds of appeal being directed, only in the most general sense, to the decision of the FCC concerning the appellant.

11    An approach of this kind is to be deprecated. It is an ordinary expectation that grounds of appeal should be directed to the identification of a specific error or specific errors in the primary Judge’s decision in the particular case. This Court should not be asked to consider grounds of appeal which have little, if any, relevance to the circumstances of the particular appellant, or are relevant only in a very general (and unparticularised) way.

12    Counsel for the Minister said that the Minister would not be prejudiced if the appellant was permitted to argue all grounds, and did not oppose doing so. I will accordingly address all of the appellant’s grounds. In doing so, I have relied upon the articulation of the grounds in the notice of appeal as the oral submissions of the appellant at the hearing were not directed to these grounds. Instead, they were directed to the unfairness which the appellant perceives in the decisions of the Tribunal and of the FCC and, in particular, by the FCC Judge not accepting the claim which he advanced for the first time in the FCC.

The application for judicial review in the FCC

13    The sole ground of the appellant’s application for judicial review in the FCC was:

The RRT erred in not giving consideration to the evidence that the Applicant being myself will suffer significant harm upon my return to my home country. The RRT did not give consideration to the evidence provided [by] me at the RRT. Accordingly [the] RRT failed to give consideration to the evidence as a matter of law.

Ground 1

14    Ground 1 in the notice of appeal is as follows:

The learned Judge failed to take into consideration that the decision of the Administrative Appeal Tribunal was rendered invalid by a jurisdictional error made by the Tribunal by and/or identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material.

15    Counsel for the Minister characterised this ground as an “unparticularised amalgam of potential grounds of judicial review”. I agree with that characterisation. In view of the ground for judicial review articulated in the proceeding in the FCC, I will treat Ground 1 as a contention that the FCC Judge had been in error in failing to conclude that the RRT had not considered the evidence that the appellant would suffer significant harm upon his return to his home country.

16    Contrary to the appellant’s contention, it is apparent that the RRT did give considerable attention to the evidence bearing upon his claim that he would suffer significant harm if returned to Sri Lanka, including the evidence provided by the appellant himself. The RRT addressed in some detail material concerning the circumstances in Sri Lanka of failed asylum seekers, including a DFAT Country Report on Sri Lanka dated 3 October 2014; UNHCR eligibility guidelines for assessing the international protection needs of asylum seekers from Sri Lanka; an Amnesty International Report; the UK Home Office Country Information and Guidance for Sri Lanka dated 28 August 2014; an ABC Report; and an article from the Sydney Morning Herald published on 30 September 2014.

17    The RRT accepted that the appellant would be returning to Sri Lanka as a failed asylum seeker and accepted that it was likely that he would be charged with offences under the Immigrants and Emigrants Act of Sri Lanka relating to his illegal departure from that country. However, the RRT considered that the evidence indicated that the most likely penalty which would be imposed on those charges being found proved, would be a fine, although it may well be the case that, when charged, the appellant would initially be remanded in custody and may spend up to a fortnight in gaol. The RRT member did not accept that it could be concluded from these circumstances that there is “a real chance that the applicant will be mistreated for reasons of his political opinion or membership of a particular social group if he returns to Sri Lanka now or in the reasonably foreseeable future”. Nor did the RRT member accept that there is “a real chance that [the applicant] will be persecuted because he will be returning to Sri Lanka as a failed asylum seeker who left Sri Lanka unlawfully”.

18    The appellant’s claim for complementary protection pursuant to s 36(2)(aa) of the Migration Act was rejected for similar reasons.

19    In these circumstances, there was no basis upon which the FCC could have upheld the sole ground for judicial review raised by the appellant. For this reason, Ground 1 of the appeal to this Court is not made out.

Ground 2

20    Ground 2 provides as follows:

The learned Judge erred in not providing procedural fairness to present arguments and not finding that the interest of the Appellant is affected by the decision given by the Second Respondent on 17 April 2015.

Particulars

(a)    The Respondents in particular the second Respondent failed to properly consider and apply the definition of Article 1A(2) of the Convention relating to the status of Refugees made at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees made at New York on 31 January 1967. The Respondents failed to consider that the Applicant[’s] claims … coincide with the Complementary protection criteria in which legislation representing protection against the refoulement which calls to provide protection to people who do not meet the refugee definition in the convention nonetheless face serious human right abuses if returned to the country of origin where their lives or freedom could be threatened.

(b)    The learned Judge’s failure to take into consideration the Applicant’s request to present further information which has a clear link to the initial evidence submitted to RRT, in order to affirm his well founded fear. The judge also failed to evaluate the risks of harm appellant will have to endure if he is deported to Sri Lanka as he would have to tell the authorities about the minister’s illegal involvement.

(c)    The judge did not have any regards to ascertain the new version of information, related to past association and secret deals with UNP Minister and the appellant’s fear for his family in Sri Lanka because of the information that has given in Australia.

21    The template character of this ground is indicated by the fact that the RRT did not give its decision in the appellant’s case on 17 April 2015, as the opening line states. Instead it was 13 April 2015.

22    The prefatory words to Ground 2 indicate that it raises a denial of procedural fairness by the FCC Judge. However, particular (a) is not a particular of a claim of procedural fairness at all. Instead, it seems to be a further particularisation of the appellant’s claim that he will suffer significant harm if returned to Sri Lanka. The appellant did not, however, point to any matter indicating a misunderstanding by the RRT member of the criteria for a claim for protection pursuant to Art 1 of the 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol relating to the Status of Refugees (the Refugees Convention) or of the elements of a claim for complementary protection pursuant to s 36(2)(aa). The RRT member identified those elements at [5]-[18] of her reasons and no error in that identification was suggested by the appellant. Ground 2(a) amounts to an invitation to this Court to consider for itself whether the appellant satisfies the conditions for protection or for complementary protection. As explained earlier, that was not the function of the FCC and it is not the function of this Court.

23    Ground 2(b) alleges a failure by the FCC Judge to consider the appellant’s request that he be allowed to present further evidence in the FCC which had “a clear link to the initial evidence submitted to the RRT” in order to establish his well-founded fear. This complaint cannot be sustained. In the first place, the appellant did not identify the further information which he wished to present nor point to any error in the decision of the FCC Judge regarding that information. Secondly, and perhaps more fundamentally, unless the proposed fresh evidence bears on the jurisdictional error alleged, it is not admissible on an application for judicial review: NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10], [15]; and Sami v Minister for Immigration and Citizenship [2013] FCAFC 128 at [9]-[10]. So far as one can tell, the proposed further evidence by the appellant was in the nature of additional evidence bearing on the merits of his application for a protection visa and was not evidence going to establish jurisdictional error by the RRT.

24    The second part of Ground 2(b) is a complaint that the FCC Judge had himself failed to evaluate the risks of harm which the appellant will face if deported to Sri Lanka. This ground misunderstands the nature of the FCC Judge’s task on an application for judicial review.

25    Particular (c) alleges a failure by the FCC Judge to consider the claim raised by the appellant for the first time in the FCC. The new claim was that the appellant feared not only for his own safety but for that of his father and other relatives in Sri Lanka. The FCC Judge summarised that claim at [14] as follows:

The applicant submitted that he and his father were approached by a UMP (sic) member of parliament who gave them a contract to help send some people away from Sri Lanka by boat. He told them never to mention his name. It was implicit in his submissions that he and his father intended to make the preparations as they had agreed. I understood the applicant to be informing the Court that he and his father were making arrangements to assist other people to leave Sri Lanka illegally by boat. At a point where he and his father were preparing to leave, they were advised that their entire village had been surrounded by the police, and for this reason, they were not able to take out the people whose departure they had agreed to arrange. He and his father returned to their village. About four or five people attended the village and said they were members of the CID. They attended with the owner of the boat. He was caught by them and they asked him about the whereabouts of his father. The applicant says that he denied having any knowledge about the plan to help these people leave. The CID asked to see his house and who was involved in the plan, and they recorded everything he said. They then took him and his father away from the village in a vehicle. His father pleaded with them and the CID relented and released him. Before they released him, they asked him where they would be staying. His father was taken into custody by the CID for nine months. The applicant submitted that he did have all of the relevant evidence to prove these claims. He submitted that he did not tell any of these details to the Tribunal, choosing to tell the Tribunal only that his father had been in prison. He submitted that he did not tell the Tribunal this story because he thought that “might create problems at Court”.

26    The FCC Judge dealt with this claim in the following way at [23]:

In making this submission, the applicant was seeking to have this Court make its own evaluation of his claims in light of new material. That is not the role of this Court. It was a simple case of inviting the Court to undertake a merits based review. Even if the matters raised by the applicant are factually correct, it can hardly have been an error for the Tribunal to fail to take them into account. It was simply never informed of those facts. Whatever the reason for the applicant not raising these matters until now, nothing he said could possibly establish jurisdictional error on the part of the Tribunal. The applicant sought a merits review before the Tribunal and this was given to him. He was represented before the Tribunal and had the opportunity to take advice (on this aspect of his history) at that time if he chose to do so. There is nothing in the material before me to suggest the Tribunal failed in any way to accord the applicant procedural fairness or to perform its primary function of conducting a review. It would be inconsistent with authority for me to receive fresh evidence with a view to embarking on a fact-finding mission.

(Citation omitted)

27    The conclusion of the FCC Judge that the new claim did not demonstrate jurisdictional error by the RRT was plainly correct, for the reasons which the Judge gave. It is not necessary to add to them. No denial of procedural fairness was occasioned by the Judge dealing with those claims in that way.

28    Accordingly, Ground 2 fails.

Ground 3

29    Ground 3 of the notice of appeal raises an issue concerning the RRT’s compliance with s 424A(1) of the Migration Act. Section 424A(1) provides as follows:

Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

30    Subsection (2) provides for the manner in which the information and invitation are to be given to an applicant. Subsection (3) provides that subs (1) does not apply to information of a specified kind, none of which are pertinent presently.

31    Ground 3 of the notice of appeal is as follows:

That the Second Respondent ignored to consider Section 424A(1) of the Migration Act 1958.

Particulars

(a)    The Second Respondent made an adverse decision against the claims made by the Appellant affirming the decision made by the Department of Immigration and Border Protection without giving any notice under section 424A(1) as required by legislation to address ‘credibility’, ‘delay in leaving the country’ and ‘genuineness’ of information. And/or not considered the reasons of forgetfulness, nervousness and anxiety, at the time of initial interview, impeding him to provide details of harm suffered.

The Second Respondent acted unfairly by determining the appellant’s evidence were exaggerated and inconsistent and also had failed to distinguish the actual country situation which is very much different to Australia.

32    The appellant did not seek to adduce any evidence in support of his claim that the RRT had not complied with the obligation imposed by s 424A(1).

33    In considering this ground, I note, first, that the appellant was represented at the RRT hearing by his migration agent. That agent was a member of the firm of Craddock Murray Neumann Lawyers who had provided a detailed written submission to the RRT on the appellant’s behalf. That representative did not raise any complaint about the RRT’s compliance with s 424A, but that of course is not decisive of this issue.

34    Secondly, the RRT member recorded at [51] of her reasons that, after hearing the appellant’s submissions, she had set out her concerns to him and had then provided the appellant and his representative “a brief adjournment to allow for the two to confer with the assistance of the interpreter”. On the resumption of the hearing both the appellant and his representative responded to the members concerns, and the member summarised those responses in the succeeding paragraphs in the reasons. The appellant did not identify any shortcomings in the RRT’s approach in this respect. Nor has the appellant obtained a recording of the hearing in the RRT, let alone procured a transcript of the recording by which the Court could assess this complaint. Because the matter was not raised in the FCC, the Minister was denied the opportunity of presenting evidence in the FCC of what occurred at the RRT hearing.

35    In these circumstances, it would be inappropriate to grant leave to the appellant to agitate for the first time on the appeal to this Court a matter which, if raised in the FCC, could have been answered by evidence from the Minister: see the authorities to which reference was made earlier. However, given the attitude of the Minister’s counsel, it is sufficient to say that this ground fails in any event for a want of proof of any non-compliance with s 424A.

36    Particular (a) of Ground 3 raises other matters. First, the appellant contends that the RRT did not consider that he may have been disadvantaged by “forgetfulness, nervousness and anxiety” at the time of the initial interview. It may be accepted that these were matters for the RRT member to consider in the evaluation of the appellant’s claims, and one would expect AAT members to be alert to considerations of this kind. However, the appellant’s submission about them does not raise a ground of judicial review, as there is no indication that the appellant was not provided a fair hearing. That is especially so as he had the assistance of his migration agent who is also a lawyer.

37    Secondly, the appellant contends that the RRT acted unfairly by determining that his claims were “exaggerated and inconsistent” and by failing to “distinguish the actual country situation”. The evaluation of the appellant’s evidence was a matter for the RRT. Provided that the RRT undertakes its task in the manner required by the law and its decision is not unreasonable in the legal sense, this Court will not interfere with the RRT’s evaluation. Having regard to the detail of the RRT’s consideration (which it is not necessary to set out presently), it cannot reasonably be concluded that the RRT’s decision was, in the requisite sense, illogical or irrational, so as to be legally unreasonable.

38    Accordingly, Ground 3 fails.

Ground 4

39    Ground 4 provides as follows:

The Second Respondent acted without or in excess of jurisdiction and/or identified wrong issues, asked wrong questions, relied on irrelevant material or ignored relevant material.

Particulars

(a)    The Second Respondent failed to analyse the Appellants express claim that he was at risk of persecution because of his political opinion and his particular social group – failed asylum seeker. He further did not consider the individual’s country situation, how people and politicians behave during an election.

(b)    The Second Respondent rejected the Appellant claims in relation to failed asylum seeker by reliance on country information than the legislation. By failing to apply the legislation and not analysing actual circumstances, the Second Respondent made a jurisdictional error by not considering the significant harm that would give rise to the Complementary Protection Criteria, i.e. inability to guarantee people who do not meet the refugee definition but who nonetheless face serious human right abuses, if they were sent to the country of origin.

40    Ground 4 seems to express in substance, although in different terms, the appellant’s claim based on him being a failed asylum seeker. I have addressed this in the context of Ground 1. Ground 4 fails for the same reasons as given in relation to that ground.

Ground 5

41    Ground 5 contains a complaint of a denial of natural justice. It is in the following terms:

The Applicants were (sic) denied natural justice.

Particulars

(a)    The Respondents in particular the Second Respondent questioned the Appellant in a fashion that implying in regularly (sic) that he was not a credible witness and therefore preventing the Appellant in putting forward his case. Applicant also claims that his request to provide additional evidence linked to the initial statement was not considered.

(b)    The Second Respondent has given undue weight in finding the time of country information in general (sic) rather than analysing the specific information relevant to the individual’s circumstance.

42    Ground 5(a) relates to the manner in which the RRT member conducted the hearing. Insofar as it contends that the appellant did not have a reasonable opportunity to put forward all the evidence and submissions he wished in support of his claim, it is unsustainable. The appellant’s migration agent (who assisted the appellant at the RRT hearings) had provided a very detailed written submission in advance of the RRT hearing. Further, the RRT member adjourned the initial hearing on 2 February 2015 to 17 February 2015 because of the appellant’s ill-health. The RRT’s reasons suggest, on their face, that the appellant and his agent were given a full opportunity to make submissions and to present any further evidence. I note again that the appellant has not sought to adduce a recording of the proceedings in the RRT or a transcript of those proceedings. Evidence of this kind would be necessary for a Court to conclude that the manner in which the RRT member questioned the appellant involved a denial of procedural fairness.

43    This aspect of Ground 5 is not made out.

44    Ground 5(b), which contends that the RRT member gave “undue weight” to the country information rather than to the appellant’s personal circumstances, is unsustainable. The RRT member’s reasons indicate that she did have regard to the country information in assessing the appellant’s claims. The weight to be given to that information was a matter for the RRT member: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195, (2006) 156 FCR 419 at [8] (Young J with whom Gyles and Stone JJ agreed); and NABD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29, (2005) 216 ALR 1 at [8] (Gleeson CJ).

45    Accordingly, Ground 5 fails.

Ground 6

46    Ground 6 provides:

The Second Respondent failed to review and consider the Application for protection as per the Migration Act and the Complementary Protection Criteria.

Particulars

(a)    The Appellant claim of well-founded fear of being a victim of revenge is a clear circumstance of threat to his life and this is unaccepted by the Tribunal and DIBP within their jurisdiction. “As the UNHR have noted there is no universally accepted definition of persecution but this will include threat to life or freedom to lead a peaceful life”.

(b)    Section 417 mechanisms is appropriate for purely humanitarian and compassionate cases but not for those who has a well-founded fear but not falling within the refugee definition.

47    Ground 6 is yet another invitation to this Court to undertake a merit based review. Such an approach is inappropriate. Section 417 concerns the Minister’s discretion and not the Tribunal’s function. This ground fails.

Conclusion

48    Apart from Grounds 1 and 2, the appellant’s grounds of appeal raised matters going well beyond those which were raised by the single ground of his application for judicial review in the FCC. Some of them raised matters which could have been answered by the Minister by further evidence. If there were any indications in the papers that these complaints may be reasonably arguable, I would have considered closely whether or not the appellant should be given leave to agitate these matters on appeal even though they had not been argued at first instance. However, there was no such indication. As I indicated in the substance of the reasons, the appropriate place for the trial of the appellant’s judicial review application is the FCC.

49    I have nevertheless considered each ground. For the reasons given above, I considered that none of the appellant’s grounds of appeal were made out. These were my reasons for dismissing the appeal on 22 August 2016.

Associate:

Dated:    23 September 2016