FEDERAL COURT OF AUSTRALIA

BZAIW v Minister for Immigration and Border Protection [2016] FCA 1326

ORDERS

THE COURT ORDERS THAT:

1.    The Administrative Appeals Tribunal be substituted as the second respondent to the appeal.

2.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

JESSUP J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia given on 20 May 2015, in which an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) made on 16 January 2015 was dismissed. The Tribunal had affirmed an earlier decision of a delegate of the respondent Minister not to grant the appellant a Protection (Class XA) Visa.

2    On 7 November 2016, I dismissed the appeal. These are my reasons for having done so.

3    In his Notice of Appeal lodged on 25 May 2015, the appellant had eight grounds. On the hearing of the appeal, he relied on none of them, save to the extent that they might fall within the terms of four new grounds, the subject of an Amended Notice of Appeal filed on 24 October 2016, upon which he sought leave to rely. The grounds in it were not only new to the Notice of Appeal: they did not correspond with anything which the appellant had put to the primary Judge. The question of substance which arose on the hearing of the appeal, therefore, was whether the appellant should be given leave to challenge the judgment of the primary Judge on grounds which were not put to him.

4    How a question of that nature should be answered was considered by the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588, 598-599 [46]-[48]:

Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

5    The relevance of the high-level question whether it is expedient in the interests of justice for the court to hear a ground of appeal that was not raised at first instance does not carry the practical consequence that an appellant may treat his or her application for leave as the occasion to rehearse the whole of the new case which it is desired to put. As Lander and Middleton JJ said in MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [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.

6    The appellant’s only explanation for failing to advance, before the Federal Circuit Court, the grounds upon which he sought to rely was that he was not legally represented at that stage. There was no affidavit setting out why that was so. To initiate litigation based on s 75(v) of The Constitution with respect to the jurisdictional sufficiency of an act of an officer of the Commonwealth is a serious matter, and necessarily involves legal questions which would normally be a challenge to the layman. Yet that is what the appellant did. His original application for a visa, made on 26 November 2012, was covered by a letter from his then solicitors, Craddock Murray Neumann. The same firm represented him throughout the proceeding in the Tribunal. In the present appeal, he was likewise legally represented, albeit by new solicitors. An affidavit stating how it came to be that the only occasion upon which he was not legally represented was when he made, and prosecuted, his case in the Federal Circuit Court might – I cannot say would – have been of some assistance to the court in assessing the submission now made on his behalf, namely, that that lack of representation provided an adequate explanation for the appellant’s failure then to advance the grounds upon which he sought to rely.

7    I was not satisfied that the appellant’s explanation was an adequate one.

8    The new grounds on which the appellant sought to rely were the following:

9. The Tribunal fell into jurisdictional error in that it failed to make inquiries as required by law, whether by the exercise of its power under section 424 of the Act to get information or otherwise.

Particulars

(a)    The Tribunal had a potentially important corroborative letter, on Letterhead writing paper with telephone number and email addresses, from the parish priest of the applicant’s family’s home area, who said he knew the applicant’s family personally, and knew that the applicant’s uncle was shot dead. The parish priest said also that the authorities went to the applicant’s house and threatened him. …

The parish priest was an independent witness, with an obligation under his religious profession to be truthful, whose evidence could simply have been obtained by telephone, and, if accepted, would have corroborated the applicant’s claims to have been related to a man murdered by the Sri Lankan navy, and thereby at risk of association with killings of Tamils in connection with reprisals against the LTTE. This was a critical claim, rejected by the Tribunal without any consideration of the parish priest’s letter.

10. The Tribunal fell into jurisdictional error in that it failed to have regard to relevant considerations, including claims and integers of claims by the appellant, material questions of fact raised on the material before the Tribunal, and information before the Tribunal.

Particulars

(a)    The Tribunal noted but did not consider the evidence that, while four of the five fisherman, apparently murdered by the navy or by other government authorities on the beach on or about 17 June 2006 were killed by being shot in the mouth, the remaining fisherman was killed by the beachside, and his body was found burned in one of the boats. The Tribunal thought wrongly that the evidence was that the cause of death for the fifth fisherman was that he was burned to death, and this was part of the Tribunal’s reason for disbelieving the appellant’s claims to have been related to one of the murdered fisherman, and thereby to have a risk of harm. …

(b)    The Tribunal failed to consider a potentially important corroborative letter, on Letterhead writing paper with telephone number and email addresses, from the parish priest of the applicant’s family’s home area, who said he knew the applicant’s family personally, and knew that the applicant’s uncle was shot dead. The parish priest said also that the authorities went to the applicant’s house and threatened him. … The Tribunal referred to “the letter from the Reverend” …, but as this was to an “undated and general” letter. it was a reference to a different letter from a different priest. …

(c)    The Tribunal failed to consider the claim that the applicant as a Tamil may suffer serious harm or significant harm in the reasonably foreseeable future if he is released and returns to his home area in the north of Sri Lanka, because of the process of “Sinhalisation” of Tamil areas …, and the evidence that the north of the country is effectively subject to military occupation. with [sic] one member of the (Sinhalese) armed forces for every member of the population. …

(d)    The Tribunal failed to consider the claims and evidence that there remains a serious problem of violence against Tamils (including, but not limited to, Tamils with links to the LTTE, whether real or alleged or suspected, direct or remote). …

(e)    The Tribunal failed to consider the claims and evidence that there remains a serious problem of violence against unsuccessful applicants for asylum abroad who are returned to Sri Lanka, not only on arrival and during questioning, but in detention and prison and also after return to their home areas of Sri Lanka. The material not considered included detailed reports from independent sources including the Bar Human rights Committee of England and Wales, and Freedom House. …

(f)    The Tribunal failed to consider the claims and evidence that the Australian Department of Foreign Affairs and Trade does not monitor returnees after arrival. …

(g)    The Tribunal found the evidence and claims of the appellant were fabricated …, but in doing so it did not have regard to the fact that his evidence was formally sworn, and not a mere statement.

11. The Tribunal fell into jurisdictional error in that it was unreasonable, or illogical or made findings unsupported by logically probative evidence.

Particulars

(a)    The Tribunal rejected as evidence the death certificate, partly completed in English. Of the man the applicant claimed was his relative, and did so in part because it said that “English ... is not an official language” …, but the very printed form of the death certificate was in Tamil, Sinhalese and English.

(b)    The Tribunal rejected the death certificate as evidence, and did so in part because it perceived an inconsistency in the cause of death between the certificate and the report of the deaths …, but there was not necessarily an inconsistency.

(c)    The Tribunal rejected the core of the appellant’s claims to have been a close associate and relative of a fisherman killed on or about 17 June 2006, and to be at risk of harm as a result of this relationship, but it did so without considering or inquiring about the evidence of the letter from the parish priest of the applicant’s family’s home area …, when that letter was potentially strong, independent, corroborative evidence of the appellant’s claim to be related to one of the murdered fishermen and to be at risk of harm as a result.

(d)    The Tribunal had regard to what it perceived as inconsistencies in rejecting the evidence and claims of the appellant, and in doing so it had regard to the fact that the appellant had not earlier mentioned that his father was beaten by the CID shortly after the killings on 17 June 2006 …, but the major event in the appellant’s account from that time was the murder of his relative, and the appellant had not been present at the time his father was taken and beaten, although he had gone to see his murdered relative’s body,

12. The Tribunal fell into jurisdictional error in that it had regard to irrelevant considerations.

Particulars

The Tribunal had regard to what it perceived as inconsistencies in rejecting the evidence and claims of the appellant, but in doing so it had regard to the fact that the appellant had not earlier mentioned that his father was beaten, but the timing of this claim was irrelevant because the appellant had a right under section 425 of the Act to give evidence and present arguments at the hearing, and was not obliged to give it at an earlier time.

9    It will be apparent from the appellant’s proposed new grounds that this was not in the category of cases in which some obvious jurisdictional error, such as a failure to comply with a directly applicable provision of the legislation, has been overlooked in the relevant Federal Circuit Court proceeding. That might be an example of what the Full Court in VUAX had in mind when it referred to a point that “clearly [had] merit”. Rather, although framed in terms which were responsive to the need to demonstrate jurisdictional error, each of the appellant’s new grounds, and its particulars, would have required the court to engage closely with the Tribunal’s reasoning, paragraph by paragraph and, in some respects, line by line. If there were a difference between what the court was being invited to do and the hearing and determination of an application at first instance, it did, I must say, escape me. To have accepted that invitation would have involved a complete conflation of the important distinction, referred to in the authorities, between original and appellate jurisdiction.

10    The views just expressed notwithstanding, at the hearing of the appeal counsel for the respondent Minister did not cavil with the proposal that counsel for the appellant should be permitted to present his client’s arguments in full, as though this were the hearing of an appeal upon the grounds proposed. I also had the benefit of detailed outlines both from the appellant and from the Minister. In the result, I was exposed not only to the appellant’s proposed grounds, but to the argumentative case that would be advanced by reference to them. In the view I took, those grounds did not clearly have merit. Indeed, with respect to those involved, I would say that the strength of them varied between doubtful and hopeless.

11    For those reasons, I took the view that it was not expedient in the interests of justice for the appellant to be permitted to rely on grounds that were absent from his case in the Federal Circuit Court. I refused his application for leave to do so.

12    As mentioned earlier, the appellant had no other extant ground upon which he sought to rely. Accordingly, the appeal was dismissed with costs.

Associate:

Dated:    21 November 2016