FEDERAL COURT OF AUSTRALIA

CPN15 v Minister for Immigration and Border Protection [2018] FCA 834

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

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

REASONS FOR JUDGMENT

1    The Appellant in the present proceeding is a citizen of Sri Lanka who arrived in Australia as an Unauthorised Maritime Arrival on 20 June 2012.

2    He applied to what was then the Department of Immigration and Citizenship for a Protection (Class XA) visa in November 2012. A delegate of the Minister refused that application in October 2013. Upon an application for review being filed, the Administrative Appeals Tribunal (the “Tribunal”) affirmed the delegate’s decision in November 2015.

3    An Application seeking review of the Tribunal’s decision was then filed in the Federal Circuit Court of Australia in December 2015. That Application was filed on behalf of the Appellant by his solicitor. The sole Ground upon which judicial review was sought was set forth as follows:

The Tribunal engaged in jurisdictional error by misconstruing the applicable law or failed to ask the correct question.

Particulars

a.    In rejecting the applicant’s claim for complementary protection under s 36(2)(aa) of the Act, the Tribunal adopted an erroneous view of the applicable legislation; namely that the intentional placement of the applicant in a Sri Lankan jail did not satisfy the element of ‘intent’ found in the statutory definition of the types of harm amounting to ‘significant harm’.

b.    Contrary to the interpretation of the legislation adopted by the Tribunal, the intentional placement of the applicant in a Sri Lankan jail was capable of satisfying the element of ‘intent’ found in the statutory definition of the types of harm amounting to ‘significant harm’.

4    That Application was dismissed: CPN15 v Minister for Immigration and Border Protection [2017] FCCA 2322. In dismissing that Application, the Federal Circuit Court Judge applied the decision of this Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69, (2016) 243 FCR 556 (“SZTAL”) and of the High Court on appeal, which upheld the Full Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, (2017) 347 ALR 405.

5    The Appellant now appeals to this Court. He remains in immigration detention. The Notice of Appeal raises 14 Grounds of Appeal which significantly depart from the sole Ground relied upon before the Federal Circuit Court.

6    The Appellant appeared before this Court unrepresented and had the assistance of an interpreter in advancing his submissions. The Respondent Minister appeared by Counsel.

7    It is concluded that the appeal should be dismissed with costs.

The reliance previously placed upon SZTAL

8    At the time of the hearing before the Federal Circuit Court the decision of the Full Court of this Court in SZTAL had been handed down – but there remained outstanding the fate of an application for special leave to appeal to the High Court.

9    Before the Federal Circuit Court, Counsel for the now-Appellant unequivocally placed sole reliance upon the outcome of any appeal to the High Court. The Federal Circuit Court agreed with the Applicant that it should await the decision of the High Court before delivering judgment.

10    So much appears from the following observations of the primary Judge in his reasons for decision:

[6]    In SZTAL v Minister for Immigration & Border Protection (2016) 243 FCR 556; [2016] FCAFC 69 (SZTAL) Kenny and Nicholas J held at [59], that the natural and ordinary meaning of “intentional infliction is actual subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct”.

[7]    In rejecting the applicant’s claims concerning sub-s.36(2)(aa) and prison conditions, the Tribunal applied the same reasoning as that of the majority of the Full Court of the Federal Court in SZTAL. The Tribunal said, at [72] of its reasons for decision, that it was not satisfied:

…[t]hat the fact that the applicant may spend up to a fortnight in remand/jail on his return to Sri Lanka establishes that the pain or suffering caused by severe overcrowding and poor and insanitary conditions is intentionally inflicted on detainees as required by the definition of cruel or inhuman treatment or punishment. Nor does the Tribunal accept that the severe overcrowding and poor conditions are intended to cause extreme humiliation as required by the definition of ‘degrading treatment or punishment’. …

[8]    The applicant accepted that, if SZTAL were correctly decided, the Tribunal’s reasoning revealed no error; however, at the time of the hearing, there was an application to the High Court for special leave to appeal from that decision and the applicant urged the Court to reserve its decision until that application, and any subsequent appeal, had been determined. Given the number of cases involving this issue, I adopted the approach suggested by the applicant and reserved my decision.

[9]    Special leave to appeal from the decision in SZTAL was granted by the High Court and judgment on the appeal was given on 6 September 2017: SZTAL v Minister for Immigration & Border Protection [2017] HCA 34. The appeal was dismissed by majority, the Court finding that the reference in the Act to “intentionally inflicting” and “intentionally causing” is to the natural and ordinary meaning of the word “intends” and therefore to actual, subjective intention: [26] (Kiefel, Nettle and Gordon JJ) and see [101] and [114] (Edelman J).

The Grounds of Appeal & the raising of new arguments

11    The Grounds of Appeal set forth in the Notice of Appeal to this Court are as follows (without alteration):

The Court erred in the following aspects:

1.    Federal Circuit Court has dismissed, on 29 September 2017, my application summarily without proper consideration whilst it is obvious that Refugee Review Tribunal has made a mistake and improperly considered my case in many different aspects. I have been deprived of being considered in full at full hearing, or at least show cause hearing at Federal Circuit Court.

2.    I have been declined by Migration Review Tribunal (hereinafter called “RRT”) and Federal Circuit Court (hereinafter called “FCC”), which I am of the view that decision is based on erroneous and insufficient information. FCC, RRT and DIBP have failed to consider my case in accordance with Natural Justice and Procedural Fairness.

3.    FCC and RRT has failed to serve the documents in proper manner.

4.    FCC, RRT and DIBP have failed to do correspondences correctly and sufficiently.

5.    RRT denied the applicant’s right to representation to assist the applicant in presenting the case properly and adequately.

6.    The FCC and RRT failed to take into consideration some important procedural errors made by the department in assessing the applicant application.

7.    In this respect, FCC and the RRT should have accepted the Applicant case and allowed the Applicant with such representation in order to properly presented the Applicant’s case but hence was denied by the RRT.

8.    FCC AND the RRT denied the applicant’s procedural fairness and natural justice in not giving applicant the opportunity to properly consider applicant’s legal position, given applicant’s legal position, given applicant’s limitation in the legal system

9.    FCC AND RRT failed to determine the applicant’s application for review according to the law, in taking a view of the Migration Act and Regulations that was unnecessarily limited and constricted and which fitted the RRT member’s personal view rather than a comprehensive view of the relevant law.

10.    FCC AND The RRT Member therefore regarded the Applicant’s as being no different to any other Applicant who lodged an invalid application and this constituted a failure to afford the Applicant procedural fairness.

11.    FCC AND The RRT Member therefore failed to afford the Applicant procedural fairness by taking a personally subjective view of the Applicant’s actual circumstances.

12.    Had FCC AND RRT given proper consideration to the facts, instead of merely noting and dismissing it without proper consideration, the FCC AND RRT should have come to a different view of the Applicant’s case for review

13.    I believe that I would be eligible to be granted for previous application.

14.    I respectfully submit that FCC and RRT have failed in considering natural justice and procedural fairness, and further has not given thorough consideration of my latest case.

12    These challenges as now sought to be made to the decision of the Tribunal, and thereafter to the decision of the primary Judge, are self-evidently different to those previously advanced before the Federal Circuit Court.

13    There is no insurmountable difficulty, however, in a party seeking to raise new arguments on appeal.

14    But, to do so, a party needs to confront at the outset the difficulty that he is normally bound by the way in which the case has been argued at first instance: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there observed (without alteration):

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 had 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 and opportunity to do so.

As French J (as his honour then was) said in this Court in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106, (2004) 204 ALR 624 at 629:

[19]    To allow too readily the running of new points, or indeed a whole new case, on appeal is to undermine the appellate process by rendering the trial process almost irrelevant.

See also: SZIHX v Minister for Immigration and Citizenship [2007] FCA 1295 at [16] to [17] per Lander J. If leave were too readily granted to rely upon new arguments “the difference between a trial and an appeal would effectively be elided”: Prodduturi v Minister for Immigration and Border Protection [2014] FCA 624 at [28], (2014) 142 ALD 550 at 555 per Perram J

15    But a party may be granted leave to raise new arguments on appeal in circumstances where it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, (2004) 238 FCR 588 at 598 to 599. Justices Kiefel, Weinberg and Stone there concluded:

[46]    In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: …

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

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

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

These reasons have been repeatedly applied: eg. MZZCT v Minister for Immigration and Border Protection [2013] FCA 1379 at [13] per Pagone J; MZZXJ v Minister for Immigration and Border Protection [2014] FCA 1210 at [4] per Jessup J; SZSFS v Minister for Immigration and Border Protection [2015] FCA 534 at [7] to [8], (2015) 232 FCR 262 at 264 to 265 per Logan J; AKD15 v Minister for Immigration and Border Protection [2017] FCA 166 at [17] per Markovic J; SZTQZ v Minister for Immigration and Border Protection [2017] FCA 282 at [13] per Jessup J. The “interests of justice” is inevitably a flexible touchstone – but one aspect of that touchstone is the legitimate public interest in cases of the present kind being resolved as expeditiously as a proper consideration of a case permits: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62], (2001) 192 ALR 71 at 86 per Gyles J; SZQBN v Minister for Immigration and Border Protection [2014] FCA 686 at [55], (2014) 226 FCR 68 at 85 to 86 per Flick J; SZTIS v Minister for Immigration and Border Protection [2017] FCA 545 at [46] per Burley J.

16    A party should not be able to too readily and “opportunistically” resile from a course previously pursued: cf. Kerrison v Melbourne City Council [2014] FCAFC 130 at [175], (2014) 228 FCR 87 at 128 per Flick, Jagot and Mortimer JJ. It has been made clear by the High Court that “the circumstances in which an appellate court will allow a point not taken at first instance to be raised in the appeal are very limited”: Anne v Ask Funding Ltd [2015] FCA 1111 at [55], (2015) 240 FCR 229 at 237 per Rangiah J.

The refusal of leave to raise new arguments

17    It is concluded on the facts of the present case that leave to raise the new arguments set forth in the 14 Grounds of Appeal set forth in the Notice of Appeal should be refused because:

    the Appellant was legally represented from the outset when the application for a protection visa was made to the Department in November 2012; when making submissions to the Department in February 2013; when filing the Application with the Refugee Review Tribunal in November 2013; when applying to the Federal Circuit Court in December 2015 and when appearing before that Court in November 2016;

and because:

    the Appellant had made a conscious and informed decision to rely upon the Ground of Review set forth in the Application filed in the Federal Circuit Court and had – moreover – then accepted that “the Tribunal’s reasoning revealed no error”: [2017] FCCA 2322 at [8].

To permit the Appellant to now raise the 14 new arguments set forth in the Notice of Appeal would also:

    undermine the appellate process and render the hearing before the Federal Circuit Court a mere “preliminary skirmish”; and

    permit the Appellant to opportunistically have all such benefits as may have flowed from a contrary decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, (2017) 347 ALR 405 whilst reserving the ability to rely upon a barrage of further grounds of review should it prove necessary to do so.

Although not decisive, also of relevance is the fact that:

    no affidavit has been filed (or other explanation provided) to reconcile why it was previously considered appropriate to accept that there was “no error” in the Tribunal’s reasons and the current assessment that there is a barrage of further “error”. Although some cause for concern emerged during the course of the Appellant’s submissions that his prior legal representatives may not have kept him as fully informed of decisions being taken as to the arguments to be relied upon, there is no reason to question the competence of the forensic decisions being taken on his behalf or to question that his legal representatives were acting upon instructions; and

    although it is not necessary to “enter upon a full consideration” of the proposed new arguments (cf. Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [24] per Heerey, Moore and Goldberg JJ), none of the proposed new Grounds have any self-evident merit. Many of the new Grounds seem to challenge the extent to which the Appellant participated in the decision-making processes pursued by his legal representatives. But there is no factual basis upon which any finding could be made that the Appellant did not have the opportunity – and did not avail himself of the opportunity – to attend meetings with his legal representatives and actively participate in a process of giving them instructions.

On balance, it is concluded that it is not expedient in the interests of justice to allow the Appellant to now rely upon the 14 new Grounds set forth in the Notice of Appeal.

18    Leave to raise the new Grounds is refused.

CONCLUSIONS

19    The Appellant, it is respectfully concluded, should not be permitted to now raise the new arguments set forth in the Notice of Appeal.

20    There is no other reason to question the decision of the primary Judge.

21    The appeal should be dismissed.

22    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

Associate:

Dated:    6 June 2018