FEDERAL COURT OF AUSTRALIA

AOL15 v Minister for Immigration and Border Protection [2018] FCA 979

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The appellant is a citizen of Sri Lanka of Tamil ethnicity. On 6 December 2012 the appellant made an application for a Protection (Class XA) visa under the Migration Act 1958 (Cth). A delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate’s decision was affirmed by the then named Refugee Review Tribunal. The Federal Circuit Court of Australia (FCCA) dismissed an application for judicial review of the Tribunal’s decision: AOL15 v Minister for Immigration & Anor [2017] FCCA 92. This is an appeal from that judgment.

2    The appellant was legally represented in the proceedings before the FCCA. His grounds of review asserted that the Tribunal had failed to identify and determine an essential integer of his claims, namely that he feared persecution if returned to Sri Lanka by virtue of his status as a member of a particular social group within the meaning of s 5L of the Act, that of “internally displaced persons” or “refugee[s] in Sri Lanka”. The primary judge concluded that the appellant had made no such claim in support of his application for a protection visa. Accordingly, the Tribunal had not committed jurisdictional error by failing to consider and determine it.

3    Three issues arise on this appeal. The first is whether the learned FCCA judge erred by failing to identify the single jurisdictional error alleged in the FCCA proceedings. The second is whether the appellant requires leave to introduce, on this appeal, an argument not raised in his grounds for judicial review. The third issue is, if leave be granted to introduce the new ground, whether the appeal should be allowed on that ground.

4    For the reasons that follow, the FCCA did not err in rejecting the argument raised on the appellant’s application for judicial review (see [26] to [31] below). Leave should not be granted to introduce the new argument (see [25] and [32] to [33] below).

VISA CRITERIA

5    The criteria for the grant of a protection visa include the alternative criteria prescribed in s 36 of the Act. Section 36(2)(a) (the refugee criterion) provides:

(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; …

6    The Refugees Convention there referred to is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967. For the purposes of s 36(2)(a), Australia has protection obligations to a person described in Article 1A(2) of the Convention, namely a non-citizen who:

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

7    The task of determining of whether a visa applicant has a well-founded fear of persecution includes an objective evaluation of the likelihood of the feared persecution occurring. The test is whether there is a “real chance” of persecution, such that possibilities that are remote, insubstantial or far-fetched are to be discounted: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Mason CJ (at 389), Dawson J (at 398), Toohey J (at 407) and McHugh J (at 429).

8    As then in force, s 91R and s 91S of the Act qualified aspects of Article 1A(2) of the Convention in its application to the appellant. Section 91R(1) relevantly provided:

(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)    that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)    the persecution involves serious harm to the person; and

(c)    the persecution involves systematic and discriminatory conduct.

9    Section 36(2)(aa) of that Act provides an alternative criterion for the grant of a protection visa (the complementary protection criterion). It will be fulfilled if the Minister is satisfied that the visa applicant is (relevantly):

(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;

…

PROCEEDINGS IN THE FCCA

10    To succeed on his application for judicial review before the primary judge it was necessary for the appellant to show that the Tribunal’s decision was affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; s 474 of the Act.

11    The appellant was legally represented in the proceedings before the primary judge. He relied on a single ground of judicial review before the primary judge, expressed as follows:

The Tribunal erred by failing to correctly construe and deal with a claim or component integer expressly raised by the applicant or otherwise squarely raised on the material before it and/or failed to take into account a relevant consideration.

Particulars

(a)    The applicant claimed that he was a ‘refugee’ in Sri Lanka … and as a refugee faced many issues including his mother’s sister was beaten to death … The applicant claimed he could not request protection from the authorities as the authorities support the Singhalese majority … and as ‘refugees’ the police would not help ...

(b)    The Tribunal did not consider and address the claim or component integer thereof, or relevant consideration, identified in subparagraph (a).

12    It is well accepted that in the context of a claim to be a refugee the Tribunal will commit jurisdictional error if it fails to determine an essential claim or component of a claim for protection, including a claim by a person to have a well-founded fear of persecution for a particular Convention reason: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]. Such an error may be found in circumstances where the Tribunal fails to identify and deal with a claim squarely arising on the materials before it, whether or not it has been the subject of express articulation by the review applicant: NABE at [58] – [63]. As the Full Court said in NABE (at [58]):

The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

13    In written submissions before the primary judge, the appellant, by his Counsel, alleged that his claim to fear persecution by virtue of his status as an internally displaced person or as a “refugee in Sri Lanka” squarely arose from the following:

21.1    First, the applicant identified himself as a refugee in Sri Lanka. He claimed his parents initially lived in Mannar ‘but could not live there anymore’. His parents moved to Puttalam and lived in a refugee camp for approximately twenty years … During the hearing he referred to himself (and his family) as being refugees.

21.2    Second, the issues the applicant claimed he and his family faced stemmed from the fact they were living in the camp as refugees: ‘While living in this camp we faced many issues.’ … The applicant identified the following examples:

i.    his mother’s sister was beaten to death …;

ii.    there were two home invasions …;

iii.    when the applicant was approximately fifteen years old in the camp young Tamil Muslim boys were being kidnapped …;

iv.    a grease man would come during the night to the camp …

21.3    Third, the applicant expressly claimed that he could not request protection from the authorities as the authorities support the Singhalese majority … and as ‘refugees’ the police would not help …

(footnotes omitted)

14    The Tribunal dealt with the appellant’s claims (as it understood them) as follows:

(1)    With respect to the claim that Singhalese individuals had come to the appellant’s family home on two occasions, once breaking a window and attempting to stab his mother and the other attempting to attack his brother, the Tribunal accepted that these events occurred, but concluded that it was more likely that the incidents were criminally motivated, and not motivated by the applicant’s ethnicity or religion.

(2)    The Tribunal had regard to country information concerning the harassment faced by Tamils in northern and western Sri Lanka. It accepted that stones were thrown at the appellant’s house and other people’s houses in the refugee camp. However, the Tribunal concluded that the appellant’s claim that his friend was kidnapped was vague, lacked detail, was infected by inconsistencies and was fabricated.

(3)    With respect to a claim made in the course of the appellant’s interview with the Minister’s delegate to the effect that he feared “grease devils”, the Tribunal noted that the appellant had acknowledged at the hearing before it that he did not fear “grease devils” because they “did not exist anymore”.

(4)    The Tribunal accepted that ongoing tension and anxiety felt by Tamil and Tamil Muslim communities in north western Sri Lanka resulted in those communities fearing attacks from unknown assailants. However, the Tribunal did not accept that the appellant specifically, or anyone else in the appellant’s home area, faced a real chance of suffering serious harm as a result of “grease devil” attacks.

15    The FCCA judge reviewed the claims that had been made by the appellant in a statutory declaration attached to his visa application and those contained in a written submission provided to the Tribunal by the appellant’s migration agent. Her Honour held (at [20]) that the claims made in those materials were to the effect that the appellant feared harm by reason of:

(1)    his ethnicity as a Tamil;

(2)    his Muslim religion; and

(3)    his membership of social groups, namely a returnee from a Western country, a returnee who illegally departed Sri Lanka and as a young Tamil Muslim.

16    The FCCA judge said (at [21]):

I do not accept that a claim arises squarely on the material before the Tribunal that the Applicant claimed to fear harm because he was a refugee or [internally displaced person]; or put another way, because of his membership of a particular social group, being a refugee or [internally displaced person]. The fact that the Applicant might have referred to himself as a refugee, or that the incidents he relies on occurred at the refugee camp, is in my view, simply a reference by the Applicant to the context of his claims. There is nothing to suggest that the Applicant claimed to fear harm because of his status as an [internally displaced person]. Indeed, in the written submissions made on his behalf by his migration agent, the Applicant’s claims by reason of his membership of a particular social group were limited to his status as a failed asylum seeker and the fact he was a young Tamil Muslim. The written submissions repeated this claim twice. Further, the country information relied on and included in the written submission related only to the Applicant’s claims to fear harm because of his ethnicity, his religion and his membership of the two particular social groups; a returnee from a Western country and the young Tamil Muslim male.

17    The FCCA judge also considered the transcript of the hearing before the Tribunal. It showed that the appellant had personally confirmed as correct a summary of claims as put to him by the Tribunal. The summary did not include any claim to the effect subsequently expressed in his application for judicial review. The judge concluded (at [26] – [27]):

26    The Applicant relies on a reference made at T6.28. However, this is only a statement made by the Applicant that he lived with his parents in a refugee camp. Clearly, this is a reference to his living circumstances, and not a claim to fear harm.

27    The Applicant claimed during the hearing that his mother was attacked by Sinhalese people at their house at the refugee camp, around two months ago. His evidence was that windows were smashed but no one was harmed. He said that this incident was not reported because ‘we are refugees’ (T 14.15 - T 15.10). Again, this is not a claim by the Applicant to fear harm because he is a refugee, but an explanation as to why the incident was not reported. I do not accept that this gives rise to a claim that he feared harm for reasons that he is an [internally displaced person]. Finally, during the course of being questioned about the assistance he might receive from his relatives in Sri Lanka if he returned, the Applicant said they could not help them [sic] because ‘they are all treated as refugees’ (T 24.15). Again, this does not amount to a claim that he would be harmed because he was a refugee. Rather, this was a statement that he could not rely on the support of his relatives because they are refugees.

GROUNDS OF APPEAL

18    The appellant was represented by Counsel at the hearing of the appeal. At the commencement of the hearing, Counsel abandoned all but one ground of the substantive grounds of appeal, leaving only the first wholly uninformative ground:

1.    That there is a jurisdictional error in the Federal Circuit Court Decision.

19    The appellant’s written submissions broadly allege that the primary judge committed appealable error by not accepting the arguments raised on his application for judicial review. It is to be recalled that the only ground of review was to the effect that the Tribunal had failed to consider and determine a claim for protection that was said to have squarely arisen on the material before it, namely a claim founded on his status as a “refugee” or internally displaced person in Sri Lanka.

20    In oral submissions, Counsel for the appellant went further. He contended that the appellant had made a claim for protection founded not merely on the basis of his status as an internally displaced person, but on the basis of his combined status as a male Tamil, a Muslim and an internally displaced person. I will refer to that as the composite claim.

21    The contention that the Tribunal fell into jurisdictional error by failing to identify and determine the composite claim was not raised in the proceedings before the primary judge. Although the issue now raised in the argument is closely aligned to that raised on the application for judicial review, it is not the same. The FCCA judge did not fall into appealable error by failing to identify the argument concerning the composite claim as one that might be available to the appellant. To the extent that the appellant submits that the primary judge was under a positive obligation to determine the application for judicial review by reference to the composite claim, the submission is rejected.

22    The appellant requires the leave of this Court to introduce the new argument upon his appeal. I reject Counsel’s submission that no application for leave is required and proceed on the basis that an application for leave is made, at least implicitly, to advance the new argument.

23    The principles guiding the exercise of the Court’s discretion to grant leave are well settled. The authorities urge a strict approach, so as to reinforce the principle that a litigant at first instance be bound by the conduct or his or her case: see University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68 at 71; Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543 at 548 ⸺ 549; SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [22] ⸺ [23].

24    Some consideration must be given to the context in which the application is made. The present context is one in which this Court has no original jurisdiction to hear and determine an application for judicial review of the Tribunal’s decision: s 476A of the Act. The wider context is one in which the appellant has made an application for a protection visa founded upon claims to fear persecution (including death) should he be returned to Sri Lanka. The latter circumstance ought reasonably to be expected to cause the legal representatives for an applicant for judicial review to consider all the more rigorously the arguments that should or should not be advanced before the Court having original jurisdiction, and to provide advice and receive instructions in respect of the choices to be made. All too often it is submitted by the representatives of appellants before this Court that the disallowance of a grant of leave to introduce a new argument on an appeal may result in the torture or death of the appellant, and yet no explanation is given as to why the same high stakes did not cause counsel in the proceedings below to give advice and obtain instructions in relation to all of the available arguments.

25    In the present case, I would refuse the grant of leave for three cumulative reasons. First, as I have said, the appellant was legally represented on his application for judicial review. The case is not one in which a non-English speaking self-represented litigant has formulated grounds of judicial review without the benefit of legal advice and assistance: compare ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419 at [28]; BDJ15 v Minister for Immigration and Border Protection [2017] FCA 1281 at [8] – [10]. Second, there is no evidence before this Court to explain why the appellant’s legal representatives in the proceedings below did not advance the argument now sought to be raised by the appellant’s new counsel. The proposed more nuanced ground of review might well have been considered by the appellant’s former counsel and a positive decision made by the appellant, upon advice, not to advance it. In the absence of evidence bearing on the question, this Court cannot know what occurred. Third, for the reasons given below, the new argument is not sufficiently meritorious so as to justify the grant of leave.

NO APPEALABLE ERROR

The claim advanced before the primary judge

26    The issue before the primary judge was whether the appellant had claimed before the Tribunal to have a well-founded fear of persecution by reason of his status as an internally displaced person. It was only in the event that the appellant claimed to have a subjective fear of persecution for that reason that the objective question of whether the fear was well-founded would arise. If the subjective fear was claimed, and objectively well-founded, a separate issue would arise as to whether the appellant was unable or, because of the feared persecution, unwilling to avail himself of the protection that might be afforded to him by the Sri Lankan authorities.

27    The primary judge was correct to conclude that the status of the appellant as an internally displaced person was indeed raised by the appellant on his application for review before the Tribunal. However, the primary judge went on to find that the appellant’s status as an internally displaced person was raised for the purpose of explaining why he was unwilling to avail himself of the protection that might be provided by the authorities in Sri Lanka. It was not, the primary judge held, raised as an independent basis upon which the appellant claimed to fear targeted persecution.

28    There is no appealable error affecting these conclusions. The primary judge properly drew a distinction between the existence of a well-founded fear of persecution for a Convention reason and the discrete question of whether the appellant was unable or unwilling by virtue of that fear to avail himself of protection in his own country.

29    The primary judge was correct to place considerable emphasis on the manner in which the appellant’s claims were expressed in the written submissions he had provided to the Tribunal through his migration agent and in his oral statements at the Tribunal hearing. The summary of the claims, as expressed in the written submissions, contained no assertion that the appellant had a well-founded fear of persecution by reason of his membership of a social group defined as “internally displaced persons” or “refugee[s] in Sri Lanka”. When asked to confirm a summary of the claims articulated by the Tribunal member, as the Tribunal member understood them, the appellant acknowledged that the Tribunal’s understanding of his claims was correct.

30    The Tribunal was entitled to rely upon the written submissions and the oral acknowledgement as containing a clear statement of the issues arising on the protection visa application as the appellant himself had advanced them. The evidentiary material before the Tribunal is not to be assessed in isolation from the written submissions by which the appellant himself chose to articulate his claims, nor in isolation from the manner in which the appellant chose to articulate or confirm his claims at the oral hearing.

31    The Tribunal expressly referred (at [23]) to the appellant’s claim that he had not contacted the police in relation to harassment he had experienced at the hands of the Singhalese or other unknown individuals because he and his family were “refugees” and the police would not help. Ultimately, it was unnecessary for the Tribunal to determine the truth of that claim because the Tribunal held that the appellant did not have a well-founded fear of persecution for a Convention reason in respect of which he might be unable or unwilling to seek protection in his own country. As the Full Court said in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47]:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

The composite claim

32    As Counsel for the appellant correctly submitted, the Tribunal was required to consider the appellant’s claims individually and cumulatively: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [7], [42]. The Tribunal’s reasons (at [92]) disclose that the Tribunal was alive to that obligation.

33    The appellant had made no claim to fear persecution by reason of his status as an internally displaced person or as a refugee in Sri Lanka. Accordingly, it formed no part of the Tribunal’s task to consider such a claim cumulatively with the other Convention reasons the appellant had in fact advanced.

34    Leave will not be granted to introduce on this appeal a new allegation of jurisdictional error, namely a failure to consider and determine the composite claim.

35    The appeal should be dismissed.

Associate:

Dated:    29 June 2018