FEDERAL COURT OF AUSTRALIA

AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s application for leave to rely on the grounds proposed in paragraph 4 of the appellant’s submissions filed on 2 March 2018 is refused.

2.    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    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCC). The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal made on 9 December 2015. By that decision, the Tribunal affirmed a decision of the Minister for Immigration and Border Protection to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth).

2    Two grounds of appeal were originally relied upon. Those grounds are now abandoned. The appellant has applied for leave to rely on two alternate grounds of appeal (proposed grounds 3 and 4), each of which raises an argument not advanced before the primary judge.

3    For the reasons given below, leave to introduce the new grounds should not be granted. It follows that the appeal must be dismissed.

THE TRIBUNAL’S DECISION

4    To be eligible for the visa it was necessary for the appellant to satisfy inter alia either the criterion in s 36(2)(a) of the Act (the Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (the Complementary Protection Criterion).

5    The Refugee Criterion requires that the visa applicant be 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 (Convention). Article 1A of the Convention provides that Australia owes protection obligations to a person 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.

6    The Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia 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; ….

7    Section 36(2A) of the Act defines “significant harm” to include “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”: s 36(2A)(d) and (e). Section 5(1) defines “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” as, respectively:

•    an act or omission by which pain or suffering, whether physical or mental, is intentionally inflicted on a person and is either severe or could, in all the circumstances, reasonably be regarded as cruel or inhuman in nature; and

•    an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.

8    The appellant is a citizen of Sri Lanka. In support of his application for the visa he claimed to satisfy the Refugee Criterion on the basis that he was of Tamil ethnicity and was imputed with the political opinions of the Liberation Tigers of Tamil Eelam (LTTE). He further claimed to have a well-founded fear of being persecuted by reason of his membership of a social group, namely that of failed asylum seekers returning to Sri Lanka having departed the country illegally. He claimed that he would be imprisoned for months awaiting security checks and may be subject to torture as a failed asylum seeker with perceived ties to the LTTE.

9    In the alternative, the appellant claimed that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm because, among other things, he would be charged with and imprisoned for certain offences created by the Immigrants and Emigrants Act of Sri Lanka relating to his illegal departure from the country.

10    The Tribunal rejected the appellant’s claim to be a person imputed with the political opinions of the LTTE. As a consequence, it rejected his claim to fear persecution, whether in prison or otherwise, by virtue of his having a profile of an LTTE sympathiser.

11    The Tribunal nonetheless accepted that upon his return to Sri Lanka, the appellant would be charged with an offence under s 45C of the Immigrants and Emigrants Act of Sri Lanka relating to his having departed Sri Lanka illegally. The Tribunal continued:

67.    As I put to [the Appellant], the Australian Department of Foreign Affairs and Trade has advised that in most cases people suspected of having departed Sri Lanka illegally have been arrested by the police at Colombo international airport. They have been transported to the Magistrates Court in Negombo at the first available opportunity and in most cases they have been granted bail immediately by the magistrate. As I put to him, the Department has said that as of March 2014 no returnee who was just a passenger on a people smuggling boat had been given a prison sentence for departing Sri Lanka illegally but that fines had been issued. In their submission to the Department dated 6 August 2013 [the Appellant’s] representatives submitted that he feared that his and his family’s previous history of being perceived LTTE supporters due to their origins in the [region] would cause him to face a heightened risk of being denied bail on his return or of facing a harsher penalty if he were convicted. However for the reasons given above I do not accept that he or any other member of his family has a history of being a perceived LTTE supporter. As I put to [the Appellant], I take the view that this whole process - his being charged, briefly detained, released on bail and fined - is the result of the enforcement of a law which applies generally in Sri Lanka. I do not accept that there is a real chance that he will be singled out or treated differently, for one or more of the five Convention reasons, from anyone else charged with departing Sri Lanka illegally.

…

74.    …  Having regard to the advice of the Australian Department of Foreign Affairs and Trade referred to in paragraph 67 above, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the Appellant] being removed from Australia to Sri Lanka, there is a real risk that he will be sentenced to a term of imprisonment for his illegal departure rather than simply being fined.

75.    As I put to [the Appellant], the information available to me suggests that he will only be held at the Negombo Prison for a brief period, for example because a magistrate is not available due to a weekend or a public holiday. Having regard to what I have found to be his circumstances, I consider that there is only a remote chance that he will have to spend any longer than a fortnight in gaol on remand. As I put to him, the Australian Department of Foreign Affairs and Trade has advised that allegations of mistreatment of returnees have not been substantiated and it has said that it is not aware of allegations of mistreatment of returnees while on remand. Having regard to this advice I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the Appellant] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm or specifically that he will experience torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, during any period which he may spend in gaol on remand.

76.    … I consider on the basis of the information available to me that there is only a remote chance that [the Appellant] will have to spend any longer than a fortnight in gaol on remand. Even taking into account the evidence regarding conditions in prisons in Sri Lanka, I do not accept that spending a brief period in such a prison on remand amounts to ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ as defined in subsection 5(1) of the Migration Act.

(footnotes omitted)

THE PROPOSED NEW GROUNDS

12    The proposed new grounds are expressed as follows:

3.    The Federal Circuit Court erred in not finding that the Tribunal had committed jurisdictional error by reason of its failure to consider the following implied claims made by the Appellant and/or their component integers:

(a)    that the Appellant may not be able to secure bail and so would remain detained on remand;

(b)    that the Appellant may not have the capacity to pay the ultimate fine imposed, and so may be exposed to further detention.

4.    The Federal Circuit Court erred in not finding that the Tribunal had committed jurisdictional error by addressing itself to the wrong issue or asking the wrong question in considering the Appellant’s claim to fear harm as a failed asylum seeker.

13    The Court heard submissions from both parties as to the merits of each of the proposed grounds so that the substantive appeal may be finally determined should the application for leave be allowed.

14    The appellant’s submissions may be briefly summarised.

15    The first of the proposed new grounds challenges the premise of the Tribunal’s express or implicit findings that the appellant would be imprisoned for only a short time in Sri Lanka before being released on bail and that he would have the capacity to pay any fine imposed upon him for having left Sri Lanka illegally. It is argued that the Tribunal failed to address a body of evidence from which an inference could and should have been drawn that the appellant was impecunious, could not pay any surety to secure bail, could not pay a fine and so faced imprisonment for a significant period. It was further submitted that incarceration for a substantial period would (or at least could) constitute “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” and so fulfil the Complementary Protection Criterion, thus justifying the remittal of the appellant’s application for review to the Tribunal.

16    By the second proposed ground of appeal it is argued that the Tribunal misconceived the manner in which laws and policies of general application must be considered for the purpose of applying the Refugee Criterion. It was not enough, the appellant submitted, for the Tribunal to merely characterise the law as one applying to the general population in Sri Lanka. Rather, it was necessary for the Tribunal to go on to consider whether the general application of the law would nonetheless result in discriminatory treatment of failed asylum seekers who had left Sri Lanka illegally, and so could amount to “persecution” for the purposes of the Convention. The Tribunal was, the appellant submitted, required to undertake and complete the enquiry in accordance with the principles stated by Gleeson CJ, Gummow and Kirby JJ in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [42] - [43]. Their Honours there referred to Minister for Immigration and Multicultural Affairs v Israelian (2000) 206 CLR 323 (a case in which a decision-maker was held not to have committed jurisdictional error by finding that the administration of a law of general application would not amount to persecution of the visa applicant). Their Honours continued:

42    … what was said in Israelian does not establish a rule that the implementation of laws of general application can never amount to persecution. It could scarcely be so given the history of the Nuremberg Laws against the Jews enacted by Nazi Germany which preceded, and help to explain, the purposes of the Refugees Convention. Rather, the Court majority determined that, on the facts of that case, it had been open to the Tribunal to conclude that the implementation by Armenia of its laws of general application was not capable of resulting in discriminatory treatment. A law of general application is capable of being implemented or enforced in a discriminatory manner.

43    The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A. His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is ‘appropriate and adapted to achieving some legitimate object of the country [concerned]’. These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen. As a matter of law to be applied in Australia, they are to be taken as settled. This is what underlay the Court’s decision in Israelian. Namely, that enforcement of the law of general application in that particular case was appropriate and adapted to achieving a legitimate national objective.

THE APPLICATION FOR LEAVE

17    Leave to raise arguments 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.

18    The discretion is to be exercised having regard to the legal context in which the application is made. The present legal context is one in which this Court does not have original jurisdiction to judicially review the Tribunal’s decision. That jurisdiction is vested in the FCC by s 476 of the Act. This Court’s appellate jurisdiction is conferred for the purpose of correcting legal, factual or discretionary error affecting judgments from which an appeal to the Court lies; Federal Court of Australia Act 1976 (Cth) (FCA Act), s 24; MZYTT v Minister for Immigration and Citizenship (2013) 141 ALD 301 at [20]; Zaburoni v Minister for Immigration and Border Protection [2017] FCAFC 205 at [52]. Applications such as that made in the appellant’s case have the effect of calling upon this Court, in its appellate jurisdiction, to judicially review an administrative decision it would otherwise have no original jurisdiction to review.

19    In Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 the High Court said (at ALR 71):

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 an opportunity to do so.

20    See also Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; (2002) 190 ALR 543. The phrase “exceptional circumstances” indicates that there remains a discretion in this Court to allow the introduction of the new grounds if it be “expedient in the interests of justice” to do so: Gomez at [18] (Hill, O’Loughlin and Tamberlin JJ); VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ).

21    In VUAX the Full Court noted that the practice of raising arguments for the first time before the Full Court of this Court had become prevalent in appeals relating to migration matters. The Court continued (at [48]):

…  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.

22    See also Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 at [82] (Gilmour and Mortimer JJ), [106] (Logan J). In that case, Logan J said:

105    The additional ground sought to be raised does not raise any issue of pervasive public importance but rather whether, in the particular circumstances of the case before the Tribunal, there was a denial of procedural fairness. The place for the determination of any such jurisdictional error issue is, in all but the most exceptional cases, in the original jurisdiction of the Federal Circuit Court, not in this Court. The ‘public interest in the fairness and expedition of the administration of justice’ referred to in Coulton v Holcombe at 11, is abroad in this case, too.

…

108    Another consideration which looms large in modern times in relation to the allowing of on [sic] appeal of the amendment of ground of appeal so as to raise a point not taken below is the sheer volume of cases arising under the Migration Act 1958 (Cth) (Migration Act). The resources which this Court can devote to the exercise of its appellate jurisdiction are finite. That appellate jurisdiction is exercisable as never before in respect of a great breadth of original Federal jurisdictions. To allow too readily in cases arising under the Migration Act the raising of points not taken in the original jurisdiction is fraught with the risk of encouraging the overwhelming of the efficient allocation of judicial resources to the timely disposal of other appeals in fields of appellate jurisdiction.

23    The concerns there expressed by his Honour reflect the same policy considerations underlying s 37M of the FCA Act. Relevantly, s 37M(3) provides that a procedural power such as that to be exercised in the present case must be exercised in the way that best promotes the overarching purpose identified in s 37M(1) and (2):

37M The overarching purpose of civil practice and procedure provisions

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

(2)    Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

Consideration

24    There are multiple considerations weighing against the grant of leave. Of considerable importance is the circumstance that the appellant was represented by a firm of solicitors and by counsel in the proceedings before the primary judge. The same firm of solicitors continues to represent the appellant on this appeal.

25    Critically, the appellant has given no explanation as to why the matters now sought to be argued on the appeal were not agitated on the application for judicial review before the primary judge. It may be the case that consideration was given to advancing the arguments in the judicial review proceedings but a conscious decision made not to do so. It may be that the availability of the arguments was not considered by the appellant’s legal representatives at the time. The Court simply cannot know.

26    Where (as here) it is argued that the appellant’s status as a failed asylum seeker weighs in favour of the grant of leave to raise a new argument, it is not unreasonable to expect the legal representatives of the appellant to adduce admissible evidence as to why the same critical stakes now urged upon the Court did not appear to inform their earlier decisions as to which arguments ought to be run at first instance and which arguments ought not to be run: AOL15 v Minister for Immigration and Border Protection [2018] FCA 979 at [24].

27    In the absence of evidence, I am not prepared to infer that the appellant did not make a well informed decision not to advance the arguments previously. These are matters that the appellant and his legal advisers are in a position to depose to. No affidavit has been filed.

28    In cases where a party to migration litigation is truly self-represented in a judicial review proceeding, the Court may more readily draw an inference, even in the absence of an affidavit, that the party did not have the assistance, knowledge or capacity to identify and press all of the available arguments at first instance.

29    In other cases it may be apparent that the primary judge has, at his or her own initiative, given consideration to, and determined, an issue not expressly raised by a review applicant on his or her originating application. In such cases, leave to raise the matter on the appeal may more readily be granted, particularly if it appears that the primary judge determined the issue at the invitation of the respondent and the new ground alleges appealable error in respect of that issue.

30    It cannot be said that the proposed new grounds in the present case raise questions of general importance that are yet to be authoritatively decided. The first of the two proposed grounds raises an issue as to whether the Tribunal considered an aspect of the appellant’s claims said to arise squarely on the material before it. It is highly fact specific. The second of the proposed new grounds turns upon the alleged failure by the Tribunal to apply principles stated by the High Court in Applicant S. Whilst I accept that the argument advanced in that proposed ground is not commonly raised in this Court, its success nonetheless turns upon the application of a principle stated by the High Court to the facts of a particular case. Its resolution would not assist the disposition of other migration cases.

31    The overarching purpose of the Court’s civil practice and procedure provisions includes the efficient use of the Court’s judicial and administrative resources and the efficient disposal of the Court’s overall caseload. In my view, these considerations strongly favour an approach whereby a party to migration litigation who has been legally represented throughout not be granted leave to introduce a new argument on appeal in this Court in the absence of any explanation for the failure to raise the argument in the proceedings before the primary judge. Allowing the application for leave in circumstances such as the present would create an expectation that arguments not raised on an application for judicial review will be entertained by the Court provided that some prima facie merit in the proposed grounds may be shown and provided that no prejudice to the respondent is demonstrated. The grant of leave would encourage the invocation of this Court’s appellate jurisdiction for purposes other than that for which it is conferred, and thus encourage “appeals” that might not otherwise be commenced. The present case is a telling example. The appellant identifies no appealable error on the part of the primary judge at all.

32    These considerations outweigh the pressing circumstances that a successful appeal may ultimately result in the appellant being granted a protection visa. I consider it appropriate to afford less weight to the appellant’s prospects of obtaining a the visa because his interests in that regard were at all times protected and advanced by legal representatives, none of whom have seen fit to give evidence in support of the present application.

33    The application for leave to introduce the new arguments is refused.

34    It follows that the appeal must be dismissed.

Associate:

Dated:    21 September 2018