FEDERAL COURT OF AUSTRALIA
NSD 799 of 2018
Date of judgment:
Hossain v Minister for Immigration and Border Protection  HCA 34
Murad v Assistant Minister for Immigration and Border Protection  FCAFC 73; (2017) 250 FCR 510
O'Brien v Komesaroff  HCA 33; (1982) 150 CLR 310
New South Wales
National Practice Area:
Administrative and Constitutional Law and Human Rights
Number of paragraphs:
Solicitor for the Appellant:
Counsel for the First Respondent:
Mr J Kay-Hoyle
Solicitor for the First Respondent:
Mills Oakley Lawyers
Counsel for the Second Respondent:
The Second Respondent filed a submitting notice save as to costs
IMMIGRATION ASSESSMENT AUTHORITY
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The appeal be dismissed.
3. The appellant do pay the first respondent's costs to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39. 32 of the Federal Court Rules 2011.
1 The appellant is a citizen of Sri Lanka who arrived in Australia by boat in 2013. He is of Tamil ethnicity. He brings an appeal against a decision dismissing his application for judicial review of a decision by the Immigration Assessment Authority affirming the decision not to grant him a protection visa.
2 On the hearing of the appeal, the appellant sought to advance new grounds and points not advanced before the primary judge. The grounds of appeal are stated in the form of alleged errors by the Authority rather than errors by the primary judge and were described as presenting the matter 'de novo'.
3 In oral argument it was made plain that no further evidence was relied upon and the appellant sought leave to argue each of the grounds acknowledging that they were grounds that had not been advanced before the primary judge.
4 An appeal to this court from the Federal Circuit Court is by way of rehearing. It is to correct for demonstrated error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd  FCA 1833; (2001) 117 FCR 424 at . Usually, error is to be demonstrated by consideration of the reasoning process followed by the primary judge. Exceptionally, the error may best be described in a conclusionary way by reference to the outcome on a particular point or by showing the alternative reasoning pathway that should have been followed.
5 The importance of these principles for the fairness and integrity of the judicial process is profound. If points are dealt with for the first time on appeal then there is the prospect that the initial hearing is reduced to something of a dress rehearsal, the appeal court is deprived of the benefit of reasons on the point from the primary judge (being reasons that may be affirmed if plainly correct without requiring three judges to further deliberate on the point) and the appeal rights that should be available to the losing party are curtailed (although the new point will be considered by three judges, any further appeal to the High Court is only with leave). The discipline of requiring parties to bring forth all points at a single hearing ensures that the usual position is that all issues are settled by a single hearing unless there is error. There is prejudice in allowing parties to act in a way that has a tendency to undermine the finality that it to be afforded by a single hearing at which parties are expected to bring forth all arguments that relate to the dispute. There is also inefficiency in time and cost in resourcing the courts to deal with matters on a piecemeal basis.
6 For all these reasons, unless leave is given to raise a matter that was not advanced before the primary judge, the appeal is confined to matters argued at first instance.
7 In order to grant leave, the Court must be satisfied that it is expedient and in the interests of justice for arguments which were not before the primary judge to be considered for the first time on appeal: O'Brien v Komesaroff  HCA 33; (1982) 150 CLR 310 at 319. Expediency is to be considered in the context of the points I have mentioned. Matters to be considered in the exercise of discretion to grant leave to raise new grounds on appeal were summarised in Murad v Assistant Minister for Immigration and Border Protection  FCAFC 73; (2017) 250 FCR 510 at  (Griffiths, Mortimer and Perry JJ). A point that has merit and will not give rise to prejudice if argued for the first time on appeal may be expected to be the subject of leave. This is especially so where the refusal of leave have serious consequences for an appellant having regard to the subject matter of the proceedings. Most cases concerned with whether a person may be removed from Australia will have that character. Also relevant is whether there is an adequate explanation as to why the point was not raised below.
8 In the appeal, the appellant was represented by the same lawyer who appeared before the primary judge. He said that the failure to raise the matters the subject of the new grounds before the primary judge was entirely a matter within his responsibility. He submitted that the new grounds have merit.
9 For the following reasons, the points that the appellant seeks to raise lack merit and in all the circumstances leave to raise them should be refused.
10 As advanced in oral submissions grounds 1 and 2 were interrelated. They asserted error by reason of a failure by the Authority to consider the way in which the DFAT Country Information Report - Sri Lanka dated 24 January 2017 was considered by the Authority. The report stated that the most recent UNHCR Eligibility Guidelines for Sri Lanka 'note that a person's real or perceived links with the LTTE may give rise to a need for international protection'. It then noted that, although the nature of the links may vary, they can include a number of listed matters. Two such matters were:
persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka; and
persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
11 The argument focussed upon a claim made by the appellant before the Authority that he was exposed to risk because of a family connection of the kind described because his brother and uncle were LTTE fighters who were shot by the Sri Lanka Army (SLA). As to that claim, the Authority reasoned as follows (at para 33):
Even accepting that the applicant's brother and uncle were indeed LTTE fighters who were shot by the SLA in 1989 and 1990, I do not accept that this family connection would lead the applicant to be suspected of personal involvement of any kind with the LTTE, or that it would result in monitoring or investigation amounting to serious harm on return to Sri Lanka. Firstly, I consider it highly unlikely that the Sri Lankan authorities would now have any record of the circumstances of the deaths of the applicant's brother and uncle, or possess any information to indicate that they were LTTE fighters. Even if the authorities were aware that these relatives had fought with the LTTE well over twenty years ago and had been killed, I am not satisfied that this is a relevant connection which might cause the applicant to be of adverse interest to the authorities now. I do not accept the submission of the applicant's representative that it is a "strong" connection, especially given the length of time that has passed and that the applicant was a child of eight or younger when his relatives were killed. In these circumstances, I consider it extremely unlikely that the authorities would suspect that the applicant himself had any involvement with the LTTE. Nor do I consider that the authorities would think that the applicant would have any useful knowledge about the involvement of his relatives in the LTTE, or the organisation itself. I am not satisfied that the applicant would be imputed to hold a political opinion favourable to the LTTE, or to have any connection with the LTTE, merely on the basis of his family relationship with LTTE fighters who were involved with the organisation more than twenty years ago and who were killed when the applicant was a child of eight.
12 Nevertheless, it was argued that the Authority failed to consider the claim based upon the appellant's familial links with his brother and uncle, that it made a legally unreasonable decision concerning those claims and it should have recognised that he was at risk of being exposed to torture because there was considerable evidence before the Tribunal that persons considered to have such links were at risk of interrogation and torture.
13 The grounds as stated fail to engage with the reasoning process followed by the Authority. It reasoned that merely being a Tamil in Sri Lanka no longer gives rise to a well-founded fear of persecution or a need for international protection (para 27). This is not challenged. The Authority reviewer then reasoned specifically from a consideration of the claims of the appellant that she was not satisfied that the incidents of detention and torture of returnees from India (the appellant having lived for many years in India before coming to Australia) indicate the existence of a real chance that the applicant would be subjected to similar mistreatment and suspicion (para 36). In doing so, the Authority proceeded on the basis that an imputed association with the LTTE may expose a person in Sri Lanka to a risk of harm, but did not accept that the appellant would be so perceived by reason of his familial connection to his brother and uncle or other matters (addressed in paras 34, 35 and 36). Therefore, the Authority engaged with the way the matter was stated in the DFAT Country Information Report.
14 It was submitted that the opening words to para 33 (quoted above) indicated that the Authority proceeded on the basis that the claim made was confined to a claim that the appellant would be suspected of personal involvement with the LTTE when that was not the case. However, the Authority did not describe the claim in that way. For example, towards the end of para 33 the Authority dealt with the question in terms of what would be imputed to the appellant concerning political opinions favourable to the LTTE. Later (at para 34) the Authority referred to whether the appellant 'would be imputed to be a member or supporter of the LTTE because he resided for most of his life in a refugee camp in India'. So, there is no merit in the claim that the Authority confined its consideration to whether the appellant was personally involved with the LTTE.
15 It follows that the claim based upon being imputed with LTTE connections by reason of the appellants uncle and brother was specifically addressed.
16 As to unreasonableness, that was a characterisation raised in oral argument. However, the submissions advanced did not rise above a general disagreement with the fact finding. There was no development of an argument as to why the reasoning by the Authority supported a conclusion that its approach was legally unreasonable in the sense that it was illogical or irrational or failed to engage with the claims being made or reached a conclusion without any reasoning.
17 Grounds 3 and 5 to 10 each take the form of a claim that the Tribunal took into account an irrelevant consideration. Each of the claims is misconceived. They deal with aspects of the reasoning process by which the Authority reached its conclusion that there was no real chance that the applicant would be imputed to hold pro-LTTE opinions. The points raised do no more than disagree with the reasoning process and seek to focus attention on the significance of the appellant's claimed familial connections with the LTTE. None of the matters referred to in the grounds was irrelevant in the sense that the Authority by considering them acted outside of its authority by being guided by a consideration that was irrelevant to the decision it was entrusted to make.
18 Ground 4 complains that the Authority acted on its own 'opinion' unsupported by evidence when it stated (para 33) that it considered it highly unlikely that the Sri Lankan authorities would have any record of the circumstances of the death of the appellant's uncle and brother.
19 There is merit in the complaint that the Authority acted without the application of specialist expertise or any material in forming a view about the records that might be kept by the Sri Lankan authorities concerning the deaths of the appellant's brother and uncle. If that finding had provided the foundation for the Authority's ultimate conclusion then there would have been an issue as to whether there was jurisdictional error. However, as is apparent from the passage quoted above the Authority's conclusion rests upon its alternative consideration in the balance of para 33 of what the consequence would be if the authorities were aware that the appellant's two relatives had fought for the LTTE and had been killed.
20 There was no attempt to demonstrate error as to the Authority's decision insofar as it rested on the balance of the reasoning in para 33. In those circumstances, any respect in which the statement in the sentence about the records that might be kept might be criticised is not material to the overall exercise of the factual decision making power entrusted to the Tribunal. There must be materiality in the failure to comply with a condition for the proper exercise of a statutory power before there is jurisdictional error: Hossain v Minister for Immigration and Border Protection  HCA 34 at .
21 For those reasons there is no merit in the appeal grounds that are sought to be raised. Principally for that reason, the application for leave is refused. There being no other grounds it follows that the appeal should be dismissed. No reason has been advanced as to why costs should not follow the event. There should be an order that the appellant pay the costs of the Minister.