FEDERAL COURT OF AUSTRALIA

DHR17 v Minister for Home Affairs [2018] FCA 1907

Appeal from:

DHR17 v Minister for Immigration & Anor [2018] FCCA 262

File number:

NSD 242 of 2018

Judge:

CHARLESWORTH J

Date of judgment:

19 November 2018

Date of publication of reasons:

29 November 2018

Catchwords:

PRACTICE AND PROCEDURE – appellant seeking to raise arguments on appeal not raised before primary judge – appellant previously represented no explanation provided for omitting to raise arguments previously – leave to rely on proposed new arguments refused

Legislation:

Migration Act 1958 (Cth) ss 36, 65, 473DD, 476, Pt 7AA

Cases cited:

AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452

DHR17 v Minister for Immigration & Anor [2018 FCCA 262

Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; (2002) 190 ALR 543

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588

Date of hearing:

19 November 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

32

Counsel for the Appellant:

The Appellant appeared in person

Counsel for the First Respondent:

Mr O’Leary

Solicitor for the First Respondent:

Sparke Helmore Lawyers

Counsel for the Second Respondent:

The Second Respondent filed a Submitting Notice

ORDERS

NSD 242 of 2018

BETWEEN:

DHR17

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

CHARLESWORTH J

DATE OF ORDER:

19 NOVEMBER 2018

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs of the appeal to be agreed or assessed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The Court made orders dismissing this appeal on 19 November 2018. Oral reasons were given on that day. This is a written record of the reasons, with some minor revisions.

2    The appellant is a citizen of Sri Lanka.

3    He arrived in Australia as an unlawful maritime arrival on 10 September 2012. On 25 November 2015, the appellant made a valid application for a Safe Haven Enterprise (subclass XE-790) visa under the Migration Act 1958 (Cth).

4    Section 65 of the Act provides that if the Minister is satisfied that a visa applicant satisfies the criteria for the grant of a visa, the Minister must grant the visa. Conversely, if the Minister is not so satisfied, the application for the visa must be refused.

5    Among other things, it was necessary for the appellant to satisfy either the criterion in s 36(2)(a) of the Act (Refugee Criterion), or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion). The Refugee Criterion required that the Authority be satisfied that the appellant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely 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    In support of his visa application, the appellant claimed to fulfil each of the Refugee Criterion and the Complementary Protection Criterion by reason of, without being exhaustive, his Tamil ethnicity, his purported connections with the Liberation Tigers of Tamil Eelam and his Hindu faith.

8    The appellant’s visa application was refused by a delegate of the then-titled Minister for Immigration and Border Protection. That decision was referred for review to the Immigration Assessment Authority in accordance with Pt 7AA of the Act. A feature of Pt 7AA of the Act is that the Authority may not receive or consider what is defined as new information except in accordance with s 473DD of the Act. In its reasons for decision, the Authority said this of the information before it:

4.    The former migration agent of the applicant provided a submission to the IAA on 24 October 2016. The former migration agent states he does not act for the applicant, but also that he sent the submission with the instructions of the applicant. To give every benefit to the applicant, I will accept he instructed the migration agent to provide the submission to me. The submission states the applicant’s brother was granted a protection visa. During the SHEV interview, the former migration stated during the SHEV interview that he also acted for the applicant’s brother and that the brother was granted a protection visa. The submission of the former migration agent therefore is not new information and I have had regard to it.

5.    The applicant provided three submissions to the IAA via email. The first dated 18 November 2016. The body of the email contained only a URL. Using that URL, I was able to access an online video of a speech of 35 minutes duration which was uploaded to what appears to be a Tamil language Sri Lankan news website in November 2016. I do not know the date of the speech. I am unable to understand the content of the speech. It is not in English. The information before me does not suggest the speech was before the delegate. As I am unable to understand the content of the speech, I am not unable [sic, able] to assess whether the content of the speech is relevant to the applicant’s claims, nor am I able to place weight on the content of the speech. The second email is dated 24 January 2017. It attaches two, undated coloured photographs of men wearing military uniforms. To give every benefit to the applicant, I conclude the photographs are those that the applicant discussed with the delegate during the SHEV interview and that the photographs depict the applicant’s brother. I consider the photographs are not new information and I have had regard to them. The third email is dated 2 March 2017, is in broken English and relates to international war crimes judges and dissatisfaction with the performance of the Sri Lankan president. I am not satisfied the information in the email is relevant to the applicant’s claims and I have not had regard to it.

9    The Authority went on to say that it had had regard to more recent country information which it considered to be new.

10    The appellant was, at least initially, self-represented before the Federal Circuit Court of Australia (FCC). However, at the hearing of his application for judicial review, he was represented by Counsel. Counsel relied on an amended originating application filed on 6 February 2018 which set out two grounds for judicial review. Counsel informed the primary judge that the second of those two grounds was not pressed. The remaining ground was expressed as follows:

The Immigration Assessment Authority (‘the IAA’) found at [16] that ‘Tamil civilians who live in former LTTE areas … are at a low risk of being detained or prosecuted’. The IAA concluded at [19] that it was ‘not satisfied that the applicant faces a real chance of serious harm from the Sri Lankan authorities for’ a Convention-reason. On application of Australian case law, a ‘low risk of being detained or prosecuted’ is greater than ‘a real chance’ of being detained or prosecuted. There is an inconsistency between the IAA’s finding at [16] that Tamil civilians in the position of the applicant ‘are at a low risk of being detained or prosecuted’ and the IAA’s finding at [19] that it was ‘not satisfied the applicant faces a real chance of serious harm from the Sri Lankan authorities’. The inconsistency reveals jurisdictional error by the IAA in applying the real chance test.

11    In addition, Counsel introduced a further argument summarised by the primary judge at [56] of her Honour’s reasons. It was to the effect that the Authority had erred in applying the “real chance” test for the purposes of the Refugee Criterion. The primary judge considered that argument and rejected it. The primary judge also considered and rejected the first ground for judicial review specified on the amended originating application. For reasons that will become apparent, it is not necessary to consider her Honour’s reasons for doing so.

12    The appellant appears self-represented on this appeal. The notice of appeal, dated 26 February 2018, contains one ground of appeal particularised in three paragraphs, as follows:

The Federal Circuit Court erred in holding that the decision of the Immigration Assessment Authority was not affected by jurisdictional error, in that the Immigration Assessment Authority’s decision was affected by the fraud of the Migration Agent who assisted me, in particular:

1.    At paragraph four of the Immigration Assessment Authority’s decision record, it notes that my former migration agent provided as submission to the IAA on 24 October 2016. The former migration agent states he did not act for me, but also that he sent the submission to the Immigration Assessment Authority on my instructions. The Immigration Assessment Authority accepted that I had instructed the migration agent to provide the submissions. This is not the case. I had not seen the submission, and did not instruct the agent to submit it at any time. At no point did the Immigration Assessment Authority contact me to check whether I had authorised the submission or whether I was aware of its contents.

2.    The former agent did not provide me with a copy of the initial refusal decision of the Department of Home Affairs, and did not explain the decision to me. I was therefore prevented from knowing what information or documentation was needed to be provided to the Immigration Assessment Authority.

3.    As a result of the fraudulent actions of the migration agent, I was denied the ability to present the information that I wanted to the Immigration Assessment Authority that I believe would have convinced the member that my visa should be granted.

13    The appellant relies on an affidavit affirmed on 26 February 2018 deposing to his dealings with his former migration agent. The appellant also relies on an affidavit affirmed on 31 May 2018. The appellant did not make submissions in relation to the documents annexed to that affidavit. The documents annexed to the affidavit are dated 4 April 2018 and 4 May 2018. I do not consider that evidence to be relevant to this appeal. It cannot be said that the information annexed to the affidavit is the same information the appellant sought to put before the Authority.

14    Otherwise, the general effect of the affidavit of 26 February 2018 is that the appellant had not had an opportunity to read the written submission that had been lodged on his behalf – or purportedly on his behalf – in the Authority. It is, the appellant submits, because of the course of dealings between him and his migration agent that he was deprived of the opportunity to put additional material before the Authority that might have helped his case. The information is particularised at [14] of the affidavit as follows:

14.    If I was not prevented from providing my claims by the actions of the agent, in both not giving me a copy of or explaining the refusal decision, and by lodging submissions without my instructions so that I had no chance to add information, I would have presented the following information to the IAA:

(a)    In February and early March 2017, authorities were going around to neighbours with photos of both my brother and I asking for information about us. They had a copy of photo of me which was taken due to my achievements in sports which was then gifted to my school principal. They obtained this because they had first gone to my school and asked my principal about me and they had got the photo and my information from him.

(b)    The authorities were asking my neighbours and people who lived in the area about where I was, who my friends were, what people were visiting my house, and what links they had to the LTTE.

(c)    It is only in October 2017 that we realised why they were doing this. They came to our family home and accused my brother and I of being involved in hiding weapons. They searched our house and even dug up our toilet pit. I have photos of this. I believe the authorities were told this by ex LTTE members as this is common practice. These members know we are in Australia and so they give this information to the authorities so that they can be released but with the knowledge that they cannot harm us while we are in Australia.

(d)    This situation is still evolving. We do not know what will happen next. We are very fearful that that the authorities will resort to harming our father.

15    As can be seen, the grounds of appeal before this Court raise an issue that was not agitated in the proceeding before the primary judge. Leave to raise the argument before this Court is required. Leave may be granted if it is expedient in the interests of justice to do so: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; (2002) 190 ALR 543 at [18]; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ).

16    The discretion as to whether or not to grant leave must be exercised having regard to the legal context in which the application is made. The present context is one in which this Court does not have original jurisdiction to judicially review the Authority’s decision. That jurisdiction is vested in the FCC by s 476 of the Act. The appellate jurisdiction of this Court is concerned with the correction of legal, factual or discretionary error affecting judgments from which an appeal to this Court lies.

17    In AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452, Perram J said this of the Court’s discretion to hear and determine grounds for judicial review of a migration decision that have not been not raised previously:

One is confronted, then, with the situation that this Court is being called upon in the exercise of its appellate jurisdiction to decide the entirety of the matters which were for trial, including two new grounds, in circumstances where none of the issues to be decided in this Court were ever decided in the Court below. Section 476A of the Act explicitly removes this Court’s original jurisdiction in cases of this kind. Of course, the ability of this Court to hear fresh grounds of appeal or to entertain a notice of contention is not circumscribed by s 476A as they are both aspects of the Court’s appellate jurisdiction. But s 476A is, I think, relevant to whether I should, by leave, permit fresh grounds and a notice of contention when to do so will mean that this Court performs the trial court’s entire function. As a matter of substance, that is what s 476A appears aimed at preventing. There is this further matter, too: Pt 8 of the Act, which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance by entertaining fresh grounds and a notice of contention this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny.

18    In the present case, I have regard to the appellant’s status as a self-represented litigant on the appeal. However, it remains that the appellant was represented by Counsel in the proceeding before the primary judge. It is reasonable to infer from the manner in which the amended originating application is expressed that the appellant had legal assistance of some kind in preparing it.

19    Although it appears that the appellant originally filed an affidavit in the FCC deposing to matters similar to those sought to be agitated here, the issue does not appear to have been pressed at all in the proceeding before the primary judge. The appellant has not provided an adequate explanation as to why the arguments sought to be raised on appeal were not raised in the proceeding in which he sought judicial review of the Authority’s decision.

20    In the absence of evidence going to that topic, I am not prepared to infer that the appellant did not make an informed decision not to advance the arguments previously. That is a matter which I accord substantial weight in the exercise of the discretion as to whether this Court should now entertain the arguments.

21    The Minister submits that there are no reasonable prospects of the grounds of appeal succeeding. For the reasons that follow, I accept that submission.

22    In the first paragraph of the particulars, the appellant alleges that he had not seen the submission that his former migration agent had made before the Authority and that he did not instruct the migration agent to lodge at any time. The appellant has not demonstrated that the receipt of the migration agent’s submission by the Authority was harmful to his case. The reasons of the Authority indicate that the submission was beneficial to him.

23    The appellant’s intended complaint appears to be that he was somehow precluded by the migration agent’s conduct by putting before the Authority further information that might have caused the Authority to set aside the delegate’s decision and to grant him a visa. The information he sought to rely upon was in the nature of, I am prepared to assume, new information, in the sense that it concerned events that had occurred after his interview with the Minister’s delegate.

24    However, I am not satisfied that the appellant has made out the proposition in ground 1 of particular 1 to the grounds of appeal. The evidence before this Court is that on 26 October 2016, that is, about nine months before the Authority notified the appellant of its decision, the appellant contacted the Authority and was informed at that date that a submission had been filed on his behalf. There is no evidence before this Court to suggest that the appellant took any steps to withdraw the submission or to inform the Authority that he did not wish to rely upon it. That is notwithstanding that between 26 October 2016 and the date of the Authority’s decision the appellant had multiple communications with the Authority. In those communications, the appellant informed the Authority of his personal contact details, including his own mobile number and email address. Importantly, the appellant also provided additional information in support of his case, as indicated in the Authority’s reasons in the paragraphs extracted earlier.

25    The appellant has not explained to this Court why he did not, in the course of those communications, advance to the Authority the material upon which he now says this appeal should turn. That is especially so in relation to information concerning events in March 2017 which predate the Authority’s decision. I infer from the appellant’s affidavit and from his written submissions that he may have been advised by his migration agent, or perhaps more than one migration agent, that it was too late to put material before the Authority, particularly material that had not been before the delegate at the time of his interview.

26    If that was the advice that was provided to the appellant, I would characterise the advice as either negligent, or incompetent or at least inadvertent. However, the evidence does not substantiate an allegation of fraud on the Authority of a kind that would “stultify or invalidate” the Authority’s decision making processes.

27    As to the second particular of the ground of appeal, I am prepared to accept that the appellant’s former migration agent did not provide him with a copy of the reasons for the delegate’s decision. I will also assume, without deciding, that the migration agent did not explain the decision to the appellant.

28    It appears that the appellant did, in fact, contact the Authority and ask for a copy of the delegate’s decision on or around 8 July 2017. That tends to support the appellant’s complaint that the migration agent had not provided the reasons for the delegate’s decision to him. However, none of that is sufficient to support a contention that the processes of the Authority were affected by fraud of the migration agent.

29    If the circumstances are as the appellant has described them, they may disclose negligence, incompetence or inadvertence on the part of the migration agent. That is not a circumstance that would have enlivened the jurisdiction of the FCC to issue writs setting aside the Authority’s decision or prohibiting the Minister from acting upon it, even if the argument had been raised in the proceeding below.

30    As to the third particular, that too must be rejected because the actions of the migration agent have not been shown to be fraudulent, nor has it been shown that the appellant was personally unable to present information to the Authority after his engagement with the migration agent came to an end.

31    As this is the only ground of appeal, and there being no other argument raised to the effect that there is an appealable error affecting the decision of the primary judge, I have concluded that the new arguments expressed in the ground of appeal enjoy insufficient prospects of success to justify this Court granting leave to the appellant to rely upon them.

32    It follows that the appeal must be dismissed, and I will so order.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.

Associate:

Dated:    19 November 2018