FEDERAL COURT OF AUSTRALIA

AVH17 v Minister for Immigration and Border Protection [2019] FCA 122

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed on 14 November 2018 is dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the application.

3.    Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

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

REASONS FOR JUDGMENT

GREENWOOD J:

1    These proceedings are concerned with an application for an extension of time within which to file a notice of appeal from orders of the Federal Circuit Court of Australia (Judge Egan, the “primary judge”) made by the primary judge on 24 August 2018. Although the primary judge made orders on that day dismissing the applicant’s further amended application before that Court, the reasons of the primary judge in support of the orders made that day are dated 21 September 2018 and it seems (from the applicant’s written submissions) that the reasons were published to the parties on 25 September 2018.

2    It is common ground between the parties that the applicant had until 14 September 2018 to file a notice of appeal in the Federal Court of Australia. The applicant filed his application for an extension of time in the Federal Court on 14 November 2018. It is common ground that the length of the delay is approximately 61 days. The length of the delay is a factor to be taken into account on such an application but, of course, the period of delay itself can never be determinative of the application. The first respondent Minister does not contend otherwise.

3    The proceedings before the Federal Circuit Court involved an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) which, on 1 February 2017, affirmed a decision of the delegate of the Minister to refuse the applicant the grant of a Safe Haven Enterprise visa (a “Safe Haven visa”).

4    The application for judicial review before the Federal Circuit Court was filed on 25 February 2017. That application was subsequently amended on 7 November 2017 and on the hearing of the application on 24 August 2018 the solicitor for the applicant, Mr Markwell, was granted leave by the primary judge to read and file a further amended application for review dated 11 August 2018. I will return to aspects of the grounds agitated before the Federal Circuit Court in reliance on the further amended application, later in these reasons.

5    Should the applicant be granted an extension of time within which to appeal from the orders of the Federal Circuit Court, the applicant, in effect, seeks to abandon the grounds of challenge agitated before the Federal Circuit Court and seeks to rely upon a single fresh ground of appeal in these terms:

1.    An integer of the appellant’s claims before the Immigration Assessment Authority (“the IAA”) was that he may face a real risk of significant harm from criminal violence should he return to Sri Lanka. Although the appellant did not expressly make this claim before the Department or the IAA, the case arose on the material and evidence before the IAA. The IAA failed to deal with this integer of the appellant’s claims. This was a jurisdictional error.

6    The application for an extension of time is supported by an affidavit affirmed by applicant AVH17 on 13 November 2018. In that affidavit, the applicant says that the primary judge published the reasons for judgment on 17 October 2018. In this Court, the applicant is represented by Mr Zipser of counsel. Mr Zipser accepts that the applicant is mistaken about that matter. As to the question of the explanation for the delay, the applicant, in his affidavit, says this, apart from formal matters:

6.    My instructing solicitors, Ms Wadley told me that they have been awaiting the Counsel’s opinion to file appeal to the Federal Court of Australia. They also told me that I could make an application of extension of time at the expiration of 21 days from the date of the order.

7.    On 10 November 2018 my solicitor[s] informed me that they [were] unable to proceed in the matter based on Counsel’s opinion.

8.    I believe that I have a strong ground to appeal to the Federal Court of Australia. Furthermore, my wife who is a student visa holder is pregnant and her confinement date is 17 November 2018 and was sick for last two weeks.

7    The applicant annexes a draft notice of appeal to his affidavit. However, Mr Zipser, on the morning of the hearing of the application, sought to rely upon an amended draft notice of appeal confined to the ground recited at [5] of these reasons.

8    Before addressing the principal matters that need to be addressed in relation to the application, it is necessary to say some things about the background to the application.

Background

9    On 27 August 2012, the applicant arrived in Australian waters at Cocos Island as an unauthorised maritime arrival.

10    On 15 January 2013, the applicant participated in an “Irregular Maritime Arrival Entry Interview”. Aspects of the record of interview form identify some of the applicant’s claims (items 1 and 18 are relied upon by the applicant).

11    Between August 2012 and February 2013, the applicant was in detention centres following which he was granted a temporary visa and released into the community on the Australian mainland.

12    On 20 August 2013, the applicant lodged an application for a protection visa. The application included a statutory declaration of the applicant dated 14 August 2013. For reasons explained in a letter from the Department of Immigration and Border Protection (the “Department”) to the applicant dated 8 September 2015, the application was invalid. By letter dated 8 September 2015, the Department invited the applicant to apply for a protection visa or a SHEV. On or about 9 or 12 October 2015, the applicant lodged an application for a Safe Haven visa. That application was also supported by the statutory declaration of 14 August 2013, amongst other documents.

13    On 13 January 2016, the applicant participated in an interview with the Minister’s delegate. On 21 January 2016, the applicant’s agent, Ms Nkowane-Poole (a legal practitioner and registered migration agent), provided a post-interview written submission to the Department.

14    On 1 September 2016, the Minister’s delegate made a decision refusing the grant of a Safe Haven visa.

15    On 6 September 2016, the IAA informed the applicant that the decision of the Minister’s delegate had been referred to the IAA for review.

16    On 30 September 2016, the IAA received a submission from the applicant’s agent (Mr James Brown, VisasOnline Pty Ltd). On 13 October 2016, Mr Brown sent a further letter described as “Addendum to Submission dated 30 September, 2016” to the IAA by email. On 1 February 2017, the IAA made a decision to affirm the decision under review, thus affirming the decision not to grant the applicant a Safe Haven visa.

17    On 25 February 2017, the applicant applied to the Federal Circuit Court for judicial review of the IAA’s decision. As earlier mentioned, that application was amended on 7 November 2017 and further amended on 11 August 2018 with leave to amend given on the day of the hearing on 24 August 2018.

18    Following a hearing before the primary judge on 24 August 2018, the primary judge made orders dismissing the further amended application filed by leave and ordered the applicant to pay the first respondent’s costs of the proceeding fixed in a particular amount. The primary judge gave ex tempore reasons in support of those orders. As earlier mentioned, the reasons appear to have been settled in a written form on 21 September 2018 and published on 25 September 2018.

19    As earlier mentioned, the applicant filed an application for an extension of time to appeal to this Court on 14 November 2018 supported by his affidavit of 13 November 2018 which seeks to explain his delay in filing a notice of appeal from the orders of the Federal Circuit Court to this Court.

20    Rule 36.03(a)(i) of the Federal Court Rules 2011 provides that an appellant must file a notice of appeal within 21 days after the date on which the judgment appealed from was pronounced or the order was made. Rule 36.05 provides that a party who wants to apply for an extension of time within which to file a notice of appeal may do so during or after the 21 day period. The application must be supported by an affidavit stating “briefly but specifically, the facts on which the application relies” and “why the notice of appeal was not filed within time”: r 36.05(3)(c).

21    Counsel for the applicant accepts that the principal matters relevant to whether time ought to be extended are these: the length of the applicant’s delay; the applicant’s explanation for the delay; the merits of the appeal; and any prejudice the respondent may suffer should time be extended: para 20 of the applicant’s submissions.

22    As to the question of the length of delay, the applicant’s counsel accepts that the delay is 61 days and that such a delay is “more than insignificant”. Nevertheless, the applicant’s counsel says that the delay is “not unduly extensive”: para 21. I accept that the delay of 61 days is not an insignificant delay. The rules contemplate a period of 21 days. If an assumption is made that it is not unreasonable for a party to wait upon the receipt of the written reasons for judgment explanatory of the orders before filing a notice of appeal, it is relevant to note that the applicant received written reasons for judgment on or about 25 September 2018. By that time, one month had passed from the date of making the orders. The applicant could have filed a notice of appeal within 21 days of the date of the orders in reliance upon recollections and notes of the ex tempore reasons. However, it would probably have then been necessary to amend the notice of appeal to reflect grounds which adequately took into account, more precisely, the written reasons for judgment informing the applicant of the precise reasoning. With the benefit of the written reasons, the contended errors on the part of the primary judge could then be properly, or at least more accurately, identified. The application for an extension of time was filed on 14 November 2018, a period of approximately 50 days after the receipt of the written reasons (assuming the applicant received the reasons on 25 September 2018). This is not to diminish, however, the fact that reasons were published ex tempore on 24 August 2018. Moreover, it needs to be recognised that the applicant was represented by lawyers before the primary judge. Although a self-represented applicant would find it difficult (especially in reliance upon an interpreter) to truly understand the burden and content of ex tempore reasons, lawyers representing a party are well placed to come to grips with ex tempore reasons in a way which might suggest an ability to frame and file an appropriate notice of appeal within time albeit that the notice might require amendment in the light of the written reasons.

23    As to the explanation for the delay, the applicant seems to accept (see paras 6 and 7 of his affidavit) that his solicitor, Ms Wadley, understood that the making of the orders and the publication of the reasons ex tempore on 24 August 2018 had the result that the notice of appeal had to be filed by 14 September 2018. The explanation for the delay is that the applicant and his solicitor were waiting upon counsel’s opinion. I assume that counsel’s opinion was to address whether one or more grounds of appeal were available to the applicant or at least arguably available, and, whether any arguable ground was thought to have sufficient merit to be successful. None of this is explained properly by the applicant, as the applicant’s counsel accepts. Ultimately, the applicant was told on 10 November 2018 by his solicitor that those solicitors were “unable to proceed in the matter based on Counsel’s opinion”. It is not clear when the applicant’s solicitor received counsel’s opinion or whether the opinion was expressed in writing. Nevertheless, four days later, the applicant, acting on his own behalf, filed his application to this Court for an extension of time.

24    The applicant’s affidavit, as an explanation of the delay, is unsatisfactory. The delay needs to be more fully explained especially when the applicant, at the material time, was represented by lawyers. His solicitor was present when the orders were made and the ex tempore reasons pronounced. The timing of the steps taken by the solicitor to brief counsel, the steps taken to press counsel for his or her opinion and the reasons for the delay on the part of counsel or the solicitor for the applicant ought to have been made very clear.

25    I am satisfied that the applicant and his solicitor understood the need to file the notice of appeal within 21 days and I infer that on 10 November 2018 the applicant was told that his solicitor could not continue to act for him because counsel’s advice was sufficiently unfavourable to the applicant’s prospects on appeal that no appeal could properly be filed. That follows because the applicant says in his affidavit at para 7 that he was told that the solicitor was unable to proceed “based on Counsel’s opinion”.

26    However, now the position is that the applicant is represented by Mr Zipser of counsel instructed by Rasan T Selliah and Associates. Mr Zipser urges the Court to grant an extension of time to enable the applicant to agitate the new ground of challenge to the IAA’s decision recited in the proposed draft amended notice of appeal. Accordingly, it is necessary to examine aspects of the proposed new ground of appeal, for which the applicant needs leave, to determine whether the point not taken below has sufficient merit to enable it to be advanced in the interests of justice, subject to the tests or factors to be applied governing that question.

27    The first respondent Minister says that “critically” for the purpose of this application, the new ground does not establish that the “decision of the primary judge” is attended by sufficient doubt to warrant the granting of an extension of time para 9 of the Minister’s submissions. However, in circumstances where the ground of challenge to the IAA’s decision now identified by the applicant’s new lawyers is truly a new ground, the primary judge’s decision, inevitably, will not address the point now sought to be put in issue. The Minister says that the ground now sought to be agitated is not merely a reformulation of the grounds advanced before the primary judge and nor is there “overlap” between the new ground and those grounds: para 13. Mr Zipser contends that there is identifiable overlap between the grounds agitated before the primary judge and the proposed new ground with the result that the new ground is said to be not entirely new: para 30.

28    As to the principles to be applied in determining whether leave is to be granted to permit the proposed ground to be raised on appeal, the Minister relies upon the observations of Griffiths and Perry JJ in Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 at [19] and [20], in these terms:

19    The general principles guiding the decision whether or not to permit a ground to be raised on appeal which was not run below are well settled. They are reflected in the following observations of the full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]-[48] (and which were recently reaffirmed in substance by Flick and Rangiah JJ in Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 at [89]-[90]):

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: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

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.

20    In Summers v Repatriation Commission (2015) 230 FCR 179, in discussing the relevant principles, the Full Court stated at [94] that, generally speaking, leave is more likely to be granted to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy. A Full Court constituted by five Justices approved that passage in Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 at [79].

29    The Minister also places emphasis upon the observations of the Full Court (Heerey, Moore and Goldberg JJ) in Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [23] concerning the caution expressed about the implications for the “structure and integrity” of the appellate processes of the Court in allowing an appellant to raise for the first time on appeal a ground not raised as a ground of review before the primary court on the part of an applicant seeking judicial review of a decision of the relevant administrative tribunal (in that case, the Refugee Review Tribunal): para 12, Minister’s submissions.

30    Their Honours said this on that topic at [23]:

23    Although it is in the interests of justice that decisions be made on the true merits of the case sought to be argued, the structure and integrity of the appellate process must also be taken into consideration. It is incumbent upon parties bringing applications to the Court to review decisions of tribunals such as the Refugee Review Tribunal to make it clear from the outset what are the substantive grounds of review relied upon. The way in which the appellant presented his application for review and his notice of appeal is unacceptable. It is important in cases such as this that the issues to be determined by the primary judge and by the Full Court be particularised in sufficient detail to enable the respondent and the Court to understand fully what are the relevant issues to be determined. In this context we refer again to the observations of Branson and Katz JJ in H v Minister for Immigration & Multicultural Affairs at par 19 above [cited as [2000] FCA 1348].

31    At [24] in Iyer, their Honours also said this:

24    However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success. We also consider it appropriate to take into account whether the appellant had the benefit of legal representation at the hearing before the primary judge.

32    The applicant before this Court emphasises the importance of the discretion residing in the Court to allow an appellant to argue an issue on appeal not argued below in circumstances where the Court considers it “expedient” and “in the interests of justice” to entertain the issue. As to those factors, the applicant emphasises the observations of the Court (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) in Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 at [79], affirming as “correct and orthodox” the approach adopted by the Full Court (Kenny, Murphy and Beach JJ) in Summers v Repatriation Commission (2015) 230 FCR 179 at [93] to [95] (“Summers”). Those observations in Summers at [93] to [95], are these:

93    Almost self-evidently, proposed ground 4D(a) was not raised before the primary judge; and parties are of course bound by the way a case is conducted: see, for example, Siegwerk Australia Pty Ltd (in liq) v Nuplex Industries (Australia) Pty Ltd (2013) 305 ALR 412 at [97] per Robertson J and Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority (2015) 227 FCR 95 per Kenny, Besanko and White JJ at [161]-[162]. Thus, a point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence at trial. This is, however, not such a case; and, as reference to authorities such as University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; 60 ALR 68 at 71, Water Board v Moustakas (1988) 180 CLR 491 at 497 (Water Board v Moustakas) and Coulton v Holcombe (1986) 162 CLR 1 (Coulton v Holcombe) at 7-8 show, an appellate court has a discretion to permit an appellant to argue an issue on appeal that was not argued below where it considers that it is expedient and in the interests of justice to entertain the issue: see Water Board v Moustakas at 497 and Coulton v Holcombe at 8, citing O’Brien v Komesaroff (1982) 150 CLR 310 (O’Brien v Komesaroff) at 319 per Mason J (with whom the other members of the Court concurred). The fact that an alleged error of law is not raised before the court at first instance does not preclude an appellate court from entertaining the point where it is in the interests of justice to do so: see, for example, Summers No 1 at [60]; Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 341-343; 35 ALR 186 at 194-195 per Bowen CJ, 347-348; 199 per Fox J and 354-355; 205 per Deane J, cited with approval in Grant v Repatriation Commission (1999) 57 ALD 1 (Grant v Repatriation Commission) at [20] per Merkel, Goldberg and Weinberg JJ (also noting that the respondent must have an opportunity to be heard on the issue).

94    The Court must be satisfied that allowing a new point to be argued would work no injustice to the other party, recognising that it is not always an easy task to pinpoint whether the matter would have been approached differently had the point then been raised: Peacock v Human Rights and Equal Opportunity Commission (2003) 73 ALD 341 at [28] per Kiefel and Allsop JJ. Generally speaking the Court is more likely to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy: O’Brien v Komesaroff at 319; Larsen v Minister for Environment and Heritage (2008) 174 FCR 14 at [3]-[6] per Moore and Lander JJ; Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221 at [126]-[131] per Tracey, Gilmour, Jagot and Beach JJ.

95    We consider it expedient and in the interests of justice for us to entertain the issue raised by the proposed ground 4D(a) and we grant leave to Mr Summers to further amend his amended notice of appeal so as to include that ground. We say this, first, because the failure to argue appeal ground 4D(a) before the primary judge did not arise because of any personal failure by Mr Summers. Rather, it seems to have arisen through his solicitor’s error. Provided it can be addressed without the Commission suffering prejudice, and given that the issue concerns Mr Summers’ pension entitlement under the Act, we are reluctant to allow Mr Summers’ appeal to be prejudiced by his solicitor’s error.

[emphasis added]

33    Ultimately, the question of whether leave ought to be granted to enable a party to agitate, on appeal, an issue which was not argued below, is whether the applicant for leave can show it is expedient and in the interests of justice that leave be granted to argue the new ground. The content and application of those two notions in some classes of case, however, can be contextually problematic.

34    The question of whether it is expedient and whether the interests of justice are served by allowing a party to raise a fresh contention not argued before the primary judge in, for example, a dispute the subject matter of which only concerns inter-party rights and obligations arising under a contract or questions concerning fiduciary duties owed by one party to another (and a breach of those duties) or whether a duty is owed at common law or under statute in particular circumstances (or any other class of case where private rights, duties and obligations are in contest), arises in an entirely different context from that which attracts the exercise of the judicial power of the Commonwealth in exercising supervisory review of the limits of decision-making authority or power of public officials as a question of “legality” or jurisdictional error, especially where the consequences of error for those asserting an excess of jurisdiction may be removal from Australia to a particular country in circumstances where Australia may owe, or may be shown to owe, protection obligations under the Migration Act 1958 (Cth) (the “Act”) to the applicant seeking to argue the new ground.

35    I agree, and of course recognise, that the principles described in Haritos affirming as “correct and orthodox” the observations in Summers, are true principles of general application but nevertheless, it must be recognised that there may be contextual dangers or false conclusions reached in trying to force a glass slipper on every large foot that presents itself for that task. In other words, when the question of whether leave ought to be granted arises in a case engaging a subject matter of whether a public official has exceeded the limits of decision-making authority or power, the notion of “serving the interests of justice” necessarily has an entirely different character to that which arises when the issue presents itself in the class of case described in the examples given at [34] of these reasons.

36    It is now necessary to examine the new ground the applicant seeks to rely upon by his draft notice of appeal.

37    As already mentioned, the applicant initially filed an application for review before the Federal Circuit Court on 25 February 2017 and amended that application on 7 November 2017. The applicant was granted leave at the hearing on 24 August 2018 to rely upon the further amended application for review dated 11 August 2018. As to that application, the applicant ultimately relied upon grounds 2(a), 2(c) and 3. Those grounds were these:

2(a)    The second Respondent [IAA] has not asked the correct questions in relation to the Applicant being shot at in 2012.

The second Respondent has not asked the correct question, as to who actually inflicted the damage to the Applicant’s property in 2012.

2(c)    The second Respondent has not taken a relevant consideration(s) into account and/or has not asked the correct question.

PARTICULARS

The Second Respondent has not considered the cumulative nature of all of the criminal acts against the Applicant, which have largely been accepted as occurring by the Second Respondent. Further, given that the Applicant has experienced four (4) criminal acts perpetrated against himself and his brother, now deceased, does the Applicant not now face a real risk of suffering significant harm again?

3    The Second Respondent has been unreasonable, illogical and irrational and a jurisdictional error has occurred.

PARTICULARS

The Second Respondent has been manifestly unreasonable in applying “the real risk of significant harm” test as set out in s 36(2)(aa) of the Act and the decision is so unreasonable that no reasonable authority would have made such a decision. Further the decision is irrational and illogical and only one conclusion is available on the evidence and the Second Respondent has not come to that conclusion.

38    As previously mentioned, the only ground now sought to be relied upon before the Full Court is the ground recited at [5] of these reasons. For the sake of convenience, I will set that ground out again here:

1.    An integer of the appellant’s claims before the Immigration Assessment Authority (“the IAA”) was that he may face a real risk of significant harm from criminal violence should he return to Sri Lanka. Although the appellant did not expressly make this claim before the Department or the IAA, the case arose on the material and evidence before the IAA. The IAA failed to deal with this integer of the appellant’s claims. This was a jurisdictional error.

39    The applicant does not seek to demonstrate error on the part of the primary judge in dismissing the amended application arising out of the primary judge’s analysis of grounds 2(a), 2(c) and 3. Rather, the applicant seeks leave to rely only upon the new ground. The applicant says, however, that there is a “particularly close” overlap between grounds 2(c) and 3 agitated in the Federal Circuit Court and the new ground with the result that the “injustice” to the respondent of raising the new ground is diminished: para 30, submissions.

40    For the purposes of s 36(2)(aa) of the Act, the question is whether, in relation to this applicant, the Minister (or the IAA) is satisfied Australia has protection obligations because the Minister (or the IAA) has substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer “significant harm” in the sense in which that term is understood by reason of s 36(2A) of the Act. Section 36(2A)(d) and (e) provide that a non-citizen will suffer significant harm if the non-citizen will be subjected to cruel or inhuman treatment or punishment (d); or the non-citizen will be subjected to degrading treatment or punishment (e). Section 36(2)(a), of course, addresses the question of whether the Minister (or the IAA) is satisfied that the applicant is a refugee having regard to the statutory provisions and, in particular, the understanding of the notion of a “well-founded fear of persecution” held (or not) by an applicant for a protection visa.

41    By the new ground, the applicant says that it was an integer of his claim before the IAA that he may face a real risk of significant harm “from criminal violence” should he return to Sri Lanka. The proposition is that the applicant claimed he would face a real risk of significant harm from criminal violence “in general” should he return to Sri Lanka and not simply criminal violence at the hands of two particular individuals known as “F” and “R”. The applicant’s case on appeal is that although he accepts that he did not “expressly articulate a claim that he faced a real risk of significant harm from criminal violence in general should he return to Sri Lanka”, the case that the applicant faced such significant harm in general was, he says, “raised by the material or evidence before the IAA” and the claim arose “squarely on the material available to the tribunal [IAA]”. The applicant says that the IAA’s failure to address that case amounts to a constructive failure to exercise the IAA’s jurisdiction: para 38, submissions.

42    It is now necessary to examine whether such a case was raised squarely on the material available to the IAA notwithstanding that the applicant did not expressly articulate such a claim.

Background and the 2006 event

43    The applicant relies upon aspects of the description of his claims recited in the Protection Visa Assessment by the case officer which begins at CB 223 (being the Court Book of 10 October 2017 before the Federal Circuit Court of Australia). At CB 229, the claims begin. The applicant is of Tamil ethnicity born in the North Western Province of Sri Lanka. The applicant attended a Muslim school and was taught in the Sinhala language. His brother attended a different school and was taught the Tamil language. The applicant claimed to be in fear of “underworld figures” named F and R. The applicant claimed that F and R killed his brother in 2006 and that those two individuals were now pursuing him because he had told the police that it was they who had killed his brother.

44    The applicant claimed that his brother was associated with a notorious criminal, “P” who was the leader of one of the underworld groups. Other associates were “R2” and “I” who were also criminals.

45    All three were said to have committed several murders. The applicant’s brother was shot in 2006. The applicant claimed that he had been told by his brother’s friends, who were present when the shooting occurred, that his brother had been murdered by F and R. The applicant said that he went to different police stations in Colombo to urge them to investigate his brother’s murder by F and R. F and R were arrested and then released a short time later. The applicant claimed that he then began to receive threats that if he continued to go to the police he would be killed. He stopped going to the police. He claimed that one or two weeks after he stopped going to the police, he received more telephone calls demanding that he pay money or he would be killed. The applicant said that these threats did not relate to his having gone to the police but were concerned with demanding money using threats of violence and threats to close his business which was a restaurant. The applicant contended that these people making the demands were “using extortion to obtain money”. The applicant said that he paid 20,000 to 30,000 Lakhs twice (apparently in three or four instalments) over two to three months. The applicant asserted that he understood that if he did not pay the money demanded of him, the persons making the demands would shut his business down. The applicant claimed that P, R2 and I were no longer alive. He said that F and R “may still be there”. As to these matters, see paras 55 to 69 at CB 229, 230.

The 2008 event

46    The applicant also described events which occurred in 2008 (CB 231).

47    The applicant said that after his brother’s death he stayed in Colombo as he had a business there. His business was going “very well”. The demands for money continued. F and R kept asking for more money. They requested “four or five grand” (CB 232, para 78) to be given to them otherwise they would stop the applicant from conducting his business. The applicant claimed to have paid F and R four or five times. In December 2008, the applicant told F and R that he could no longer continue to pay them.

48    The applicant told the case officer that on the morning of 25 December 2008 he had been to the market and returned to his restaurant. He took the purchases inside and went back outside. He was outside the restaurant when five or six people came from behind him and attacked him. He did not know who they were and did not know how they had arrived. He said that it was a busy street and he had not seen them approaching. The applicant said that he was stabbed multiple times. He said that the attackers said to him that two or three weeks ago he had spoken to F and had said that he would not pay any more money. The applicant said that the attackers said: “now you are going to die”. They then stabbed him. They left the scene and he was taken to hospital. He was in intensive care in a government hospital in Colombo for 15 days and in hospital for two months. He was discharged in February 2009. He told the case officer that when he came out of intensive care, the police interviewed him in the hospital and asked him about the attack. The applicant said that he told the police that F and R were responsible for the attack. He says that the police have not taken any action in relation to this incident.

49    In the interview with the case officer, the applicant said that a police report had not actually been filed. The applicant said that his family had spoken to police in the hospital but had elected not to take the matter any further. The applicant said that the family felt that as a result of their experience with his brother, nothing would be done and they may be in danger should they pursue the matter any further. He said that his business had been kept open by a family member but when he left hospital he closed the business and moved to a particular place in Sri Lanka in March 2009.

50    The case officer accepted that the applicant had been attacked in 2008 at his business after refusing to pay money to extortionists.

The 2012 event

51    In March 2009, after being discharged from hospital and closing his business in Colombo, the applicant moved to a particular part of Sri Lanka. He married in 2010. He opened another business in the relevant town in 2010 described as “a fresh chicken meat shop”. He told the case officer these things. He said that he “worked this business” over a period of two years and it was going well. Then, another incident occurred in April 2012. In the evening, he was on his way to the hospital to see his newly born son. He was on his “three-wheeler” when two people came in front of him on a motorbike and he had to stop. The persons had full face helmets on so he could not see their faces at all. He had to stop his three-wheeler and they started shooting at him straightaway. Bullets hit his three-wheeler and his shop as well. He managed to escape. The case officer then recites the elements of the applicant’s written statement which recites that two men on a motorbike wearing helmets attempted to “gun down” the applicant and as soon as he saw the men approach his shop and saw one of the men take out a pistol, he ducked and managed to escape. In that statement, he said that two bullets were fired towards him but fortunately the bullets struck his three wheeler. He fled the area and managed to escape.

52    The applicant, by Mr Zipser, places emphasis upon a document at CB 151 described as “A True English Translation” with a sub-heading “Extract from the Information Book of [#] Police Station”. The translation is in these terms:

[AVH17] … states as follows. I am residing at the above address. I am married and have a child. I am doing business as my profession. On 23/04/2012 at about 7.00p.m. I was at my chicken stole [store], and I heard a person firing few shots. I got scared and I ran out with the brother Ahamed – an employee who served in this shop. There was a Three Wheel No: [redacted] parked in front of my chicken stole [store]. And my said vehicle was damaged. I shall give the cost of damage later. [Today] on 24/04/2012 I came to lodge this complaint. This is only what I have to say, Read and explained. Admitted as correct. I PC [Police Constable] [redacted] have recorded the statement of [redacted] correctly.

53    This extract is said by the applicant to be a true extract taken from the information book at the police station at the relevant town, signed by the officer in charge.

54    The case officer notes that the applicant said that the applicant’s father had made the report to the police. The case officer notes that in the police report there is no mention of F and R. The applicant said that the police had asked whether the applicant had seen the face of the attackers and the motorbike number. The applicant said that he could not provide that information.

55    Mr Zipser says that the police report at least evidences a “criminal act” having occurred concerning the discharge of the firearm and the damage to property. The criminal act gave rise to damage, in particular, to the applicant’s property.

56    The case officer (CB 233, para 98), notes that the applicant was asked why he thought F and R were involved in the incident at the applicant’s chicken store at [redacted]. The applicant said that, when in Colombo in 2008, he had told F and R that he would not pay them any further monies, they had said to him that they “would target him at any time”: para 98. The applicant told the case officer that he had no enemies in [redacted] “so that is why he thought it was [F and R]: para 98. The case officer observed that there was nothing before him to link the incident outside the chicken store with F and R except the applicant’s belief that because he had no other enemies “it had to be them”: para 100.

57    The case officer notes that having regard to particular inconsistencies he identifies in the applicant’s account of the shooting incident, the case officer did not accept the applicant’s claim that after opening a store in [redacted] he had been shot at by criminals F and R in an incident of ongoing “gang retribution”: para 101. The case officer notes at para 102 that the applicant was asked why he thought F and R would still be interested in him and the case officer notes that the applicant said: “because I argued with them, saying I would not pay, then they stabbed me, and after two years they came back to kill me at my shop, I think they still will have grudge and anger with me”.

58    The case officer notes that the applicant further stated that he did not know why F and R would still be interested in him, he just knows that “they still want to kill me six years after my brother’s death so they will always want to kill me”: para 102.

59    The case officer notes that the applicant was asked what he feared would happen should he return to Sri Lanka and the applicant responded that F and R would find him; that it might take six months but they would eventually find him: para 103. The case officer notes that the applicant was asked whether it was only F and R that he feared and he responded that those were the only names he knew “but they are a big group”: para 104. When asked whether he could relocate within the country he responded that “they came one hundred and fifty kilometres to kill me, so wherever I go, might take six months, but they will find me and come [and] kill me”: para 104. The case officer notes that the applicant said that “this criminal gang” mainly conducted their activities in Colombo but did go to other areas: para 104. The case officer, at para 105, recites that the applicant feared harm “from criminals named [F] and [R]”.

60    The first respondent Minister says that all of these exchanges between the applicant and the case officer are consistent with the proposition that the applicant felt a fear of significant harm from F and R should he return to Sri Lanka and not a fear of a real risk of significant harm from criminal violence “in general” should he return to Sri Lanka. The Minister draws attention to the submission of 30 September 2016 by the applicant’s agent, James Brown, to the IAA (CB 259, 260) which emphasises the relationship between past events and F and R as a basis for the applicant’s fear of harm from F and R, not from criminal violence generally. At CB 260, the applicant’s agent says this:

Incredibly the delegate could not find a link between my client’s brother’s death and the incidents involving [F and R]. [AVH17] had no enemies in Sri Lanka until he reported details of his brother’s death to Police. It was after this that serious attempts were made on his life.

[emphasis added]

61    The Minister’s short point is that this submission is only consistent with a fear of significant harm at the hands of F and R and not by reason of criminal activity generally. In an “Addendum” from the applicant’s agent to the IAA (sent to the IAA by email on 13 October 2016), this summary was put to the IAA (at CB 263):

So in summary, contrary to what the case officer believed, [AVH17] was threatened by the criminals only after he had reported his brother’s murder to the Police. [AVH17] was reasonably wealthy and owned a thriving restaurant business and could have been threatened with extortion any time before his complaint to police. If criminal to business extortion was their motive they had ample opportunity to do so. They did not until after the complaint had been lodged. This clearly indicates the link between his brother’s death, the complaint to police and the subsequent threats by criminals.

[emphasis added]

62    The link, of course, as asserted by the applicant in the exchanges earlier described is the link between his brother’s death, his complaint to police about F and R’s responsibility for it and the immediate subsequent threats made to the applicant by F and R.

63    At CB 264, the applicant’s agent said this in the Addendum sent by email to the IAA on 13 October 2016:

So, should [AVH17] be returned to Sri Lanka, he would face the prospect of being hunted down by the criminals responsible for his brother’s death and have no chance of affording the protection of the police as they too would have a vested interest in ensuring that my client did not live to see justice done.

[emphasis added]

64    The applicant described the April 2012 incident in his declaration of 14 August 2013 (CB 53) in this way:

17.    One day in the month of April 2012 while I was working in the chicken shop in [redacted] at approximately 6pm/7pm two men on a motorbike (black colour) who were wearing helmets attempted to gun me down. As soon as I saw the men approach my shop and one of the men pull out his pistol I ducked and managed to escape. Two bullets were fired towards me, but fortunately the bullets struck my three wheeler. I fled the area and managed to escape.

18.    I believe F and R and their men finally found out where I had relocated to and [I] feared it would only be a matter of time before they kill me.

19.    Hence I fled Sri Lanka in August 2012.

[emphasis added]

65    The applicant relies upon a statement made by the applicant’s agent, Mr Brown. Mr Brown’s letter of 30 September 2016 to the IAA takes up some of the language at para 18 of the applicant’s declaration quoted above. Mr Brown said this:

He [the applicant] relocated to [redacted] but even though it was four years after the first attack, another attempt was made on his life. It was obvious to [the applicant] that it would only be a matter of time before the criminal element would succeed in taking his life and that it would happen no matter where he was in Sri Lanka.

66    This statement is said to be consistent with a claim on the face of the material that the applicant was asserting a real risk of significant harm from criminal elements generally and not simply a fear of significant harm from F and R and those associated with F and R. However, that general statement cannot prevail over the very specific formulation reflected in the applicant’s claims and in the two letters from Mr Brown to the IAA which expressly link the applicant’s assertion of a real risk of significant harm with his belief in the steps F and R would take against him and F and R’s conduct directed towards him. It is the steps and conduct of F and R that caused the applicant to flee Sri Lanka in August 2012, as he says at para 19 of his declaration.

67    The IAA does not address or deal with a contended claim that substantial grounds subsisted for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there subsisted a real risk that the applicant would suffer significant harm as that term is understood. That claim was not addressed by the IAA because it is clear from all of the references relied upon by the applicant, the material before the IAA examined in its totality and the details of the reasons of the IAA that it simply was not made by the applicant. It did not arise expressly as the applicant concedes and it did not arise otherwise. The IAA did not fall into a constructive refusal to exercise the statutory power. That claim did not arise expressly or inferentially or on any other basis.

68    Accordingly, the proposed new ground of appeal has no prospect of success.

69    Moreover, having regard to the inadequate explanation for the delay and the absence of any basis for a conclusion that the IAA fell into jurisdictional error or otherwise constructively refused to engage with its statutory obligations, the application for leave to rely upon the new ground must be refused.

70    It follows that the application for an extension of time to enable the applicant to file a notice of appeal relying on the proposed ground must be refused with costs. I do so primarily because the proposed ground of appeal has no prospect of success.

Associate:

Dated:    13 February 2019