FEDERAL COURT OF AUSTRALIA

AXL17 v Minister for Immigration and Border Protection (No 2) [2019] FCA 778

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first and second appellants pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) on 31 July 2018 dismissing an application for judicial review of a decision of the second respondent (Tribunal): AXL17 v Minister for Immigration [2018] FCCA 2077 (AXL17). The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (Minister), refusing to grant the appellants a protection visa.

background

2    The appellants are citizens of Sri Lanka who arrived in Australia on 11 April 2014 as the holders of visitor visas. The first appellant is the husband (Husband), the second appellant is his wife (Wife) and the third and fourth appellants are their children (collectively Children). On 22 February 2019 the Court made orders appointing the Husband as litigation representative for the Children.

3    On 28 April 2014 the appellants applied for Protection (Class XA) visas (Visas). A statement dated 26 April 2014 made by the Husband which was annexed to the application set out the following claims:

(1)    the Husband fears harm because of his involvement with the United National Party (UNP) which is the main opposition party in Sri Lanka. His parents, the Wife’s parents and their parents have been strong supporters of the UNP and he has many relatives and friends in the UNP;

(2)    the Husband was serving in the Sri Lankan Navy as a medical assistant until December 2013;

(3)    the appellants’ neighbour Mr Nimal Perera, a brother of George Perera (Mr Perera), was a provincial councillor in the Western Provincial Council who won the provincial council election held on 29 March 2014;

(4)    after completing his 22 years of bonded service with the Navy, the Husband began to work in a medical centre in Gampaha;

(5)    in early January 2014 the United Peoples Freedom Alliance (UPFA) dissolved the Southern and Western Provincial Councils. At the time Mr Perera began to visit the appellants’ home and asked the Husband whether he would be interested in helping in future elections which he was intending to contest. The Husband agreed to do so;

(6)    at the end of February 2014 the government announced that the Southern and Western Provincial Council elections would be held on 29 March 2014. The Husband, along with others, began to work for Mr Perera who was one of the 43 candidates from the UNP in the Gampaha district. The Husband’s vehicle was used to transport posters, notices and pamphlets and the Husband accompanied Mr Perera on house-to-house campaigning;

(7)    in mid March 2014 the Husband began to receive threatening phone calls at his home in which he was told he should not get involved in politics or support Mr Perera. The Husband’s in-laws also received threatening phone calls warning them that the Husband should not get involved in politics;

(8)    the Husband received an anonymous threatening letter warning him to stop supporting the opposition party;

(9)    following receipt of these threats the Husband made two complaints to the police. The incidents were also published in the Sri Lankan newspapers;

(10)    despite his Wife, in-laws and Children asking him not to get involved in politics he continued to campaign for Mr Perera;

(11)    on 24 March 2014 Mr Perera’s house was attacked by a group of unknown persons who threw a grenade at the house. The attack was believed to be perpetrated by a group associated with the UPFA;

(12)    on 28 March 2014 the Husband was approached by an unidentified group and threatened at gunpoint. He was warned that if Mr Perera won the election they would kill him and that he should not inform the police about the incident;

(13)    the Husband was aware that in January 2013 a council member from his area was murdered by motorcycle gunmen outside his house and another UNP supporter had been killed by unknown people on 18 March 2014. In light of heightening tension in the area, the Husband moved out of his home region until his departure with his family from Sri Lanka on 10 April 2014; and

(14)    the Husband understands that his father-in-law continues to receive phone calls from unknown persons asking about him. He fears returning to Sri Lanka with the Children as he believes that if he does he will be targeted by thugs associated with the UPFA. The Husband claims that he cannot live in any other part of Sri Lanka because UPFA supporters are everywhere.

4    On 23 December 2014 a delegate of the Minister refused to grant the appellants the Visas.

5    On 19 January 2015 the appellants applied to the Refuge Review Tribunal (now the Tribunal) for review of the delegate’s decision and on 10 May 2016 they attended a hearing to present arguments and give evidence.

6    On 8 February 2017 the Tribunal affirmed the decision under review.

tribunal decision

7    The Tribunal provided detailed reasons for affirming the delegate’s decision. It commenced by setting out the criterion for the grant of a protection visa, the appellants’ claims, the documentation provided to the Department of Immigration and Border Protection (Department), a summary of the Husband’s interview with the delegate, the delegate’s decision and the evidence that the Husband and Wife had given at the Tribunal hearing.

8    At [25] of its decision record, under the heading “Documentation provided to the Department”, the Tribunal relevantly noted that:

… The applicant provided copies of English translations of two anonymous letters: the first demands the applicant ‘put an end to working for the United National Party immediately’; the second states that despite our warning, you knowingly did work, didn’t you? You have children, don’t you, Take good care of the. This is the final warning. The translations were provided by an accredited interpreter who stated that he saw the original Sinhalese letters and complaints, but the originals were not provided to the Department. There is no indication on what date the letters were sent.

(footnotes omitted, emphasis in original.)

9    At [67]-[68] of its decision record, under the heading “Application to the Tribunal”, in discussing the answers given to the Tribunal by the Husband and Wife, the Tribunal said:

67.    …The [Wife] said even when they complained to the police and came to Australia they received one letter which warned them to take care of their two children, as well as threatening telephone calls saying that they were looking for her husband. They went to the police to complain and the first two entries were accepted. After that they did not accept the entries saying the [Husband] was not in the country. I observed that if the [Husband] was in the country there did not seem to be any reason that the police would not investigate his complaints and I noted that his brother was a police officer in Matale.

68.    The [Wife] said next time his father went with one of the friends who knew the police and because of his word the police took the entry. I asked when his father-in-law made that complaint. The [Wife] said she couldn’t remember the date and the [Husband] added it was on one of the documents he had submitted to the Tribunal at the hearing. The [Wife] said she thought this happened a year ago. The [Wife] said she had been working in Sri Lanka as a private company executive. Her father told she received a letter threatening about her children. Her brother, who is in Australia, said that he would ask whether she could obtain protection in Australia. …

10    At [72] of its decision record, under the heading “Late request to take evidence from child applicants”, the Tribunal noted:

At the close of the hearing the [Wife] suggested that I take evidence from [the Children] about how frightened they were after the events of 2014. At the hearing I indicated that I did not consider it necessary to question the [Children] and reiterated that the issue that the Tribunal had to consider was whether there was a real chance the [appellants] would face serious harm or significant harm if they returned to Sri Lanka. The Tribunal notes that the [appellants] have not claimed and nor is their [sic] evidence to suggest that the [Children] were ever directly threatened or harmed in Sri Lanka and the [Wife] did not press the late request to take evidence from the children. In these circumstances, while I accept that the [Children] would have given evidence corroborating their father’s claims and affirming that this was a frightening time for their family, the Tribunal was not satisfied that there would have been any utility in interviewing the [Children] and declined to do so.

11    The Tribunal then turned to assess the appellants’ claims. The following summary of the Tribunal’s findings is substantially taken from the Minister’s submissions.

12    The Tribunal was prepared to accept the following claims: the Husband is a UNP supporter; in 2014 he was a campaign worker for Mr Perera in the provincial council elections; during the campaign he received threatening phone calls and letters warning him to stop supporting the UNP; on 28 March 2014 he was threatened and assaulted by unknown assailants; he reported the threatening phone calls to the police; and on 10 April 2014 he departed Sri Lanka with his family. However, the Tribunal did not accept that, after the Husband departed Sri Lanka, his father-in-law received calls threatening him and that a threatening letter was sent to the Husband at his father-in-law’s home in around May 2014 or at any other time. The Tribunal did not accept that the Husband was of any ongoing adverse interest to any person or group in Sri Lanka.

13    At [86] of its decision record the Tribunal addressed the documentation provided by the Husband in support of his claims, including that:

... As I put to the [Husband], the country information available to the Tribunal indicates that fraudulent documentation is readily available and in this context I consider I can give little weight to the documentation the [Husband] has produced of the police complaints which he claims he made or which he claims his father-in-law made. In any event, as I discussed with the [Husband], the police complaints only record what was reported by the [Husband] and his father-in-law to the police. The descriptions of the complaints are brief - each receipt simply states the nature of the complaint is ‘for future protection.’ Even if the documents are accepted on face value, they only show that complaints were made to the police; they do not explain what the complaints were about, or establish whether there was a factual basis for the complaint. Similarly, while the Departmental file contains a translation of a Sinhalese document that was purportedly sent to the [Husband’s] home, it does not reveal when the letter was sent or who its author is and, given such a letter could easily been manufactured, the Tribunal gives it little weight.

14    Based on country information the Tribunal did not accept that there was a real chance the Husband would face serious or significant harm because he was a member of the UNP and noted that its assessment would not change even if the Husband was to become an active supporter of the UNP or to involve himself as a campaign worker.

15    The Tribunal then went on to find that, on the evidence before it, it was reasonably practicable for the appellants to locate to another part of Sri Lanka, such as Matale which it noted was “some 120 kilometres away from Kelaniya”.

16    The Tribunal found, having regard to all the circumstances, that the Husband did not have a well-founded fear of persecution because of his political opinion or any other Convention reason if he returned to Sri Lanka then or in the reasonably foreseeable future. Similarly, the Tribunal did not accept that the Wife or the Children had a well-founded fear of persecution for a Convention reason or for any other reason.

17    The Tribunal then considered whether the appellants were entitled to complementary protection. The Tribunal noted that, even if it were to accept that there was a real risk the Husband might be targeted and harmed by unknown persons who threatened and assaulted him in 2014 because of his support for the UNP, it was satisfied that this risk was localised and only existed in his home area. It did not accept that there was a real risk that the Husband or his immediate family would suffer significant harm if they relocated away from their home area in Kelaniya district to another area of Sri Lanka such as Matale.

Federal Circuit Court proceeding

18    The appellants sought judicial review of the Tribunal’s decision in the Federal Circuit Court. They relied on an amended application filed on 23 July 2018 in which they raised two grounds:

(1)    The Tribunal made jurisdictional error in that the Tribunal failed to consider an issue it was required to consider or failed to ask a question it should have asked, that is “What is the reason for the perpetrators to attack and threaten the main applicant around mid­night on 28 March 2014 just before the election day on 29 March 2014?” or ask any question similar in substance

….

(2)    The Tribunal made jurisdictional error in that (i) in assessing whether the applicant could relocate the Tribunal applied the wrong test for relocation and (ii) it failed to deal with the applicant’s claim about relocation in that it is only short distance between Kelaniya and Matale and that UNFA have sharp intelligence and they can find where people are

(particulars omitted.)

19    In relation to ground one the primary judge noted that counsel for the appellants framed the ground as a failure to consider evidence and submitted that the Tribunal failed to take into account relevant material. Her Honour understood the appellants’ argument to be that the motivation for the threats against the Husband on 28 March 2014 should have been seen through the prism of references to election-based violence, the timing of the threat around midnight the night before the elections and post-election threats against the father-in-law: AXL17 at [62]-[63].

20    The primary judge noted that the Tribunal must deal with any claim that squarely arises on the material before it. Her Honour found that the Husband was given every opportunity to present his evidence at the Tribunal hearing but, based on the evidence and material before the Tribunal, no such claim arose squarely on the material before it and the Husband never suggested that the threat on 28 March 2014 was motivated by revenge. The primary judge found that the Tribunal properly considered the risk to the Husband if he was to return to Sri Lanka as a low-profile campaign worker involved only in the 29 March 2014 election and that the Tribunal’s findings that the Husband would not be at risk for those reasons if he returned to Sri Lanka were open to it on the evidence and material before it and for the reasons it gave: AXL17 at [65]-[70].

21    In relation to ground two, her Honour noted two matters. First, the Minister’s concession that the Tribunal was not required to consider relocation given its lack of satisfaction that the Husband would face serious or significant harm on return to Sri Lanka; and secondly, the Minister’s submission that because relocation was an alternative finding, even if that finding was affected by some jurisdictional error, to be successful in his application before the court the Husband would need to establish jurisdictional error in the Tribunal’s primary finding that he would not suffer serious or significant harm: AXL17 at [75].

22    The primary judge accepted the Minister’s submission that the question of whether the Husband is of ongoing interest is relevant to the question of whether he can relocate to avoid harm and that the Tribunal applied the conventional relocation test in considering the issue of relocation, which it was entitled to do: AXL17 at [80]-[81].

23    Insofar as ground two asserted that the Tribunal failed to consider the Husband’s evidence as to why he could not avoid the feared harm by relocating to another part of Sri Lanka, the primary judge found that this assertion was not made out and that the Tribunal had referred in detail to the Husband’s evidence in that regard. The primary judge concluded that the Tribunal’s findings on the issue of relocation were open to it on the evidence and material before it: AXL17 at [82]-[86].

the appeal

24    The appellants rely on a notice of appeal filed on 14 August 2018 (Notice of Appeal), an amended notice of appeal filed on 18 February 2019 in which they seek to raise three “additional grounds of appeal” (Amended Notice of Appeal) and a further amended notice of appeal in which they raise one further ground which was first articulated orally at the hearing of the appeal as explained at [28]-[29] below (Further Amended Notice of Appeal). None of the grounds raised by the appellants were raised before the primary judge.

25    The Notice of Appeal includes two grounds:

1.    The Administrative Appeals Tribunal (AAT) made jurisdictional error by contrary to Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) (2002) 216 CLR 473; 78 ALJR 180; 203 ALR 112 insisting or requiring the appellant to modify his conduct by refraining from engaging in political activities.

Particulars

a)    The High Court of Australia’s landmark 2003 decision in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs held that decision-makers are not permitted to impose any requirement upon asylum seekers to ‘act discreetly’ in order to avoid persecution.

b)    The judgments indicated that the central question to be asked is whether an applicant faces a well-founded fear of persecution in the light of what he or she will do upon return, not what he or she should do. See S395 (2003) 216 CLR 473, 492 [50] (McHugh and Kirby JJ); 500-01 [80]-[82] (Gummow and Hayne JJ).

c)    The Administrative Appeals Tribunal (Hereinafter refers as “Tribunal) said “I asked the applicant whether he would want to be involved in politics if he went back to Sri Lanka. He said sometimes he just can’t keep quite when he sees injustice in the country, may be he will work against those injustices if he goes back” [para 51].

d)    The Federal Circuit Court Judge Emmett failed to hold that it was a jurisdictional error.

2.    The Tribunal failed to consider to what extent should the discretion prohibition and relocation of the context in which the applicants claims are to apply the reasonable relocation test. Thereby the Tribunal had committed an error of law in its use of relocation (see SZATV (2007) 233 CLR 18, 29 [32] (Gummow, Hayne, Crennan JJ); 49 [103] (Kirby J); 49 [108] (Callinan J).

Particulars

a)    The Tribunal said “Nonetheless, out of an abundance of caution, I have considered whether, even if it were accepted that there was a real chance that the applicant would again attract the attention of the same unidentified thugs if he actively supported the UNP in Kelaniya, he could avoid the harm he fears in his home area by relocating to another part of Sri Lanka” [para 93].

b)    The Tribunal also said “Because I do not accept that there is real chance that the applicant will face serious harm if he relocates to another part of Sri Lanka, I find that the risk he will be harmed upon return is limited to Kelaniya. It follows that I do not accept that there is a real chance that his family will face harm of any type (including serious harm) if they relocate to another part of Sri Lanka with him” [para 96].

c)    The Tribunal further said “I find, therefore, that it would be reasonable for the applicants to relocate to another part of Sri Lanka where there would not be a real risk that they will suffer significant harm” [para 103].

d)    The Federal Circuit Court Judge Emmett would have found that the findings of the Tribunal cannot be a reasonable adjustment, contemplated by the Refugee Convention, that a person should have to relocate internally by sacrificing one of the fundamental attributes of human existence which the specified grounds in the Refugee Convention are intended to protect and upholds. Therefore, it is an error of jurisdiction effectively to impose that requirement in the applicants case.

(emphasis in original.)

26    The Amended Notice of Appeal includes the following three “additional” grounds:

1.    The Administrative Appeals Tribunal misconstrued its statutory task or constructively failed to exercise jurisdiction in by failing to take the best interest of minor children of the applicant into account as a primary consideration affected by the decision which is a jurisdictional error.

Particulars

a)    The Tribunal is to make a determination as to whether or not revocation was in the best interest of the children.

b)    The two children of the applicants are 15 and 8 years at the time of the decision made by the Tribunal. They have been living with the applicant and his wife in Australia for nearly five years having spent their formatting years in Australia.

c)    The Tribunal made no finding as to whether relocation was in the best interest of the children.

d)    See the Full Court in the decision of Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; 107 FCR 133 at [32]. In the present matter the Tribunal’s treatment of the best interest of the children factor that it considered this factor “inherently less significant than other considerations”.

e)    In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 Mortimer J held it was Legally unreasonable or irrationally and the application was allowed. Though this is an appeal involving a refusal to revoke the mandatory cancellation of the applicant’s visa the appellant in this appeal relies on some propositions of that case in his appeal.

2.    The Tribunal erred in its finding at [para 98J “the applicants have family networks in other parts of Sri Lanka, including in Matale where the applicant was born and has previously lived.

Particulars

a)    Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [41] (in considering whether there had been a denial of procedural fairness in that case) held, “the circumstances of families are many and varied, and no stereotypical assumptions can be made about whether a family member is able (and willing) to provide assistance” of a substantial kind.

b)    The findings and the conclusion reached by the Tribunal at [para 98] involved an unfounded factual assumption about the nature and extent of support that the applicant was able to obtain from their family members in Sri Lanka. (See DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353).

3.    The change off government and the new information of the country information, the Administrative Appeals Tribunal’s decision has become legally unreasonable. (See Australian Retailers Association v Reserve Bank 2005 FCA 1707 at [457]-[459]).

Particulars

a)    the political situation was drastically changed on 26 October 2018 and the return of the Mahinda Rajapaksa and his administration was accused of serious human rights violations during his regime. At present the political situation in Sri Lanka is unstable.

b)    Where the political situation in a country is “fluid”, political developments concerning human rights and civil rights can move in different direction, including backwards (by deteriorating) example is the political situation in Hungary and Poland in recent years.

c)    According the above new information as there is a material change in the applicants’ circumstances which occurred after the Minister made a decision under s 65 of the Migration Act 1958 as the significant and rapidly deteriorating conditions emerging in the applicants’ country of claimed of protection, such as a change in the political and security landscape.

27    The appellants are not legally represented in this Court. They did not file any written submissions in support of the proposed grounds of appeal set out in their Notice of Appeal or Amended Notice of Appeal in accordance with the orders made by the Court on 6 September 2018 but made oral submissions at the hearing which are set out below.

28    As noted at [24] above, in the course of argument the appellants raised a further proposed ground of appeal concerning the Tribunal’s failure to consider a claim, namely that there had been threats aimed at the Children. They relied on [25] and [68] of the Tribunal’s decision record and the translation of an anonymous letter provided in support of the appellants’ application for the Visas.

29    At the conclusion of the hearing I granted leave to the parties to file submissions in relation to that proposed ground and for the appellants to file a further amended notice of appeal. The further ground raised by the appellants in the Further Amended Notice of Appeal is in the following terms:

1.    The Administrative Appeals Tribunal (hereinafter referred as “the Tribunal” failed to consider the claim that the third and fourth appellants received threats.

Particulars:

a)    The two children of the applicants are 15 and 8 years at the time of the decision made by the Tribunal. They have been living with the First appellant and his wife Second Appellant in Australia for nearly five years having spent their formatting years in Australia.

b)    The Tribunal in its decision dated 8 February 2017 at [para 25] (AB 667) said “the applicant provided copies of English translations of two anonymous letters: the first demands the applicant ‘put an end to working for the United National Party immediately’: the second states that ‘despite our warning, you knowingly did work, didn’t you? You have children, don’t you, take good care of them. This is the final warning’.

c)    In the transcript of the Tribunal hearing on 10 May 2016 in [page 33] at (AB 720) [the Wife] answered “especially my children” again to the question by the Tribunal Member Ms Simmons: The threats were made against your husband, not against your kids.” [The Wife] answered: In one letter they mentioned that, “Please protect your children.” I am not scarred of death but-yeah, we have lived our life so it’s okay, we can be killed. But I can’t see that my children be killed”.

d)    In the transcript of the Tribunal hearing on 10 May 2016 in [page 34] at (AB 721) [the Wife] also answered: “We went to complain to police and even when we came here there was one letter sent by our house. In that the thugs threaten, “Please take care of your two children.” These two English translations of the two anonymous letters are at (AB439 -AB441). The interpreter at the Tribunal hearing and the translator were two different persons.

e)    In the case of Ah Hin Teoh (1995) 128 ALR 353, the majority of High Court held “the Minister’s decisions to refuse Teoh residence and to deport him were an ‘action concerning children’ and according to Article 3.1 of the Convention, in such actions ‘the best interests’ of the children must be ‘a primary consideration’.

f)    In Article 12, the UN Committee on the Rights of the Child has stated, “[t]he right all children to be heard and taken seriously constitutes one of the fundamental values of the Convention.

g)    Chapter 3 of the UNHCR Guidelines consists essentially two key steps: collecting and analysing all relevant information; and balancing all relevant factors to determine which of the possible options is in the best interest of the child.

h)    The claims of fear of harm because of threats to the third and fourth appellants arose clearly on the material before the Tribunal and the Tribunal failed to deal with it. The Tribunal did not give meaningful or proper, genuine consideration to the appellants claims or to an integer of the appellants claims for fear of persecution. This is a jurisdictional error. (See SZSZQ v Minister for Immigration & Anor [2017] FCCA 592, Justice Katzmann)

(emphasis in original.)

30    As the grounds included in the Notice of Appeal, the Amended Notice of Appeal and the Further Amended Notice of Appeal were not raised before the Federal Circuit Court, the appellants require leave to rely on them in this Court.

31    The principles governing the grant of leave to rely on new grounds on appeal were summarised by a Full Court of this Court (Besanko, Gleeson and Burley JJ) in SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145 at [28]-[29] where their Honours relevantly said:

28    … The relevant principles for deciding whether to grant leave to raise a ground of challenge for the first time on appeal are set out in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48], as follows:

[46]    … 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] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[24] and [38].

[47]    In Coulton v Holcombe [1986] HCA 33; (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.

The statement of principle in Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [89]-[90] is to similar effect.

29    In MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1, the Full Court addressed an application for leave to raise on appeal matters not put to the Federal Magistrates Court of Australia, where the appellant had been unrepresented and put on no submissions at all. The Full Court said (at [66] to [68]):

[66]    In our opinion, if there was some merit in grounds 2 and 3, this would be a case where it would be expedient in the interests of justice to allow the grounds to be put for the first time.

[67]    However, we do not mean to say that appellants in administrative law matters of the kind with which this Court is concerned are entitled to think that they can put forward any new argument that occurs to their legal advisers on the appeal, whether or not it has been put before the Court at first instance.

[68]    All arguments, which an applicant wishes to put before the Court, must be put before the Court at first instance to be dealt with by that Court. The parties in a proceeding are entitled to expect that the opposing party, if an applicant, will have put all arguments upon which that applicant claims to be entitled to any relief or, if a respondent, will have put all defences upon which that respondent relies for dismissing the application. The Full Court is entitled to have the benefit of the reasons for judgment of the Court at first instance in respect of all arguments, in conducting its rehearing of the appeal. Although on this application we are inclined to decide the application by reference to the merits of the proposed new grounds, it cannot be thought that this Court should proceed on that basis in all cases. If the Court were compelled to consider an application of this kind by reference to whether or not the application would succeed, then that would have the de facto result that an appellant could raise any ground the appellant liked without reference to the arguments put before the Court at first instance.

32    The appellants have not explained their failure to raise any of their proposed grounds of appeal before the Federal Circuit Court. I note that the appellants were legally represented before the Federal Circuit Court but are not represented in this Court. The Minister has not pointed to any prejudice that may arise if leave was granted. Rather, the Minister opposes the grant of leave to rely on the new grounds on the basis that they lack sufficient merit to justify a grant of leave.

33    I will consider each proposed ground in turn.

Notice of Appeal

Ground one

34    By this ground the appellants allege that the Tribunal made a finding that the Husband would need to modify his behaviour. The appellants submitted that the Tribunal was asking the Husband to change his political views, which they characterised as unfair. The appellants said that the Husband’s political views reflected what he believed.

35    The appellants rely on the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [80]-[82] where Gummow and Hayne JJ relevantly said:

80    If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be “discreet” about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant’s fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.

…

82    Saying that an applicant for protection would live “discreetly” in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision-maker “expects” that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is “expected” to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity. No less importantly, if the Tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.

36    The Tribunal in this case recorded the Husband’s answers to its questions about his support of the UNP if he were to return to Sri Lanka at [51] of its decision record:

I put to the applicant that in the last two decades he was a member of the UNP but he was only involved in one political campaign but he was not otherwise politically active. I asked whether he would want to support the UNP if he went back to Sri Lanka. He said he couldn’t say exactly what would happen but he was always a member of and supporter of the UNP. I put to the applicant that his evidence to the Tribunal did not indicate that he was always active in support of the UNP: it indicated that he was active in the campaign of GP but that was the extent of his activity. I asked the applicant whether he would want to be involved in politics if he went back to Sri Lanka. He said sometimes he just can’t keep quiet when he sees injustice in the country, maybe he will work against those injustices if he goes back.

37    At [90] of its decision record the Tribunal made a finding about the Husband’s potential involvement in the UNP if he were to return to Sri Lanka. It said:

The applicant claims that he fears returning to Sri Lanka because he will be targeted by the UPFA supporters/ unknown persons who oppose the UNP. Having considered the applicant’s limited political involvement in Sri Lanka in past and his vague and unpersuasive responses about his interest in involving himself in politics in the future, I have serious doubts about whether the applicant would be motivated to actively involve himself in the UNP if he returned to Sri Lanka now or in the reasonably foreseeable future. However, even if the applicant were to actively support the UNP by working as a campaign worker in the future, I am not persuaded that there is a real chance (as opposed to one that is remote) that he will face serious harm or significant harm if he does so. In any event, as noted above, DFAT advise that political parties and their leaders and supporters can generally operate openly and freely in Sri Lanka today. In these circumstances, I do not accept that there is a real chance that the applicant will face persecution in Sri Lanka in the reasonably foreseeable future simply because of his support for the UNP.

38    In making those findings it is evident that the Tribunal took into account the Husband’s evidence recorded at [51] of its decision record (extracted at [36] above). That this is so is apparent from its reference to the “vague and unpersuasive” responses given to questions about the appellant’s interest in being involved in politics in the future. Critically, the Tribunal did not make a finding or consider whether the Husband could or should modify his behaviour if he were to return to Sri Lanka. Rather, it rejected the Husband’s claim to fear harm if he returned to Sri Lanka because he would be targeted by UPFA supporters on the basis that it had serious doubts about whether he would be motivated to actively involve himself in the UNP on his return. Further, the Tribunal found, based on country information, that even if the Husband were to actively support the UNP in the future by working on a campaign, there was not a real chance that he would face serious or significant harm.

39    On that basis, I find that this ground has no merit and I do not grant leave to raise it on appeal.

Ground two

40    By the particulars to this ground the appellants allege that the Tribunal failed to consider whether it was practicable for them to relocate. The appellants noted that the Tribunal had proposed that the appellants could relocate but submitted that Sri Lanka is a very small island; that everyone living there knows one another; that supporters of the UPFA are scattered throughout the country; and that the UPFA has an effective spy network. They further submitted that the Husband would need to work and the Children would need to go to school. They contended that, in those circumstances, they could not understand how they could live their lives without fear and risk because of the threats they had previously received from the UPFA which had been the subject of wide publicity. The appellants also contended that the UPFA used government officials, such as police and local government officials who knew everyone in particular areas, as spies and that if they were to relocate the Husband and Wife would be housebound. These were all matters which the appellants said had not been taken into account by the Tribunal.

41    Given that the Tribunal was not satisfied that the appellants would face serious or significant harm on return to Sri Lanka, it was not necessary for it to consider relocation. Nevertheless it did so. However, insofar as the appellants seek to impugn the Tribunal’s findings in relation to relocation, they cannot succeed on this appeal unless they also establish jurisdictional error in the Tribunal’s primary finding that it was not satisfied that the appellants would face serious or significant harm on return to Sri Lanka.

42    Putting that hurdle to one side, I do not accept that in applying the relocation test the Tribunal failed to consider the practicalities of the relocation. At [98] of the Tribunal’s decision record it said:

Furthermore, on the evidence before me, I am satisfied it would be reasonable, in the sense of practicable, for the [appellants] to relocate to another part of Sri Lanka. The [appellants] have demonstrated their resilience and capacity to relocate by moving from Sri Lanka to Australia and they have family networks in other parts of Sri Lanka, including in Matale where the [Husband] was born and has previously lived. In the circumstances of this case, I consider it is reasonable for the [appellants] to relocate to another part of Sri Lanka where, objectively, there is no appreciable risk of the occurrence of the feared persecution. On the evidence before me, I do not accept that it would be unreasonable for the [appellants] to relocate to another part of Sri Lanka. I consider that it is safe and reasonable, in the sense of practicable, for the [appellants] to avoid the harm they claim to fear because the [Husband] has attracted the adverse attention of unidentified persons in his local area by relocating to another part of Sri Lanka where there is no real chance that any of the [appellants] will be subject to serious harm for any of the reasons claimed.

43    It is clear that the Tribunal considered the practicalities of relocation for the appellants. It did so with reference to the appellants’ own circumstances and the issues raised by them, as it was required to do: see ELX17 v Minister for Immigration and Border Protection [2018] FCA 1372 at [19] and [21]. It had regard to the fact that they had demonstrated their ability to move, by reference to their move to Australia, and that they had family networks in other parts of Sri Lanka, in particular Matale. It also considered that, given the passing of time, the current political situation and the Husband’s lack of profile, the Husband would not be a target for abduction or affected by election related violence or targeted because of his support of the UNP if he relocated.

44    In my opinion ground two lacks merit and I do not grant leave to rely on it.

Amended Notice of Appeal

Ground one

45    By this ground the appellants allege that the Tribunal failed to take the best interests of the Children into account as a primary consideration and to make a finding in relation to whether relocation was in the best interests of the Children. In support of that claim the appellants rely on the decisions in Wan v Minister of Immigration and Multicultural Affairs (2001) 107 FCR 133 (Wan) and YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY). The appellants submitted that the Tribunal had not taken into account that the Children had been going to school in Australia for five years with the younger child having only ever gone to school in Australia and so being unable to speak or write in Sinhalese. The appellants submitted that it was unfair that the Tribunal had not considered the benefit to or education of the Children and that the Tribunal had not taken those circumstances into account.

46    This ground has no merit and I do not grant leave to rely on it.

47    First, the cases relied on by the appellants have no application to the appellants’ case.

48    In Wan the appellant, Mr Wan, who was married to an Australian citizen and had two children, both of whom were Australian citizens, applied for a permanent residence (general spouse) visa. A delegate of the Minister refused the grant of the visa because he was not satisfied that Mr Wan was of good character. The delegate’s decision was affirmed by the Tribunal and Mr Wan unsuccessfully appealed to this Court where he argued, relevantly, that the Tribunal did not give consideration to the best interests of his children. On appeal to a Full Court of this Court, Mr Wan alleged that the primary judge erred in determining that the Tribunal gave proper consideration to the best interests of the children in the exercise of the discretion not to grant his visa. The appeal was allowed.

49    Mr Wan’s appeal was determined within the framework of s 501 of the Migration Act 1958 (Cth) (Act) which, at the time, relevantly provided that the Minister may refuse to grant a visa where, having regard to a person’s past criminal conduct or general conduct, he is satisfied that the person is not of good character. In that context, in exercising its discretion to refuse to grant the visa the Tribunal was required to take into account the bests interests of any children as a primary consideration and, if it proposed to proceed on any other basis, it was required to give notice of that fact to Mr Wan: at [11]-[15]. The Full Court concluded that in exercising its discretion the Tribunal did not identify what the best interests of the children indicated it should decide with respect to Mr Wan’s application for a visa: at [26]. In the alternative, the Full Court held that the Tribunal also did not treat the best interests of the children as a primary consideration: at [31].

50    YNQY concerned an application for judicial review of a decision to refuse to revoke a mandatory cancellation of a visa under s 501(3A) of the Act. One of the grounds raised concerned whether the Tribunal had misconstrued its statutory task or constructively failed to exercise its jurisdiction by failing to take the best interests of the minor children in Australia into account as mandated by Direction No. 65. Mortimer J held that the Tribunal had failed to undertake the task required of it by Direction No. 65 when read with s 499 of the Act. Similarly to Wan, this was a case determined within the framework of a visa cancellation on character grounds and the matters to be taken into account by a decision-maker where, relevantly, there was an application for revocation of the cancellation decision.

51    Both Wan and YNQY concerned the exercise of a discretionary power which required that the decision-maker take into account certain matters including the best interests of any minor children. That is not a requirement in the case of the appellants who sought review by the Tribunal of the delegate’s decision not to grant them the Visas. Within the relevant legislative framework, there is no mandatory requirement to take the best interests of the Children into account. Rather the Tribunal was required to consider whether the appellants met one of the criteria in s 36(2) of the Act. The Children, as applicants for the Visas, need to be considered insofar as they have independent claims for the grant of the Visas under s 36 of the Act.

52    Secondly, insofar as this ground concerns relocation, the Tribunal considered the interests of all of the appellants, which necessarily includes the Children, when it made its relocation finding. The question that the Tribunal was required to address was whether it was reasonable, in the sense of it being practicable, for the appellants, including the Children, to relocate. The assessment of what is “reasonable”, in the sense of “practicable”, depends upon the particular circumstances of the applicants for refugee status and the impact upon those persons of relocation within their country of nationality: see SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [23]-[24] and [32] (Gummow, Hayne and Crennan JJ). As set out at [42]-[43] above, the Tribunal applied that test in making its finding that the appellants could relocate.

Ground two

53    By this ground the appellants allege that the Tribunal erred in its finding at [98] of its decision record that the appellants “have family networks in other parts of Sri Lanka, including in Matale where the [Husband] was born and previously lived” because it was based on an unfounded factual assumption about the nature and extent of support that the appellants were able to obtain from their family. The appellants submitted that the Tribunal failed to take account of any evidence in relation to that issue and that it made an assumption without taking into account that their relatives have their own families and businesses and that it is very hard for them to also support the appellants.

54    The appellants rely on the decision in DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353. In that case the question for the Court was whether, in the context of a relocation finding, the primary judge had erred in finding that there was evidence to support the Immigration Assessment Authority’s (IAA) finding that the appellant in that case would have recourse to financial assistance from his mother by reference to the land she held which could be sold or used by the mother to obtain a loan. The ground of review was identified as a “no evidence” ground. After referring to the relevant authorities and the evidence relied on by the IAA to make the finding, Gleeson J said at [33]:

In my view, there is an assumption underlying this reasoning that the appellant’s mother was able and willing to use her land as collateral for a loan for the appellant. However, the information in the protection visa application was to the contrary of this assumption and there is no suggestion of any other information (putting aside what might be inferred from the entry interview) that supported such an assumption. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [41] (in considering whether there had been a denial of procedural fairness in that case), “the circumstances of families are many and varied, and no stereotypical assumptions can be made about whether a family member is able (and willing) to provide assistance” of a substantial kind. In this case, contrary to the IAA and FCCA judge’s assumption that I have identified, the mother apparently had been unable or unwilling to provide assistance to relieve the appellant of his debt to SW.

55    Her Honour found that there was no evidence for the IAA’s conclusion about the appellant’s ability to have recourse to financial assistance from his mother by reference to his mother’s land.

56    In contrast, this is not a case where the Tribunal made an assumption or finding that there would be family support. Rather at [98] of its decision record the Tribunal said that, on the evidence before it, it was satisfied that it would be reasonable for the appellants to relocate. This included because the appellants “have family networks in other parts of Sri Lanka, including in Matale where the [Husband] was born and has previously lived”. There was evidence to sustain that finding as set out in the appellants’ application for the Visas. The other reason for the Tribunal’s satisfaction that it would be reasonable for the appellants to relocate was the appellants’ demonstrated resilience and capacity to relocate given their move to Australia.

57    In light of the matters set out above, this ground lacks merit and I do not grant leave to rely on it.

Ground three

58    By this ground the appellants allege that the Tribunal’s decision “has become legally unreasonable” because the political situation has changed as a result of recent events occurring as at October 2018. The appellants submitted that the political situation in Sri Lanka is fragile and constantly changing. They said that in October 2018 there was huge political upheaval and that there were two prime ministers controlling the country at one time, making the current political situation uncertain. The appellants contended that failure to pay attention to the political situation in Sri Lanka would result in unfairness for them and that the Tribunal should have made its decision having regard to the changing political landscape.

59    The events referred to by the appellants postdate the Tribunal’s decision. They can thus have no relevance to or impact on it. In those circumstances this ground cannot succeed and I do not grant leave to raise it.

Further Amended Notice of Appeal

60    By the ground raised in the Further Amended Notice of Appeal, the appellants claim that the Tribunal failed to consider the claim that the Children received threats. The appellants rely on:

(1)    an anonymous letter which states:

Despite our warning, you knowingly did work didn’t you? You have children, don’t you? Take good care of them. This is the final warning.

(2)    the Wife’s evidence at the Tribunal hearing as follows:

INTERPRETER ([WIFE]):    In one letter they mention that, “Please protect your children.” I am not scared of death but - yeah, we have lived our life so it’s okay, we can be killed. But I can’t see that my children be killed.

And:

INTERPRETER ([WIFE]):    We went to complain to police and even when we came here there was one letter sent by our house. In that the thugs threatened that, “Please take care of your two children.” After that, a few threatening telephone calls to say that they were looking for him - looking for my husband. So my father went to put a complaint again to the police entry. The first two entries was accepted. Afterwards they did not accept, saying that now my husband is not in the country and just keep - I mean they leave it and they fear for it.

61    The appellants referred to art 3(1) of the 1989 Convention on the Rights of the Child (Convention) and submitted that the interests of the child must be the subject of active consideration and that it was necessary to demonstrate that their interests had been explored and taken into account as a primary consideration. The appellants referred to the decision in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (Teoh). They noted that identification of what the best interests of the child requires, and the recognition by a decision-maker of the need to treat such interests as a primary consideration, do not lead inexorably to a decision to adopt a course in conformity with those interests. They submitted that it was legally open to a decision-maker to depart from the best interests of a child but in order to do so the decision-maker was required first, not to treat any other factors as inherently more significant than the best interests of the child; and secondly, to find that the strength of other relevant considerations outweighed consideration of the best interests of the child, understood as a primary consideration.

62    The appellants submitted that the relevant issue was whether the Department took into account the best interests of the Children as a primary consideration when it made the decision whether they would face persecution in view of the threats, and that the “[i]mmigration procedure frequently ignore [sic] the plight of the children directly affected by immigration proceedings”.

63    For the same reasons as set out at [45] to [52] above, the appellants’ reliance on Teoh is misconceived. In Teoh, a majority of the High Court held that there was a legitimate expectation, upon ratification of the Convention, that the best interests of a child would be a primary consideration in the context of a decision to cancel a person’s visa. As I have observed at [51] above, in this case the Tribunal was required to consider whether the appellants met the criteria for the grant of the Visas under s 36 of the Act and, relevantly, whether the appellants were “refugees” as that term is defined in s 5H and s 5J of the Act, or whether there was a real risk that they would suffer “significant harm” as a consequence of being returned to Australia. In that statutory context the best interests of the Children did not arise. There was no discretion in the exercise of the power to grant the Visas.

64    Putting that to one side, the issue raised by this proposed ground is whether the Tribunal failed to consider a claim, namely that the Children had received threats. The Tribunal referred to the anonymous letter at [25] of its decision record (see [8] above) and at [65] of its decision record to the Wife’s evidence that she feared the Children would be harmed, including her reference to the anonymous letter mentioning the Children, as follows:

Asked whether there were any reasons she was afraid she would be harmed if she returned to Sri Lanka, she said the only fear that they had was they would be killed, especially her children. I put to her that the threats were made against her husband, not her children. She said that one letter mentioned protecting her children. She was not scared of death but she was afraid her children would be killed. …

65    Having regard to those matters the Tribunal was aware of the concerns raised by the appellants for the safety of the Children. However, as the Minister submitted, a claim that the Children had been directly threatened did not arise on the material before the Tribunal. The anonymous letter, which the Tribunal accepted the Husband had received, was sent as a result of the Husband’s work with the UNP. Any reference to the Children arose as a result of his involvement with the UNP. The Tribunal found that the Husband was not of any ongoing adverse interest to anyone in Sri Lanka as a result of his role in the council elections and, consequently, also found that there was no real chance that the Wife and Children would be targeted. The Tribunal’s finding at [72] of its decision record that the appellants had not claimed nor was there evidence to suggest that the Children were ever directly threatened or harmed, cannot be impugned.

66    Even if there had been a failure by the Tribunal to consider a claim that the Children received direct threats, as the Minister points out the Tribunal’s alternate finding that it was reasonable for the appellants to relocate, which has not been impugned, would “cure” any error in the Tribunal’s primary findings. I accept that to be the case.

67    For those reasons this ground lacks sufficient merit to warrant a grant of leave to rely on it.

conclusion

68    It follows from the matters set out above that the appeal should be dismissed. As the appellants have been unsuccessful, the first and second appellants should pay the Minister’s costs as agreed or taxed. I will make orders accordingly.

Associate:

Dated:    30 May 2019

SCHEDULE OF PARTIES