FEDERAL COURT OF AUSTRALIA

AWV18 v Minister for Home Affairs (No 2) [2019] FCA 1315

ORDERS

THE COURT ORDERS THAT:

1.    The appellants have leave to amend their notice of appeal to replace its grounds with ground 1 of the draft amended notice of appeal exhibited to the first appellant’s affidavit dated 6 August 2019.

2.    The appellants’ interlocutory application filed on 6 August 2019 is otherwise dismissed.

3.    The first and second appellants pay the first respondent’s costs of the application to amend to be taxed or as agreed.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an application by the appellants for leave to raise on appeal grounds which were not agitated before the primary judge. The appellants commenced this appeal by a notice filed on 11 March 2019. The appeal was from a decision of the Federal Circuit Court (FCC) which refused an application for the review of a decision of the Immigration Assessment Authority (the Authority), which had affirmed a decision of the Minister’s delegate not to grant the appellants protection visas.

2    Directions were made for the conduct of the appeal, which included a requirement for the filing of a written outline of submissions by the appellants ten days prior to the hearing date. As it transpired, no written submissions were filed within the time directed by the Registrar. Instead, in the week prior to the date set for the hearing of the appeal, the appellants made an application for an adjournment. That was refused for the reasons which are set out in AWV18 v Minister for Home Affairs [2019] FCA 1202. Shortly before the day scheduled for the hearing of the appeal, the appellants filed an interlocutory application seeking leave to amend the notice of appeal. In effect they abandon the ground in the extant notice, acknowledging that it was prepared by persons who were not legally qualified. They acknowledge it has no prospects of success. They also acknowledge that all save one of the grounds in the proposed notice of appeal were not agitated before the primary judge.

A proposed amended notice of appeal

3    The absence of any merit in the existing notice of appeal was made clear by an affidavit filed by the first appellant. In it he stated that the grounds of appeal had been prepared by the Tamil Association at Rossmoyne, Western Australia and that he had now been advised by AUM Legal, being his current lawyers, that it was without merit. That affidavit was filed in support of the application for leave to amend. The proposed amendments are extensive and seek to introduce seven new grounds of appeal. The grounds alone traverse approximately five pages. By an email to the Court two hours prior to the time of the hearing the appellants sought to make a further amendment to the draft amended notice of appeal by amending ground 5. In summary the grounds of appeal which are now sought to be advanced are that the FCC erred in failing to identify the following jurisdictional errors in the decision of the Authority:

(a)    There was no logical pathway between the evidence relied on and the finding that MA, the second appellant’s brother, was not associated with or a member of the LTTE (ground 1).

(b)    The Authority made findings which were not supported by the review material before it (ground 2).

(c)    The Authority failed to consider allegedly corroborative evidence given by the second appellant (ground 3).

(d)    The Authority failed to give weight to the “cut out obituary advertisement” provided to the delegate in assessing whether MA was a member of or associated with the LTTE (ground 4).

(e)    There was breach of s 473CB by reason of the failure of the Secretary of the Department to provide the Authority with the cut out obituary advertisement concerning MA, and as a result there was a failure of the Authority to conduct a review as required by s 473CC of the Migration Act 1958 (Cth) (the Act) (ground 5).

(f)    The Authority’s determination that a purported receipt was not genuine was not open on the evidence (ground 6).

(g)    The conclusion that a purported warrant for the first appellant’s arrest was not genuine was based on an erroneous finding of fact surrounding the circumstances in which it could have come into the possession of the appellants (ground 7).

4    The Minister did not oppose the granting of leave in respect of ground 1 which had apparently been agitated before the primary judge. He did, however, oppose the granting of leave with respect to the other six grounds.

Principles on which the discretion to grant leave ought be exercised

5    It is unnecessary to attempt any analysis of the authorities dealing with the principles on which this Court determines whether to grant leave to amend a notice of appeal to raise new grounds on appeal. That is because they have been thoroughly considered in the recent, lucid reasons of Bromwich J in Han v Minister for Home Affairs [2019] FCA 331 at [8]-[18]. These passages were relied upon by the Minister and no summary or further analysis could improve upon his Honour’s exposition. That being so, I set them out in full:

8    It may be convenient, and in many cases it will be entirely appropriate, to decide the question of whether to grant leave to advance an entirely new proposed ground of review in the form of a ground of appeal by giving dominant, but not exclusive, weight to the merit of the proposed ground. Merit is necessary, but not of itself ordinarily sufficient. Other features will generally need to be absent or present. Possible further considerations for the granting of leave in addition to merit include such things as an acceptable explanation for the ground not being run below, the nature and extent of any injustice (beyond a merely adverse result) that may result if the issue raised is not addressed, and the lack of prejudice to the opposing party. The decision to grant or refuse leave is then made by weighing the competing considerations, which are sometimes finely balanced.

9    The approach of relying predominantly on merit as the basis for leave becomes more problematic when there is no adequate explanation for the ground not having been advanced at the trial in the court below and other circumstances also tell against leave being granted. Care needs to be taken to ensure that a focus on merit does not have the troubling practical effect that a new ground sought to be raised is effectively heard and determined by this Court in the exercise of its appellate jurisdiction as though leave was not required. If that happens, the appellant may get to run an appeal which in truth is a new trial upon nothing more compelling than the fact that it might have succeeded if it had been run below. If the argument in support of the proposed ground finds favour, leave is then granted, and the appeal is allowed. If the argument does not find favour, leave is refused and the appeal dismissed. The grant or refusal of leave then turns on the success or failure of the new ground, making leave a mere formality. If so, an important principle in the administration of justice may be lost in the process.

10    Appeals, even appeals by way of rehearing such as this appeal, are not to be relegated to the role of only providing an opportunity to conduct a second trial upon a different basis, the first trial having failed. Longstanding and much-cited authority of the High Court makes this abundantly clear, supported by related considerations raised by numerous cases in the Full Court of this Court, of which only few will be cited.

11    In University of Wollongong v Metwally (1985) 60 ALR 68 (also reported as University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481) it was stated by all six justices of the High Court sitting that (60 ALR at 71; 59 ALJR at 483):

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

12    The above passage from Metwally was quoted in Coulton v Holcombe (1986) 162 CLR 1 at 8. In Coulton v Holcombe, the following (again, much-cited) observations were made by four justices of the High Court as to the application of the principle to appeals by way of rehearing (at 7):

To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. 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. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards…

13    In VUAX, the following pertinent observation was made (at [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].

14    Their Honours in VUAX then quoted a portion of the passage from Coulton v Holcombe reproduced above and said, by particular reference to migration appeals (at [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.

15    Plainly enough from the above passage in VUAX, merit alone is generally not enough for the grant of leave, and the weaker the point, the greater the need for other aspects to be favourable, such as the explanation for not taking it below and prejudice to the opposing party. The issue of prejudice was not fleshed out in VUAX, and is of greater moment in cases of this kind for reasons that are developed below, related to the scheme of Part 8 of the Migration Act and the practical reality that cases decided in the appellate jurisdiction of this Court will invariably reflect the final resting place for the issues and arguments ventilated.

16    In addition to taking into account merit, the explanation for a point not being raised below and the question of prejudice, it was observed in Murad (at [20]) 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”, citing Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 at [94], approved by a five member bench in Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [79].

17    In BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 161 ALD 441 the Full Court observed on the topic of the scope and purpose of Part 8 of the Migration Act and the effective prejudice to the Minister that results where a point is raised for the first time in a migration appeal, at [28]-[29]:

… as Perram J emphasised in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 (AAM15)[at [14]]:

… Pt 8 of the [Migration Act], which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance … this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny.

The approach adopted by his Honour in AAM15 is consistent with the fact that, following the advent of special leave to appeal to the High Court, intermediate courts of appeal ought in general to be regarded as the final courts of appeal: Morris v R (1987) 163 CLR 454 at 475 (Dawson J) cited with approval in Smith Kline & French Laboratories (Aust) Ltd v Commonwealth (1991) 173 CLR 194 at 217-218 (the Court). As, by analogy, Kirby J, writing extra-judicially, has observed:

The interposition of the Court of Appeal in England produced ‘two tier appeals’, with a further avenue of appeal to the House of Lords, either by leave of the Court of Appeal or by the Law Lords themselves. However, as Sir Raymond Evershed explained in 1951, ‘[t]he Court of Appeal is the final court, in fact, for ninety-five per cent of the civil cases.’ The same was quickly to prove the case after the creation of the Australian permanent courts of appeal.

(Kirby, M, “Judicial Supersession: The Controversial Establishment of the New South Wales Court of Appeal” (2008) 30(2) Sydney Law Review 177)

18    It follows that it may be important to consider whether, irrespective of merit, leave should be refused because the other factors are, individually or collectively, sufficient to exercise the discretion adversely. That will help to ensure that the ends do not justify the means driven by merit alone. The principles in Metwally and in Coulton v Holcombe, and the observations in each of the Full Court decisions cited above, should apply with even greater force and effect when it is not just an argument, issue, or even substantial change in the pleading that is new, but where the very basis upon which the case was brought in the court below has changed. In this case, the change is from a ground of asserted invalidity of a regulation, a purely legal point, to a ground of jurisdictional error, which turns on the facts and circumstances of the particular case at hand and the decision-making process that took place. The latter is a true trial point turning on executive error, rather than an appeal point turning on judicial error (albeit in relation to executive error).

6    In this case the appellants rely upon the observations of the Full Court of this Court in BUD17 v Minister for Home Affairs [2018] FCAFC 140 at [86], where it was said:

The appellant’s proposed grounds of appeal include grounds that were not raised, or not clearly raised, before the Federal Circuit Court. The appellant therefore required leave to rely on those grounds: Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7-8. At least in a case of this kind where the consequences for an appellant in leave being denied are serious and might work a substantial injustice, leave will be granted if the proposed grounds have substantial merit and there is no real prejudice to the respondent in permitting them to be raised: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48], per Kiefel, Weinberg and Stone JJ.

7    This passage of the Court’s reasons is entirely consistent with the observations of Bromwich J. It merely emphasises that the criterion of the nature and extent of any injustice that may result if the issue sought to be raised is not addressed becomes more acute by reason of the potential circumstances of the appellants.

General matters

8    Before considering the individual grounds (being grounds 2 to 7), it is appropriate to consider some of the Minister’s general objections.

No explanation for failure to raise the proposed new grounds before the FCC

9    The Minister submitted that the appellants had not provided any acceptable explanation for not having agitated the proposed new grounds before the Federal Circuit Court. As the Minister submitted, in the FCC the appellants were represented by Counsel instructed by Mr Arujunan, who appeared for them in this Court. No affidavit was produced from either Counsel or the instructing solicitor giving any explanation as to why the grounds now sought to be advanced were not agitated below. Although Mr Arujunan submitted that these grounds were merely overlooked, no evidence to support that submission was before the Court. It may well be that Counsel who appeared in the FCC was aware of them but chose not to advance them. In any event, they were not agitated and, as the quote from the decision in Metwally referred to by Bromwich J shows, it is contrary to principle to allow a party, after a case has been decided against them, to raise a new argument which they had deliberately or through inadvertence failed to put during a hearing when they had an opportunity to do so.

10    The absence of any explanation as to why the grounds, which Mr Arujunan now submits have merit, were not put below weighs heavily against the granting of leave.

Appellate hearings not to take on the nature of a trial

11    As was identified in BZD17 v Minister for Immigration and Border Protection (2018) 161 ALD 441, which is also referred to in the above statement by Bromwich J, Pt 8 of the Act, which regulates judicial review of refugee decisions, makes provision for a substantive trial or hearing before the Federal Circuit Court followed by a substantive appeal to this Court. That is the structure provided by the Parliament in cases of this nature. This Court, of itself, has no jurisdiction to review the decision of the Authority. This Court is only empowered to review the decision of the FCC. It would amount to an impermissible circumvention of the structure provided by the Parliament were this Court to lightly allow a party to agitate before it a ground not considered by the FCC. This Court would, effectively, supplant itself as the reviewer of the Authority’s decision despite the limitations imposed by the Act. Similarly, were it not the case that the substantial issues between the parties are ordinarily settled at trial, this Court would become the main arena for the settlement of disputes. This Court, exercising appellate jurisdiction, must exercise its powers to grant an amendment being conscious of the general court framework in which it operates.

12    This consideration also weighs heavily against the granting of leave in this case.

Potential prejudice suffered by the appellants

13    In his affidavit in support of the application the first appellant deposes that, with the assistance of an attorney in Sri Lanka, he has caused a search to be undertaken as to the status of a warrant for his arrest. The letter from the attorney indicates that a warrant exists for the first appellant’s arrest on a charge of aiding an armed group. The warrant was allegedly issued on 29 July 2013. The letter said that the warrant is still alive and the case is pending in the Magistrates Court.

14    The first appellant also annexed to his affidavit a DFAT Country Information Report on Sri Lanka dated 24 January 2017. Particular reference was made to paragraph 3.29, which provides as follows:

Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. According to expert testimony provided to a hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of those individuals that have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals that the Sri Lankan security services consider to be of interest, including due to separatist or criminal activities. Those on a watch list are not likely to be detained, although there have been some media reports claiming that individuals, mostly Tamils, travelling from the United Kingdom have been detained on arrival at the airport. DFAT has not been able to verify these reports but notes that those on a watch list are likely to be monitored.

15    The affidavit also annexed country information compiled by the British Home Office. In that information, reference is made to the fact that persons on a “stop list” will be handed over to the security services. It was identified that persons who are arrested and detained by the authorities are at risk of suffering ill treatment whilst in detention.

16    For the purposes of this application it can be accepted that there is a risk that if the first appellant is returned to Sri Lanka he will be stopped and detained at the airport and arrested by the security services. It can also be assumed that he is a person who will be at risk of ill treatment at the hands of the authorities as a result.

Prejudice to the Minister

17    The amendments will necessary result in the delay of the hearing of the appeal. Indeed, they have already done so. The Minister did not allege any prejudice arising from the mere delay in the appeal other than that which ordinarily follows the delay in the administration of the Act.

18    However, the Minister did assert in relation to a number of matters sought to be raised by the proposed new grounds that he would suffer prejudice because, had they been raised below, he would have been able to adduce evidence in response to them. In other words the Minister submitted that some of the proposed amendments raised questions of fact and not mere issues of law. In particular, this point was raised in relation to grounds 4, 5 and 6.

Consideration

Grounds 4 and 5

19    Ground 4 asserts that the Authority did not give weight to a document referred to as a “cut out obituary advertisement” which had allegedly been provided to the delegate in assessing the second appellant’s claim that her brother (MA) was a member of or associated with the LTTE.

20    Although not referred to in ground 4, during the course of the hearing a similar argument was mounted with to respect to a photograph which is alleged to be of the first appellant and MA together. The appellants claim that this document was also shown to the delegate at one of the hearings.

21    The import of the documents in question is that they apparently support the view that MA was a member of the LTTE. This connection, so it is said, is established by the existence of a photograph which the appellants allege is of MA in certain army fatigues, which was the uniform of the LTTE. It is said that the two documents, being the obituary advertisement and the photograph of the first appellant and MA, would support the conclusion that the person in the army fatigues was, in fact, MA. The matters were dealt with by the Authority in the following manner:

38.    I accept however that the second applicant’s brother, MA was taken from his shop in 2008 and is now deceased. Since the applicants’ arrival in Australia, this aspect of the applicants’ claims has been consistent throughout their interviews with the Department. Information before the delegate identifies Sri Lanka as being among the countries with the largest numbers of disappearance cases in the world with reports that abductions were undertaken for extortion or ransom or in some cases political motives may have played a role.

39.    At the protection visa interview, the second applicant provided a document to the delegate detailing the death of her brother, MA. Other than to mention that the document advises of MA’s death the applicants made no mention of what the document detailed nor was a translation provided. The IAA submission refers to the document as a “cut-out obituary advertisement of MA”. This document was not included the referred materials [sic] and in response to the IAA’s request for this information the Department advised that it was not available on the Department files. In any event, I have accepted that the second applicant’s brother, MA is deceased.

…

45.    At the protection visa interview, the second applicant provided a copy of a photograph which she claimed to depicted [sic] her brother, MA. The photo is time stamped “10:51pm” but it is not date stamped. It depicts two men, one is wearing fatigues. Other than the second applicant’s claims that the person in the fatigues is her brother, MA, there is no other information or photographs to verify that it is him as claimed and nor am I satisfied that in light of the evidence above, that the photograph substantiates the applicants’ claims that the second applicant’s brother, MA was associated with or a member of the LTTE.

22    A difficulty with this ground is the appellants’ assertion that the obituary advertisement and the photograph of AWV18 and MA were provided to the delegate and were documents before the Authority. Ms Tattersall submitted on the Minister’s behalf that this raises an evidential issue because it is unlikely that either document was provided to the delegate. Certainly they may have been shown to the delegate by the appellants, however, so it is said, they were not “provided” in the sense of being given to it for the purposes of its deliberation. It followed that when the Authority received the material given by the Secretary under s 473CB of the Act these documents were not included. As is apparent from [39] of the Authority’s reasons, it sought a copy of the obituary advertisement which had been mentioned in the delegate’s reasons, but it was not available.

23    It is apparent from ss 473CB and 473DB of the Act that the Authority is limited as to the scope of material which it might consider on review. With some exceptions, the material is generally confined to the decision of the delegate and the material provided by the applicant to the delegate and other material in the Secretary’s possession which is relevant to the review.

24    The strictness of the limits on the material the Authority is entitled to consider is ameliorated by ss 473DC and 473DD which entitles the Authority to consider additional material in some limited circumstances. In this case the appellants’ representatives emailed the Authority on 31 July 2017 attaching submissions, a statutory declaration of the first appellant, and other documents. Neither the obituary advertisement nor the photograph allegedly of the first appellant and MA were included. No explanation has been given as to why that material was not forwarded to the Authority by the appellants’ representative.

25    From the terms of the delegate’s reasons it appears that neither document on which the appellants rely in relation to this ground was provided to the delegate. Although the photograph and obituary advertisement were shown to the delegate, they were not “provided” to the delegate within the meaning of s 473CB of the Act. Had this matter been raised before the Federal Circuit Court the Minister might have obtained evidence as to the circumstances in which the photographs were allegedly shown to the delegate. Evidence could have been obtained as to whether they were provided. The absence of an ability for the Minister to respond obviously raises significant prejudice for him.

26    Further, in light of the above discussion there is little merit in ground 4. It proceeded upon the assumption that the obituary advertisement had been provided to the delegate whereas it was not. The same can be said of the photograph of the first appellant and MA.

27    The same assumptions underpinned ground 5, being non-compliance with s 473CB by the alleged non-provision to the Authority of the obituary advertisement. As it was not provided to the delegate, it was not material which the Secretary was required to give to the Authority.

28    It follows that the complaints about the absence of the obituary advertisement and the photograph or their consideration by the Authority are most unlikely to succeed. At best, the grounds alleged have very limited prospects and at worst they proceed upon a false assumption. In addition, they raise factual issues which could have been raised previously and the Minister would be prejudiced were they to be permitted to be raised for the first time on appeal.

Ground 6

29    This proposed new ground is to the effect that the Authority determined that a cash bond receipt was not genuine and that conclusion was not open on the evidence.

30    The document referred to as a “cash receipt” was alleged by the appellants to be a receipt evidencing bail paid by the first appellant for his release from jail. A copy of the cash receipt and two English translations were provided by the appellant to the Authority under cover of the email of 31 July 2017. One translation was undertaken by the National Accreditation Authority for Translations and Interpreters (NAATI) and another was undertaken by a non-NAATI accredited translator. The original cash receipt was written in Singhalese. The NAATI translation did not include the terms such as “cash bond”, “defendant” or “case” although the non-accredited translation did. The Authority accepted the translation from the NAATI accredited translator in preference to the non-accredited translator. The Authority did not accept the appellants’ submission that the non-accredited translator was a lawyer and therefore understood words such as “defendant”, “cash bond” or “case”. The Authority was not convinced that the accredited translator would not understand those words. It was also concerned that the receipt suggested the money was paid by the first appellant whereas his claim was that it was paid by his brother.

31    The Authority concluded at [75] and [76] the following:

75.    Country information before the delegate indicates that document fraud is prevalent in Sri Lanka due in part to the lack of computerised databases to store information. Government departments continue to keep most records in hard-copy format. Other asylum seeker destination countries have reported receiving fraudulent documentation from applicants and that attempts to use fraudulent documents are common.

76.    Having regard to the details on the cash receipt, including the lack of an illegible [sic] reason and the inconsistencies in its details and the applicant’s claims, the lack of any sufficient connection between the contents of the police report and the applicant’s claims and the country information detailing the availability of fraudulent documents, I am not satisfied that the cash receipt or the police report are genuine.

32    Ground 6 is that the findings in [76] were not open.

33    The difficulty for this ground of appeal is that, in essence, it is merely a disagreement with the conclusion reached by the Authority. The Authority compared both versions of the translations provided by the appellants and preferred the authorised version. It gave reasons for that preference which were not illogical. Its conclusion that the documents were not genuine had a substantial basis including reliance upon, albeit not solely, the prevalence of document fraud in Sri Lanka.

34    Necessarily this ground as so characterised has very little merit to it. It was not raised below and no explanation has been given for that omission. Leave should be refused to raise it on appeal.

Ground 2

35    By this ground the appellant seeks to assert that the Authority’s decision was vitiated by jurisdictional error because its reasons contained findings which were unsupported by the review material. In particular, it is said that the Authority’s conclusion that the first appellant’s claims regarding the circumstances surrounding his arrest had evolved was unsupported. The Authority had referred to an apparent arrest of the first appellant after he had returned from Malaysia. At [69] of its reasons it said:

I have considered the applicants’ explanation and I am unconvinced that the first applicant’s claims that he was arrested after he had passed through the airport and on the basis that his prolonged absence from the country had not having been recorded [sic] and because he was suspected of having connections to the LTTE is commensurate with the immigration control procedures and the enhanced screening of individuals which was reported to be taking place at the airport in Colombo at time of his return.

36    The appellants relied upon what was said by the first appellant in his entry interview which included the following part:

 Q.    Has anything happened to you recently?

A.    When I arrived back in Sri Lanka they interrogated me at the airport and then followed me and gaoled me

 Q.     Where you gaoled?

 A.     In Galle

 Q.     Why?

 A.     Why I left the country before

 Q.     How long in gaol?

 A.     Three months

 Q.     Were you charged with anything?

A.     After they took me to court the court have let me out by bail money and I have report every Sunday to CID

 Q.     What did they charge you with?

A.     The suspicious I was also involved in Tamil Tigers because of my wifes’ brothers and that is the main reason they took me to court that I am also part of Tamil Tigers.

 Q.    When did this happen?

 A.    Arrested 6/2012 and released 9/2012

 Q.    Is this the reason why you left Sri Lanka?

A.    When they gaoled me and more questions about my wifes’ [sic] brothers who were Tamil Tigers - they start harassing [sic] me all the time and that is what caused me to get out I was fear for my life.

(Errors and “[sic]” in original)

37    The appellants complain that the Authority had no evidence on which to conclude that the first appellant claimed that he had been arrested after he had passed through the airport. They assert that his arrest occurred much later. However, based on its understanding of the first appellant’s statements, the Authority determined that it did not believe that he had been arrested after he left the airport.

38    The complaint advanced by the appellants was essentially a disagreement with the finding made by the Authority. However, the Authority had before it the first appellant’s answer to the question whether anything had happened to him recently where he said “[w]hen I arrived back in Sri Lanka they interrogated me at the airport and then followed me and gaoled me”. It may well have been that the gaoling of the appellant occurred sometime after he left the airport. However, the Tribunal was entitled to accept at face value the evidence given by the first appellant. Although Mr Arujunan submitted that the evidence was given through a translator, there was no evidence that any error in interpretation had occurred. Nor could it be said that the Tribunal erred in understanding the first appellant’s assertion that he had been gaoled because he was perceived to have links with the Tamil Tigers. Moreover the Authority considered the explanation given for his arrest in the context of other inconsistent claims.

39    In consequence there was a foundation for the Authority’s conclusion that the first appellant was arrested after he had passed through the airport.

40    The second particular of ground 2 is of a similar type. At [68] the Authority identified that the first appellant stated he had been arrested because he was suspected of being involved with the Tamil Tigers because of the involvement of his wife’s brother in that organisation. It is said that this conclusion was not open on the evidence. In this respect the appellants seem to make some distinction between the first appellant being charged with an offence and being arrested. However, as the transcript of the entry interview set out above shows, the first appellant was asked what he was charged with and he said:

The suspicious I was involved in Tamil Tigers because of my wife’s brothers and that is the main reason they took me to court that I am also part of Tamil Tigers.

41    It follows that the Authority’s conclusion that the first appellant had claimed that he was arrested because he was suspected of being involved with the Tamil Tigers was entirely correct. That was the substance of the claim made by the first appellant in the entry interview. Again, the Authority disbelieved the evidence it had perceived the first appellant was giving. It is also true that the Authority’s disbelief of that evidence was used to support its conclusion that his claim evolved over time and that he was not credible on the basis that he was arrested, gaoled and released. However, there was evidence to support the Authority’s conclusion that the first appellant had claimed that he was arrested on suspicion of being a Tamil Tiger. The gravamen of the claim was that the authorities arrested or detained him on that suspicion and the gravamen of the Authority’s findings was that it did not occur.

42    It follows that there is little or no merit in the second particular of ground 2.

43    The third particular of ground 2 is that the Authority made incorrect findings of fact as to an aspect of the manner in which the appellants departed Sri Lanka. At [81] the Authority said:

At their separate entry interviews, the first and second applicants were both asked about their how they departed Sri Lanka; they both stated they departed legally using their own Sri Lankan government issued passport. Neither made mention that money had been paid to facilitate their departure through the airport. Nor was this information included in the protection visa application. However, at the protection visa interview, the first applicant advised that a friend, who he paid, assisted their departure at the airport.

44    These comments by the Authority appeared in the context of its consideration of the appellants’ claims that they paid money to a friend in order to depart Sri Lanka safely. It was said that the friend made arrangements for the appellants to depart through the airport. The passage quoted identified reasons why the Authority considered that claim was of dubious validity.

45    The appellants claim the finding that neither had initially claimed that they paid money to facilitate their departure through the airport was not justified. They claimed that they had made this assertion in the interview. However, when the content of the interview is considered the Authority was correct to conclude that neither had made a claim that money had been paid to facilitate their departure through the airport. Whilst it is true that they claimed they paid 25 Lakhs to a person called Sasi, the first appellant said that he paid this money on 23 February 2013 when he was in accommodation in Kuala Lumpur, Malaysia. It is apparent that this occurred after departure from Sri Lanka. The first appellant had lived in Malaysia previously, between 2010 and 2012, however his claim to have paid money to the person called Sasi was subsequent to his departure from Sri Lanka. It follows that the Authority was correct in its conclusion that neither the first nor second appellants made mention that money had been paid to facilitate their departure through the airport in Sri Lanka. The conclusion was clearly open on the evidence.

46    It follows that the third particular of ground 2 also has no merit which would warrant the granting of leave to allow it to be agitated on appeal.

47    It necessarily follows that none of the particulars to ground 2 have any merit which would warrant their being raised for the first time on appeal.

Ground 3

48    By this ground the appellants submit that the Authority’s decision contained a jurisdictional error because it failed to consider the corroborative evidence of the second appellant. It seems that the essence of this complaint is that the evidence of the first appellant was rejected as lacking credibility and a finding was made to that effect, however, so the argument goes, the Authority failed to make any findings with respect to the evidence of the second appellant whom it is said was interviewed at the same time by the department officer.

49    However, a perusal of the Authority’s reasons reveal that it considered the evidence given by the second appellant on a number of occasions and, in this respect, the Minister made a reference to [37], [42], [45], [53], [56] and [59]. However, most of those references are to the entry interview on 16 June 2013 and not to the visa application interview on 28 March 2017. That said, it is clear that the Authority regarded the evidence given at the visa interview as being the evidence of both the first and the second appellant. No real distinction was made as to the precise identification of the source of the information which was provided in the course of the interview. Necessarily, where some evidence is rejected it means the Authority concluded that the second appellant’s evidence was also not reliable. It may well be that the Authority focussed attention on the claims of the first appellant. That is not unnatural given that it was he who claimed a well-founded fear of persecution. At no time did the Authority fail to consider any of the evidence advanced by the second appellant. It is clear from the interview on 28 March 2017 that the first and second appellants gave their evidence together and as one version. It was that version of events which was rejected.

50    It follows that there is no merit in this ground which would warrant the granting of leave to raise it at this stage.

Ground 7

51    This ground deals with a finding made by the Authority when considering whether the first appellant had provided any plausible reason that a warrant for his arrest had only been obtained after the decision to refuse the first appellant’s visa was made. In the course of concluding that no plausible reason had been given, the Authority considered the circumstances in which the first appellant had said the document came into his possession. The effect of the explanation was that he contacted his brother in Colombo who went to the first appellant’s former address and obtained a copy from the occupants there. The warrant was for a person whose surname was spelt differently to the first appellant’s, however, putting that aside, the Authority found it implausible that the warrant was issued when claimed, being three months after the first appellant’s departure. It was also thought to be implausible that it would not have been passed on to the first appellant’s brother by the occupants of the appellants’ former residence when it was first received or, if the occupants did not know to whom the document related, that they would have retained it for four years before providing it to the first appellant’s brother on request.

52    The appellants submit that the Authority’s finding was illogical or irrational because it assumes that the occupant of the premises knew the first appellant and, necessarily, his brother. That, it is said, was not open on the evidence. However, the conclusions of the Authority did not assume that the occupants of the residence knew the first appellant or his brother. The Authority put alternative propositions. First, assuming that the occupants of the house knew the first appellant’s brother, it was implausible they would not have passed the warrant on. The Authority then assumed that, if they did not know who the brother was, it would be implausible that the document would have been retained for four years. In essence the Authority was merely identifying the possible permutations and identifying that, regardless of which applied, the explanation for it being produced lately was implausible.

53    There is nothing illogical or irrational in the reasoning of the Authority. It did not make any wrong assumptions about whether the occupant of the first appellant’s former residence knew the first appellant or his brother. No error, either jurisdictional or otherwise, arose from the reasons.

54    The Minister’s submission that this ground merely seeks merits review of the Authority’s finding ought be accepted.

55    It follows that ground 7 is also of insufficient veracity to warrant the grant of leave in respect of it.

Conclusion

56    It follows that none of grounds 2, 3, 4, 5, 6 or 7 are of sufficient merit to warrant the granting of leave to raise them for the first time on appeal. That conclusion aside, the absence of any explanation as to why these grounds were not pursued by Counsel for the appellants below would weigh heavily against granting leave. That is so even taking into account the risk of harm which the appellant might suffer were he to be returned to Sri Lanka.

Orders

57    It follows that the application for leave to amend the notice of appeal should be allowed in respect of ground 1 of the proposed amended notice of appeal. Otherwise the application is dismissed.

58    Necessarily the appellants have substantially failed on their application. They have only succeeded in respect of a ground which the Minister had conceded in any event. It follows that the first and second appellants ought pay the first respondent’s costs of the application to amend to be taxed or as agreed.

Associate:    

Dated:    22 August 2019

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