FEDERAL COURT OF AUSTRALIA

CJS17 v Minister for Immigration and Border Protection [2019] FCA 1870

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

3.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any such agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

SNADEN J:

1    Before the court is an appeal against a decision of the Federal Circuit Court of Australia (hereafter, the “FCCA”). The appellant charges the FCCA with having erred by dismissing with costs an application that he made to that court for prerogative relief under s 476 of the Migration Act 1958 (Cth) (hereafter, the “Act”): CJS17 v Minister for Immigration and Anor [2019] FCCA 440 (Judge Driver; hereafter, the “FCCA Judgment”). That application (hereafter, the “Judicial Review Application”) challenged a decision of the second respondent (hereafter, the “Authority”), which affirmed an earlier decision of a delegate of the first respondent (hereafter, the “Minister”) not to grant an application that the appellant made under the Act for a safe haven enterprise visa.

Background

2    The appellant is a Hindu Tamil and a citizen of Sri Lanka. He hails from Batticaloa, in Sri Lanka’s Eastern Province. He came to Australia on 14 November 2012, arriving by boat as an unauthorised maritime arrival (within the meaning attributed to that phrase by s 5AA of the Act).

3    By an application dated 30 April 2016, the appellant applied for a safe haven enterprise visa (hereafter, the “Visa Application”). In support of that Visa Application, the appellant contended that, if returned to Sri Lanka, he faced relevant persecution or harm because of any one or more of:

(1)    his Tamil ethnicity;

(2)    the fact that he lodged reports with “the Sri Lankan Human Rights Commission, the police and the ICRC [presumably, the International Committee of the Red Cross]” after his brother-in-law went missing in 2008; and

(3)    his being a failed asylum seeker who left Sri Lanka illegally.

4    On 1 November 2016, a delegate of the Minister interviewed the appellant in connection with his Visa Application (hereafter, the “Delegate Interview”). On 6 January 2017, the delegate dismissed the Visa Application, thereby declining to grant the appellant a safe haven enterprise visa. That decision (hereafter, the “Delegate’s Decision”) was then referred to the Authority for review in accordance with s 473CA of the Act (hereafter, the “IAA Review”).

5    On 12 May 2017, the Authority upheld the Delegate’s Decision. By this appeal, the appellant alleges that that decision (hereafter, the “Review Decision”) was the product of jurisdictional error, which this court is asked to correct on appeal through the grant of prerogative relief.

The Review Decision

6    By way of determining the IAA Review, the Authority concluded that the appellant had not established any of the three bases (above, [3]) upon which he contended that he should be granted a safe haven enterprise visa. Only the third of those three bases is relevant to the present appeal. In its Review Decision, the Authority made the following observations (references omitted):

29.    I accept that the [appellant] departed Sri Lanka unlawfully, by boat. Information in the DFAT report before the delegate and repeated most recent DFAT report notes that after processing at the airport, persons who departed illegally are charged under Sri Lanka’s Immigration and Emigration Act (I&E Act), fingerprinted and photographed, and then transported to the closest [Magistrates’] Court at the first available opportunity once investigations are completed, at which point responsibility shifts to court or prison services. Prior to being taken from the airport, an illegal departee can remain in police custody at the airport for up to 24 hours after arrival and if no magistrate is available before this time (eg because of a weekend or public holiday) they may be held at a nearby prison.

30.    Although penalties for illegal departure include a possible prison term of five years, in most cases persons who depart illegally will be issued with a fine of up to 200,000 Sri Lankan rupees (AUD2000), payable by instalment. If a person pleads guilty they will be fined and are free to go. In most cases where they plead not guilty, they are immediately granted bail on the basis of personal surety, or otherwise may be required to have a family member act as guarantor in which case they will need to wait until that person comes to court to collect them. Once bailed, an illegal departee will only need to return to court when the case against them is being heard, or if summonsed as a witness in another case.

31.    On the above information I find that there is a real chance the [appellant] will be investigated at the airport, have his identity checked and be charged with an offence under the I&E Act, for which he will be fined. I find that a fine, which can be paid by instalment, does not amount to serious harm.

32.    It is possible that the [appellant] will spend up to 24 hours in custody at the airport, and then conceivably a further period in a prison pending bail, although that is only in the event that he arrives on a weekend or public holiday and/or pleads not guilty to the illegal departure and is then required to wait for a family member rather than being released on his own personal surety. The [appellant] has stated that his immediate family are in Sri Lanka and there is no information before me to indicate that they would not be able to travel to Colombo as guarantor, if that was in fact required. Viewing the evidence together, I am not satisfied there is a real chance of the [appellant] being detained for anything beyond a brief period, a matter of several days at most.

33.    I am also not satisfied there is a real chance of the [appellant] being mistreated during investigation or detention, given my above findings that the [appellant] is not of adverse interest to the Sri Lankan authorities and DFAT’s advice that returnees are not subject to mistreatment during processing at the airport and that the risk of torture or mistreatment for the majority of returnees, including those suspected of offences under the I&E Act, is low.

34.    Furthermore, I find that the treatment of the [appellant] under the I&E Act is not discriminatory conduct but rather, the application of a law which applies to all Sri Lankans. A generally applicable law will not ordinarily constitute persecution because the application of such a law does not amount to discrimination. In this case, the evidence does not suggest that the law is selectively enforced or applied in a discriminatory manner. I find that the investigation, prosecution and punishment for illegal departure under the I&E Act would be pursuant to a non-discriminatory law of general application and does not amount to persecution within the meaning of s.5J(4). I am not satisfied that it involves systematic and discriminatory conduct. I am not satisfied that the [appellant] will face a real chance of serious harm amounting to persecution if he were to return to Sri Lanka on this basis of leaving Sri Lanka illegally or being a returned Tamil asylum seeker now or in the reasonably foreseeable future.

7    The Authority went on to conclude that the appellant lacked a well-founded fear of persecution, by reason of which he did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. That, in turn, compelled it to conclude that he did not satisfy one of the two relevant criteria that he needed to satisfy in order to qualify for the grant of a safe haven enterprise visa (namely, the criteria provided for by s 36(2)(a) of the Act).

8    The Authority then went on to consider the other criteria: the so-called “complementary protection” criteria for which s 36(2)(aa) of the Act provides. The Authority made the following observation:

40.    I have accepted that on return to Sri Lanka there is a real chance that the [appellant] will be investigated and detained at the airport, potentially detained for a number of days pending bail, and then imposed with a fine. However, I am not satisfied that there is a real risk that the [appellant] will be subject to the death penalty, he will be arbitrarily deprived of his life, or that the brief detention and question[ing] amounts in this case to torture, cruel and inhuman treatment or degrading treatment or punishment. I am not satisfied that such harassment amounts to significant harm as defined in the Act.

9    The Authority went on to conclude that the appellant did not satisfy the complementary protection criteria for which s 36(2)(aa) of the Act provides. It followed that the Authority was of the view that the appellant could not satisfy either of the two criteria upon which his Visa Application turned. That being so, it affirmed the Delegate’s Decision.

The JUDICIAL Review Application

10    By his Judicial Review Application to the FCCA, the appellant advanced a number of grounds by which he alleged that the Review Decision was liable to prerogative relief as the product of jurisdictional error. Only the following two of those grounds are relevant to the present appeal (errors original):

1.     The change of government and the new information of the country information the Immigration Assessment Authority’s (hereinafter referred as “IAA”) decision has become legally unreasonable. (See Australian Retailers Association v Reserve Bank 2005 FCA 1707 at [457]-[459]).

Particulars

a)    The delegate’s decision was dated 6 January 2017 and the political situation was drastically changed on 26 October 2018 and the return of the Mahinda Rajapaksa which was not taken to consideration by the delegate. Rajapaksa's administration was accused of serious human rights violations during the final stages of the conflict between the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE). It is a matter of record that the Sri Lankan military indiscriminately attacked civilians, hospitals and schools, executed prisoners and interned thousands of Tamils with widespread use of torture and sexual violence. Thousands of Tamils and other minorities with links to the Tigers were also forcibly disappeared. For a beleaguered Tamil population in the north and east of the country, the concern will be that history could repeat itself with the threat of further discrimination and violence looming. With no real accountability processes for previous crimes committed, Rajapaksa’s return could see Tamil activists and perceived dissidents targeted once again.

b)    The new Report of the UN Rapporteur Ben Emmerson QC dated 23 July 2018 (Emmerson Report) in support of the applicants’ protection claims in Australia.

c)    According to the 2018 Emerson report, Tamils also experience pervasive and insidious forms of stigmatisation.” at [para 55] of the said report.

d)    The Special Rapporteur was told about the surveillance of Tamil civil society, including women’s groups and of fear of reporting alleged human rights violations and sexual violence to the authorities. [para 55] of the said report.

e)    The Special Rapporteur said “When viewed side by side with the figures that show that Tamils have been, and still are, overwhelmingly and disproportionately affected by the operation of the Act (PTA), a figure emerges of wide spread institutional stigmatisation of a single community. [para 56] of the said report.

f)    The Special Rapporteur said in his conclusion “The Tamil community remains stigmatised and disfranchised, while the trust of other minority communities is being steadily eroded.

g)    In 2017, the Supreme Court of Sri Lanka ordered the State to pay over Rs. 2 million each to the parents of two Tamil youths tortured and killed in police custody by Batticaloa police, following the filing of a Fundamental Rights case. In this case the petitioners cited the former OIC of Batticaloa Police and four others as respondents. The petitioners stated that their deceased sons’ arrest, detention are wrongful and illegal and that they were subjected to torture and killed that their fundamental rights guaranteed by Article 11, 13(1), 13(4) and 17 of the Constitution was violated by the respondents. The appellant is also from Batticaloa in Sri Lanka.

h)    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 referred applicants’ country of claimed of protection, such as a change in the political or security landscape.

i)    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 referred applicants’ country of claimed of protection, such as a change in the political or security landscape. at [915] of the Explanatory Memorandum.

2.    The IAA referred in its finding at [para 32] without evidence that the impecunious applicant’s family members could act as guarantors or pay the fines to enable the applicant’s release which is an unfounded assumption and is a jurisdictional error.

Particulars

a)    Mortimer J observed in ARKI6 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.

b)    Applicant’s father died on 23 November 2017. The applicant’s elder brother ... faced a train accident on 3 November 2005 where both of his legs were severed and as a result he became totally disabled and have no income. [AB 220-221]. Applicant’s elder sister ... was born blind. Hence the applicant has no way to recourse to financial assistance from his family members.

c)    The findings and the conclusion reached by the IAA at [para 25 and 33] involved an unfounded factual assumption about the nature and extent of support that the applicant was able to obtain from his family members in Sri Lanka. (See DHK16 v Minister for immigration and Border Protection [2018] FCA 1353).

11    The FCCA dismissed both of those grounds of review. By grounds 1 and 2 in the present appeal, the appellant charges the FCCA with error in having done so. It is not necessary to recite why it was that the FCCA rejected the appellant’s contentions on those fronts. If it is the case that the Review Decision was not the product of jurisdictional error as was (and still is) alleged, then the FCCA will have been correct to have so decided and the appellant’s challenges to those conclusions will fail. If the Review Decision was attended by either species of jurisdictional error, then the FCCA will have erred by concluding otherwise and the corresponding appeal grounds (or either of them) will succeed. Either way—and subject to what is said below about the additional grounds upon which the present appeal proceeds—it is upon the Review Decision that this court’s attention must focus insofar as concerns the first two appeal grounds.

The appeal to this court

12    Two additional grounds present for determination in this appeal, namely (errors original):

Ground 3

3.     The Federal Circuit Court Judge Driver failed to hold that the IAA erred in law in failing to respond to the appellant’s claim to fear of significant harm in Sri Lanka prisons by reason of being imprisoned on pre-trial remand.

Particulars:

a)    The Authority’s findings in respect of the applicant’s claim for a protection visa on the complementary protection ground in s 36(2)(aa) of the Migration Act 1958 (Cth) in contrast to the Refugees Convention ground in s 36(2)(a). The IAA did not deal with the applicant’s case of torture whilst in remand detention under the complementary protection provisions.

b)    The Authority also did not properly deal with the Pre-Trial Remand Claim in considering the applicant’s claim for a protection visa on the complementary protection ground. Where the Tribunal fails to deal with a claim expressly articulated by an applicant, this is a jurisdictional error: NABE v Minister for Immigration Multicultural & Indigenous Affairs 144 FCR 1 at [55]-[63]. Therefore, the Authority committed a jurisdictional error.

c)    The Federal Circuit Court Driver failed to hold that this was a jurisdictional error.

Ground 4

4.     The Federal Circuit Court Judge Driver failed to ensure that the hearing is fair. The duty requires that a litigant does not suffer a disadvantage from exercising his or her right to be self-represented (NSWCA in Hamad v New South Wales [2011] NSWCA 375).

Particulars:

a)    The Federal Circuit Court Judge Driver also failed to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court [SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445].

b)    It is a requirement in Shrestha v Migration Review Tribunal (2015) 229 FCR 301 that the Court must explain in plain terms to unrepresented applicants that they must identify why the Tribunal’s decision was not made lawfully and by a fair process. It is not enough to merely say that they must demonstrate jurisdictional error.

c)    The Federal Circuit Court Judge Driver failed to grant an adjournment to the applicant in circumstances warrants such adjournment.

13    In order that he might pursue the third ground, the appellant must first be granted leave to do so. The fourth ground is directed to the quality of the hearing that took place before the FCCA.

Ground one: the Review Decision has “become” unreasonable

14    In substance, the appellant’s first ground of appeal is that circumstances in Sri Lanka have changed since the Review Decision was made, such that the appellant’s return to Sri Lanka is not safe. Insofar as it proceeded, as it did, upon the opposite premise (namely, that the appellant could return to Sri Lanka without risks of persecution or relevant harm), the Review Decision is said to be tainted by legal unreasonableness in the sense identified by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) (French CJ, Hayne, Kiefel, Bell and Gageler JJ).

15    It may readily be accepted that, in conducting the IAA Review, the Authority was obliged to exercise its statutory powers reasonably. In order that it might be susceptible to review as the product of legal unreasonableness (and, by extension, of jurisdictional error), an administrative decision must qualify as one at which no rational or logical decision maker could have arrived: Minister for Immigration v SZMDS (2010) 240 CLR 611, 647-648 [130] (Crennan and Bell JJ). A decision will not be impugned as legally unreasonable simply because it is one about which different minds might form different views: Plaintiff S111/2017 v Minister for Immigration and Border Protection (2018) 263 FCR 310, 328 [66] (Perry J, with whom McKerracher and Charlesworth JJ agreed). At issue, in all cases, is whether the decision in question was within the “decisional freedom” of the person or body in whom the exercise of the relevant statutory power was entrusted: Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, 171 [62] (Allsop CJ, Griffiths and Wigney JJ).

16    The unreasonableness of which the appellant in the present appeal complains is twofold. First, he points to the fact that, since the Review Decision was made, Sri Lanka has undergone a change in government. Second, he cites a number of findings contained within a report produced in July 2018 by United Nations Special Rapporteur, Ben Emmerson QC.

17    In BHP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1211 (hereafter, “BHP17”; Kerr J), the court considered an appeal ground couched in terms so similar to the first ground advanced in this appeal (and in the FCCA at first instance) that the language is beyond coincidence (although, I stress, nothing turns on that correspondence of language). Kerr J made the following observations:

86    The Minister…submits that the Appellant appears to be contending that it is open to this Court to find that the IAA’s decision to be affected by jurisdictional error on the basis of information since obtained that was not before the decision maker. [Counsel for the Minister] submits that that contention relies on a misreading of Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; 148 FCR 446 (Reserve Bank).

87    With respect to Reserve Bank, the Minister submitted at [24]:

First, in that case the Court noted that the ordinary rule was that material not before the decision-maker was not admissible in proceedings for judicial review (and, it may be inferred, even more so in a case on appeal from a judicial review decision). Secondly, to the extent that the case may be read as an exception to that principle it is very limited. In Reserve Bank reliance was placed on the decision in Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540. That latter case states that where an issue goes to a legal error relevant to the exercise of a decision-maker’s jurisdiction then it may, depending on the type of error, be appropriate to admit evidence not before the decision-maker (because the jurisdiction is based on the actual state of affairs). In Reserve Bank, the material in question was expert evidence addressing a certain state of affairs (and whether or not it actually existed). Those matters were jurisdictional facts: Chandra v Webber (2010) 187 FCR 31 (Chandra) at [40]-[43].

88    The Minister submitted that no such situation arose in the present appeal: the decision maker was required to reach a state of satisfaction based on the material available. The IAA’s jurisdiction was not predicated upon the existence of a particular state of affairs, it was predicated upon the actual state of affairs that existed at the time of the decision. The contention that material relevant to factual circumstances that arose after the making of the decision could support a finding of jurisdictional error by this Court is contrary to authority. In that regard, the Minister cited Charlie v Minister for Immigration and Border Protection [2018] FCA 607 at [36], Chandra v Webber [2010] FCA 705; 187 FCR 31 at [40]-[43], and Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500.

…

89    The Minister’s submissions must be accepted. The Ground (as explained by its particulars) relies on a misreading of the principles discussed in Reserve Bank.

90    The task of judicial review in the FCCA and the task of this Court on appeal are both limited to the identification of legal error. By reason of the existence of s 474 of the Act, only a flaw amounting to jurisdictional error can lead to a finding of invalidity.

91    There will be circumstances in which new evidence properly may be adduced even in such a judicial review proceeding – for example, to prove conduct if it has been alleged a decision is vitiated by fraud. Other examples are discussed by Abraham J in AQK17 v Minister for Immigration and Border Protection [2019] FCA 1176 at [26]. However those few instances are limited and exceptional. None apply in the present instance.

92    It is not suggested in the particulars of the Grounds of Appeal that the IAA’s decision was legally unreasonable by reason of the IAA’s failure to anticipate a change of government in Sri Lanka or that that government would pursue the policies the Appellant alleges it is pursuing. In any event, there is no basis for such a contention on the materials before this Court. Absent legal error, it is not open to the Court to quash the IAA’s earlier decision.

18    His Honour’s reasoning applies equally in this case and I respectfully adopt it. The Review Decision cannot be impugned as legally unreasonable on account of the Authority’s failure to take account of information that it did not have; and, indeed, did not exist at the time that its decision was made.

19    That is not to say that the appellant is without options. In BHP17, Kerr J made the following observations about the measures available to an appellant that seeks to avoid returning to his or her country of origin on the strength of changed circumstances:

94    As events subsequent to Tiananmen Square are a clear illustration, the Executive Government and/or the relevant Minister have powers capable of being drawn on to shield those who might otherwise be required to return to a country where it is accepted that a person faces a real risk of persecution by reason of changed circumstances. Successive Australian Governments have committed themselves to act on the basis that no-one will be refouled (returned) to a place where they reasonably fear persecution. That remains so irrespective of the exhaustion of a person’s legal avenues of appeal.

95    It will be for the Appellant to make such a case to the executive arm of government should he be so advised.

20    Again, I respectfully adopt those observations.

21    The appellant’s first ground of appeal must be dismissed.

Ground two: family capacity to act as guarantor

22    The appellant’s second appeal ground concerns the prospect that he might be remanded into custody upon his return to Sri Lanka. It alleges that, insofar as it found that members of the appellant’s family might serve as guarantor in order to secure his release, the Authority reached a conclusion unsupported by evidence and, thereby, committed jurisdictional error.

23    In DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 (“DCP16”; Beach, O’Callaghan and Anastassiou JJ), the court addressed a very similar submission (albeit one that was advanced within the rubric of legal unreasonableness). There, the Authority had made factual findings materially identical to those that present here: specifically, that the appellant would likely be charged upon returning to Sri Lanka, might subsequently be remanded in custody for a short period and might require a family member to act as guarantor in order to secure his release from custody. Their Honours observed:

97    Further, as to a family member acting as a guarantor, contrary to the appellant’s submission the Authority did not make any assumption that a family member would act as guarantor. The country information was that the appellant may be required to have a family member act as guarantor and that is all the Authority said. The question of whether a family member would act as guarantor was not critical to the Authority’s decision (SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 at [79] per Robertson and Kerr JJ).

98    On the question of the guarantee, the Authority was dealing with a triply contingent hypothetical. First, the appellant had to plead not guilty. If he pleaded guilty, he would be fined, with the fine able to be paid by instalments; no guarantee question would arise. Second, if he pleaded not guilty, he could be released on his own personal recognizance. In that eventuality, no guarantee would be required. Third, the guarantee question would only arise if he pleaded not guilty and his own personal recognizance was not sufficient. Now in that eventuality, and given that no immediate payment of money would be required from a guarantor, it might be expected that a family member may act as guarantor to secure the appellant’s release. But all of this is in the realm of a hypothetical which the Authority did not need to speculate about or discuss in detail.

24    Later, their Honours considered the issue against the backdrop of materiality, observing:

101    Further and in the alternative, even if there was any implicit finding that a family member could act as guarantor, this is not a critical finding because the Authority’s finding was only that a family member may be required to act as guarantor. Therefore, even if that implicit finding were in error, there would not be any realistic possibility that the Authority would have reached a different decision absent the error.

102    Generally, we consider that the Authority’s treatment of the guarantee question is unremarkable in the generality with which it has been expressed.

103    Finally, and as the Minister pointed out, the Authority gave independent reasons for rejecting the appellant’s claims on this point. With refugee claims, it found that the brief period of detention would not amount to “serious harm”. Further, it found that detention under immigration laws is pursuant to a law of general application applied in a non-discriminatory manner, meaning there was no “persecution” ([20]). With complementary protection, it again found that the appellant would only be detained for a short time ([26]). The death penalty, arbitrary deprivation of life and torture were not relevant in circumstances where possible poor prison conditions during any possible brief period of detention would be due to overcrowding, poor sanitation and lack of resources ([27]), and there was no intention to inflict pain, suffering or extreme humiliation. Further, the finding that detention would only be for 3 to 4 days did not depend on whether there was a guarantor. Accordingly, based on this short detention, the prison conditions could not amount to “significant harm” within s 36(2A) ([27]). Such findings provide an independent basis for the Authority’s rejection of the appellant’s claims concerning his illegal departure from Sri Lanka.

25    The same observations may be made in the present case. Here, the Authority did not conclude that any member of the appellant’s family would need to pay money in order to secure his release from custody. It is not apparent that any of them would need to, even in the event that a guarantee was required: SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 (Robertson and Kerr JJ, with whom Logan J agreed). Even that possibility rose no higher than to the level of a “triply contingent hypothetical” of the kind to which the full court referred in DCP16. The Authority’s observation was not critical to the Review Decision. Even if it amounts to error, it is not of sufficient materiality to constitute jurisdictional error. I respectfully adopt the observations recited above.

26    The appellant’s second ground of appeal must also be dismissed.

Ground 3: failure to address a material contention

27    The appellant’s third ground of appeal—which he requires leave to agitate, having not pressed it before the FCCA—charges the Authority with having failed to address his contention that he would be subjected to significant harm, including in the form of torture, if he were remanded into custody upon his return to Sri Lanka. The Minister opposed the appellant’s being granted leave to press proposed appeal ground 3.

28    In SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145 (Besanko, Gleeson and Burley JJ), the court considered the circumstances in which an appellant might be granted leave to argue a ground on appeal that was not the subject of consideration at first instance. The court observed:

28    The appellant acknowledges that proposed grounds (1) and (2) are new grounds raised for the first time on appeal. Thus, the proposed amended notice of appeal does not in substance engage with the decision of the FCCA but rather focuses on that of the delegate. The appellant requires the leave of this Court to rely on them. 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.

29    Here, the appellant’s explanation for having not advanced this ground before the FCCA is that it did not occur to him to do so. Whether that amounts to a basis sufficient to warrant a grant of leave may be doubted. As a self-represented litigant, the appellant should (and would) ordinarily be afforded the benefit of that doubt. However, for the reasons that follow, the proposed appeal ground is wholly without merit and the question of whether the appellant should have leave to agitate it can (and will) be disposed of on that basis.

30    It is not clear that the appellant did, either before the Minister or before the Authority, “…claim to fear significant harm in Sri Lanka[n] prisons by reason of being imprisoned on pre-trial remand”, nor more specifically that he would be subjected to “torture” whilst incarcerated. I am (as the Minister apparently was) prepared to proceed upon the assumption that he did; but it is by no means clear that that is so.

31    Regardless, this proposed appeal ground must fail for the simple reason that the Authority did address the question of whether or not the appellant might be subjected to relevant harm whilst detained: Review Decision, [33], [40] (above, [6], [8]). The appellant’s complaint seems to be more that the Authority did not accept that that fear was well-founded. Even assuming that it was wrong to reject that contention—which, I should stress, is not an assumption that appears to rest on solid foundations—that would not bespeak jurisdictional error.

32    Leave to press this ground of appeal, then, is refused on the basis that, were it granted, the ground would surely fail.

Ground 4: failure to afford procedural fairness

33    The appellant’s fourth ground of appeal is directed at the standard of the hearing that took place in the FCCA. The appellant alleges, in effect (if not terms), that he was denied procedural fairness, by reason of which it is said that the FCCA Judgment should be impugned as the product of appellable error. That denial is said to have sounded in three ways: first, in the FCCA’s failure to provide the appellant with “sufficient information about the practice and procedure of the Court”; second, in its failure to “explain in plain terms…[the appellant’s obligation to] identify why the Tribunal’s decision was not made lawfully and by a fair process”; and, third, in its failure to grant the appellant an adjournment of the hearing.

34    I deal with those propositions in reverse order. As to the adjournment of the proceeding before the FCCA, there was nothing before me to suggest that one was requested. When I asked the appellant whether he had sought an adjournment before the FCCA, he told me (via an interpreter) that he could not remember doing so. It is, to say the least, difficult to see how I might impugn as the product of appellable error a course upon which the learned judge at first instance might not even have been asked to embark. This aspect of the final appeal ground may be dismissed on that basis.

35    A similar problem confronts the first and second aspects of this final appeal ground. There was, before me, no material (other than the FCCA Judgment) from which I could discern what the appellant was or was not told vis-à-vis the task that confronted him. In the absence of any such material, it is not possible for the court to be satisfied that the FCCA failed to do anything that it was obliged to do (assuming, of course, that it was obliged to do anything).

36    The onus of establishing that the hearing before the FCCA proceeded upon a want of procedural fairness was the appellant’s to discharge: DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240, [38] (Flick J). He has not done so. The fourth appeal ground must be dismissed.

Conclusion

37    None of the grounds of appeal is made out. The appeal will be dismissed with costs.

Associate:

Dated:    18 November 2019