FEDERAL COURT OF AUSTRALIA

ABX17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1941

ORDERS

THE COURT ORDERS THAT:

1.    The appellant be refused leave to rely upon the sole proposed ground of appeal contained in the amended notice of appeal dated 25 September 2019.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The appellant is a citizen of Sri Lanka, who arrived in Australia on 8 November 2012 as an unauthorised maritime arrival. He claims to fear harm because of his Tamil ethnicity; his brother’s suspected association with the Liberation Tigers of Tamil Eelam; and if returned to Sri Lanka, because he left the country illegally and fears being detained and questioned at the airport on his return.

2    On 18 October 2016, a delegate of the first respondent refused the appellant’s Safe Haven Enterprise Visa application. On 6 December 2016, the Immigration Assessment Authority (the Authority) affirmed the delegate’s decision. On 13 May 2019, an application for judicial review of that decision was dismissed by the Federal Circuit Court: ABX17 v Minister for Immigration & Anor [2019] FCCA 1259. This is an appeal from that dismissal.

3    The appellant is represented in this Court, although he was unrepresented in the Court below.

4    Only one ground of appeal is now being relied on, a new ground alleging the Authority failed to consider “various claims raised by the applicant in relation to his application for protection and complementary protection under the Migration Act, thereby committing jurisdictional error”. This raises the issue of whether leave to rely on the new ground should be granted, and if so, if jurisdictional error on that account has been established.

5    For the reasons below, leave to rely on the ground is refused.

Background

6    Given the limited nature of the ground of appeal it is unnecessary to recite the details of the decision of the Authority or the Court below. The appellant does not challenge any aspect of the decision of the Federal Circuit Court, and does not press grounds the grounds of appeal raised below.

7    Rather, it is appropriate to focus on the claims which the appellant alleges the Authority failed to consider.

8    The Authority identified the appellant’s claims in detail, the one the subject of this appeal is described at paragraph [4] of its reasons, as follows:

The applicant's representative notes the applicant is a failed asylum seeker and is only 21 years of age and he is more vulnerable physically and mentally compared to a mature adult. His capacity to withstand the condition of detention and the method of interrogation is much lower than a mature adult, hence even a lesser method of torture will harm him more than an ordinary mature adult.

Leave to rely on the new ground of appeal

9    The relevant principles for the grant of leave are well established and are summarised in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]–[48] where the Full Court (Kiefel, Weinberg and Stone JJ) said:

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] 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].

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.

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.

10    Recently, in Han v Minister for Home Affairs [2019] FCA 331 (Han), Bromwich J had cause to consider the relevant principles in the context where leave was sought to rely on a sole ground of review not raised in the Court below, and was opposed on the basis that a second, entirely different, trial should not be permitted to take place for the first time using this Court’s appellate jurisdiction. While that is not the basis of the opposition in this case, nonetheless, the observations as to the relevant considerations are apt. As Bromwich J observed, in such cases it will be entirely appropriate, to decide the question of whether to grant leave to advance an entirely new proposed ground of review on an appeal to this Court by giving dominant, but not exclusive, weight to the merit of the proposed ground. However, that is necessary, but not of itself ordinarily sufficient. Other relevant considerations, as identified by Bromwich J, will include, for example, 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: see Han at [9]

11    The appellant placed particular reliance on the proposition 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”: Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 at [20] per Griffiths and Perry JJ, citing Summers v Repatriation Commission [2015] FCAFC 36; (2015) 230 FCR 179 at [94] per Kenny, Murphy and Beach JJ, and approved by a five member bench (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) in Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at [79].

12    The respondent opposed leave to raise the new ground of appeal on the basis that the appellant has not provided any explanation for the ground not being run below, and that in any event, the new ground does not have sufficient merit to warrant a grant of leave as it does not establish jurisdictional error. Although it noted that the appellant’s argument that the new ground primarily turns on a legal argument does not, in the circumstances, weigh sufficiently in the appellant’s favour to warrant leave.

13    The respondent did not suggest that it would be prejudiced if leave were granted. Moreover, the failure to advance the ground below must necessarily bear less significance where the appellant appeared unrepresented. While there was no evidence placed before the Court, the appellant is now represented, and the grounds on which the appellant had previously relied have been abandoned. In this case, the question of merit in the proposed ground must be of significance to the grant of leave. For the reasons below, the ground has insufficient merit to warrant the grant of leave to rely on it.

Consideration

14    The claim which is the basis of this ground is recited above at [8].

15    The appellant submitted that is was really a number of separate claims being that (1) he is only 21 years of age; (2) he has physical and mental vulnerability; (3) he has a capacity to withstand the condition of detention that is lower than an ordinary adult; and (4) he has a capacity to withstand the method of interrogation that is lower than an ordinary adult, such that a lesser method of torture will harm him more than a mature adult. The appellant’s submission is that the Authority only addressed his youth, at paragraphs [36] and [44] of its reasons, in relation to the claim for protection and complementary protection respectively. In doing so, the appellant contended that the Authority failed to consider a claim, and therefore amounted to a failure to complete the exercise of jurisdiction. By “not recognising and dealing with” that failure, the appellant submitted that the Court below “committed jurisdictional error”.

16    The respondent submitted that the Authority’s reasons are comprehensive and it ought not be readily inferred the claim was not considered, and that in any event, a fair reading of them support that the claim was considered and rejected. The respondent also referred to paragraph [35] in support of its submission.

17    It is not in issue that an Authority is required to address or deal with the essential elements of the claims raised by the material or evidence: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at [7] per Merkel J.

18    In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 the Full Court (French, Sackville and Hely JJ) relevantly stated at [46] and [47]:

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason…

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

19    The claim was presented to the delegate in effect in the terms recited by the Authority. In the post-interview submission made by the appellant, the claims all appeared under the heading, “Applicant’s age”. No further information was provided in support of the claim. Indeed, the claim as to being more vulnerable physically and mentally compared to a mature adult, and having a lower capacity to withstand the condition of detention and method of interrogation is based only the appellant’s age, and not on anything particular to the appellant. So much was accepted by the appellant.

20    In that context it is necessary to consider the Authority’s reasons in this case, although they should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ citing the Full Court (Neaves, French and Cooper JJ) in Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 287.

21    The Authority addressed the claims in paragraphs [35], [36], and [44] of its reasons (footnotes omitted):

35. The High Court endorsed in MIBP v WZAPN, that whether a risk of loss of liberty constitutes serious harm required a qualitative judgment, including an evaluation of the nature and gravity of the loss of liberty. Should the applicant be held over a weekend or public holiday until seen by a Magistrate, I am satisfied the applicant would face only a brief period in detention. I accept that the applicant is young and would find the conditions in detention confronting, however even having regard to general poor prison conditions, I do not consider that a brief period in detention would constitute the necessary level of threat to his life or liberty, or to significant physical harassment or ill treatment under s.SJ(S) of the Act or otherwise amount to serious harm for the applicant.

36. Similarly, despite his relative youth I do not consider any likely questioning of the applicant by the authorities at the airport on arrival, any surety imposed, or the imposition of a fine under the I&E Act, to constitute a threat to his life or liberty, or to be significant physical harassment or ill treatment under s.SJ(S) of the Act or otherwise amount to serious harm.

…

44. I accept that the applicant will be identified on return as a person who departed illegally and an asylum seeker and that there is a real risk that the applicant will be investigated and detained for several hours at the airport, and possibly detained on remand for some days pending bail, and then fined. Even taking account the applicant's relative youth I am not satisfied that this treatment, either during the investigation process or while being held at the airport, amounts to significant harm. As noted above, DFAT has confirmed that returnees may, in some circumstances, be held for a short time in prison while waiting to appear before a magistrate. However, even if the applicant is required to spend a period of time in prison while waiting to appear before a magistrate, I am not satisfied that he will face significant harm as defined.

22    It is plain that the Authority’s consideration was more extensive than that initially identified by the appellant. Those paragraphs appear in the context of the reasons which must be read fairly and as a whole: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291 per Kirby J.

23    Those passages, considered in the context of the reasons which includes the description of the claims, reflects that the Authority did address the claims.

24    The reference to the appellant’s age in the context in which those passages considered it, necessarily encompassed the consequences of his age. Given the claims were based only on his young age and the consequences thereof, it was unnecessary for the Authority to expressly refer to each of those consequences as contended by the appellant.

25    Nonetheless, it is apparent from those paragraphs that the Authority was considering those consequences. As an example, the consideration at paragraph [36] that “despite his relative youth” implies that the Authority was addressing that the appellant is in a different position to a mature person on the bases identified in his claim. It can be inferred from that passage, read in the context of the claim made, that the reference to his relative youth encompasses the consequences of his youth, on the bases identified in the claim.

26    Similarly, in paragraph [35], the Authority accepted that because of his youth he would find the conditions of detention confronting. It is to be inferred that this statement is based on the consequences of the appellant being young including being more vulnerable than a mature adult, as described in the claim. While the appellant initially submitted that was not the proper reading of that passage as there was no express reference to the vulnerabilities, later during oral submissions he accepted that interpretation, stating “I think [that is what] the [Authority] is saying, but I suppose one way of looking at it, which is the way we put it [is that the Authority] merely sidestepped the issues”.

27    The same can be said about paragraph [44] where the Authority concluded that “even taking account the applicant's relative youth I am not satisfied that this treatment, either during the investigation process or while being held at the airport, amounts to significant harm”.

28    There is not sufficient merit in the proposed ground of appeal to grant leave to rely on it.

Conclusion

29    Leave to rely on the ground is refused. The appeal must therefore be dismissed.

Associate:

Dated:    21 November 2019