FEDERAL COURT OF AUSTRALIA

GAU18 v Minister for Home Affairs [2020] FCA 108

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

3.    The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Appellant was born in Jaffna, a northern province of Sri Lanka.

2    He arrived in Australia in September 2012. The Appellant lodged an application for a Safe Haven Enterprise Visa in 2016. A delegate of the Minister refused that application in October 2016. The application was then referred to the Immigration Assessment Authority (the “Authority”).

3    The Authority affirmed the decision under review in June 2017. But that decision was quashed by the Federal Circuit Court of Australia in August 2018. The matter was remitted to the Authority for reconsideration.

4    In October 2018, the Authority again affirmed the decision not to grant a protection visa. An Application was then filed in the Federal Circuit Court seeking review of the Authority’s decision. In June 2019, that Court dismissed the Application: GAU18 v Minister for Home Affairs [2019] FCCA 1603.

5    The Appellant now appeals to this Court.

6    Both the Appellant and First Respondent were represented by Counsel at the hearing. The Second Respondent filed a submitting notice, save as to costs.

7    On appeal it was sought to be contended that the Authority’s decision was “affected by legal unreasonableness or illogicality”. The Second Ground in the Notice of Appeal was abandoned.

8    The appeal is to be dismissed. The Ground of Appeal now relied upon was not a Ground previously relied upon before the Federal Circuit Court. Leave to raise a new argument on appeal is refused. Even if leave had been granted, the appeal would nevertheless have been refused as the Ground has not been made out.

Leave to rely upon a new argument?

9    A party on appeal is normally bound by the manner in which it conducted its case at first instance: cf. University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481 at 483. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there said:

… 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.

“To allow too readily the running of new points, or indeed a whole new case, on appeal is to undermine the appellate process by rendering the trial process almost irrelevant”: WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 at [19], (2004) 204 ALR 624 at 629 per French J.

10    But leave may be granted to raise a new argument on appeal if it is “expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46], (2004) 238 FCR 588 at 598 per Kiefel, Weinberg and Stone JJ (“VUAX”).

11    In the circumstances of the present case leave is refused because:

    the now-Appellant was represented by Counsel before the Federal Circuit Court;

    the only explanation provided for not raising the new argument at first instance is that the now-Appellant’s former lawyers “did not detect the availability of the argument presently sought to be advanced” in this Court;

    the new argument does not present itself as one dependent on some new authority or new development in the authorities but was an argument dependent upon a well-established ground of review; and

    the new argument, moreover, is one dependent solely upon a reading of the Authority’s decision and reasons – a process of scrutiny presumably undertaken with some considerable care by the now-Appellant’s former lawyers.

Such considerations, it is respectfully concluded, should prevail notwithstanding:

    the absence of prejudice to the Respondent Minister;

    the new argument having some merit, albeit not sufficient merit such that it was likely to prevail on appeal; and

    the consequences to the now-Appellant, those consequences including primarily the refusal of a protection visa.

12    In reaching this conclusion it is acknowledged that the fact of legal representation at first instance does not preclude the grant of leave but remains one of the many matters to be taken into account: cf. CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [36] to [37] per Murphy, Mortimer and O’Callaghan JJ. But it is not considered “expedient in the interests of the justice” (VUAX [2004] FCAFC 158 at [46], (2004) 238 FCR at 598) to allow the new argument to be raised in circumstances where:

    an informed decision was previously made as to which grounds were to be relied upon; and

    newly-retained lawyers have obviously formed a view as to the prospects of successfully pursuing those former grounds, and settled upon a new argument, which they apparently perceive to have greater prospects of success.

All such arguments as were available should have been advanced for resolution at first instance when the now-Appellant was represented by competent and experienced legal representatives, including both Counsel and solicitors.

13    In the absence of leave being granted to raise the proposed new Ground of Appeal, there remain no other Grounds to be resolved.

14    The appeal should thus be dismissed.

Unreasonableness or illogicality

15    Although it is unnecessary to address in any great detail the merit of the proposed new Ground, it should nevertheless be briefly considered. A brief overview of the Ground exposes it as an argument not without some merit but an argument that would be unlikely to prevail.

16    The factual background to the new Ground is that the now-Appellant claimed that the Eelam People’s Democratic Party (the “Democratic Party”) had detained and assaulted him because he intended to publicly discuss the fact that he found 52 bodies in three garden wells. He was released when he agreed to act as a polling agent for the Democratic Party at an upcoming election. The delegate had accepted these claims.

17    Against this background the Authority concluded as follows:

13.    I also found the applicant’s evidence about his and A’s involvement relating to the well victims in the 2011 local election problematic. He stated at the SHEV interview that he was detained by the EPDP for two days. He stated that he was only released after lots of people intervened including the GS and that he had to agree to work as their polling agent. His evidence was that he and A discovered the 52 dead bodies 22 years earlier. On the biographical details provided this would have occurred when he was about six years old. The letter of support from the St. Peter’s Community Centre states in vague terms that he approached the relevant authorities for the interest of the communities and he refused to do propaganda work for the security forces and their supporting groups and as such the military intelligence and their supporting political party beleaguered him mercilessly and compelled him to be their polling agent. It makes no reference to his organising a crowd to address the TNA or that he was detained for two days. In contrast, the same letter provides detailed information about the applicant’s injury on 11 August 2006 when he was caught in a crossfire. The applicant did not claim that he refused to do propaganda work for the security forces or their support groups. The level of trust that the EPDP placed on him to be their polling agent is also at odds with the claimed severely physical mistreatment and detention in the hands of the EPDP. I have not accepted he was previously detained by the EPDP relating to the Community Centre as claimed. While it is possible he may have been pressured to work as EPDP’s polling agent during the 2011 election, I am not satisfied he and his friend organised a crowd, intended to address the TNA representatives, was assaulted by CID and EPDP or detained by the EPDP.

(without alteration)

18    Particular focus was placed by Counsel on behalf of the now-Appellant upon the Authority’s findings that the Democratic Party placed a “level of trust … on him to be their polling agent”, and that the “level of trust” was “at odds” with the claimed severity of his mistreatment and detention. It was submitted by Counsel for the now-Appellant that:

    there was “no evidence to suggest that [he] was being ‘trusted’ by the EPDP to assist them with their electioneering”

but rather that:

    “he was being forced into doing so against his will (apparently, because of his high standing in the area), under threat of physical mistreatment”.

The finding made by the Authority that he may have been “pressured” to work as a polling agent was also said to not reflect any measure of “trust” in the now-Appellant.

19    The importance of the findings as to the “level of trust” said to have been reposed in him by the Democratic Party cannot be understated. It was an important finding. It was not a finding on an incidental matter which is now opportunistically advanced and presented as one assuming far greater significance than that truly intended by the author. It forms part of the reasoning of the Authority as to why it “found the applicant’s evidence about his … involvement relating to the well victims in the 2011 local election problematic…”. Other parts of the reasoning of the Authority refer to the age the now-Appellant was when he found the bodies and the “vague terms” in which a supporting letter was expressed. But that letter, rather than being corroborative of the claims made in respect to having discovered the bodies in the well, made but passing reference to that subject-matter. And, in that context, the term “trust” may convey nothing more than the Democratic Party having sufficient “trust” in the now-Appellant to discharge the polling tasks entrusted to him, even though he may have done so with a level of considerable misgiving. And the Democratic Party “trust[ed]” him, notwithstanding that any “trust” in him could well have been a result of the Democratic Party’s intimidation. The Authority did not explain what it meant to convey by the use of the term “trust”.

20    The passage seized upon by Counsel for the now-Appellant as the foundation for his new argument, moreover, ultimately descended to the single use of a solitary term – “trust” – and the place that a few sentences play in the overall reasons and findings of the Authority. The argument has some of the hallmarks of an impermissible attempt to parse and analyse reasons of an administrative decision-maker “with an eye keenly attuned to the perception of error”: cf. Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The passage relied upon by the now-Appellant not only has to be read in the context of some of his claims being accepted by the Authority but also in the context where the Authority rejected other claims, including his claims that he paid “bribes”:

    to travel and leave the country; and

    to “[obtain] the clearance for travelling from Colombo to Jaffna”.

The Authority concluded, contrary to these claims, that the now-Appellant “was of no concern to the authorities at that time…”. The Authority, moreover:

    did “not accept that the applicant was detained by the EPDP for two days or he was beaten or he was told to inform the EPDP of all future activities which might glorify Father JB”; and

    was “not prepared to accept the applicant’s assertion that there was a lot of interference and harassment from the Navy when the nursery was opened in 2010 and the then priest had to leave the country due to continuing harassment”.

The more generally expressed context in which the reference to “trust” is expressed is a context in which parts of the now-Appellant’s claims were accepted and parts rejected. Viewed more generally, the Authority’s reasons and findings expose a balanced and fair assessment of the claims made, including an assessment that the claims “relating to the well victims in the 2011 local election [are] problematic”.

21    Although that part of the Authority’s reasoning which is now relied upon could have been better expressed, and even if a different person may have reached a contrary conclusion and made a contrary finding to that made, that part of the reasoning does not expose either unreasonableness or illogicality such as to expose reviewable error. “Illogicality” or “irrationality” sufficient to give rise to jurisdictional error, it is to be recalled, refers to a decision which “is one at which no rational or logical decision maker could arrive on the same evidence”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130], (2010) 240 CLR 611 at 647-648. Crennan and Bell JJ went on to conclude, in relevant part (at 648):

[135]    … Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here ...

CONCLUSIONS

22    The appeal should be dismissed.

23    Leave to raise the proposed new Ground of Appeal is to be refused. There are no other Grounds relied upon.

24    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

3.    The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

Associate:    

Dated:    12 February 2020