FEDERAL COURT OF AUSTRALIA

AOY17 v Minister for Immigration and Border Protection [2020] FCA 261

ORDERS

THE COURT ORDERS THAT:

1.    Leave to amend the notice of appeal be refused.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

1    The appellant has appealed a decision of the Federal Circuit Court of Australia (FCC) dismissing an application for judicial review of a decision of the Immigration Assessment Authority (Authority) which affirmed a decision of the delegate of the first respondent (Minister) not to grant the appellant a temporary protection visa.

2    The appellant has applied for leave to file and serve an amended notice of appeal to rely on three grounds, none of which were advanced in the court below. The Minister has opposed the grant of leave for the following reasons:

(a)    the proposed grounds lack merit;

(b)    none of the grounds were raised below and were not considered by the FCC;

(c)    no challenge is sought to be made to the reasoning of the FCC;

(d)    to allow the new grounds would defeat the statutory scheme by which the relevant jurisdiction was conferred on the FCC;

(e)    there has been no explanation why the new grounds now sought to be advanced were not put to the court below; and

(f)    there has been no explanation for the late notice of the proposed amendments.

3    In support of the application for leave to amend, the appellant argued that:

(a)    the grounds have merit and there is no real prejudice to the respondents in permitting them to be agitated;

(b)    the new grounds turn only upon a question of construction or upon a point of law that could not have been met by evidence in the court below; and

(c)    it is in the interests of justice to allow the appellant to rely on the new grounds.

4    Whether or not leave should be granted depends on whether it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at 598 [46]; Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510 at 516 [19] per Griffiths and Perry JJ. One of the considerations bearing upon whether leave to amend should be granted is the explanation for the failure of the appellant to advance in the Court below the grounds on which he now seeks to rely. No explanation has been offered, though it may be inferred that the explanation lies in the change of solicitors who had represented the appellant below and the engagement of counsel. An explanation was nonetheless called for given the appellant’s representation below and that an entirely new case is now sought to be made on appeal. An explanation was also called for to explain the delay in putting the Minister on notice of the proposed new grounds. The current solicitors have been on the record as the appellant’s solicitors since 17 February 2019. At the time of retainer, the appeal was scheduled for hearing on 12 March 2019 (having been adjourned from 15 February 2019 on the application of the appellant’s solicitors, who had only just received instructions to act on the appellant’s behalf), with submissions due to be filed by the appellant ten days before the hearing, being 25 February 2019. No submissions were filed, nor was any indication given that the appellant would seek to file an amended notice of appeal. As events happened, the hearing was further adjourned pending the decision of the High Court in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 93 ALJR 1091 and the matter relisted in December 2019 for hearing on 21 February 2020. However, it was not until 30 January 2020 that the Minister was advised of the proposed new grounds on which the appellant seeks to rely. Given that considerable time has elapsed since the appellant’s solicitors were retained, it is unsatisfactory that no explanation has been provided as to why the Minister was not put on notice of the new case at a much earlier point time and given ample opportunity to respond. This is another factor to take into consideration in weighing up the competing factors as to whether leave should be granted to rely on the proposed amended notice of appeal.

5    There is also substantial force in the submission for the Minister that to allow a wholly new case to be advanced on appeal would subvert the statutory scheme and nature of the jurisdiction conferred upon and exercised by this Court by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). The Federal Court is exercising appellate jurisdiction and has no original jurisdiction to conduct a judicial review of the decision of the Authority: s 476A of the Migration Act 1958 (Cth) (Migration Act). In Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 the Full Court said at [23]:

Although it is in the interests of justice that decisions be made on the true merits of the case sought to be argued, the structure and integrity of the appellate process must also be taken into consideration. It is incumbent upon parties bringing applications to the Court to review decisions of tribunals such as the Refugee Review Tribunal to make it clear from the outset what are the substantive grounds of review relied upon.

In an analogous context, Perram J in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; 231 FCR 452 at 455 [14] cautioned against the Federal Court, in the context of an appeal, exercising what is, in a practical sense, original jurisdiction:

One is confronted, then, with the situation that this Court is being called upon in the exercise of its appellate jurisdiction to decide the entirety of the matters which were for trial, including two new grounds, in circumstances where none of the issues to be decided in this Court were ever decided in the Court below. Section 476A of the Act explicitly removes this Court’s original jurisdiction in cases of this kind. Of course, the ability of this Court to hear fresh grounds of appeal or to entertain a notice of contention is not circumscribed by s 476A as they are both aspects of the Court’s appellate jurisdiction. But s 476A is, I think, relevant to whether I should, by leave, permit fresh grounds and a notice of contention when to do so will mean that this Court performs the trial court’s entire function. As a matter of substance, that is what s 476A appears aimed at preventing. There is this further matter, too: Pt 8 of the 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 by entertaining fresh grounds and a notice of contention 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.

That caution has been repeated by a number of courts, including by the Full Court: see SZUGL v Minister for Immigration and Border Protection [2015] FCA 868 at [18]; SZTIS v Minister for Immigration and Border Protection [2017] FCA 545 at [40]–[41]; CWD16 v Minister for Immigration and Border Protection [2018] FCA 578 at [17]–[19]; Han v Minister for Home Affairs [2019] FCA 331 at [20]; BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 at [28]; PXYJ v Minister for Home Affairs [2018] FCAFC 193 at [15]; Applicant in WAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213 at [11].

6    These matters are all weighty considerations against the grant of leave, although I would not regard them as determinative against the grant of leave if the proposed grounds had any merit. However, for the reasons that follow, none of the proposed new grounds do have merit.

7    Proposed ground 1 is that the Authority acted in breach of s 473DB(1) of the Migration Act in that it failed to consider the “review material” as defined in s 473CB of the Act, namely the claim which the appellant made at his protection visa interview that approximately two weeks before he was shot, he received a threat in the form of a letter to his home on which was written “leave the Americans, leave the Australians, don’t go to the [American air] base anymore”. The Authority accepted the appellant was shot at while working as a taxi driver and accepted that the reason for the shooting was that his vehicle had come from the American air base. However, the Authority rejected the appellant’s claim that he was a deliberate target due to his perceived collaboration with the coalition forces, which the Authority did not consider credible. No mention was made of the appellant’s claim to have received a threatening letter in the Authority’s reasons. It was argued that this piece of evidence was important to the exercise of the Authority’s review function since it was central to the appellant’s claim that the perpetrators knew his identity when they shot at him and was critical evidence in establishing whether or not the attack on the appellant was premeditated and targeted.

8    The inference can properly be drawn that the Authority did not consider the appellant’s evidence about receiving a threatening letter as it is not referred to in the reasons. However, it does not necessarily follow from the failure of the Authority to consider such evidence that the Authority did not conduct the review required by s 473DB(1) of the Migration Act. Whether the failure of the Authority to consider that evidence amounted to jurisdictional error depends on the importance and cogency of the evidentiary material to the Authority’s process of decision-making and assessment of the appellant’s claims: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at 130–1 [111]–[112], citing VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77]; Minister for Immigration and Border Protection v SZSRS  [2014] FCAFC 16 at [47]. An important consideration in assessing the cogency and significance of the appellant’s evidence is that there was no letter in evidence but merely the assertion of such a letter by the appellant. The Authority, however, relied on a number of matters for not believing the appellant’s account that he was specifically targeted by a militia group. The reasons disclose that the Authority’s rejection of the appellant’s claim that he was personally targeted for assassination was based on a number of considerations which, considered together, articulated a cogent, rational and logical basis for rejecting the appellant’s claim for reasons that did not depend on whether the appellant would, or would not, have been believed in relation to whether he received a threatening letter. In view of the reasons given by the Authority, it has not been demonstrated how consideration of the appellant’s evidence about receiving a threatening letter could have affected the Authority’s assessment of the appellant’s credibility.

9    Proposed ground 2 alleges that the Authority failed to provide an active intellectual engagement with the appellant’s evidence in making a finding relating to s 5J(3) of the Migration Act. The proposed ground relates to the Authority’s finding that the appellant would not be willing to work again as a taxi driver but nevertheless it was reasonable for him to modify his behaviour to avoid a real chance of persecution and that the appellant could take reasonable steps to avoid persecution by seeking work in another field than taxi driving. The Authority found that the appellant had qualified as a mechanic and worked as a mechanic before working as a taxi driver in Iraq and he had the skills and experience to work as a mechanic. It was submitted that the Authority fell into error by not considering whether there would be a real chance that the appellant would suffer significant harm if he worked as a mechanic in Iraq. There are three answers to this proposed ground. First, the Authority rejected the factual premise of the appellant’s claim that he was specifically targeted by the militia whilst working as a taxi driver because of his perceived collaboration with the coalition forces and considered that the appellant, rather, was the victim of a random attack. Secondly, the Authority expressly had regard to the appellant’s claim that he experienced harassment and discrimination as a taxi driver because he is Sunni. The Authority accepted that it was possible that the appellant may face similar treatment on his return, but did not consider that such treatment would amount to serious harm or threaten the appellant’s capacity to subsist. Thirdly, the Authority also gave express consideration to whether the appellant faced a real chance of harm as a Sunni, concluding that there was nothing to indicate that he faced a real chance of harm as a Sunni. In other words, the Authority dealt with the claims that arose on the materials relating to the risk of harm arising from his perceived connection with the American base and the harassment and discrimination he faced as a Sunni. The Authority sufficiently dealt with the appellant’s claims and, in light of its findings and conclusions, did not separately have to consider whether there would be a real chance that the appellant would suffer serious or significant harm if he worked as a mechanic in Iraq.

10    Proposed ground 3 is that the Authority erred by misconstruing the nature of the appellant’s claim and allowed itself to be diverted from properly considering the claim. This ground relates to [11] of the Authority’s reasons. At [11], the Authority referred to the appellant’s “further claims” that militias came to his parents’ house on a number of occasions, looking for him and because of this, his father passed away (due to stress and high blood pressure), one brother was taken away by militias in police vehicles and had disappeared and several other brothers had to leave Iraq. The Authority accepted that the appellant’s family home may have been visited by militias on occasions, but rejected the appellant’s claim that it was due to the militias looking for him. The Authority considered that any claim that the attention from the militias was due to the appellant’s actions appeared to be speculation on his part, reasoning that he had not given any details as to how he formed the opinion that the militias were looking for him rather than his brothers or any other members of his family.

11    The ground alleges that the Authority deflected its attention from the claim presented by the appellant by inappropriately requiring the appellant to establish that the militia did not visit his family home seeking other members. It was submitted that for the Authority to have found it necessary for the appellant to establish, in order for his claim to be believed, that the militia did not come to the family home seeking out other family members “betrayed a misapprehension of the nature of the claim which it had been invited to determine”, namely that the militias came to his family house looking for him because he was perceived as working with coalition forces. There is no substance in that proposed ground. Read fairly, the Authority simply did not accept the appellant’s claim that militias came to his parents’ house looking for him. The Authority dealt with the claim as put and the claim was not accepted, not because the Authority required the appellant to prove that the militia did not come to the family home seeking out the other family members, but because the Authority was not satisfied on the evidence that the militias came because they were looking for him, as asserted.

12    For the reasons stated, the application to amend the notice of appeal is refused. As the appellant did not otherwise advance any grounds of appeal, the appeal should be dismissed.

Associate:

Dated:    5 March 2020