FEDERAL COURT OF AUSTRALIA

ARB16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 276

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The appellant is a Sri Lankan citizen of Tamil ethnicity. He hails from Jaffna in Sri Lanka’s north. He left Sri Lanka for Malaysia in July 2006. He came to Australia by boat in August 2012. On 12 December 2012, he made an application under the Migration Act 1958 (Cth) (hereafter, the “Act”) for a protection visa (hereafter, the “Visa Application”). On 26 June 2014, a delegate of the first respondent (hereafter, the “Minister”) dismissed that Visa Application.

2    The appellant then applied to the second respondent (hereafter, the “AAT”) for a review of the Minister’s delegate’s decision. On 26 February 2016, the AAT affirmed that decision (that affirmation is referred to, hereafter, as the “AAT Decision”).

3    The appellant then applied to the Federal Circuit Court of Australia (hereafter, the “FCCA”) for prerogative relief directed at the AAT Decision (hereafter, the “Judicial Review Application”). On 10 September 2019, the FCCA dismissed the Judicial Review Application: ARB16 v Minister for Immigration & Anor [2019] FCCA 2611 (Judge Egan; hereafter, the “FCCA Judgment”).

4    By a notice of appeal lodged on 7 October 2019, the appellant now appeals against the FCCA Judgment. For the reasons that follow, that appeal must (and will) be dismissed with costs.

The Visa Application

5    The appellant’s Visa Application proceeded upon the assertion that, if returned to Bangladesh, the appellant would be subjected to material harm (or worse) at the hands of the Sri Lankan Army (hereafter, the “SLA”) or other Sri Lankan government authorities because of his Tamil heritage, his connections (whether actual or suspected) with the Liberation Tigers of Tamil Eelam (hereafter, the “LTTE”), or the fact that he left Sri Lanka illegally.

6    The following extract of the submissions filed on behalf of the Minister in this appeal is a fair summary of the claims that the appellant advanced in support of his Visa Application, both generally and before the AAT (references omitted):

4.     The [a]ppellant is a 31-year-old male citizen of Sri Lanka. On 11 December 2012, the [a]ppellant applied for the [protection v]isa. The [a]ppellant claimed in his supporting statutory declaration that:

a.    he is a Tamil Hindu born in the Northern Province of Sri Lanka;

b.    he fled Sri Lanka in mid-2006 and went to Malaysia;

c.    his village was controlled by the LTTE during the war;

d.    he feared persecution and discrimination based on his Tamil race;

e.    he was asked by the [LTTE] to assist them with various functions and he refused and because of his refusal the LTTE abducted and interrogated him, injured him and threatened him and his family;

f.    he subsequently stayed with his uncle in another village for 1-2 months before he left for Colombo;

g.    he kept a low profile in Colombo until he could organise a smuggler to leave Sri Lanka for Malaysia;

h.    his parents were approached by the [SLA] who would ask where the rest of the family was;

i.    he believes that if he returns to Sri Lanka the government authorities will arrest him and kill him on suspicion of LTTE involvement;

j.    he claims to fear the SLA:

    i.    due to his involvement with the LTTE;

    ii.    because he is Tamil;

    iii.    because he will be imputed with LTTE connections; and

iv.    because he departed Sri Lanka due to his involvement in the war; and

k.    he fears the authorities will arrest him if he returns and impute him with LTTE connections.

5.     The [a]ppellant attended an interview with the [Department of Immigration and Citizenship] on 11 September 2013.

6.     The [Minister’s delegate] refused to grant the [a]ppellant the [protection v]isa on 26 June 2014. The [Minister’s delegate] could not be satisfied that the [a]ppellant was someone to whom Australia owed protection obligations to under s 36 of the Act and cl. 866.221 of Schedule 2 of the Migration Regulations 1994.

7.     The [a]ppellant applied to the Refugee Review Tribunal (as it then was) for review of the [Minister’s delegate]’s decision on 7 July 2014. On 10 December 2015, the [a]ppellant was invited to appear before the [AAT], to give evidence and present his arguments. Submissions were also provided on the [a]ppellant’s behalf by his second representative in which the [a]ppellant claimed:

a.    he faced persecution arising from his race and imputed political opinion;

b.    he faced persecution arising from membership of a particular social group as a returnee from a western country;

c.    his fear of persecution was well founded; and

d.    he cannot seek protection from the Sri Lankan authorities.

Legislative provisions

7    The Visa Application proceeded on the basis that the appellant would, if returned to Sri Lanka, be subjected to harm on the bases identified above. He sought a protection visa on the grounds that he satisfied one or both of the criteria for which ss 36(2)(a) and (aa) of the Act provide. At the time relevant to this appeal, those provisions read as follows:

36    Protection Visas

…

(2)     A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)     a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…

8    There is no question raised by this appeal about the jurisdiction of the AAT to review the decision of the Minister’s delegate by which the Visa Application was initially reviewed, nor of the FCCA to hear an application for prerogative relief directed at the AAT Decision. It is unnecessary to set out the provisions of the Act that confer those jurisdictions.

The AAT Decision

9    The AAT did not accept that the appellant satisfied either of the criteria for which s 36(2)(a) and (aa) of the Act provide. The FCCA Judgment contains the following passage about the AAT Decision, which I gratefully adopt as a fair summary thereof (references omitted):

10.     When determining the claims before it, the [AAT] relevantly:

a)    identified the [appellant]’s claims ([21]-[22] of [AAT] reasons) and found the [appellant] to be a generally credible and consistent witness who did not appear to embellish his evidence. ([24] of [AAT] reasons)[;]

b)    found the risk of the [appellant] being seriously or significantly harmed in the reasonably foreseeable future by the LTTE if returned to Sri Lanka to be remote ([25]-[28] of [AAT] reasons)[;]

c)    found the chance or risk that the [appellant] would be persecuted or significantly harmed on account of his being a Tamil to be remote ([31]-[32] of its reasons)[;]

d)    did not accept that the [appellant] faced a real chance of persecution or risk of significant harm on account of either his being a Tamil or by reason of his actual or imputed political opinions, or otherwise as a member of a particular social group ([33]-[34] of [AAT] reasons)[;]

e)    accepted that Sri Lankans with an actual or perceived association with the LTTE could face a risk of harm if returned to Sri Lanka and that that also applied to people who had such a profile who had returned to Sri Lanka from abroad ([38] of [AAT] reasons)[;]

f)    was not satisfied that returnees to Sri Lanka were generally regarded as having links with the LTTE, or as being opposed to the government simply because they had been in Australia, or otherwise that as a returnee from a western country they would be seen as having links to the LTTE ([38] of [AAT] reasons)[;]

g)    did not accept that the [appellant] faced a real chance of persecution or risk of significant harm, at the time of the decision or in the reasonably foreseeable future, if the [appellant] was to be returned to Sri Lanka as a failed asylum seeker ([40]-[41] of [AAT] reasons);

h)    did not accept that the [appellant] faced a real chance of persecution or risk of significant harm, at the time of the decision or in the reasonably foreseeable future, for reasons of his religion, religious observance or any imputed LTTE political opinion ([42]-[44] of [AAT] reasons);

i)    found that the [appellant]’s fear of persecution was not well founded after having considered the [appellant]’s claims both individually and cumulatively ([45]-[46] of [AAT] reasons); [and]

j)    found that the [appellant] was not a person in respect of whom Australia owed protection obligations either pursuant to the provisions of s. 36(2)(a) or s. 36(2)(aa) of the Act.

The FCCA judgment and the present appeal

10    By his Judicial Review Application, the appellant submitted that the AAT Decision was the product of jurisdictional error and, as such, should be set aside so that his Visa Application might be reviewed afresh (and according to law). Three grounds were advanced to that end, namely (errors original):

1.     The [AAT] jurisdictionally erred when it applied the wrong test of “low risk of being detained or persecuted” when it should have applied the “ real chance test” in determining the application for protection by the applicant.

2.     The [AAT] has not assessed the applicant’s integer claim of being a young Hindu Tamil from the north of Sri Lanka with perceived LTTE links.

3.     The [AAT] is obliged to put on notice to the applicant any adverse concerns it may have but acted in haste by rejecting the application on the same day of the hearing and thereby breached procedural fairness.

11    The FCCA did not accept that the AAT Decision was infected by any of the three species of jurisdictional error that the appellant there alleged. To the extent that they might bear in any way upon the questions that present for determination in this appeal, the FCCA’s reasons for so deciding are explored in more detail below.

12    None of the grounds agitated before the FCCA finds expression in the notice of appeal by which the matter proceeds in this court. Instead, the appellant here presses two appeal grounds, namely (errors original):

1.     Applicant thinks the order, which is based on the application has a question of law and it should be investigated.

2.     Applicant has provided lot of information and supporting documents for his Temporary Protection Visa application. Applicant believes this information was not considered properly and not granted a fair order.

13    The appellant’s grounds are difficult to understand (an observation I make intending no disrespect, and acknowledging that the appellant is self-represented and has appeared with the assistance of an interpreter). In the case of the first ground, it is not clear from the notice which order—that of the FCCA or the AAT—is its subject, nor what question of law the appellant feels should be investigated. In answer to questions posed by the court—to which the Minister, sensibly if I might say so, took no objection—the appellant elaborated. He said that it was the AAT Decision—not the FCCA Judgment—that he says raises a question, or questions, of law that warrant consideration by this court. He indicated that the questions attaching to the AAT Decision pertain to:

    the speed with which the AAT handed down its AAT Decision; and

    the fact (as he puts it) that it is not safe for him to return to Sri Lanka.

14    Likewise, the second appeal ground is light on detail. It is not clear from the notice what information the appellant feels went unconsidered before the AAT (or, for that matter, in any other jurisdiction), nor why it is that he feels that he was not granted a “fair order”. Again, I explored that with the appellant at the hearing of the appeal. He again clarified that this second ground was also directed toward the AAT Decision. The information that he claimed had not been considered properly was as follows, namely that:

(1)    he had been significantly impacted by the Sri Lankan civil war;

(2)    he has previously been accepted by the UNHCR as a refugee; and

(3)    if he returns to Sri Lanka, he will get into trouble with the SLA.

15    It is convenient to deal with each of the two grounds in turn. Before doing so, it should be noted that they do not marry perfectly with the grounds that the appellant advanced before the FCCA. To the extent that they raise contentions not pressed below, the appellant requires leave to pursue them on appeal.

16    In SZLPH v Minister for Immigration and Border Protection (2018) 266 FCR 105 (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 (at 112-114):

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.

17    Those principles assume some prominence in the analysis below.

Ground one: Question of law

18    What emerged with some clarity from my interaction with the appellant during the appeal was that he feels that the AAT came to the wrong conclusion about the harm to which he might be subjected if returned to Sri Lanka. By his Judicial Review Application—and now, by this appeal—he hopes to have those conclusions set aside and to have the narrative that he advanced in support of his Visa Application accepted.

19    It is, of course, hardly surprising that the appellant should take the view that he does. What he says, however—even were it to be accepted—falls well short of what would be necessary in order to impugn the AAT Decision as the product of jurisdictional error. It is, instead, akin to an invitation to the court to engage in what has long been recognised as impermissible merits review.

20    With those observations made, I turn to address the specific issues that the appellant has raised.

21    The first was that the AAT Decision should be set aside because it was decided too quickly. The appellant’s complaint seems to be that the AAT’s rejection of his Visa Application (or its affirmation of the Minister’s delegate’s rejection of it) was, in some way, pre-determined; or, perhaps, otherwise the product of some bias or want of proper consideration amounting, in either case, to jurisdictional error. That submission—or an analogue of it—was made in the FCCA (above, [10]). The FCCA rejected that contention as follows (references omitted):

26.    Interpreted at its widest, and as so treated by the first respondent, the assertions in ground 3 of the application for review could be treated as assertions of apprehended bias. The mere timely decision making of a member of a [t]ribunal does not without more constitute the basis for any reasonable apprehension by a fair-minded lay observer that the [t]ribunal member was biased or that the tribunal had not properly engaged with the [appellant]’s claims. The reasons of the [AAT] ran to 50 paragraphs. The reasons are carefully constructed and sequentially logical.

27.     It cannot be said that no other rational or logical decision maker could not have made the same decision as did the [AAT].

28.     Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at [66] – [76] where it was said:

[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

…

[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

29.     No bias has been demonstrated on the part of the [AAT]. This ground is without merit. The [AAT] arrived at its decision having considered all relevant matters before it. It made factual findings in an ordered fashion. It cannot be said that the [AAT], when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact.

22    Respectfully, that reasoning is unimpeachable. By itself, the speed with which the AAT decided to affirm the rejection of the appellant’s Visa Application is not reflective of bias, nor some other basis upon which to impugn the decision. It is apparent from the nature of its decision that the AAT gave detailed consideration to the matters that the appellant raised. The AAT Decision is thorough and moderately lengthy. The hearing that preceded it was itself preceded by a detailed written submission filed on the appellant’s behalf (to which it is apparent that the AAT also had regard). As is customary, the AAT also had access to a record of the appellant’s interview with the Minister’s delegate (whose decision he was seeking to have reviewed). With that body of material, it is neither inappropriate nor surprising that the AAT member was able to consider—and even form a preliminary view about—the strength of the appellant’s case prior to the hearing. The evidence before me does not permit of an inference, arising from the speed with which it decided the matter before it, that the AAT failed to engage in a process of active intellectual consideration of the matters that the appellant advanced.

23    The second question that the appellant identified for the purposes of his first appeal ground concerned whether or not it was safe for him to return to Sri Lanka. Simply put, he contends that the AAT erred by not accepting that it was unsafe for the appellant to return.

24    That second question does not obviously align with any of the grounds that the appellant agitated before the FCCA. He requires leave to agitate it on appeal. When invited to explain why the submission that he puts was not put before the FCCA, the appellant made clear that, in fact, he had made precisely the same point below. I don’t doubt that he did; but, assuming that he did, it was made in support of the grounds that found expression in his Judicial Review Application, not the ground presently before this court. In my view, given that the appellant was self-represented (both before me and before the FCCA) and (in both cases) attended court with the assistance of an interpreter, less turns on that discrepancy than might normally be the case. It is more to the point that the contention that the appellant seeks to make is one that strays well into the realm of merits review. It is not indicative of jurisdictional error on the part of the AAT.

25    To the extent that the appellant requires leave to press the contentions that he nominated orally, that leave is denied. Regardless, those contentions are all without merit: none of them is sufficient to impugn the AAT Decision as the product of jurisdictional error. The appellant’s first appeal ground is not made out.

Ground two: information not properly considered

26    The appellant’s second appeal ground (as elaborated upon orally) charges the AAT with having failed to properly consider information that he put before it in support of his Visa Application. Again, this ground does not align with those that were pursued in the FCCA and the appellant likely requires leave to pursue them now. Again, he indicated that, in fact, he did submit to the FCCA what he now submits to this court.

27    The appellant’s second ground is also without merit. At the risk of repetition, the appellant’s core argument is that the AAT should have accepted the narrative that he advanced in support of his Visa Application. Whether that is so may be debated; but that is not a basis upon which to impugn the AAT Decision as the product of jurisdictional error. The appellant’s contention is, instead and quite apparently, an invitation to conduct what has long been regarded as impermissible merits review.

28    To the extent that the appellant requires leave to press his second appeal ground (or any part of it), that leave is denied. Regardless, his submissions on that ground are without merit: none is sufficient to attribute jurisdictional error to the AAT.

Conclusion

29    The appeal should (and will) be dismissed with costs.

Associate:

Dated:    10 March 2020