FEDERAL COURT OF AUSTRALIA

AYW16 v Minister for Immigration and Border Protection [2020] FCA 277

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 Bangladeshi national. In 2008, he moved from Bangladesh to Malaysia, where he stayed until 2012. He arrived in Australia as an unauthorised maritime arrival (within the meaning attributed to that phrase by the Migration Act 1958 (Cth) (hereafter, the “Act”)). On 29 May 2013, he made an application under the Act for a protection visa (hereafter, the “Visa Application”). On 31 October 2014, a delegate of the first respondent (hereafter, the “Minister”) dismissed the Visa Application. The appellant applied to the second respondent (hereafter, the “AAT”) for a review of that decision. On 4 April 2016, the AAT affirmed the decision of the Minister’s delegate to dismiss the Visa Application (that affirmation is referred to, hereafter, as the “AAT Decision”).

2    The appellant 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 11 September 2019, the FCCA dismissed the Judicial Review Application: AYW16 v Minister for Immigration and Border Protection & Anor [2019] FCCA 2630 (Judge Egan; hereafter, the “FCCA Judgment”).

3    By a notice of appeal lodged on 27 September 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

4    The appellant’s Visa Application proceeded upon the assertion that, if returned to Bangladesh, the appellant would be subjected to material harm (or worse) by members and supporters of a political movement known as the Awami League. He claimed to be a supporter of a rival group, the Bangladesh Nationalist Party (hereafter, the “BNP”).

5    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, both generally and before the AAT, in support of his Visa Application (references omitted):

8.     The [a]ppellant claimed before the [AAT] that his uncle held the highest position of secretary for the BNP in the [a]ppellant’s local area. The [a]ppellant stopped attending school in 2005 or 2006 and worked for his uncle. The [a]ppellant supervised workers engaged in public projects such as building roads, madrassahs and mosques. Under his uncle’s supervision, he also handled funds allocated for these projects. In addition, the [a]ppellant campaigned during council elections (on two occasions) and was ‘involved in going to people’s homes and telling them to vote’ for the BNP during the election campaign for the national government in late 2008.

9.     The [a]ppellant claimed before the [AAT] that he had left Bangladesh because the Awami League would make allegations that he embezzled the funds marked for public projects. Members of the Awami League told him that ‘if they got to power he would be dead’. The Awami League also harassed his sister to the extent that she stopped going to school. In addition to the threats to the [a]ppellant’s life, members of the Awami League demanded money from his father. When the Awami League came into power they “ransacked and damaged his home”. When asked about his uncle, the [a]ppellant said that his uncle was not able to stay in the village after that, but later said that his uncle tried to return to the village on few occasions but could not stay there.

10.     In his written statement dated 14 May 2013 that accompanied his application for the visa, the [a]ppellant claimed that his uncle was a supporter and member of the BNP. However, the [a]ppellant did not include the claims advanced before the Tribunal about threats made against him by the Awami League. The [a]ppellant was not able to provide a satisfactory explanation for this omission to the [AAT].

11.     At the interview with the delegate the [a]ppellant did not mention that he was involved with the construction projects while working for his uncle and for the BNP. The [a]ppellant claimed that he was nervous and that is why he had omitted those claims at the time. The [AAT] did not accept this explanation.

12.     The [a]ppellant’s description of his uncle’s position changed over time. Before the delegate he claimed that his uncle was just a member of the BNP. Before the [AAT] the [a]ppellant claimed that his uncle had “the highest position in the local area and, consistent with that description, related how his uncle received funding for construction projects”.

Legislative provisions

6    The Visa Application proceeded on the basis that the appellant would, if returned to Bangladesh, be subjected to harm on the basis of his actual or perceived political opinions. 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…

7    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

8    The AAT, in short, did not believe the narrative that the appellant advanced in support of his Visa Application. It pointed to various inconsistencies in the way that that narrative had been articulated at the various stages through which the appellant’s Visa Application had, to that point, proceeded.

9    The AAT did not accept that the appellant supported, belonged to or undertook activities for the BNP, nor that he had an uncle who belonged to or supported the BNP. It did not accept the appellant’s claims that the BNP had threatened him and/or his uncle, nor that the BNP posed a threat to him were he to return to Bangladesh. For those reasons, the AAT concluded that the appellant did not have a well-founded fear of persecution based on any “convention ground” and that he was not at risk of significant harm such as might otherwise qualify him for what is generally known as complementary protection under 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). Five grounds were advanced to that end, none of which finds expression in the notice of appeal by which the matter proceeds in this court. Instead, the appellant now relies upon a single appeal ground, namely (errors original):

The court below made a jurisdictional error when it failed to take into account relevant considerations and took into account irrelevant considerations.

Particulars: Subparagraph 65 (1) (a) (ii) of the Migration Act 1958 required the decision maker in respect of the applicant’s primary application for a protection visa to make determination as to whether criteria for the grant of the visa prescribed by the Act or the Regulations made there under were satisfied. The Tribunal failed to assess the relevant material presented on logically probative and relevant materials.

11    Although expressed as an attack on the FCCA Judgment, it is clear enough that the appellant intends that the charge of jurisdictional error is also levelled in respect of the AAT Decision and that he contends that the FCCA erred insofar as it did not accept that the AAT Decision was the product of jurisdictional error. I approach the appeal on both bases—that is, on the bases that it is alleged that the FCCA erred by:

(1)    taking into account, in some way, considerations of which it ought not to have taken account, or failing to take account of considerations of which it should have taken account; and

(2)    failing to find that the AAT Decision was a product of jurisdictional error manifest in the AAT’s having taken into account, in some way, considerations of which it ought not to have taken account, or having failed to take account of considerations of which it should have taken account.

Jurisdictional or other error on the part of the FCCA

12    The appellant’s prospects of succeeding on the present appeal turn simply upon whether or not the FCCA Judgment was attended by error. It is not necessary that any such error be jurisdictional in nature. Again, reading the appellant’s sole appeal ground as generously as would befit the circumstances—involving, as they do, a self-represented litigant who conducted the appeal with the assistance of an interpreter—I proceed on the basis that the errors alleged against the FCCA are as I have summarised them immediately above.

13    The appellant’s notice of appeal does not particularise the relevant considerations that he alleges that the FCCA wrongly failed to take into account, nor the irrelevant considerations that he alleges that it wrongly did take into account. I explored that with him during the hearing of the appeal. Counsel for the Minister—sensibly, if I might say—took no objection to my doing so.

14    In answer to questions from the court, the appellant offered detailed and articulate responses to why it was that he felt that the AAT—and, later, the FCCA—had erred by not accepting the reasons for which he seeks protection. He explained that the reason why there were discrepancies between the claims that he advanced before the Minister’s delegate and the claims that he advanced before the AAT was that the AAT had invited him to say more about his Visa Application. It was, he explained, not surprising that the expanded narrative that he gave before the AAT might differ in some respects from that which he gave to the Minister’s delegate.

15    From my exploration of the issues that the appellant wished to ventilate in the appeal, it quickly became apparent that his criticism of both the FCCA Judgment and the AAT Decision distils to a simple assertion: namely, that his narrative about what will happen to him should he return to Bangladesh should have been accepted. It is, of course, understandable that the appellant should think so; but, without more, there is nothing in that central contention that discloses any error on the part of the FCCA, jurisdictional or otherwise. None of the jurisdictional errors by which the appellant there attempted to impugn the AAT Decision was made out. The FCCA was correct to dismiss the contentions that were advanced before it.

16    There is nothing in the reasons published in support of the FCCA Judgment that discloses any appellable error.

Jurisdictional error on the part of the AAT

17    The appellant’s notice of appeal also contends (or is read as contending) that the AAT Decision was the product of jurisdictional error. The error alleged was not one of the errors to which the appellant’s Judicial Review Application gave voice. The appellant therefore requires leave to advance the ground that he now seeks to advance and it is convenient that attention should, instead, turn to whether that leave should be granted.

Should the appellant have leave to pursue a new ground?

18    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.

19    Here, the appellant did not offer an explanation for having not advanced this ground before the FCCA. As a self-represented litigant conducting his appeal with the assistance of an interpreter, I consider that less hangs on that than might otherwise be the case.

20    The proposed ground of appeal itself is wholly unparticularised. It charges the AAT with having taken account of irrelevant considerations and having failed to take account of relevant considerations; but it does not, in either case, identify what those considerations were. Before me, the appellant said that what the AAT had failed to consider was the totality of his circumstances. The appellant did not elaborate beyond that muted assertion. When asked about what irrelevant considerations he felt that the AAT had erroneously taken into account, his response was difficult to understand (I say intending no disrespect). As is outlined above, the appellant’s central grievance is that his narrative was disbelieved. He urges this court to embark upon a review of the merits of the AAT Decision—an invitation that the court cannot entertain, as no shortage of authority makes clear.

21    I am not persuaded that the ground that the appellant seeks to advance has any merit. There is nothing that the appellant advanced before the AAT that the AAT failed to consider. At its core, the appellant’s 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, even assuming in the appellant’s favour, 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.

Conclusion

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

Associate:

Dated:    10 March 2020