FEDERAL COURT OF AUSTRALIA

AJL15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 289

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 2 August 2019 be dismissed.

2.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    The appellant has sought to appeal the decision of the Federal Circuit Court of Australia in AJL15 v Minister for Immigration & Anor [2017] FCCA 2593 (primary decision). In the primary decision the primary Judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) in which the Tribunal had affirmed a decision of a delegate of the Minister to refuse the appellant a Protection (Class XA) visa.

2    There is also an interlocutory application before the Court, filed by the appellant on 2 August 2019 (interlocutory application). In that interlocutory application the appellant seeks leave to file further evidence, and further seeks leave to file an amended notice of appeal relying on new allegations of jurisdictional error not raised before the primary Judge.

3    The appeal originally came before me on 21 August 2019, at which time the appellant also pressed the interlocutory application.

4    After hearing the parties on 21 August 2019, I vacated the hearing of the appeal and made timetabling orders, including:

1.    The Appellant file any affidavit annexing a draft amended notice of appeal by 4.00pm on 23 August 2019.

2.    The Appellant file any affidavit upon which he intends to rely in respect of paragraph 2 of the interlocutory application filed on 2august 2019 by 4.00pm on 28 August 2019.

3.    The Appellant file further submissions by 4.00pm on 20 September 2019.

4.    The First Respondent file further submissions by 4.00pm on 4 October 2019.

5.    The Appellant file any submissions in reply by 4.00pm on 14 October 2019.

6.    The appeal, and paragraphs 2 and 3 of the interlocutory application filed on 2 August 2019, be listed for hearing at 2.15pm on 21 October 2019 in Brisbane by video-link to Sydney.

5    On 23 August 2019 the appellant filed an affidavit annexing a draft further amended notice of appeal.

6    When the hearing resumed, the common position of the parties was that the appropriate way forward was for the Court to first determine the interlocutory application. The Minister submitted that if the Court found for the appellant in respect of the interlocutory application,

    an issue for cross-examination arose, and

    there was the prospect that a further hearing would be required.

7    If, however, the Court dismissed the interlocutory application to amend the notice of appeal, the Minister submitted that it would be appropriate at that point to dismiss the appeal in its entirety.

8    The appellant endorsed these submissions (transcript p 31-32).

9    I propose to approach the proceedings before me in this agreed manner. I also understand that, if leave to amend the notice of appeal is refused, the grant of leave to the appellant to file further evidence should similarly be refused.

10    Before turning to the issues before me it is helpful to examine background facts, helpfully summarised in the primary decision and the submissions of the Minister.

Background

11    The appellant is a Sri Lankan national of Tamil Hindu ethnicity. He arrived by boat at the Cocos Island in 2012. Subsequently, he lodged an application for a Protection (Class XA) Visa.

12    The appellant claimed that he feared returning to Sri Lanka on account of his active involvement as a candidate in a Provincial Council election campaign in 2009. The appellant asserted that his uncle was also a candidate in this election. The appellant alleged that during the campaign he was abducted by unknown men, detained for one night, and tortured by the application of cigarette butts. When he was released he was afraid to stay at home, and went into hiding at his sister’s house, as unknown persons frequently searched for him.

13    The appellant alleged that Provincial Council elections were held again in July 2011, but neither he nor his uncle contested.

14    The appellant claimed that he was contacted in June 2011 and was requested to report to the Kottuwa Police station. He stated that when he attended the police station he was accused of extortion. The appellant denied that allegation, claiming that the charges were false and the result of a set-up. The appellant claimed he was then held at the police station for 2 days, during which time he was beaten. The appellant was then summonsed, and attended Court and the police station on several occasions.

15    The appellant alleged that the Sri Lankan police continued to harass him up until he left Sri Lanka in July 2012. The appellant claimed to fear harm by the Sri Lankan police and those connected with the People’s Alliance Party who did not wish smaller parties (including that with which the appellant was involved) to emerge.

16    The appellant alleged that, if he returned to Sri Lanka, he would be subjected to harsher treatment by the authorities because he had earlier fled Sri Lanka.

17    The appellant also claimed to fear harm by reason of his ethnicity, by reason that he would be treated as a supporter of the Liberation Tigers of Tamil Elam (LTTE), because of his illegal departure, and as a failed asylum seeker.

18    Following his arrival at the Cocos Islands and subsequent transfer to Christmas Island, the appellant participated in an interview on 26 September 2012.

19    Relevant to his claims the appellant provided the following documents:

    Document entitled “message form” and its translation, dated 09/6, with handwritten notes, namely “police summons (1)”.

    Document entitled “Notice calling for discussion for the conciliation according to the conciliation board act no. 72 of 1988” dated 23 July 2011, registration number 16/3763/ and its translation, with handwritten notation referring to the document as “police summons (1).

    Election candidate card – 2009 provincial Council election.

20    On 13 December 2013, the delegate found that the appellant failed to meet the criteria for the grant of the visa he sought. The delegate also made adverse credibility findings in regard to some of the appellant’s claims.

21    On 2 March 2015 a differently constituted Tribunal confirmed the delegate’s decision. By consent that Tribunal decision was remitted for reconsideration. Following reconsideration, new reasons for decision were given by the Tribunal on 21 December 2015. It is those reasons of the Tribunal which were the subject of consideration by the primary Judge.

Decision of the Tribunal

22    In the Tribunal proceedings the appellant provided the Tribunal with the delegate’s decision record and the following documents:

    The election candidate card – 2009 Provincial Council election and poster;

    Letter dated 8 December 2008 entitled “request to recognise the Sri Lanka United Party is a recognised political party”, addressed to the secretary of the party;

    Translated articles referring to the treatment of returnees;

    A letter stating that the author had invited the appellant to contest elections as a candidate for the Sri Lanka United Party;

    Article in the Financial Express dated 25 October 2012 referring to the closure of the Colombo visa section in the UK; and

    Submissions by the former representative referring to various Tribunal decisions referring to prison conditions in Sri Lanka.

23    Materially, the Tribunal found as follows.

24    At [17]-[25] the Tribunal discussed a s 424A letter it wrote to the applicant’s adviser indicating that on 12 November 2015 the Tribunal had obtained information from an overseas post relating to questions concerning the “message form”, the “notice for calling for discussion for the Conciliation According to the Conciliation Board”, and the “provincial Council election card.” The Tribunal noted that it had received advice that a post officer had spoken by telephone with a Deputy Inspector General of the Sri Lanka Police Service, who in turn stated that he could only comment on the veracity of an alleged police summons if he could see it and the identity of the individual was disclosed. The Tribunal noted that disclosure of the identity of the appellant was not possible. The Tribunal stated it was informed that these were not public documents, and only an accused or their legal representative could access them. The Tribunal further indicated that the post was not able to, inter alia, locate publicly available documents online to indicate that the appellant was a candidate for the Colombo Administrative District in the 2009 Provincial Council Elections, or any other election in Sri Lanka.

25    The appellant’s representative wrote to the Tribunal on 30 November 2015 advising, inter alia, that he would like to contact the compensation board in Sri Lanka directly to request it to communicate directly with the Tribunal. In relation to this issue the Tribunal observed:

23. The Tribunal does not consider the email of 30 November 2015 to be a response to the s.424A letter. Moreover, the reference to the “compensation board” was unclear as this was not about the compensation board. The Tribunal accepts that it is possible that this was an error on behalf of the representative; she might have been referring to the Conciliation Board. In any event, the email suggested to the Tribunal that this issue had been given a cursory assessment, inconsistent with a genuine commitment to resolve this issue in the benefit of justice.

24. The issue of the document has been ongoing as early as a primary stage and only up until recently, there was no effort whatsoever by the applicant to make attempts to assist the Tribunal or the primary decision maker in resolving the issue of the documents. The Tribunal cannot enable or permit the release of any identifying personal information about the applicant the [sic] Sri Lankan authorities as, amongst other things, for reasons of confidentiality and privacy and because this could give rise to potential sur place claims.

(Italics in original).

26    The Tribunal was satisfied that the appellant was a national of Sri Lanka, and was Tamil of Hindu ethnicity.

27    In relation to the appellant’s claim that he was a member of the Independent Group 6 party during the Provincial Council elections held on 25 April 2009, the Tribunal noted information the appellant had provided to it during the hearing. The Tribunal at [37] observed that, although it had concerns about the appellant’s credibility, it was satisfied that he was involved in the Independent Group 6 party, as a specifically numbered candidate. The Tribunal also concluded it was satisfied that the appellant’s uncle had made the arrangements for the appellant to be a contestant. At [38] the Tribunal continued:

38.    In consideration of the evidence as a whole, the Tribunal is satisfied that the applicant’s involvement and activities during the elections, which included canvassing for votes, did not give the applicant a significant profile of any adverse interest, or that he has an adverse profile as a result of his uncle’s activities, or that in Australia, he associates with people connected with the LTTE. Furthermore, and given the applicant’s responses in the course of the hearing, the Tribunal is satisfied that the applicant’s knowledge about both the party and the PA is limited and general, supporting the Tribunal’s findings that the applicant’s political activities were limited.

28    In relation to the applicant’s claims of harm, the Tribunal found:

    The appellant’s evidence in relation to the July 2011 incident was inconsistent, vague and unpersuasive (at [41]). He required substantial prompting to explain simple matters such as the distance between his family home and his sister’s house. The Tribunal also had difficulty accepting that if the appellant had been beaten as he claimed, he would hide in his sister’s house which, on his evidence, was only 5 kilometres from his own home.

    The appellant’s responses in relation to questions by the Tribunal were overall vague and inconsistent with other information provided by the appellant in the course of the hearing (at [47]). The appellant gave the impression that he was prepared to make claims that he perceived to be in his favour, rather than being truthful – for example, the appellant claimed that he had been charged, yet there was no mention of being charged with any offences in his visa application.

    In relation to documents provided by the appellant, on his own evidence the appellant accepted that he had provided false documents and false information to the UK authorities when attempting to apply for a student visa in the UK. The appellant’s explanations that it had been necessary for him to do so were unconvincing and unpersuasive (at [47]). This raised fundamental doubts about the appellant’s credibility as well as any supporting documents he provided in relation to his protection visa application. On this basis, the Tribunal had decided not to give weight to the claimed summonses provided by the appellant (at [47]).

    The Tribunal did not accept that, in April 2009, or in July 2011, or on any other occasion, the applicant was beaten by anyone, or taken anywhere, or that any marks he had in relation to burns on his back were as a result of the events he claimed to have occurred, or that he went into hiding at his sister’s home, or that unknown persons went to his home shouting his name, or that police ever went to his home looking for him, or that he had done anything that could be of interest to the Sri Lankan police, or that his mother had contacted him and told him not to return, or that there was any case pending against him in Sri Lanka, or that he had provided fraudulent documents to the UK authorities because of the harm he had suffered and he had no other choice, or that his uncle or the president of the party in which he was involved had suffered any of the claimed harm (at [48]).

    On consideration of the evidence as a whole and given its concerns, the Tribunal was not satisfied that the appellant had suffered any of the harm he claimed, or that he had any profile which were or would be of any adverse interest to the Sri Lankan authorities (at [49]).

    The appellant’s political activities had not given him a profile which meant there was a real chance or a real risk of him suffering serious or significant harm on the basis of those political activities (at [49]).

29    In relation to the appellant’s claims of future harm, the Tribunal noted it had discussed with the appellant relevant country information, including a report by the Australian Department of Foreign Affairs and Trade (DFAT), which indicated that, on balance, being a failed asylum seeker, a returnee from a Western country, and Tamil did not necessarily mean that there was a real risk or a real chance of serious or significant harm (at [50]).

30    The Tribunal noted the appellant’s claim that he had been in Australia for several years and formed friendships in Australia with those associated with the LTTE, however it also observed that he had not previously mentioned that he had formed those friendships (at [50]). The Tribunal did not accept that the appellant had formed any friendships with LTTE associates in Australia, or that he was or had ever been an LTTE member, supporter, or sympathiser (at [50]-[51]).

31    Although the appellant could be considered to be a failed asylum seeker and a forced returnee from a Western country who had departed Sri Lanka unlawfully, on consideration of the evidence as a whole the Tribunal was not satisfied that those factors meant that he had an adverse profile or that he would be perceived as having links or associations with the LTTE, or being an opponent of the Sri Lankan government, or that he would be subjected to more scrutiny than other returnees because of his profile, or that he faced a real chance of harm on the basis of being a Tamil who had lived in Australia (at [52]).

32    After considering credible independent country information, the Tribunal was satisfied that those who had actual or perceived strong LTTE links or sympathies could be targeted, however as the Tribunal was satisfied that the applicant had no profile of being involved or associated with, or suspected of involvement with, the LTTE, the Tribunal did not accept that the appellant would be imputed with an adverse political opinion by the Sri Lankan authorities (at [59]).

33    The Tribunal noted a recent DFAT report that there had been a cessation of forced registration of Tamils, which suggested that the trend of monitoring and harassment of Tamils in day to day life had generally eased in Sri Lanka (at [60]). At [62] the Tribunal continued:

62.     Whilst the Tribunal acknowledges that Tamils have faced a degree of discrimination and ill-treatment in Sri Lanka, on balance and on the basis of the available information, the Tribunal is not satisfied that being Tamil without more means that the applicant would be ill-treated, or that he would be suspected of being associated with the LTTE merely on the basis of being Tamil or any other basis.

34    After considering credible independent country information, the Tribunal found that there was not a real chance that the appellant would suffer harm amounting to persecution on the basis of being a Tamil failed asylum seeker, or a forced returnee from Australia. The Tribunal concluded that it was essentially those with an adverse profile who could encounter harm in Sri Lanka on returning from a Western country as failed asylum seekers (at [77]).

35    In relation to whether the appellant would be harmed on the basis of his illegal departure, the Tribunal accepted that there was a real chance that the appellant could be arrested and imprisoned for a few days on remand in Sri Lanka because he had departed the country illegally, and that conditions in prison may be crowded and poor (at [86]). The Tribunal gave weight to DFAT information that DFAT was unaware of allegations of mistreatment of returnees to Sri Lanka in general at the airport or in remand. The Tribunal also noted at [87] that Sri Lankan laws in relation to illegal departure were laws of general application, applied in a non-discriminatory manner, and serving a legitimate purpose of dealing with people who departed their country unlawfully. In the view of the Tribunal, the treatment faced by returnees who departed illegally would not give rise to persecution as contemplated by (then) s 91R(1)(c) of the Migration Act 1958 (Cth) (Migration Act).

36    On consideration of the evidence as a whole, the Tribunal was satisfied that the appellant did not now, nor in the reasonably foreseeable future, have a well-founded fear of persecution arising essentially and significantly for one or more of the five Convention reasons if he returned to Sri Lanka on the basis of his illegal departure, being of Tamil ethnicity, a failed asylum seeker, or for his illegal departure, or for any other reason (at [90]). Accordingly the Tribunal was not satisfied that the appellant was a refugee under s 36(2)(a) of the Migration Act.

37    The Tribunal also considered whether the appellant was eligible for complementary protection under s 36(2)(aa) of the Migration Act, however concluded that there was no real risk of significant harm occurring to the appellant on the basis of, inter alia, being a Tamil Hindu, or for having lived in Australia, or for being a failed asylum seeker, or because he departed Sri Lanka illegally.

Proceedings in the Federal Circuit Court

38    In the Federal Circuit Court the applicant appeared in person. He relied on an amended application filed on 20 April 2016. His grounds were as follows:

l.    The RRT did not comply with section 424AA and it has breached its statutory duty imposed by section 424A of the Act as well. The RRT has failed to put to me orally the concerns and adverse information which arose during the RRT hearing and in writing the concerns and adverse information which arose in my review (reasons for refusing my review). It has failed to invite me for my comments, after the hearing, before it made its decision.

2.    The RRT made the following jurisdictional error, in the context of my claim for complementary protection pursuant to section 36(2) (aa) of the Migration Act 1958 (Cth). The RRT fell into jurisdictional error in failing to consider whether there was a real risk that would suffer “significant harm” If I were to return to Sri Lanka by reason of the enactment of the Immigrants and Emigrants Act (the I&E Act). As defined in s 36(2A), “significant harm” includes “degrading treatment or punishment” which in turn, includes acts that cause, and are intended to cause, “extreme humiliation which is unreasonable.” I contend that the I&E Act causes, and was intended to cause, extreme and unreasonable humiliation in making it an offence punishable by imprisonment of 1-5 years and a fine to depart Sri Lanka otherwise than from an approved port of departure and/or without valid documents.

3.    I will provide further details of my grounds of review and any other my grounds in my written submission before a hearing of my matter after I have listened to my RRT hearing CDs. I need my AAT hearing CDs and I do not have it.

39    After setting out the background to the proceedings the primary Judge summarised submissions the appellant made from the bar table, namely:

24.    …the Tribunal had given too much weight to fraudulent documents in relation to his applying for a student visa in the UK. The applicant maintained that the incidents he described occurred and that the documents he provided were not forgeries. The applicant requested one more opportunity to have the matter reconsidered by the Tribunal.

40    His Honour observed that the Court had no power to grant relief on compassionate grounds or to reconsider the merits of the case. His Honour continued:

25.    … The adverse credibility findings by the Tribunal were the subject of rational and logical reasons in support of those adverse findings and were reasonably open on the material before the Tribunal.

26.    The applicant’s disagreement with the adverse findings does not identify any jurisdictional error. The issue of weight to be given to evidence is a matter for the Tribunal. In substance, the applicant’s submissions invite this Court to engage in an impermissible merits review. This Court does not have power to revisit the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

41    His Honour then turned to the grounds of the amended application before the Court, and, in summary, found as follows:

    In relation to ground 1, the s 424A letter sent to the letter on its face complied with the statutory criteria. No other information was identified enlivening any obligation under s 424A of the Migration Act (at [27]). On the face of the material before the Court the applicant had a real and meaningful hearing before the Tribunal, and an opportunity to respond to and comment on the s 424A letter sent to him after the hearing (at [28]).

    In relation to ground 2, the Tribunal correctly identified the relevant law in respect of complementary protection, and made findings open to it supported by logical and rational reasons (at [29]).

    Ground 3 did not identify any finding amounting to an alleged error (at [30]).

42    In relation to submissions made by the appellant raising further issues:

    There was no relevant matter identified by the appellant in respect of which the Tribunal failed to make a relevant finding.

    The appellant’s disagreement with the adverse findings did not identify any relevant legal error.

    The appellant’s assertion that the Tribunal placed too much weight on evidence was a disagreement with adverse findings by the Tribunal.

43    The Minister also drew the Court’s attention to the existence of a certificate under s 438 of the Migration Act issued on 6 July 2015, and relevant documents tendered by the Minister, however the primary Judge considered that those documents were irrelevant to issues before the Court.

44    His Honour found that the amended application before the Court failed to make out any jurisdictional error. His Honour ordered as follows:

(1) The amended application is dismissed.

(2) The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

INTERLOCUTORY APPLICATION to file and rely on amended notice of appeal

45    The draft notice of appeal (contained in the affidavit of the appellant filed on 23 August 2019) was in the following terms:

The Appellant appeals from Order 1 of the Federal Circuit Court of Australia given on 25th October 2017 at Sydney.

Grounds

i.    The Tribunal failed to determine claims, or an integer of the claim.

Particulars

a.    That the Applicant was at risk of suffering serious harm or persecution as a result of offences committed against the Immigrants and Emigrants Act 1949, including the procurement and use of a false passport.

b.    By misapprehending the test for imputed political opinion, that the Applicant would be imputed with political opinion.

ii.    The Tribunal acted unreasonably, illogically, or without active intellectual consideration in finding that the Applicant had not raised a claim of being charged with offences until the Second Tribunal.

iii.     The Tribunal failed to consider material corroborative evidence or otherwise failed to give reasons for rejecting evidence.

Particulars

   a.    In respect to the “summonses” and

   b.    In respect to the Applicant’s scars.

iv.    The Tribunal failed to make an obvious enquiry, in that if failed to inspect the Applicant’s scars.

46    The proposed grounds of appeal are entirely different from those initially raised by the appellant in his original notice of appeal filed on 10 November 2017. It is also apparent that the proposed grounds raise matters not before the learned primary Judge in the amended application filed in that Court on 20 April 2016. It is not in dispute that the appellant requires leave to rely on his amended notice of appeal.

Submissions of the appellant

47    Before me the appellant was represented. His submissions were, in summary, as follows:

    Relevant authorities are VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158, in particular at [46]-[48], and NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134.

    The proposed grounds of appeal have real and genuine prospects of success.

    In relation to the proposed ground concerning the appellant’s false passport:

    Evidence from the appellant in respect of his false passport was in the transcript attached to an affidavit on the file, where the appellant stated that he had not previously mentioned the issue because it was “unlawful activity” and he was in fear.

    The claim arose on the materials, and the Tribunal was aware of it.

    The Tribunal should not to limit its determination to the case articulated by an applicant if evidence and material which it accepts raises a case not articulated: NABE v Minister for Immigration (No 2) [2004] FCAFC 263 at [58].

    It was clear that the Tribunal did not consider the question of forged passports nor the position of persons with multiple offences under the legislation.

    The appellant faced the prospect of a long period in prison, where conditions were appalling.

    The failure to consider an integer of the appellant’s claim was a jurisdictional error.

    In relation to the proposed ground of appeal concerning his imputed political opinion:

    Imputed political opinion need not be expressed outright, but can be based on the reliance on evidence of engagement in activities which imply an adverse political opinion, and which would elicit a negative governmental response tantamount to persecution.

    To the extent that the Tribunal found that the applicant’s involvement in activities during the elections did not give him a significant profile of any adverse interest, and that his political activities were limited, this finding focussed solely on the “objective” position of the appellant.

    The correct focus is not on the appellant, but on the way such an imputed political opinion would be perceived elsewhere.

    The manner in which the Tribunal approached country information in this regard was wrong.

    In relation to the proposed grounds of appeal concerning the police summons and the appellant’s scars:

    The Tribunal was clearly wrong in respect of the police summons, which was referred to in the original application. The Tribunal made an erroneous credibility finding.

    The appellant gave early and consistent evidence about the presence and causation of scars on his body. The Tribunal’s findings were illogical.

    In view of the importance of the issue the Tribunal was required to inspect the scars, and it had the opportunity to do so when the appellant was present before the Tribunal.

48    The appellant also submitted that several details in the primary judgment would allow the Sri Lankan intelligence agencies to match their information and identify the appellant, and that this was an additional factor weighing in favour of leave being granted to raise new grounds of appeal.

49    Finally, the appellant submitted:

    There was an acceptable reason why the present grounds of appeal were not raised before, namely that he was unrepresented and his submissions below do not suggest understanding of relevant matters.

    The stakes are high for the appellant.

    No apparent prejudice would be suffered by the Minister if the interlocutory application was upheld.

Submissions of the Minister

50    In summary the Minister submitted as follows:

    If leave were granted to the appellant to run his entirely new case for the first time on appeal, the Minister would suffer prejudice as he would have no practical right of appeal.

    The appellant has not filed any evidence explaining why he did not raise these grounds earlier.

    This is not a case where an appellant has been entirely unrepresented in the visa application and Court process – rather the appellant was represented by a migration agent before the delegate, a solicitor and migration agent before the Tribunal, and by a solicitor in the present appeal before she filed a Notice of Ceasing to Act on 21 December 2017.

    The grounds the appellant proposes to raise have no prospects of success.

    In relation to proposed ground 1(a), the appellant never claimed before the Tribunal that he feared persecution due to his use of a false passport, such that it could not be said that the Tribunal made a jurisdictional error in respect of this claim.

    In relation to proposed ground 1(b), the Tribunal’s findings in respect of any imputed alleged political opinion are entirely orthodox.

    In relation to proposed ground 2, in its decision the Tribunal carefully analysed the document “Notice Calling for Discussion for the Conciliation According to the Conciliation Board Act No. 72 of 1988” and evidence with respect to the appellant’s previous claims. There was no doubt that the Tribunal was correct in considering that the appellant had not previously claimed to be charged with any offence.

    In relation to proposed ground 3, there were no “summonses” and the appellant’s scars were not inherently corroborative.

    In relation to proposed ground 4, the Tribunal has no duty to inquire. In any event, inspection of the appellant’s scars could not resolve any critical issue as the scars themselves would not establish their provenance.

Consideration

51    Leave to raise a new argument on appeal may be granted in circumstances where it is in the interests of the administration of justice: Montenegro v Secretary, Department of Education [2020] FCAFC 210 at [38], Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [90], (2016) 243 FCR 220 at 47. However, in Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90 detailed consideration was given by the Full Court to circumstances where an appellant in a migration case sought leave to raise new grounds on appeal. In particular, in refusing leave in that case O’Callaghan J (with whom Katzmann and Stewart JJ agreed) observed as follows:

41.    No explanation was given as to why the proposed grounds of appeal were not raised before the learned primary judge. The fact that the appellant retained new counsel is not, of itself, sufficient: BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 at [31] (Moshinsky, Steward and Wheelahan JJ); DKT16 v Minister for Immigration and Border Protection [2019] FCAFC 208 at [31] (Davies, Moshinsky and Snaden JJ).

42.    In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at 598-599 [46]-[48], the Full Court said:

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 and Multicultural Affairs [2000] FCA 1348]; 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.

See also Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 at 516 [19]- [20] (Griffiths and Perry JJ), and also 524-525 [55]-[58] (Mortimer J).

43.    It is clear therefore that merit alone will generally be insufficient for the grant of leave. As Bromwich J observed in Han v Minister for Home Affairs [2019] FCA 331 at [8]- [9] (observations which were endorsed by Perry J in BEG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 660 at [11]):

It may be convenient, and in many cases it will be entirely appropriate, to decide the question of whether to grant leave to advance an entirely new proposed ground of review in the form of a ground of appeal by giving dominant, but not exclusive, weight to the merit of the proposed ground. Merit is necessary, but not of itself ordinarily sufficient. Other features will generally need to be absent or present. Possible further considerations for the granting of leave in addition to merit include such things as 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. The decision to grant or refuse leave is then made by weighing the competing considerations, which are sometimes finely balanced.

The approach of relying predominantly on merit as the basis for leave becomes more problematic when there is no adequate explanation for the ground not having been advanced at the trial in the court below and other circumstances also tell against leave being granted. Care needs to be taken to ensure that a focus on merit does not have the troubling practical effect that a new ground sought to be raised is effectively heard and determined by this Court in the exercise of its appellate jurisdiction as though leave was not required. If that happens, the appellant may get to run an appeal which in truth is a new trial upon nothing more compelling than the fact that it might have succeeded if it had been run below. If the argument in support of the proposed ground finds favour, leave is then granted, and the appeal is allowed. If the argument does not find favour, leave is refused and the appeal dismissed. The grant or refusal of leave then turns on the success or failure of the new ground, making leave a mere formality. If so, an important principle in the administration of justice may be lost in the process.

52    Taking these principles into consideration I now find as follows.

53    First, I am not persuaded of the prejudice the Minister submits he would be likely to experience in the present circumstances, namely that if the appellant is successful in respect of the grant of leave the Minister would be unlikely to be able to obtain leave to appeal to the High Court. In my view this is an illusory argument. Insofar as concerns this alleged prejudice, the Minister is in no worse position than the appellant will be if he is unsuccessful in obtaining the leave he seeks.

54    On the other hand, I note the Minister’s submission that the grant of leave to permit the appellant to rely on new grounds of appeal will potentially cause an issue for cross-examination to arise, and result in the need for a further hearing. This would, in my view, cause prejudice to the Minister, namely wasted costs to date.

55    Second, as the Minister has submitted, no explanation of substance has been given by the appellant as to why it is only at this late appellate stage that he has sought to raise the grounds on which he now seeks to rely. Certainly the appellant was represented by Ms Michaela Byers, a lawyer and registered migration agent, in the Tribunal proceedings. It is unclear to me from the decision of the primary Judge whether the appellant had legal representation at any stage of the proceedings in the Federal Circuit Court – the decision of that Court simply notes that he appeared in person. However, at least initially in the Federal Court appeal, the appellant was represented – indeed again by Ms Byers. Ms Byers filed a Notice of Intention to Cease to Act on 13 December 2017, after the appellant had filed a notice of appeal from the primary Judge’s decision, and after case management orders had been made in respect of the appeal by a Registrar of the Court.

56    That the appellant clearly had access to legal representation at various points throughout the proceedings weighs against the grant of leave to introduce new arguments at this late stage: Raibevu v Minister for Home Affairs [2020] FCAFC 35, and Charlesworth J in Montenegro v Secretary, Department of Education [2020] FCAFC 210 at [65].

57    Third, I am not persuaded that any of the proposed grounds of appeal advanced have merit.

58    In relation to proposed ground of appeal 1(a), a real question arises as to how the appellant could claim to have a well-founded fear of persecution within the meaning of the Migration Act in respect of what appear to be domestic laws of general application in Sri Lanka concerning procurement and use of false passports. In any event, insofar as I can ascertain, the prospect of the appellant being at risk in Sri Lanka of suffering serious harm or persecution because he had, unlawfully, procured and used a false passport was not raised before the Tribunal. In the absence of such a claim, I am unable to identify how the decision of the Tribunal could be affected by jurisdictional error in this regard.

59    In relation to proposed ground of appeal 1(b), I am unable to identify how merely being imputed with a political opinion, without more (and, in particular, demonstrating that possessing that political opinion would result in the holder having a well-founded fear of persecution), constitutes a basis for a protection claim. Counsel for the appellant submitted that, as the Tribunal accepted that the appellant had been a candidate in an election, this must mean that he would be imputed a political opinion. Insofar as I understand, the alleged imputed political opinion is that of being a sympathiser with the LTTE. However, the Tribunal specifically dealt with the issue of the appellant’s political opinion at [59] where it stated:

59.    The Tribunal is satisfied that on balance, credible independent country information fundamentally indicates that it is those who have actual or perceived strong LTTE links/sympathisers who can be targeted. As the Tribunal has found that the applicant has no profile of being involved or associated with, or suspected of being involved with the LTTE, the Tribunal does not accept that the applicant would be imputed with an adverse political opinion by the Sri Lankan authorities because he is Tamil of the Hindu ethnicity, from Colombo, or he has left Sri Lanka illegally, or as a failed asylum seeker, or for any other claimed reason.

60    The appellant’s contention that there is a basis for claiming that the Tribunal did not deal with this issue lacks merit.

61    In relation to proposed ground of appeals 2 and 3(a), and the alleged unreasonable or illogical approach of the Tribunal, or the absence of active intellectual consideration on the part of the Tribunal, in finding that the appellant had not raised a claim of being charged with offences until the Second Tribunal, I note the following observation of the Tribunal:

47.    As noted above, in the course of the hearing, the applicant’s responses in relation to questions by the Tribunal were overall vague and inconsistent with other information provided by the applicant. In the course of the hearing, the applicant gave an impression that he was prepared to make claims that he perceived to be in his favour, rather than being truthful. For example, the applicant claimed that he had been charged, yet there is no mention of being charged with any offences in the application for a protection visa. This is a serious claim to make at this stage of the process and failure to have made at the primary stage reflect poorly on the applicant’s credibility. His explanations are not persuasive or convincing….

62    Insofar as I can ascertain from the material before me, this statement by the Tribunal is accurate. While, for example, in his statutory declaration dated 29 November 2012, and contemporaneous with his visa application, the appellant stated that he was asked to attend a local police station, that the police accused him of attempting to extort money, that he was held for 2 days and during that time beaten with a pole, and that the police continued to harass him, he did not claim that he was charged. Further, although in his visa application that appellant refers to copies of “police summons – relating to false accusations”, those documents as translated into English are headed “Notice Calling for Discussion for the Conciliation According to the Conciliation According to the Conciliation Board Act No. 72 of 1988.” They are not charge documents.

63    In my view these grounds have no merit.

64    Fourth, in relation to proposed grounds of appeal 3(b) and 4, I note the following observations of the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429:

25.    Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

65    I also note the observations of the Full Court of this Court in Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184:

33.    There is no general obligation to make inquiries, but as Kenny J noted in Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60], an obligation may arise in "rare or exceptional circumstances". The mere fact that it may have been reasonable to make an inquiry does not mean the lack of such an inquiry amounts to a jurisdictional error; SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] (Bennett J); MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052 at [63] (White J); Singh v Minister for Immigration and Border Protection [2017] FCA 1285 at [64] (Murphy J).

66    The appellant further submitted that a visual inspection of his scars by the Tribunal would not have been a neutral inspection, but rather would have been corroborative of the appellant’s claims. In my view this submission has no merit in circumstances where the Tribunal at [48] accepted that the appellant had burns on his back, but did not accept that they were the result of an incident involving torture as the appellant claimed. To that extent there is also no merit in proposed grounds of appeal claiming jurisdictional error on the part of the Tribunal in failing to make an inquiry by way of examination of the appellant’s burn scars.

67    Finally, in circumstances where the Tribunal has found that the appellant has no adverse profile in Sri Lanka such as to attract the attention of Sri Lankan intelligence agencies, I am not persuaded that any information contained in either this or the primary judgment militates in favour of granting leave to the appellant to raise new grounds of appeal.

68    In my view the interlocutory application to file an amended notice of appeal raising new grounds of appeal should be dismissed.

INTERLOCUTORY APPLICATION to file further evidence

69    In circumstances where the appellant is refused leave to file an amended notice of appeal raising new grounds, it was common ground that the appeal should also be dismissed.

CONCLUSION

70    At the hearing the Counsel for the Minister indicated that the Minister might wish to be heard on a particular costs order. I will hear the parties as to costs.

Associate:

Dated:    26 March 2021