Federal Court of Australia

BCT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 695

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    The first appellant, his wife and their children (BCT18, BCU18, BCW18, BCZ18, BCY18 and BCX18 respectively) arrived in Australia as unauthorised maritime arrivals on 2 April 2013. On 2 May 2016 they made applications under the Migration Act 1958 (Cth) for Safe Haven Enterprise (subclass 790) visas.

2    The appellants are citizens of Sri Lanka. In support of the visa applications, the first appellant claimed that he would be at risk of harm if returned to Sri Lanka because he had been a former combatant with the Liberation Tigers of Tamil Elam (LTTE) between 1989 and 1997 and had not undergone “rehabilitation”. More particularly, he claimed that if returned to Sri Lanka he would be detained by Sri Lankan authorities and “rehabilitated”. The first appellant also expressed a fear that if returned to Sri Lanka his wife and daughters might be subjected to sexual assault.

3    A delegate of the then-named Minister for Immigration and Border Protection refused to grant the visas. That decision was automatically referred to the Immigration Assessment Authority for a review under Pt 7AA of the Act. The Authority affirmed the delegate’s decision.

4    On 8 March 2018 the appellants commenced an application for judicial review of the Authority’s decision in the Federal Circuit Court of Australia (FCCA). On that application, the onus was on the appellants to show that the Authority’s decision was affected by jurisdictional error:  Act, s 474, Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

5    The appellants were self-represented at the time that the proceedings in the FCCA were commenced. However, they later secured legal representation and had the benefit of that representation in drafting amended grounds for judicial review and in presenting written and oral argument in support of them. Relevantly, the third ground of review was to the effect that the Authority committed jurisdictional error by failing to properly consider the first appellant’s claim to face harm in Sri Lanka as a former LTTE combatant who had not undergone “rehabilitation”.

6    The primary judge dismissed the application for review:  BCT18 & Ors v Minister for Home Affairs & Anor [2020] FCCA 1542. This is an appeal from that judgment.

7    There are three grounds of appeal.

8    The first ground alleges that the primary judge erred in rejecting the third ground of review.

9    The second and third grounds of appeal allege jurisdictional errors on the part of the Authority that were not argued in the proceedings at first instance. The appellants require the leave of the Court to rely upon those new grounds.

THE VISA CRITERIA

10    For the reasons that follow, the first ground of appeal is not established and I am not satisfied that the appellants should have leave to rely upon the remaining grounds. It follows that the appeal must be dismissed.

11    For the first appellant to be eligible for the visas it was necessary that the Minister be satisfied (relevantly) that he fulfilled one of the alternate criterion in s 36(2) of the Act:  see s 36(1A) and s 65(1) of the Act. That criterion would be fulfilled if the Minister was satisfied that the first appellant was a person to whom Australia owed protection obligations because he was a “refugee” as defined in s 5H of the Act. It relevantly provides:

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country

12    Section 5J relevantly provides:

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

GROUND 1

13    The Authority accepted that the first appellant was a member of the LTTE and that he had been involved in combat operations between 1989 and 1997.

14    The Authority referred to a report prepared by the Department of Foreign Affairs and Trade (DFAT Report) that identified the risks faced by “high profile” and “low profile” LTTE members. The Authority said (at [55]):

DFAT continues to report that the government of Sri Lanka remains sensitive to the potential re-emergence of the LTTE that former members of the organisation may face consequences from their previous membership. Those persons who may remain of security interest to the Sri Lankan Government are persons who were high profile former LTTE members (i.e. leaders of the organisation or those suspected to have committed terrorist or serious criminal acts during the conflict or to have provided weapons), or low profile former members (ie: former combatants, administrative staff or other persons who provided non-military support) who have not undergone rehabilitation. The applicant was not a high profile member of the LTTE, but may be regarded as a low profile former member if returned to Sri Lanka.

(footnotes omitted, emphasis added).

15    The Authority continued:

56.    However, given that more than 21 years have passed since his involvement with the LTTE, and that he has only had a single interaction with the authorities in the time since (in 2006) I conclude this risk is low. DFAT reports that the harassment and monitoring of Tamils in Sri Lanka has decreased significantly under the current Government.

57.    Despite the Sri Lankan authorities interest in former real or imputed LTTE members I observe that only a small number continue to be held by the Government, with less than 50 still reported to be undergoing rehabilitation. As at November 2015, only 204 former LTTE members continued to remain in Government custody. There is no indication that these numbers have increased in the period since November 2015, and country information indicates a narrowing Sri Lankan Government emphasis in former LTTE members, with the focus now on persons who have been involved in post-war separatism activities and activism. These numbers reflect the changing focus of government as earlier reported. I note the applicant has not been involved in Tamil advocacy or the Tamil separatist movement since the end of the war in 2009.

16    Before the primary judge (as on this appeal) it was submitted that the Authority had wrongly equated the first appellant with a non-combatant or rehabilitated member of the LTTE and so failed to properly assess what was said to be an essential integer of his claim. The error was significant, it was submitted, because the DFAT Report to which the Authority referred stated that “although the great majority of these low-profile (‘low-risk’) former members have already been released following their rehabilitation, any other low-profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centre” (emphasis added). Thus, it was submitted, the Authority’s failure to identify the first appellant as a non-rehabilitated combatant had the consequence that the categorisations in the DFAT Report had been misapplied.

17    The primary judge accepted that the circumstance that the first appellant had not been rehabilitated was an important component of his claims (at [25]). However, the primary judge did not accept that the Authority had failed to properly consider that claim. The primary judge said that the Authority’s reasons, read fairly and as a whole, did not suggest that it had confined its consideration of the first appellant’s claims to his status as a mere LTTE member or as a rehabilitated combatant. The primary judge said that the Authority addressed the topic of rehabilitation in two separate passages in the course of assessing whether the first appellant satisfied the Refugee Criterion, (namely in the passages at [55] and [57] extracted above). The primary judge said that the Authority had dealt with the chronology of events as asserted by the first appellant in considerable detail. His Honour said that it could not have been lost on the Authority that the first appellant claimed that he had not been rehabilitated (at [26]).

18    The primary judge said it was clear from the Authority’s reasons that it had focussed on the categories of persons who were at risk of detention and rehabilitation at the time of making its findings. The primary judge concluded (at [26]):

…  It was not necessary, due to the finding of greater generality, that the first applicant was not presently a member of a class of persons for whom rehabilitation was a risk, for it to make any finding about whether the process of rehabilitation could give rise to a real risk of harm.

19    On appeal it was submitted that the primary judge erred because the Authority’s reasons contained no finding that the first appellant would not be sent for rehabilitation, whether in the passages to which the primary judge referred or in any other part of the reasons.

20    I do not accept that submission. In my view, the primary judge was correct to approach the reasons of the Authority in the manner that he did. The passages at [55] – [57], read together, are plainly directed to an assessment of the asserted risk that the first appellant would be detained as an LTTE combatant who had not been rehabilitated. At [56] the Authority (properly) categorised the first appellant as a “low-profile LTTE member” within the meaning of that phrase in the DFAT Report. At [56], the Authority then made an assessment of the risk faced by the first appellant by reference to the fact that more than 21 years had passed since he had ceased involvement with the LTTE and the fact that he had only had one interaction with authorities in that time (in 2006). Those passages are reinforced by [57] which specifically addresses the general situation in relation to detention of low-profile LTTE members, whether for rehabilitation or otherwise. As the primary judge correctly identified, the conclusions of the Authority in connection with the first appellant’s limited interactions with Sri Lankan authorities (having earlier accepted that the authorities are aware of his status as a former LTTE combatant), together with the low rates of present day detention (including for rehabilitation) collectively constituted the Authority’s proper assessment of the feared risk.

21    The first ground of appeal is rejected.

PROPOSED GROUNDS 2 AND 3

22    The proposed second and third grounds of appeal are as follows:

2.    The IAA constructively failed to exercise jurisdiction by not properly considering claims that the wife and child applicants could face gender-based harm such as sexual assault.

3.    The authority failed to properly consider the risk of forcible rehabilitation or detention of the appellant husband cumulatively with the gender-based violence claims in relation to the appellant wife and appellant daughters.

23    As has been mentioned, the asserted errors of the Authority were not argued at first instance. In support of the application for leave to introduce the arguments on this appeal, the appellants rely on an affidavit of Ms Natalie Young affirmed on 27 January 2021. The affidavit states that the explanation for not raising the grounds in the Court below is that “different lawyers have been retained on the appeal”.

24    In CGA15 v Minister for Home Affairs (2019) 268 FCR 362, the Full Court (Murphy, Mortimer and O’Callaghan JJ) said:

36.    There is a particular sensitivity to whether the interests of justice favour a grant of leave in refugee cases, because an adverse decision may have very serious consequences for an appellant:  Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ). The merit of the proposed new ground is an important consideration. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25]:

The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law.

See also SZQBN v Minister for Immigration and Border Protection (2014) 226 FCR 68; [2014] FCA 686 at [55] (Flick J).

37.    In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [166] Madgwick J (with whom Conti J agreed) set out a non-exhaustive list of the considerations relevant to a grant of leave, which have been applied in numerous decisions. One consideration weighing against a grant of leave in the present case is that the appellant did not provide an explanation for the failure to raise the proposed new ground before the Federal Circuit Court. While the fact that the appellant had legal representation below can be seen to weigh against a grant of leave, it is not decisive. A new ground of appeal may be allowed even where the proceedings below have been conducted with legal representation and all that can be said by way of explanation was that its significance may not have been apparent to the appellant’s lawyers in the hearing below:  Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [43] (Yates J).

25    The difficulty for the appellants in this case is that the explanation provided for the failure to advance the arguments at first instance is simply that new lawyers have been engaged on the appeal. To state that is to state the obvious. The affidavit of Ms Young does not state that the grounds of review were not apparent at all to the appellants’ lawyers in the proceeding below, and I am not prepared to make such a finding by way of inference. The appellants relied on an amended originating application at first instance, advancing three grounds (one of which was not pressed). There is no reason to suppose that the appellants’ lawyers gave no consideration at all to the Authority’s findings concerning the claims about the first appellant’s claimed fears concerning his wife and daughters. A significant portion of the Authority’s reasons is devoted to the consideration of that claim. Whilst a change of lawyers might bring with it a change of approach, in my view, that is not a satisfactory explanation for the failure to raise the arguments before the primary judge. It does not appear that any attempt has been made to enquire of the appellants previous lawyers as to whether the proposed new arguments were given consideration below. The arguments may well have been considered but a decision made not to advance them. There is simply no evidence on the point.

26    It is also relevant that the Authority’s decision is not a decision that this Court has original jurisdiction to review. That jurisdiction is expressly ousted by s 476A of the Act. In my view, that is a further significant factor weighing against the grant of leave. As Perram J said in AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452 (at [14]):

…  Section 476A of the Act explicitly removes this Court’s original jurisdiction in cases of this kind. Of course, the ability of this Court to hear fresh grounds of appeal or to entertain a notice of contention is not circumscribed by s 476A as they are both aspects of the Court’s appellate jurisdiction. But s 476A is, I think, relevant to whether I should, by leave, permit fresh grounds and a notice of contention when to do so will mean that this Court performs the trial court’s entire function. As a matter of substance, that is what s 476A appears aimed at preventing. There is this further matter, too:  Pt 8 of the Act, which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance by entertaining fresh grounds and a notice of contention this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny.

27    I accept that the proposed grounds go to the issue of whether the appellants are persons to whom Australia owes protection obligations either under the Act or at international law or both. If the grounds are arguable, the appellants may lose the only remaining opportunity they have to challenge the Authority’s rejection of their claims. However to my mind that only goes to reinforce the importance that legal practitioners in proceedings before the FCCA give close attention to the availability of grounds for judicial review and agitate those grounds they consider to have reasonable prospects of success:  see Raibevu v Minister for Home Affairs [2020] FCAFC 35 (at [95] – [101]); AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433 (at [26]); AOL15 v Minister for Immigration and Border Protection [2018] FCA 979 (at [24]). There is no reason to conclude that careful consideration was not undertaken in the present case.

28    In my view, the lack of an adequate explanation for the failure to raise the grounds at first instance is sufficient in and of itself to refuse the grant of leave to introduce the arguments now, given the legal context. I would remain of that view even if it could be shown that the grounds are arguable, when tested against the low threshold that they are not bound to fail. It is a necessary requirement of all arguments in this Court and in the FCCA in migration litigation that the arguments enjoy reasonable prosects of success:  Act, s 486I. Ordinarily, it would not be a sufficient basis for leave to assert that the proposed new grounds are arguable.

29    In any event, I consider that the apparent merits of the grounds of review are not sufficiently arguable to justify the grant of leave in all of the circumstances I have described. In relation to the second ground, it has been observed that the Authority devoted a significant portion of the reasons to the claimed fear of the first appellant. It concluded that the claimed fear on the first appellant’s part was a recent invention and that he had not been truthful in respect of the events said to have given rise to his fear. The Authority’s rejection of the claim turned on its assessment of the first appellant’s credit. To succeed on the second ground it must be established that it was not open to the Authority to find that the claimed subjective fear was not genuine, in light of its adverse assessment of the first appellant’s credit.

30    In respect of the third ground, the argument is that the Authority failed to have regard to the increased risk of sexual assault that would be faced by the first appellant’s wife and daughters in the event of his detention should the family be returned to Sri Lanka. The difficulty with that submission is that it is premised on the fact of the first appellant’s detention and so depends for it success on acceptance of the first ground of appeal. The effect of the Authority’s decision is that there is not a real chance that the first appellant would be detained, whether for rehabilitation or otherwise. Accordingly, the factual assumption underpinning the proposed third ground of appeal cannot be made good.

31    The arguments sought to be raised are fact specific and do not give rise to any issues of general principle that may affect the interest of other visa or review applicants:  cf SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77 (at [27(e)]).

32    In summary, I consider leave to rely on the second and third grounds of appeal should not be granted for the sole and sufficient reason that no adequate explanation has been provided for the failure to raise the grounds at first instance. If I am wrong in identifying that as a sufficient factor to justify the refusal of leave, then I would, in my discretion, refuse to grant leave upon weighing all of the considerations to which I have referred, including my view of the merits of the grounds, assessed at an impressionistic level.

33    It follows that the appeal must accordingly be dismissed.

Associate:

Dated:    28 June 2021

SCHEDULE OF PARTIES