Federal Court of Australia

CKI15 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1507

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

Introduction

1    The question for decision in this matter is whether the appellant should be granted leave to amend his notice of appeal to rely on two grounds that were not raised before the primary judge.

2    The appellant is a citizen of Sri Lanka who arrived in Australia as an Irregular Maritime Arrival on 11 August 2012. On 10 March 2014, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (then the Minister for Immigration and Border Protection) refused his application for a protection visa.

3    The appellant first left Sri Lanka in 2001 when he went to Italy where he lived between April 2001 and July 2003. He sought protection in Italy in 2001 and was given a temporary protection, which has now expired. He returned to Sri Lanka in 2003 before leaving for South Korea, where he lived between October 2006 and October 2009, and again between December 2009 and April 2011.

4    The appellant claimed to fear harm in Sri Lanka on the basis of a dispute with a neighbouring boat yard and due to his brother in law’s political involvement. In his statement of claims, the appellant made three claims as the basis for his protection:

(a)    In 2003, he and others complained about a boatyard in front of his house. The owner of the yard had money and bribed the council, so there was no effect from his attempt at recourse, except that four people came and beat the appellant at his home, in the presence of his wife, then about nine months pregnant. She collapsed and the child, their son, was still-born;

(b)    In 2009, while the appellant was in South Korea, his brother-in-law was attacked and his head was “chopped”. The brother-in-law had some connection and did some work with the United National Party, though the appellant was unclear about who attacked his brother-in-law and why. He returned to Sri Lanka briefly in 2009 and tried to find out who were the attackers, but without success. He left Sri Lanka for another two years in South Korea. Shortly after he left, his wife said the same people who attacked his brother-in-law had come looking for him;

(c)    After he came to Australia, the appellant said that his brother-in-law, also in Australia, attacked another Sri Lankan from their home area and injured him. The appellant took the victim to hospital, but feared reprisal from the victim’s family if he were to return to Sri Lanka.

5    On 20 October 2015, the Administrative Appeals Tribunal affirmed the decision of the delegate (Tribunal’s reasons [48]). In reaching its decision, the Tribunal found (Tribunal’s reasons [30]):

Having considered the applicant’s claims, the Tribunal is drawn to the conclusion that the applicant has manufactured his claims to fear harm in Sri Lanka. The Tribunal accepts that the applicant went to Italy and Sri Lanka [sic South Korea] for economic reasons. The Tribunal also accepts that the applicant made an application for a visa of some kind for the United Kingdom whilst he was in Colombo in mid 2012. The Tribunal does not accept he did so because he feared harm in Sri Lanka. As discussed with the applicant during the hearing, he has not lived in Sri Lanka for a considerable period of time and has demonstrated a desire to maintain employment outside of Sri Lanka.

6    On 16 November 2015, the appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court, now the Federal Circuit and Family Court of Australia (FCFCOA). His ground of review before the FCFCOA was in the following terms:

The AAT erred in not giving consideration to the evidence relating to the Applicant’s individual circumstances. Also the AAT erred in not giving consideration to the evidence provided that the Applicant will suffer significant harm by the Sri Lankan authorities upon his return to Sri Lanka. I provided evidence to suggest that as a failed asylum seeker I would suffer harm and persecution in the hand of government authorities. Also I provided evidence to confirm that the offenders who had caused harm to me already would cause harm again. All that evidence, provided, has not been considered by the tribunal. Accordingly the AAT erred as a matter of law.

7    Notably, no challenge was made to the Tribunal’s adverse credit finding made at [30].

8    On 10 March 2021, following a hearing on 19 February 2021, the primary judge dismissed the application for judicial review. I pause to observe that the lapse of time, being almost five and half years, between the filing of the application and the hearing, on its face, is lamentable to say the least. The primary judge held that the Tribunal’s decision was not affected by jurisdictional error (PJ [39]). The primary judge found the Tribunal had erred in relation to a notification under s 438 of the Migration Act 1958 (Cth) but that the error was not material. No point is taken in relation to the notice in this appeal.

9    The appellant does not seek to disturb the Tribunal’s findings that none of his claims as articulated was made out. Nor is there any challenge to the finding by the primary judge (PJ [26]):

… the Applicant has not identified any other evidence or material that he says was not considered by the Tribunal. In my view, having regard to the above, there is nothing contained within the single ground of review that would give rise to any finding of jurisdictional error by the Tribunal. The Tribunal correctly identified the Applicant’s claims, considered them, and made findings in respect of them.

The application for leave to amend

10    The appellant proposes to rely on two grounds – one of which was not raised below, and so requires leave, the other of which raises a new particular of error and so also requires leave. The Minister did not oppose the appellant’s application pursuant to r 36.57 of the Federal Court Rules 2011 (Cth) for the Court to receive further evidence on appeal, being a report prepared by the Australian Department of Foreign Affairs and Trade in 2015 (DFAT Report), nor for an abridgement of time to make the application.

11    The grounds agitated before this Court can be summarised as follows:

(1)    The FCFCOA erred in not finding that the Tribunal fell into jurisdictional error in not considering, as required by law, information contained in the DFAT Report relating to torture and the possible mistreatment of persons held in prison or in detention under the control of the Sri Lankan police or other authorities.

(2)    The FCFCOA erred in not finding that the Tribunal fell into jurisdictional error in that it was legally unreasonable to find that there was no real chance that the appellant would suffer serious harm or significant harm while spending possibly up to a fortnight in prison on remand.

12    The principles applicable to determining whether leave ought to be granted to an appellant to raise a new ground of appeal were restated by the Full Court in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; 285 FCR 187 and were applied by a subsequent Full Court in TGWR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 200 at [21], [23].

13    As was said by O’Bryan J in Tohi:

110    It is common ground that, since this issue was not raised below, leave is required to raise it on the appeal. The grant of leave is discretionary. Considerations that are relevant to the exercise of the discretion have been stated many times. As recently observed by Allsop CJ, though, the ultimate question is the interests of justice and “care is always necessary in a discretion of this kind not to over-conceptualise or over-categorise matters, which, in any particular case, may be seen to affect the interest of justice, into categories of consideration to be applied as rules or as a set of rules”: MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [2].

111    The starting point remains the importance to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial: Coulton v Holcombe (1986) 162 CLR 1 at 7. Nevertheless, an appellate court may allow a point to be raised for the first time on appeal where it is expedient and in the interests of justice and where the new ground could not have been met by calling evidence and would not have resulted in the case being differently conducted: Water Board v Moustakas (1988) 180 CLR 491 at 497. The usual approach of the Court in migration cases was described by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 in the following terms (at [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.

112    As the above cases emphasise, the merit of any proposed new ground is an important consideration to the grant of leave. This does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to decide whether the proposed new appeal ground has a reasonable prospect of success: NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [31].

14    Contrary to the circumstances that arose in TGWR, the appellant was not represented by counsel before the primary judge. Nevertheless, quite properly, counsel for the appellant drew the Court’s attention to a Memorandum of Advice he had prepared for the appellant’s then solicitors dated 19 August 2019. The Advice proffered was not optimistic, but nevertheless offered to draw an amended application and submissions if instructed. Significantly, the Advice addressed the Tribunal’s finding that the appellant would not be at risk of serious or significant harm as a returned asylum seeker and illegal emigrant, the finding that is now the subject of both grounds for which leave is sought.

15    Despite this, the only evidence adduced to explain why neither of the proposed amended grounds of appeal was relied upon below was that given in the affidavit of the appellant’s solicitor, Mr Selvadurai Raveendran, filed on 2 December 2022, who deposes simply to the fact that the appellant was not legally represented below.

16    The Minister opposed the grant of leave to argue the new grounds.

17    As to the first ground, there is no dispute that the Tribunal raised the question of the potential harm to a returning asylum seeker itself as a matter that clearly emerged on the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; 144 FCR 1 at [55] and [68]. The Tribunal noted that it considered these issues to be relevant even though “no submissions or claims have been made in relation” to them, and “the applicant indicated that he had no comments when the issues were discussed with him during the hearing (Tribunal’s reasons [31]). To the extent that the Tribunal’s finding in this respect was the subject of challenge below, the appellant’s sole ground of review included that “the AAT erred in not giving consideration to the evidence provided that the Applicant will suffer significant harm by the Sri Lankan authorities upon his return to Sri Lanka. I provided evidence to suggest that as a failed asylum seeker I would suffer harm and persecution in the hand of government authorities”.

18    As was found by the primary judge (PJ [24]), the Tribunal dealt comprehensively with the issue of whether the appellant may face harm as a returned asylum seeker. The primary judge noted:

Among other things, the Tribunal accepted that the Applicant left Sri Lanka illegally by boat and came to Australia to seek asylum (at [31]). It also accepted that the Applicant would be questioned at the airport and bailed upon a hearing by a magistrate (at [33]). The Tribunal noted that the Applicant had previously been charged for illegal departure (at [34]), but considered independent evidence in concluding that the Applicant would not be subject to a custodial sentence and the prospect of him being detained for a prolonged period as a penalty for illegal departure was remote (at [35]). The Tribunal ultimately concluded that that the Applicant would not face a real chance of serious harm in Sri Lanka or a real risk of significant harm: see paragraphs [31]-[44] of the reasons.

19    The appellant seeks to contend that, on a close reading of the DFAT Report, the Tribunal was obliged to consider information relating to torture and possible mistreatment of persons held in prison or in detention and so was wrong to find, (Tribunal’s reasons [40]), that

…the weight of that evidence indicates that despite large numbers of reported involuntary returnees to Sri Lanka, including those who departed Sri Lanka illegally by boat, and high levels of media interest in such persons, there has been no reporting of persons suffering significant harm as contemplated by s 36(2A).

20    In support of this submission, the appellant cited a section of the DFAT Report which referred to DFAT being aware of a “small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka”, but went on to state, “Verifying these allegations is complicated…”.

21    Not only is there little to support the submission that the Tribunal was wrong in its interpretation of the DFAT Report, but it is difficult to see that any inference arises that the Tribunal overlooked any aspect of the DFAT Report: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 256 FCR 593 at [47]. This is particularly so when the appellant had never claimed that he was likely to be subjected to torture upon return to Sri Lanka. Not only does the appellant seek to ask this Court to scrutinise the Tribunal’s reasons minutely with an eye keenly attuned to the perception of error (Minister for immigration and Ethnic Affairs and Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30]–[31]), he also invites this Court to parse a Commonwealth departmental report as if it were a carefully drafted and legally binding document.

22    As to the second proposed ground of appeal, the appellant submitted that, based on the content of the DFAT Report, it was legally unreasonable for the Tribunal to have found that there was no real chance that the appellant would suffer serious harm or significant harm while spending up to a fortnight in prison on remand.

23    As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135], the question that needs to be asked in determining whether a decision was legally unreasonable is whether:

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

(emphasis added)

24    As has already been observed, the Tribunal dealt at length with the potential harm the appellant might face as a returned asylum seeker in light of the Tribunal’s assessment of all the evidence before it, including the DFAT Report. The primary judge found no error in the Tribunal’s approach to this issue. To succeed on this proposed ground, the appellant must establish that there is no logical connection between the evidence and the inferences or conclusions drawn such that no logical or rational decision maker could have come to the same conclusion.

25    The appellant has not established, at an impressionistic level, that there is any merit to the grounds of appeal now sought to be advanced nor that it is in the interests of justice for leave to be given to raise the proposed new grounds of appeal.

26    As was the case in TGWR, the circumstances of the present case are redolent of those that risk first instance hearings becoming no more than ‘preliminary skirmishes’ (Tohi at [19]). It is also worth reiterating what was said by the Full Court in TGWR at [24]:

Like all civil litigation in this Court, migration appeals must be conducted in accordance with the case management imperatives in Pt VB of the Federal Court of Australia Act 1976 (Cth). In exercising a discretion relating to the grant of leave, the Court must exercise it in the way that best promotes the overarching purpose of the resolution of the dispute according to law, and as quickly, inexpensively and efficiently as possible: s 37M(3). These objectives are not promoted by giving appellants a second chance to run arguments that could have been run before a primary judge unless sound and cogent reasons are established. That is not the case here.

27    Nor is it the present case.

Disposition

28    Leave to amend the notice of appeal to add the two proposed new grounds of appeal must be refused and the appeal should be dismissed with costs.

Associate:

Dated:    16 December 2022