Federal Court of Australia

CKB16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 327

ORDERS

THE COURT ORDERS THAT:

1.    Leave to file the document titled “Draft document Notice of Appeal from the Federal Circuit Court of Australia” be refused.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from orders made by the Federal Circuit Court of Australia (as it then was, now the Federal Circuit and Family Court of Australia (Div 2)) on 27 February 2020 dismissing an application for judicial review of a decision of the second respondent (Authority) made on 8 August 2016: CKB16 v Minister for Immigration & Anor [2020] FCCA 388. The Authority had affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a safe haven enterprise (Class XE) Subclass 790 visa (SHEV). Relevantly the Federal Circuit Court made orders refusing leave to the appellant to rely on a document described as a “proposed further further amended application”, dismissing the appellant’s application made on 29 August 2016 as amended and further amended and requiring the appellant to pay the first respondent’s costs in a fixed amount.

background

2    The appellant is a citizen of Sri Lanka. On 3 September 2012 he arrived in Australia at the Cocos (Keeling Islands) as an unauthorised maritime arrival.

3    On 9 September 2015 the appellant applied for a SHEV.

4    In a statutory declaration made on 8 September 2015 attached to his application for a SHEV the appellant set out his claims to fear harm. In summary, the appellant claimed that:

(1)    in the early 1990s, the appellant’s uncle was detained by the Sri Lankan Army (SLA) on suspicion of being a supporter of the Liberation Tigers of Tamil Eelam (LTTE). The SLA later confirmed that the appellant’s uncle had been killed;

(2)    in about 2006 the Tamil Makkal Viduthalai Pulikal (TMVP) set up a camp near the appellant’s home. There was also an SLA camp nearby and the LTTE maintained a camp approximately one kilometre from the appellant’s family home. As a result the appellant’s family lived at constant risk of harm due to conflict between the LTTE and SLA. The SLA would attend the appellant’s family’s home, suspecting falsely, that it was a base for LTTE members attacking the SLA camp. At about the same time the TMVP began forcibly recruiting young male Tamils. The appellant’s parents feared he would be recruited and so sent him to live with a family friend in Batticaloa;

(3)    from about the beginning of 2011 until April 2012 the appellant lived with his uncle in Batticaloa while studying at secondary school. He would sometimes live at home for one or two days but principally stayed with his uncle for fear that, as a young Tamil, returning to the area and unknown to the SLA, given the years he had been away, he would be deemed to be associated with the LTTE and at risk of harm from the SLA;

(4)    because of that risk, in about August 2012 the appellant decided to leave Sri Lanka; and

(5)    approximately five months after his departure from Sri Lanka the SLA attended his family home and questioned his parents about his whereabouts.

5    On 17 November 2015 the appellant attended an interview with a delegate of the Minister.

6    In a submission dated 24 November 2015, provided to the Minister’s delegate after his interview, the appellant advanced a further claim that a number of his other family members had been killed by reason of an imputed connection to the LTTE.

7    On 23 June 2016 the delegate refused to grant the appellant a SHEV and referred the matter to the Authority.

8    On 8 August 2016 the Authority affirmed the decision not to grant the appellant a SHEV.

the authority’s decision

9    The Authority set out the appellant’s claims for protection before proceeding to make its findings. In doing so it:

(1)    accepted as plausible that the appellant’s uncle had been detained and killed by the SLA, as had a number of his other relatives, because of an imputed connection to the LTTE. However, it did not accept that the appellant had a profile with the Sri Lankan authorities as having ever been involved in Tamil separatism or being a supporter of the LTTE because of his family association;

(2)    accepted as plausible that the TMVP had approached the appellant’s family home while he was living with his uncle in Batticaloa, that the SLA had made enquires of his family about him at that time and that the SLA came to his family home following his departure for Australia. However, as the appellant had never been questioned or detained or experienced any harm from the authorities, it did not accept that he is a person of any interest to the authorities. Thus the Authority was not satisfied that the appellant would face a real chance of harm on return to Sri Lanka from the SLA in the future. In addition, given the country information reporting that the security situation in Sri Lanka has greatly improved since the end of the civil war, and having regard to the fact that the TMVP had only visited the appellant’s family home once in the past, the Authority was not satisfied that the appellant would face harm in the future from the TMVP;

(3)    noted the appellant’s evidence that he had not experienced personal problems by reason of his Tamil ethnicity. Notwithstanding that, it accepted that during the civil war and until the appellant left Sri Lanka in 2012 Tamils in the Eastern Province experienced discrimination on the basis of ethnicity including the confiscation of land, restrictions on access to education, government employment, housing and free movement and that young and middle aged Tamil men were frequently harassed by security forces and paramilitary groups. But, the Authority found that country information did not support the proposition that Tamils continue to be targeted and subjected to serious harm on the basis of their ethnicity alone; and

(4)    accepted that the appellant departed Sri Lanka without the knowledge of the Sri Lankan authorities, as a result he will be exposed to action by the authorities under Sri Lanka’s Immigrants & Emigrants Act (I & E Act) and, as he departed Sri Lanka unlawfully, he may be viewed on return as a failed asylum seeker. The Authority accepted that following investigation at the airport the appellant would be charged with an offence of illegal departure and handed over to the police. It referred to the appellant’s claim that he would suffer in detention until a relative provided bail but noted that country information reported that detainees are not subject to mistreatment during processing at the airport. The Authority found on the evidence before it that the appellant would be charged under the I & E Act and fined if he pleaded guilty. If the appellant was to plead not guilty he would be bailed on his personal surety by a magistrate. Even accounting for the conditions in detention, the Authority was not satisfied that this treatment would constitute serious harm and was not satisfied that the I & E Act was selectively enforced or applied in a discriminatory way.

10    The Authority concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act 1958 (Cth) and did not meet the requirements of s 36(2)(a) of the Act.

11    The Authority then turned to consider the complementary protection criterion. In doing so it relied on the findings of fact it had already made. It noted that it had accepted that the appellant might suffer some societal discrimination, but it was not satisfied that he faced a real risk of significant harm as a Tamil and it was not satisfied that any treatment under the I & E Act would amount to significant harm. It concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country (Sri Lanka), there is a real risk that the appellant will suffer significant harm. Thus it concluded that the appellant did not meet s 36(2)(aa) of the Act.

The federal Circuit Court decision

12    Prior to the hearing before the Federal Circuit Court the appellant had filed a further amended application dated 5 August 2019. The application before the Court was described by the primary judge at [1] of CKB16 in following way:

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 29 August 2016, amended on 28 December 2016, further amended on 19 July 2019, and yet further amended on 5 August 2019 seeking review of the decision of the Immigration Assessment Authority (“the IAA”), which on 8 August 2016 affirmed the decision of the Minister’s delegate (“the delegate”) not to grant the applicant a Safe Haven Enterprise Visa (“SHEV”) (“protection visa”) (“the visa”).

13    As is evident from the primary judge’s reasons, the course of preparation for the hearing did not run smoothly. The primary judge recited the history of the proceeding at [17]-[24] in the following way:

[17]    The applicant was not legally represented when he made his application to the Court on 29 August 2016.

[18]    On 24 November 2016 a Registrar of this Court made orders for the conduct of this case. Amongst those orders the applicant was given the opportunity to file an amended application by 19 January 2017. The applicant filed an amended application on 28 December 2016.

[19]    At a callover on 23 March 2017, the matter was listed for final hearing on 3 September 2018. On 16 January 2018 the parties were notified by letter and email respectively that the matter was re-listed for hearing on 2 August 2019.

[20]    On 27 June 2019 the parties were notified by email that their case may be affected by the judgment of BVD17 v Minister for Immigration & Border Protection [2019] HCA 34 (handed down on 9 October 2019), consequently the hearing of 2 August 2019 was vacated.

[21]    On 27 July 2019, an email was received from “Sentil Solicitor & Barrister” notifying the Court that Senthil Rajan Sinnarajah was now representing the applicant, however he had mistakenly filed the Notice of Address for Service (“NAS”) in an unrelated matter. A copy of this NAS was attached to the email, however it was not filed in this matter, until 10 February 2020.

[22]    On 16 October 2019, the parties were again contacted by email and the matter was set down (by consent) for final hearing on 13 February 2020. The applicant was legally represented by a solicitor, at that time, who continued to act for the applicant.

[23]    At the final hearing, the applicant was represented by counsel who sought leave to proceed by way of a “further further amended application”. This document was annexed to the applicant’s affidavit of 8 February 2020, which had been filed on 10 February 2020. A further amended application had been filed previously and it was that version of the applicant’s application which was addressed by the Minister in his written submissions to the Court (see further below).

[24]    The applicant also filed written submissions on 10 February 2020. Orders made previously by a Registrar of the Court required the applicant to file his written submissions 14 days before the final hearing and the Minister to file written submissions 7 days before the hearing. The Minister complied with that order. The applicant did not.

14    Before the primary judge the Minister opposed the application for leave to “further further amend” the application for judicial review.

15    At [28] of CKB16 the primary judge explained that “there was no objection from the Minister to proceeding with the hearing in relation to the grounds in the further amended application, and for the Court to hear argument on the proposed grounds in the further further amended application to determine whether any of those grounds had requisite merit so as to argue for the leave to further further amend the application”. The primary judge also recorded (at [30]):

(1)    that the appellant had confirmed that grounds 1, 3 and 4 of the further amended application were not pressed and were abandoned; and

(2)    his understanding that the grounds in the earlier versions of the appellant’s applications had been superseded by the further amended application.

16    What then were the grounds which were pressed before the primary judge? They were ground 2 of the document described as the “further amended application”, given that grounds 1, 3 and 4 had been abandoned, and an application by the appellant to rely on the document titled “further further amended application” which included three new grounds as grounds 5, 6 and 7. The primary judge proceeded on the basis that the appellant could argue ground 2 of the further amended application (which was reproduced in identical terms in the further further amended application) but would need leave to rely on his new grounds in the further further amended application, being proposed grounds 5, 6 and 7.

17    Given the proposed grounds of appeal relied on in this Court, it is only necessary to have regard to the primary judge’s treatment of proposed grounds 6 and 7 of the further further amended application. Those grounds were recorded in CKB16 at [70] and [95] respectively, as follows (omitting particulars):

[70]    Proposed ground 6 is in the following terms:

“The IAA erred when it failed to consider the aspect of the [appellant’s] claims that he was of combat age in Sri Lanka during the conflict and at the time of his departure from Sri Lanka, when the IAA dealt with his claims, such failure amounting to a constructive failure to exercise its jurisdiction and jurisdictional error.

Particulars

…

[Underlining Removed.]

…

[95]    Proposed ground 7 is in the following terms:

1.    The IAA erred when it failed to consider the aspect of the [appellant’s] claims that he was of combat age in Sri Lanka during the conflict and at the time of his departure from Sri Lanka, when the IAA dealt with his claims, such failure amounting to a constructive failure to exercise its jurisdiction and jurisdictional error. (See earlier Ground)

2.    As a result, the IAA failed to properly consider the claim that the [appellant] ‘’will be detained for additional questioning and will be subject to harm due to these cumulative basis.” [CB250] and his claim “it is likely authorities would interrogate (him) upon return to Sri Lanka” [CB210], such failure amounting to a constructive failure to exercise its jurisdiction and jurisdictional error.

Particulars

…

[Underlining Removed.]

18    The primary judge noted that the essence of proposed ground 6 was that the Authority did not consider an integer of the appellant’s claim to fear harm and this revealed jurisdictional error, as was explained in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 and Htun v Minister for Immigration and Multicultural Affairs [2002] FCA 1802: CKB16 at [71].

19    The primary judge set out the appellant’s submissions and referred to the material relied on by the appellant to support his argument that the Authority had failed to consider his claim that he feared harm because he was of “combat age”, a matter which he expressly referred to in his submissions to the Authority. The appellant argued that the Authority referred to the appellant as “young” but not to his being of “combat age”: CKB16 at [71]-[76].

20    At [77] of CKB16 the primary judge observed that:

What emerges is as follows. The [appellant] claimed to fear harm because the Sri Lankan authorities would view him as having a “risk profile”. The reasons for this, as claimed by the [appellant], were certain features of his particular circumstances which included his age.

21    His Honour set out the evidence and submissions relied on by the appellant which, according to the appellant, supported his proposed ground 6. The primary judge then concluded at [84] that what the appellant claimed was “that as a young Tamil male, that is of young age, he was of a similar age to other LTTE combatants. That is, what made him of ‘combat age’ was his youth”. At [87]-[88] the primary judge said:

87.    Before the Court, the [appellant] did not satisfactorily explain how the reference to “combat age” of itself added to the risk profile beyond being a young Tamil from the North-East of Sri Lanka who was of a certain age such that he was perceived to be of combat age.

88.    As the [appellant] himself made clear the other three members of his extended family killed by the SLA were of adverse interest to the SLA, and were young Tamil males (see Death Certificates at CB 194-CB 196). In all being a young Tamil male (as was the case with his extended family) meant he was of interest, amongst other things, because he was of combat age.

22    The primary judge then referred to those parts of the Authority’s reasons where it considered the appellant’s risk of harm because of his age, before stating at [93] that:

In all, before the Court, the [appellant] was unable to satisfactorily indicate, how the reference to “combat age” was different to, or added a different dimension to, the claim that he feared harm because in the past during the Civil War, and when he left Sri Lanka, he was a young Tamil (that is, of a certain age) who because of this would be perceived as having certain connections (or attract interest from the TMVP or LTTE for recruitment) which would raise his profile to a higher risk.

23    The primary judge therefore concluded that proposed ground 6 lacked merit such that he would not grant the appellant leave to rely on it: CKB16 at [94].

24    Before the primary judge the appellant submitted that the proposed ground 7 “hung off” proposed ground 6. The primary judge understood this to mean that it was another example of reliance on the “combat age” point and that it directed attention to [53] of the Authority’s reasons. To the extent proposed ground 7 sought to assert a failure by the Authority to consider the combat age point, the primary judge found that it lacked merit for the same reasons as propose ground 6. His Honour otherwise found that there was no error by the Authority at [53] of its reasons in considering the cumulative effect of certain matters in assessing the chance of harm to the appellant on his return to Sri Lanka: CKB16 at [100]-[106].

25    The primary judge concluded that there was “no requisite merit in proposed ground 7” such that leave to rely on it would be granted: CKB16 at [107].

26    At [108]-[109] the primary judge set out his overall conclusion on ground 2 and the application for leave to amend to rely on proposed grounds 5, 6 and 7 as set out in the further further amended application as follows:

108.    There is no requisite merit in any of the four proposed grounds of the further further amended application. It is therefore appropriate to refuse leave to the [appellant] to proceed by way of the further further amended application, noting as set out above, that no attempt was made to provide any explanation whatsoever for the delay in bringing forward the further further amended application.

109.    The grounds of the application as amended, and further amended, were abandoned. As set out above ground 2 of the further amended application became a part of the further further amended application. It is therefore appropriate to otherwise dismiss the application. I will make those orders.

the appeal

27    At the time of commencement of the appeal the appellant was not legally represented. In his notice of appeal filed on 18 March 2020 he included the following:

I still rely on the grounds and particulars being already stated in my FCC Application.

I propose to seek further legal advice from a Solicitor and a Counsel opinion on merits of my FC Application.

I have decided to lodge this FC Application myself to protect my Appeal rights and in order to obtain a Solicitor and Barrister’s opinion as to the prospects of success of my FC Application and as the Barrister’s opinion is not available at this stage.

I may file Amended Notice of Appeal where necessary (only after transcript of the FCC hearing/SHEV interview CDs/Appeal Book has become available to me and when a barrister’s opinion supporting such amendment/s becomes available to me along with opinion my case has sufficient merit.

Grounds of appeal

The Federal Circuit court failed to find that the IAA declined its jurisdiction to me.

1.    I am the Appellant.

2.    I lodge this FC Application myself.

3.    The Federal Circuit Court erred when it found the Authorities’ decision is not affected by jurisdictional error.

28    On 4 May 2020 Registrar McCormick made directions for the preparation of the appeal for hearing. As the appeal had not yet been allocated a hearing date, those directions included as direction 10 that the lawyers for the Minister were to notify each other party in writing of the hearing date (presumably once it was allocated) and of the Court’s directions.

29    On 22 February 2023 a “Notice of Acting - Appointment of Lawyer” was filed by Sentil Solicitor on behalf of the appellant and on 23 February those solicitors attempted to file a document titled “Draft document Notice of Appeal from the Federal Circuit Court of Australia” (Draft NOA) and filed an affidavit affirmed by the appellant on 21 February 2023 and submissions.

30    The Draft NOA raises one ground of appeal. It concerns proposed grounds 6 and 7 in the “further further amended application” which was before the primary judge and provides:

4.    The Lower Court erred when it considered Grounds 6, and 7 lacked merit so as to argue for leave to the [appellant] to amend the Application and rely on the Further Further Amended Application.

Particulars – Ground 6

1.    The Lower Court found this Ground lacked merit at [94][AB331] and declined to grant leave to allow the Applicant to agitate the ground 6;

2.    The Applicant specifically feared being detained for additional questioning and being subject to harm upon arrival in Sri Lanka due to being of combatant age, together with other factors [AB250];

3.    The IAA was not satisfied that the Applicant faces a real risk of a significant harm as a Tamil-or young Tamil male. [62][AB272];

4.    The Lower Court did not accept that the IAA had erred by not considering the Applicant’s fear that being of combat age (during the civil conflict – [76]) increases the possibility of the Applicant being linked to the LTTE upon arrival to Sri Lanka, and that this was a claim not considered by the IAA;

5.    While the Applicant’s representative-referred to the Applicant being of similar age to other LTTE combatants who were recruited from Batticaloa towards the end of the Sri Lankan Civil war [83], the Lower Court incorrectly reasoned that the Applicant was claiming that ‘as a young Tamil male, that is of young age, he was of similar age to other LTTE combatants. That is, what made him of “combat age” was his youth.’ [84][AB329]

6.    The Lower Court found the Applicant was unable to satisfactorily indicate how the reference to ‘combat age’ was different to, or added a different dimension to, the claim that he feared harm because in the past during the Civil War, and when he left Sri Lanka, he was a young Tamil (that is of a certain age) who, because of this would be perceived as having certain connections (or attract interest from the TMVP or LTTE for recruitment) which would raise his profile to a higher risk. [93][AB331]

7.    The Lower Court accordingly attributed the concept of being a ‘young Tamil’ to being the same thing as being ‘of combatant age’ when, although many Tamils who were recruited were of the Applicant’s age, it could not be said that all ‘young Tamils’ were potential combatants and so of ‘combatant age’;

8.    The Lower Court’s focus on the youth of Tamils misconceived the basis of the Applicant’s fear, being the perception that he was, due to his age, a likely combatant. The IAA and Lower Court both considered the primary and significant determinant facing the Applicant was his youth during the Civil War, when the primary determinant was the likelihood he would be seen as a combatant and not merely a young person during the Civil conflict;

9.    Accordingly, the Lower Court made an unreasonable, illogical and irrational finding and thereby committed jurisdictional error in declining to grant leave to the Applicant to agitate the ground 6.

5.    Particulars - Ground 7

1.    The Lower Court found Proposed Ground 7 lacked merit so as to argue for the leave that the Applicant sought at [107][AB333] and declined to grant leave to allow the Applicant to agitate the ground 7;

2.    This Ground asserted the IAA failed (Para 2) to properly consider the claim the Applicant ‘will be detained for additional questioning and will be subject to harm due to these cumulative bases’ [CB250] and his claim “it is likely authorities would interrogate (him) upon return to Sri Lanka” [CB210] as a result of (para 1) failing to consider the aspect of the Applicant’s claims that he was of combat age in Sri Lanka during the conflict and at the time of his departure from Sri Lanka. (see [AB304]);

3.    Accordingly, this Ground was dependent upon the outcome of the Lower Court’s findings in respect of the ‘combat age’ claim propounded in Ground 6;

4.    The IAA considered these claims and found at [53][AB270] that questioning by the authorities combined with possible detention and a fine does not amount serious harm. However, this consideration did not include the combatant claim;

5.    The IAA did not consider the effects of factors including the Applicant, being of combat age during the civil war when recruitment of young men into fighting forces occurred, together with other matters the Applicant claimed were of relevance, on the question of whether he was likely to be harmed upon return, and accordingly did not properly consider all claims;

10.    The Lower Court erred [100][AB333] when it found for reasons articulated in Ground 6 that Ground 7 ‘lacks merit for reasons set out above in relation to proposed ground 6.’ and in declining to grant leave to the Applicant to agitate the ground 7.

6.    The Lower Court accordingly made an unreasonable illogical and irrational finding and thereby committed jurisdictional error, and also failed to properly consider one of the Applicant’s claims, and so constructively failed to exercise its jurisdiction.

31    In his affidavit, by way of explanation for the delay in providing the Draft NOA, the appellant deposes that:

(1)    on 20 December 2022 he received an email attaching the directions made by the Registrar and the date fixed for hearing of the appeal, being 2 March 2023;

(2)    on 1 February 2023 he received the Minister’s submissions and list of authorities. He said at the time his father was ill and he was supporting him financially;

(3)    on 5 February 2023 he met with his solicitor, Senthil Rajan Sinnarajah, to obtain advice in relation to his appeal and on 10 February 2023 he instructed Mr Sinnarajah to appear for him at the hearing of the appeal on 2 March 2023; and

(4)    he checked all of his emails to see if he received earlier notification of the Registrar’s directions or the hearing date but could not find any references to these documents.

Should leave be granted to rely on the Draft NOA?

32    The appellant requires leave to file and rely on the Draft NOA. The appellant’s application for leave to rely on the Draft NOA is opposed by the Minister because of its lateness. That is, although the Registrar did not make a direction for the filing of an amended notice of appeal, it was the attempt to file the Draft NOA just days before the hearing which was self-evidently very late.

33    In exercising its discretion to grant an extension of time the Court will ordinarily consider: the length of, and explanation for, the delay; any prejudice to the respondent, although its absence, without more, does not of itself justify the grant of an extension; and the merits of the substantive appeal. The latter should be examined at an impressionistic level: see Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20]-[21]. Although the principles set out in Singh were in the context of an appellant who had failed to meet the statutory time requirements for the filing of his appeal, in my view they can be applied equally to the present situation.

34    The Minister could point to no prejudice. Despite not having the Draft NOA when he prepared and filed his submissions, those submissions in any event address the issues raised by the Draft NOA.

35    The Minster opposes the filing based on the lack of explanation for the delay in its filing and its lack of merit.

36    As to delay, the appellant has provided some explanation for the delay in the attempt to file the Draft NOA. In summary the appellant says he first became aware of the hearing date and the Registrar’s directions in late December 2022. His explanation for not seeking out legal advice until early February 2023 seems to be because of his father’s illness and, I infer, lack of funds. The appellant’s evidence was not challenged and, in the circumstances, I am prepared to accept it as adequate.

37    The question of whether the appellant should be granted leave to rely on the Draft NOA thus comes down to one of merit. Before turning to consider that question I make the following observations.

38    First, the Draft NOA focuses attention on the primary judge’s refusal to grant leave to rely on grounds 6 and 7 of the further further amended application. One question that arises is whether, insofar as the primary judge refused leave, his decision is interlocutory such that there is no automatic right to appeal from it and the appellant ought to seek leave to appeal. There is a division of opinion on that question.

39    In BXU16 v Minister for Immigration and Border Protection [2018] FCA 1897 Lee J considered that a decision by the primary judge in that case insofar as he refused an application for leave to amend was interlocutory and that leave to appeal from it was required: BXU16 at [2]-[3].

40    However, in CWX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 673 Gleeson J came to the opposite view. There the primary judge had refused the appellant leave to rely on an amended application. On appeal the Minister filed a notice of objection to competency on the basis that the appellant required leave to appeal from the primary judge’s decision but had not sought that leave. As is the case before me, the dismissal of the application by the primary judge was neither a summary dismissal pursuant to r 13.10 of the Federal Circuit Court Rules 2001 (Cth) (now repealed) nor a dismissal pursuant to r 13.07 of those rules, which provided for dismissal by summary judgment. At [17] her Honour held that “the legal effect of the dismissal of the application was to determine on a final basis the appellant’s right to seek judicial review of the [Administrative Appeals Tribunal’s] decision” and that the “dismissal occurred after a hearing which appears to have been a final hearing”. Justice Gleeson was satisfied that the appeal before her was competent and, to the extent her Honour’s conclusion involved a departure from the decision in BXU16, she was satisfied that she should not follow that decision “because it is clearly wrong if it implies that leave to appeal may be required from a decision of the [Federal Circuit Court] which finally determines an application to that court for judicial review”: at [19].

41    In this case the Minister did not file a notice of objection to competency of the appeal and when I raised the issue at the commencement of the appeal did not seek to agitate it before me. In the absence of argument on the question I do not need to determine it. I will proceed on the basis that, if leave to appeal is required, it is not opposed: see ANS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 559 at [34].

42    Secondly, by the Draft NOA the appellant challenges the primary judge’s exercise of discretion in refusing to grant leave to rely on proposed grounds 6 and 7 in the “further further amended application”. Thus the appellant is required to demonstrate an error in the exercise of that discretion in accordance with the principles explained in House v The King (1936) 55 CLR 499 at 505. That is, he must demonstrate that the primary judge acted on a wrong principle, was guided by extraneous or irrelevant matters, made a mistake of fact, did not take into account a material consideration or that the decision is unreasonable or plainly unjust.

43    Thirdly, the appellant accepts that proposed ground 7 went hand in hand with proposed ground 6 and that if he cannot satisfy me that the primary judge erred in refusing leave to rely on proposed ground 6, he cannot succeed in relation to proposed ground 7.

The appellant’s submissions

44    The appellant referred in his written submissions to aspects of his statutory declarations and the submissions filed on his behalf, which were before the Authority, and which referred to him being of “combat age” or of “combatant age”. He submits that it was incorrect for the primary judge to have effectively equated being a “young Tamil” with being of “combatant age” and that the essence of the fear is, because he was of a young age, he would be assumed to have been a combatant with the LTTE. He contends that the true nature of the fear arises, not because of his youth per se, but because of what his youth meant – that he would have been a combatant.

45    The appellant submits that both the Authority and the primary judge failed to understand this distinction and considered the “young age” was the critical aspect, and that the possibility of being a combatant added nothing. He said that this was made clear by the primary judge at [93] of CKB16. The appellant submits that in so failing the primary judge made an unreasonable, illogical and irrational finding and thereby committed jurisdictional error and that his Honour also failed to consider properly one of his claims and so constructively failed to exercise the Court’s jurisdiction. He contends that in finding that proposed ground 6 lacked requisite merit such as to call for the leave the appellant sought, the primary judge fell into jurisdictional error and accordingly erred in not granting him leave to agitate that ground of the application.

46    As to proposed ground 7, the appellant submitted that in wrongly dismissing ground 6, the primary judge proceeded to dismiss proposed ground 7 as a direct consequence.

47    On the assumption that proposed ground 6 was wrongfully dismissed, the appellant submitted that the Authority failed to properly consider the “combatant age” claim when considering the appellant’s claim that he “will be detained for additional questioning and will be subject to harm due to these cumulative basis” and his claim that “it is likely authorities would interrogate (him) upon return to Sri Lanka”. The appellant contended that since the Authority failed to consider the “combatant age” aspect of his claims, it failed to assess his claim that he would be detained for additional questioning and subject to harm “due to these cumulative basis”. He submitted that accordingly the primary judge made an unreasonable, illogical and irrational finding and thereby committed jurisdictional error and the primary judge failed to properly consider one of his claims and so constructively failed to exercise his jurisdiction. The appellant submitted that accordingly the primary judge erred in not granting him leave to agitate proposed ground 7 of his “further further amended application”.

Consideration

48    As set out at [42] above, given the discretionary nature of the order made by the primary judge in refusing leave to file the further further amended application, and thus leave to rely on proposed grounds 6 and 7, the appellant must first show that there is an arguable error of the type identified in House v King. However, the appellant has failed to show how, in refusing leave to him to amend the application to rely on proposed grounds 6 and 7, the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, was mistaken as to the facts or failed to take into account some material consideration, or that his Honour’s decision was unreasonable or plainly unjust.

49    In refusing leave to amend and to rely on the further further amended application, the primary judge took into account, if not expressly, implicitly, the potential prejudice to the Minister, the explanation for the delay in bringing forward the proposed “further further amended application” and the merits of the proposed grounds, albeit it was the latter that was the focus of the primary judge’s consideration. Those are all relevant considerations in an application for leave to amend.

50    The appellant said that the primary judge made an error in the exercise of his discretion because he acted upon a wrong principle, being that his Honour ignored the separate claim made by the appellant that he was of “combat age”. That is of course not a principle as envisaged by House v King. However, as error may also be inferred from the result, I turn to consider further the primary judge’s consideration of the merits of proposed grounds 6 and 7.

51    By proposed ground 6 of the further further amended application before the primary judge the appellant contended that the Authority had failed to consider an integer of his claims being that he was of “combat age”. The Authority referred to the appellant as a “young Tamil”. As the primary judge found, and is apparent from the material before the Authority, those descriptors were inextricably linked.

52    In support of proposed ground 6 the appellant referred to the following material:

(1)    the claims in his statutory declaration dated 3 September 2013 that:

(a)    the TMVP was compulsorily recruiting young Tamil males in 2006 when he was 11 or 12 years old;

(b)    his parents’ fear that he would be forcibly recruited by the TMVP;

(c)    his parents’ fear that he would be deemed to be associated with the LTTE because that had been the case for other young Tamil males in his home area; and

(d)    his fear he would be arrested on return to Sri Lanka because of his illegal departure and he would be treated harshly and tortured because he is a young Tamil male who the authorities will automatically detain on suspicion of having LTTE links;

(2)    his written submissions to the Authority dated 14 July 2016 where the appellant stated that he “was of combatant age in Sri Lanka”; and

(3)    his submissions provided after his interview with the delegate in which he included as one of the particular circumstances that added to his risk profile that “he was of combatant age” during the civil conflict and when he departed Sri Lanka.

53    The primary judge referred to this material before noting that it was clear that the appellant was of a similar age to other LTTE combatants and that it was his youth that made him “of combat age”. As the primary judge found the Authority was aware of and considered the appellant’s claims to fear harm based on threats from the SLA and TMVP and in that context addressed his claims to fear harm and the events which occurred based on his youth, in particular at [14] and [17]-[19] of its reasons. Commencing at [33] of its reasons the Authority made findings in relation to that claim concluding that it was not satisfied that the appellant faces a real chance of harm on return to Sri Lanka as a young Tamil or for reason of his Tamil ethnicity: at [35] and [42].

54    As the primary judge found the description of the appellant as being of “combat age” added nothing more to his claim to fear harm because of his young age and it was his youth that made him of combat age. There was no other special feature or meaning in that description and, as the primary judge observed, the appellant was unable to explain how the reference to “combat age” of itself added to his risk profile beyond him being a Tamil from the north east of a certain age such that he was perceived to be of combat age.

55    I can discern no error let alone arguable error in that reasoning.

56    As I have already observed, and as the appellant accepted, if he cannot persuade me that the primary judge erred in his refusal to grant leave to rely on proposed ground 6 then he cannot succeed in doing so in relation to proposed ground 7.

57    In any event, and for completeness, I note that the appellant’s complaint in that proposed ground was that the Authority failed to properly consider all of his claims involving his personal circumstances when it considered those claims on a cumulative basis. However, as the primary judge found to be the case, there was no error in the Authority relying on its previous findings of fact when assessing the chance of harm on a cumulative basis.

conclusion

58    For those reasons, in my view, the proposed grounds in the Draft NOA lack merit. Although the Minister can point to no prejudice and there has been some explanation for the delay, given the lack of merit in the proposed grounds I will not grant leave to the appellant to rely on the Draft NOA.

59    The appellant’s notice of appeal was devoid of grounds and counsel for the appellant informed the Court that if the appellant was not granted leave to rely on the Draft NOA and/or could not succeed on the grounds therein, he did not otherwise rely on the notice of appeal as filed. It follows that the appeal should be dismissed.

60    As he has been unsuccessful, the appellant should pay the Minister’s costs as agreed or taxed.

61    I will make orders accordingly.

Associate:

Dated:    13 April 2023