Federal Court of Australia

BBW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 502

ORDERS

THE COURT ORDERS THAT:

1.    To the extent that the appellant required leave to raise the grounds of appeal in the notice of appeal filed 23 December 2019, that leave be granted.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The appellant is a citizen of Sri Lanka. On 13 November 2012 he arrived in Australia by boat without a visa. He was subsequently permitted to apply for a protection visa and did so on 29 February 2016. His visa application was initially refused by a delegate of the first respondent, the Minister for Immigration and Border Protection. The delegate’s decision was referred to the Immigration Assessment Authority for review. The Authority affirmed the Minister’s decision. The appellant challenged the Authority’s decision in judicial review proceedings commenced in the then Federal Circuit Court of Australia. The primary judge in the Circuit Court dismissed that application: BBW17 v Minister for Immigration and Border Protection [2019] FCCA 3545 (J).

2    The appellant appealed to this Court from the dismissal of his application.

3    The central issue raised by the appeal is whether there is any merit in the appellant’s contention that the Authority made a jurisdictional error in determining the review by failing to consider the “cumulative significance” of the factual claims upon which the appellant’s application for a protection visa was based.

4    For the reasons that follow, the appeal has no merit and must be dismissed.

VISA APPLICATION AND REFUSAL BY THE DELEGATE

5    To qualify for the grant of a protection visa, the visa applicant must meet one or other of two key criteria. The first, in summary, is that the Minister is satisfied that Australia owes the applicant protection obligations as a refugee because they have a well-founded fear of persecution in their country of nationality (or country of their former habitual residence) for reasons of race, religion, nationality, membership of a particular social group or political opinion: ss 36(2)(a), 5H and 5J of the Migration Act 1958 (Cth) (the refugee criterion). The second is that the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to their country of nationality or former habitual residence, there is a real risk that they will suffer significant harm (s 36(2)(aa) of the Act) (the complementary protection criterion). In order to satisfy one or other of those criteria, a protection visa application must ordinarily identify the factual claims that underlie their substantive claim that they have a well-founded fear or persecution, or that there is a real risk that they will suffer significant harm if returned to their country of nationality.

6    The appellant claimed that he feared that he would be persecuted, or suffer significant harm — “including imprisonment, abduction or death” — in Sri Lanka because he was a Tamil and his family were or had been involved with the Liberation Tigers of Tamil Eelam (LTTE), a militant Tamil group which had fought for a separate Tamil state in Sri Lanka. He feared that, if returned to Sri Lanka, he would be harmed by the Sri Lankan police, army or government, the Karuna Group, or his father’s enemies or former LTTE cadres.

7    The underlying factual claims made by the appellant included that: his father was associated with high-ranking members of the LTTE and had occasionally fought for the LTTE; his father had been abducted by the Sri Lankan army in 1995; his cousins had been forcibly recruited by the LTTE and killed by the Sri Lankan army; another cousin and aunt had been arrested on account of their association with the LTTE and killed by the Sri Lankan army; his family were harassed by the Sri Lankan army in 2002, and also harassed by an unidentified group of men in or from 2004; in 2009 he was forced by a paramilitary group known as the “Karuna Group” to build a camp and was subsequently arrested by the police for building that camp and for his LTTE connections; in April 2010, a group of men surrounded his house, assaulted him and his mother and broke his arm; he had a tattoo of a tiger on his forearm which had been “given” to him at an LTTE training ground when he was 10 or 11 years old as a sign of his support for the LTTE; and that he and his mother were not issued passports and had been “denied all government benefits” due to the family’s links to the LTTE.

8    The delegate who assessed and decided the appellant’s visa application did not accept many of the appellant’s factual claims, but accepted that the appellant’s family had been active supporters of the LTTE. Despite that finding, the delegate was not satisfied that the appellant met either the refugee criterion or the complementary protection criterion. That was essentially because the delegate considered that recent “country information” indicated that a person who merely “evidences past membership or connection with the LTTE” would in general not warrant “international protection” unless they “have a significant role in relation to post-conflict Tamil separatism”. The delegate noted that the appellant was not politically active, did not have a “political profile of any kind” in Sri Lanka and “did not claim to have been involved in the [Tamil] diaspora since arriving in Australia”. The delegate found, on that basis, that the chance of harm arising from his family’s support of the LTTE was remote, as was the chance of him being imputed with an LTTE connection by reason of his Tamil ethnicity, or his tiger tattoo. The delegate also found that the appellant was unlikely to be persecuted, or suffer significant harm, on account of him being a failed Tamil asylum seeker who had departed Sri Lanka illegally.

9    The delegate accordingly refused the appellant’s application for a protection visa.

THE AUTHORITY’S REVIEW AND DECISION

10    The delegate’s decision was a “fast track reviewable decision” as defined in s 473BB of the Act. The Minister therefore referred the decision to the Authority as required by s 473CA of the Act and the Authority conducted a review of the decision as required by s 473CC of the Act. The Authority was required to conduct a review “on the papers”; the “papers” being the “review material” provided by the Secretary of the Minister’s department and any “new information” which had been either provided by the visa applicant, or requested by the Authority, and which met certain specified requirements: see ss 473CB, 473DB, 473DC and 473DD of the Act.

11    Having reviewed the review material and some new information, the Authority affirmed the delegate’s decision not to grant the appellant a protection visa. The Authority provided lengthy and detailed reasons for its decision: Decision and Reasons dated 7 February 2017.

12    The Authority accepted some, but not all, of the appellant’s underlying factual claims. The claims that it accepted, included, in summary, that: the appellant’s family provided meals and shelter to the LTTE from 1989 to 1995; the appellant’s father was arrested in 1995 on suspicion of involvement with the LTTE and had been missing since that time; and the appellant’s aunt and cousins were killed by the Sri Lankan army in 1990 on account of their actual or perceived association with the LTTE (Reasons [18]).

13    The Authority did not, however, accept that: the appellant’s father was a high-ranking member of the LTTE; the Sri Lankan army harassed the appellant’s family in 2002 and 2004; the appellant came to the adverse attention of the authorities or the Karuna Group in 2009; the appellant and his mother were harassed in 2010, or were the subject an arrest warrant, on account of their family’s previous links to the LTTE; or that the appellant’s tiger tattoo put the appellant at risk of being perceived to be a supporter of the LTTE.

14    Overall, while the Authority accepted that the appellant’s family “were involved or perceived to be involved with the LTTE some 20 to 25 years ago now, there is no credible evidence that establishes that [the appellant] has come to the adverse attention of the authorities or any other group on account of his imputed or his family’s involvement with the LTTE”: Reasons at [27]. On that basis the Authority concluded that it was not satisfied that the appellant “is a person who is at risk of harm on account of his or his family’s past experiences in Sri Lanka”: Reasons at [27].

15    The Authority also did not accept that the appellant “faces a real chance of serious harm due to his ethnicity, his tiger tattoo, his imputed LTTE profile, or due to him having been denied basic services that threatens his capacity to subsist upon his return to Sri Lanka, now or in the foreseeable future”: Reasons at [33]. Finally, the Authority was not satisfied that the appellant faced a “real chance of serious harm due to being a failed asylum seeker from Australia, now or in the reasonably foreseeable future, if he returns to Sri Lanka”: Reasons at [35].

16    The Authority concluded that, “having regard to the [appellant’s] claims individually and cumulatively”, the appellant did not have a well-founded fear of persecution (Reasons at [41]) and did not face a real risk of suffering significant harm: Reasons at [50]. It followed that that the appellant did not meet either the refugee criterion or the complementary protection criterion. The Authority accordingly affirmed the delegate’s decision not to grant the appellant a protection visa.

IN THE CIRCUIT COURT

17    The appellant commenced proceedings in the Circuit Court seeking prerogative relief in respect of the Authority’s decision. His application as filed contained three generic assertions of error on the part of the Authority which were devoid of any meaningful particulars. It would appear that the appellant was not legally represented at the time he filed his initiating application.

18    When the matter was called on for hearing, the appellant, who by that stage was represented by counsel, sought leave to amend his application by deleting all the existing grounds and inserting two new grounds, though only one of those grounds was ultimately pressed. That ground was in the following terms:

Immigration Assessment Authority (IAA) made a jurisdictional error in that it did not consider all the claims of the applicant cumulatively that arose either expressly or clearly on the information before it.

Particulars

IAA failed to consider cumulative aspects of the Applicant’s claims under s 36(2) and s 36(2)(aa) of the Migration Act 1958 (Cth).

(a) The IAA accepted at paragraph 18 that the applicant’s father was arrested in April 1995 on suspicion of involvement with the LTTE and he was subject to an arrest warrant dated August 1995. The IAA also accepted that the applicant’s father has been missing since 1995. In the same paragraph, the IAA accepted that the applicant’s maternal aunt and three cousins were killed in 1990 by the Sri Lankan Army on account of their actual or perceived involvement with the LTTE.

(b) At paragraph 28, the IAA accepted that the applicant has a tattoo of a tiger on his arm and that country information reports one instance where a person with an LTTE tattoo come to harm in Sri Lanka.

(c) At paragraph 37, the IAA accepted that as the applicant departed Sri Lanka without a passport, he may be found to have committed an offence under the Immigrants and Emigrants Act.

(d) The IAA failed to consider and make findings on whether the cumulative effect of discovering the tiger tattoo may lead to him being subject to serious harm within the meaning of section 5J(4)(b) of the Migration Act, in the event of the applicant being detained and stripped in the background of all the above accepted facts.

(e) The IAA also failed to consider cumulatively whether the applicant will suffer significant harm when assessing the complementary protection claims.

19    The Minister opposed the grant of leave to amend primarily on the basis that the proposed ground of appeal lacked merit. The hearing proceeded on the basis that the parties would “argue the merits of the proposed amended application” and the primary judge would then consider whether there was sufficient merit to warrant the grant of leave: J [22].

20    The argument advanced on the appellant’s behalf before the primary judge was that the Authority did not cumulatively consider the appellant’s claims that he would suffer significant harm on return to Sri Lanka because he would be of adverse interest to the Sri Lankan authorities by reason of his family history, which involved LTTE connections, his Tamil ethnicity and the tattoo on his arm: see J [36]. The primary judge rejected that argument. His Honour concluded that the argument suffered from a “selective focus on those matters which the [Authority] accepted” and ignored “subsequent reasoning and findings which revealed that the [Authority] did consider the [appellant’s] claims in full”: J [61]. The primary judge reasoned that, when the Authority’s reasons are read fairly and “holistically” (J [39] and [74]), “there was nothing in the evidence before the Court to indicate that the [Authority] did not consider the [appellant’s] claims, as it said, ‘individually and cumulatively”: J [76].

21    Having considered and rejected the argument that formed the basis of the appellant’s proposed review ground, the primary judge concluded that the proposed ground was “without requisite merit such as to argue for the leave sought” and leave to amend the appellant’s application was accordingly refused: J [77]. Given that the appellant had expressly abandoned the grounds of review in his existing application, his Honour dismissed the substantive application: J [78].

GROUNDS OF APPEAL

22    The appellant’s notice of appeal contained two appeal grounds expressed as follows:

GROUND ONE:

His Honour in the Federal Circuit Court erred in failing to grant leave for the Appellant to file an Amended Application.

GROUND TWO:

His Honour in the Federal Circuit Court erred in failing to discern jurisdictional error in circumstances where the IAA [Authority] had unreasonably failed to consider the cumulative significance of the Appellant’s claims, namely that his father was arrested in 1995 on suspicion of LTTE involvement [26], that he had a tattoo depicting a tiger on his arm [28] and that he departed Sri Lanka without a passport [37].

23    The appellant did not file any written submissions as he had been ordered to do. Nor, as will be seen, were any meaningful or coherent submissions concerning the two appeal grounds made by, or on behalf of, the appellant at the hearing of the appeal.

PROCEDURAL ISSUES

24    It is necessary, before dealing with the appeal grounds, to first briefly address some procedural issues that arose prior to and at the hearing of the appellant’s appeal.

Adjournment applications and the supposed “McKenzie friend”

25    The appeal was initially listed for hearing on 4 April 2022. The appellant contacted the Court shortly prior to the hearing and requested an adjournment of the hearing. One of the grounds upon which the appellant sought that adjournment was that his solicitor was not able to appear for him on 4 April 2022. It appeared that the appellant had genuinely been confused about the date on which the appeal had been listed for hearing. The adjournment application was accordingly granted and the appeal was listed for hearing on 11 May 2022.

26    When the appeal was called on for hearing on 11 May 2022, a man named Mr Satchi Thambiappah indicated that he wished to appear for the appellant. The appellant also indicated that he wanted Mr Thambiappah to appear for him. Mr Thambiappah was not, however, admitted as a solicitor or barrister. He therefore effectively sought leave to assist the appellant as a “friend of the Court” or “McKenzie friend” (cf McKenzie v McKenzie [1970] 3 WLR 472; 3 All ER 1034).

27    It soon emerged, however, that Mr Thambiappah primarily wanted to assist the appellant to make a further adjournment application. The main ground of the adjournment application was that the appellant did not have a solicitor. It would appear that the appellant had only contacted Mr Thambiappah on the eve of the hearing. Mr Thambiappah appeared to indicate that he would be able to secure legal assistance for the appellant, or assist him in some other unspecified way.

28    The adjournment application that was made by or on behalf of the appellant was refused, essentially on the basis that the appellant had already had many months to secure legal representation and had already been granted an adjournment. The adjournment application was also made without notice to the Minister or the Court and was unsupported by any evidence.

29    Mr Thambiappah then sought leave to assist the appellant by making submissions on his behalf. That leave was granted, though on the strict condition that Mr Thambiappah’s submissions were to be limited to the merits of the appellant’s appeal grounds. As events transpired, however, Mr Thambiappah provided no material assistance to either the appellant or the Court. He strayed well beyond the bounds of the limited leave that had been granted and into the merits of the appellant’s protection visa application generally. He also sought to re-agitate the adjournment application that had already been refused. The grant of leave that permitted Mr Thambiappah to assist the appellant was accordingly revoked.

30    The appellant was then invited to make submissions in support of his appeal. Regrettably, as is often the case with unrepresented litigants in cases such as this, the appellant’s submissions were not directed to his grounds of appeal and strayed into the merits of his visa application and the Authority’s decision. The appellant’s submissions were, however, no less useful than Mr Thambiappah’s submissions.

The need for leave to appeal

31    There is an issue as to whether the appellant required leave to appeal given that the dismissal of his application followed, or was the inevitable consequence of, the primary judge’s decision to refuse to grant the appellant leave to amend his initiating application. The primary judge refused to grant the appellant leave to amend his application because the proposed new review ground lacked sufficient merit. The refusal of leave to amend inevitably led to the dismissal of the appellant’s substantive application because the appellant had abandoned all his existing review grounds. As has already been noted, the appellant’s first ground of appeal is that the primary judge erred in refusing to grant him leave to amend his application and the second ground of appeal is in similar terms to the review ground that the appellant had sought, but failed, to have included in his amended application.

32    There is some tension in the authorities in this Court as to whether leave to appeal is required when a judicial review application is dismissed in circumstances akin to those in which the appellant’s initiating application was dismissed in the Circuit Court. There have been a number of cases in this Court where single judges have appeared to proceed on the basis that leave to appeal is required in those circumstances, particularly when the appeal ground which is sought to be ventilated on appeal is effectively the same as the ground which was the subject of the refusal of leave to amend in the Circuit Court: see in particular Nguyen v Minister for Immigration and Border Protection [2018] FCA 1374 at [30] – [31] (White J); BXU16 v Minister for Immigration and Border Protection [2018] FCA 1897 at [1] – [5] (Lee J); AXX16 v Minister for Home Affairs [2019] FCA 190 at [24] – [25] and [35] (Derrington J); see also BLU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 706 at [53] – [61] (Burley J). The essence of the reasoning in those cases is that leave to appeal is required because the appeal is tantamount to a challenge to the interlocutory decision by the Circuit Court judge to refuse to grant leave to amend the initiating application.

33    In CWX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 673, however, Gleeson J held that an appeal from a judgment dismissing an application, in circumstances where the dismissal followed the refusal of a leave to amend, was competent and leave to appeal was not required. Her Honour effectively distinguished AXX16 and held that BXU16 was plainly wrong: CWX18 at [19]. The essence of her Honour’s reason for concluding that leave was not required was that, while the dismissal of the application followed the Circuit Court judge’s refusal to grant leave to amend the application, the dismissal of the application nevertheless finally determined the application and was not a summary dismissal: CWX18 at [17]-[18].

34    The Minister in this case did not file a notice of objection to competency and did not otherwise contend that the appeal was not competent. It is therefore strictly unnecessary to resolve the apparent tension in the authorities to which reference has just been made. Nevertheless, the better view, consistent with the decision in CWX18, would appear to be that the appellant’s appeal is competent, because the order made by the primary judge finally disposed of the appellant’s substantive application.

35    The appellant does, however, require leave to raise, as a ground of appeal, the very review ground that was the subject of his unsuccessful amendment application in the Circuit Court. That is because that ground was not the subject of any argument or determination in the court below: see Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33. The test as to whether leave should be granted in such a case is whether the granting of leave to raise the new point is “expedient in the interests of justice”: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158. The appellant also effectively requires leave in respect of the first ground of appeal, which plainly involves a challenge to the interlocutory decision to refuse leave for the filing of an amended application.

Should the appellant be granted leave?

36    As has already been noted, the primary judge’s refusal to grant the appellant leave to amend his application hinged on his Honour’s finding that the proposed review ground — which was in essence that the Authority did not consider his claims cumulatively — was “without requisite merit”. If that proposed review ground — which coincides with the appellant’s second ground of appeal — is found to have substantial merit, it would be open to conclude that his Honour erred in refusing to grant leave to amend. There would therefore be a sound basis to grant the appellant leave in respect of his first ground of appeal. Likewise, if the contention that the Authority failed to consider the appellant’s claims cumulatively is found to have substantial merit, it would be appropriate to grant the appellant leave to raise that ground as his second ground of appeal. If, on the other hand, that contention is found to have little or no merit, it would perhaps be appropriate to refuse leave in respect of both grounds and dismiss the appeal.

37    It is, in those circumstances, expedient to first consider whether there is any merit in the appellant’s contention that the Authority failed to consider his claims cumulatively, or failed to consider the cumulative significance of his claims. That is, as a practical matter, the central issue in the appeal.

Did the Authority fail to consider the “cumulative significance” of the appellant’s claims?

38    There is no substance in the appellant’s contention that the Authority failed to consider his claims cumulatively, or failed to consider the cumulative significance of his claims.

39    The Authority expressly stated that it had considered the appellant’s claims “both individually and cumulatively”: Reasons at [41] and [50]. As the primary judge effectively concluded, there is no basis for finding that the Authority did not do what it said it had done.

40    A fair reading of the Authority’s reasons as a whole reveals that the Authority considered all of the appellant’s claims, but concluded that it was not satisfied that any of those claims indicated either that the appellant had a well-founded fear of persecution in Sri Lanka, or that there was a real risk that he would suffer significant harm in Sri Lanka. The Authority was not satisfied of either of those matters for three main reasons: first, because the events and circumstances that linked the appellant’s family to the LTTE occurred some 20 to 25 years ago and the appellant had not previously come to the adverse attention of the authorities or any other group on account of those links (Reasons at [27]); second, there was no risk that the appellant would be perceived as being “pro LTTE” because of his tiger tattoo (Reasons at [28]); and third, recent country information concerning Sri Lanka suggested that the appellant’s circumstances and profile were not such that he was at risk of serious harm by virtue of his Tamil ethnicity, his or his family’s past LTTE connections (Reasons at [32]) or because he was a failed asylum seeker: Reasons at [35].

41    It may be accepted that in some cases a decision-maker in respect of a protection visa application may err in a jurisdictional sense if they fail to consider whether the “accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect”: Thanh Phat Ma v Billings (1996) 142 ALR 158; 71 FCR 431 at 436; Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220; [1999] FCA 719 at [48]. The decision-maker in this case, however, made no such error. There is no indication whatsoever in the Authority’s reasons that it somehow compartmentalised its factual findings concerning the appellant’s claims or failed to have regard to the accumulation of the appellant’s circumstances. Rather, the reasons reveal that the Authority considered that the appellant’s circumstances, as a whole, were not such that he met the criteria for the grant of a protection visa.

42    Even if there was some basis for suggesting that the Authority failed to address the appellant’s claims or circumstances cumulatively, it is doubtful that any cumulative assessment was required, or may possibly have led to a different result. That is because the Authority was not satisfied that any of the appellant’s individual claims were capable of establishing that the appellant had a well-founded fear of persecution, or that there was a real risk that he would be seriously harmed if returned to Sri Lanka. In those circumstances, no amount of “cumulative consideration” of the individual claims would be likely to produce a different result: cf Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [34].

43    It follows that there is no merit in ground two in the appellant’s notice of appeal. That would be a sufficient basis upon which to refuse the appellant leave to rely on that ground of appeal, assuming such leave was required.

DID THE PRIMARY JUDGE ERR IN REFUSING TO GRANT LEAVE TO AMEND?

44    As has already been noted, the primary judge refused to grant the appellant leave to amend his application because the ground upon which he relied was unmeritorious.

45    For the appellant to succeed in demonstrating that the primary judge erred in the exercise of the discretion to grant leave to amend, he would have to demonstrate that his Honour acted upon a “wrong principle”, allowed “extraneous or irrelevant matters to guide or affect him”, mistook the facts, or did not take into account some material consideration, or that the refusal to grant leave was “unreasonable or plainly unjust”: House v R (1936) 55 CLR 499 at 505. There is no basis for finding that the primary judge’s exercise of discretion miscarried for any such reasons. It was plainly open to his Honour to have regard to the merits of the proposed ground of review in determining whether the appellant should be granted leave to include that ground in his amended application. Moreover, for the reasons already given, his Honour was correct to find that the proposed ground of review was unmeritorious.

46    Given that the primary judge considered and effectively determined the proposed ground of review, it may perhaps have been preferable for his Honour to have granted the appellant leave to amend his application and then dismissed the application on its merits. The mere fact that an appellant court considers that it may have exercised a discretion differently provides no basis for disturbing that exercise of discretion. In any event, the result would have been effectively the same.

47    The absence of any reasonable argument that the primary judge’s discretionary decision to refuse the application for leave to amend was the product of a House v R error would provide a sound basis for refusing the appellant leave to appeal in respect of ground one, or leave to raise ground one in support of his appeal.

CONCLUSION AND DISPOSITION

48    For the reasons given earlier, the better view is that the appellant required leave to raise both his grounds of appeal. It would be open to refuse the grant of leave on the basis that both grounds are unmeritorious. Given that the grounds of appeal were effectively fully argued, however, the preferable course is to grant leave to raise both grounds of appeal, but to dismiss the appeal with costs.

Associate:

Dated:    22 May 2023