Federal Court of Australia

BNY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 913

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The applications for leave to rely on new grounds of appeal and fresh evidence in the matters of BNY17 and BRU17 be refused.

3.    The appeals in the matters of BNY17, BRU17 and BRW17 & Others be dismissed.

4.    The appellant’s must pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

MEAGHER J

introduction

1    This is an appeal from a decision of the then Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia) to dismiss an application for judicial review of three separate decisions made by the Immigration Assessment Authority (the second respondent) to affirm a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the first respondent) to refuse to grant the appellants a Safe Haven Enterprise (subclass 790) visa.

2    The appellants are a family from Sri Lanka. BNY17 is the father (Mr BNY17), BRU17 is the mother (Ms BRU17), and BRW17, BRX17 and BRY17 are the children (collectively, the appellants). The appellants arrived in Australia in 2012 as Unauthorised Maritime Arrivals from Sri Lanka. On 22 February 2016, with the assistance of a migration agent, the appellants applied for the visa. Ms BRU17 and Mr BNY17 were invited to attend an interview with the Department of Immigration and Border Protection. On 14 November 2016, the appellants were notified that the Department had refused their visa applications as they failed to satisfy s 36(2) of the Migration Act 1958 (Cth).

3    Although three separate appeals were lodged, the matters were heard together both in the Circuit Court and this Court.

4    The appellants seek leave to rely on new grounds of appeal and adduce fresh evidence before this Court. The proposed new grounds of appeal are both directed to the Authority's assessment of whether the appellants satisfied the protection obligations in s 36(2) of the Act. The original grounds included in their notices of appeal have been abandoned.

5    For the reasons that follow, the leave to rely on the proposed new grounds of appeal is refused and the appeal is dismissed.

procedural matters

6    The appellants filed their appeal with this Court on 18 August 2020. Due to COVID-19 restrictions, the appeal was not heard until 2023.

7    The matter was allocated to my docket on 31 March 2023, and originally set down for hearing on 9 May 2023. On 27 April 2023, a case management hearing was convened at the request of the Minister as the appellants had failed to file submissions. At the case management hearing the appellants appeared represented by new representatives, namely Ms Harendran and Mr Taylor of Justice Law Practice. Ms Harendran and Mr Taylor told the court that they had only been retained a few days prior to the submissions being due which is why compliance with the orders had not occurred.

8    Ms Harendran foreshadowed that the appellants would seek leave to advance new grounds of appeal, specifically in relation to Ms BRU17 that she had been raped while in Sri Lanka, and to rely on fresh evidence in that regard. Mr Taylor foreshadowed that there was additional evidence arising from the information provided by the appellants to the Australian Government while detained on Christmas Island.

9    Orders were made vacating the hearing date of 9 May 2023, setting the matter down for hearing on 19 June 2023 and for the provision of a draft amended notice of appeal, as well as amended submissions in each application.

10    The matter was to be heard in-person in Sydney, however a few days prior to the hearing date the appellant’s solicitors provided medical certificates advising that they had the flu. Accordingly, the matter proceeded via Microsoft Teams to minimise the spread of illness and retain the hearing date.

11    An amended notice of appeal was filed in Ms BRU17’s matter. It was not a draft amended notice of appeal, nor was it certified correctly in accordance with s 486I of the Act.

12    No draft amended notice of appeal was filed in Mr BNY17’s matter. A copy was emailed to the Minister at some point prior to the hearing, which meant that the Minister’s submissions responded to it. The draft amended notice of appeal was first brought to my attention at the hearing during which a copy was provided to me.

13    On 20, 22 and 23 May 2023 the appellants filed three affidavits containing fresh evidence. No application was made, in accordance with r 36.57 of the Federal Court Rules 2011 (Cth), for the Court to receive further evidence. No affidavit was filed at all or at least 21 days before the hearing, which stated:

(a)    Briefly but specifically, the facts on which the application relies;

(b)    The grounds of appeal to which the application relates;

(c)    The evidence that the appellant wants the Court to receive; and

(d)    Why the evidence was not adduced in the court appeal from.

14    The affidavits include:

(a)    An affidavit affirmed by Ms BRU17 which provides an explanation as to why she had not raised this claim of rape before.

(b)    An affidavit of Suphaeela Sivakumaren, a certified translator, who provided a translation of part of the interview with the Department.

(c)    An affidavit of Joshua Chelliah, paralegal, who transcribed an audio file of the Department interview.

15    The only affidavit read at the hearing was the affidavit of Mr Chelliah, in respect of which I waived compliance with r 36.57 of the Rules. This was not opposed by the Minister. I have had no regard to the affidavit of Ms BRU17 and the affidavit of Suphaeela Sivakumaren.

16    The hearing took place on Monday 19 June 2023. On Saturday 17 June 2023, Mr Taylor emailed two documents to my Chambers, namely International Health and Medical Service (IHMS) mental health examinations of Ms BRU17 and Mr BNY17 respectively, which the Minister objected to being admitted into evidence. I ultimately refused leave to admit those documents into evidence.

17    At the hearing Ms Harendran said that she represented Ms BRU17 and the children, and Mr Taylor represented Mr BNY17. Ms Harendran foreshadowed at the commencement of the hearing that she would be making an oral application for leave to further amend the draft amended notice of appeal in relation to Ms BRU17 “to include a s 473CB ground with respect to the IMHS document”.

18    Overall, the appellants’ representative’s approach to compliance with the orders of the Court and the Rules was unsatisfactory.

the circuit court

19    Before the Circuit Court the appellants advanced two grounds of appeal in an Amended Application. They are set out in the primary judgment at [47], and were both dismissed at [50] – [60]. The primary judge’s reasons do not need to be detailed as the appellants are seeking to rely on entirely new grounds.

the appeal

20    This Court has jurisdiction to hear and determine appeals from judgments of the Circuit Court pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). The Court’s appellate jurisdiction is confined to errors of law only. The appeal is by way of rehearing and the Court’s role is to determine that the conclusion of the primary judge regarding the decision of the Tribunal (or in this case, the Authority) is not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [18] (Kiefel CJ), [20], [56] (Gageler J), [117] (Nettle and Gordon JJ) and [153] (Edelman J).

Leave to argue new grounds of appeal and adduce fresh evidence

21    Pursuant to r 36.10 of the Rules, an appellant requires leave of the Court to amend their notices of appeal if doing so more than 28 days after the filing of an original notice of appeal.

22    The draft amended grounds of appeal advanced by Ms BRU17 are as follows:

1.    The Circuit Court erred in failing to find that the IAA decision was affected by jurisdictional error [at 38] because in finding that the applicant Ms BRU17 did not claim that she was harassed in the past. The Authority failed to consider a primary claim of the applicant as a member of a particular social group that the applicant Ms BRU17 was raped.

Particulars:

i.    The finding at [463] where the claims of the applicant Ms BRU17 are referenced, the Authority has failed to consider a very important claim.

ii.    In paragraph 83 the applicant claims “My wife was screaming as I was being kicked and punched many times to

a. the floor with my nose and head bleeding. A pistol was pointed at my wife and she was ordered to switch off the lights.

iii.    In Paragraph 84 The men told me I was being punished for helping the TNA to oppose the President of Sri Lanka. I was told that worse would happen if I continued to support the TNA.

iv.    The Authority failed to consider these claims. The Authority did not engage with what was being said here.

v.    In the protection visa interview [1393] the case officer states: In most cases, it's enough for us to ask you questions around these incidences,

a. [1394] without actually having you to go into detail about them. Because we

2. [1395] don't wish to put you through having to talk about it again. The case officer at the protection visa did not permit the applicant to go into further detail, the Authority therefore failed to consider the claims that were to be made.

ii.    [1516- 1530] the applicant Ms BRU17 claims that she was assaulted and that she was bleeding. The case officer then in line 1531 states: “ you don’t need to provide these details okay”.

2.    The Authority failed to intellectually engage with or deal with the claim of the Applicant that she remained subject to threats not to divulge or report that she was subjected to torture inflicted by the State

Particulars

i.    The Authority failed to deal with a claim of the Applicant, that she would suffer serious or significant harm on account of the outstanding threat that she must not tell anyone about this torture.

ii.    The Authority failed to consider that the Applicant Ms BRU17 was assaulted and did not consider whether the threat remained extant and would be carried out.

iii.    The authority failed to consider the claim that had been made by the applicant that she was raped, as she had provided that in her written statement and even in the Protection Visa interview, however, the authority failed to consider or understand the claim.

iv.    The Authority failed to identify his s.5J immutable characteristic - as a victim of torture by the Sri Lankan authorities who because of the ongoing threat not to reveal it would for this reason be deprived of access to necessary treatment in Sri Lanka due to a real risk of being targeted if he revealed this information even to a medical practitioner.

v.    The Authority did not consider whether the applicant remaining subjugated to this threat would constitute a violation of the requirements of s.5J of the Migration Act 1958 to conceal an immutable characteristic, of being a victim who was subjected to torture by the Sri Lankan Authorities

vi.    The Authority made an error of the type identified by the European Court of Human Rights in Case C-353/16 MP v Secretary of State for the Home Department Court of Justice of the European Union, such that he would be unable to rehabilitate from it in Sri Lanka because of the intentional failure of the Authorities to provide effective mechanisms of redress and medical treatment for torture inflicted by the Sri Lankan authorities.

(Errors in original, footnotes omitted)

23    The draft amended grounds of appeal advanced by Mr BNY17 are as follows:

1.    The Circuit Court erred in failing to find that the IAA decision was affected by jurisdictional error [at 14-15] because in finding that the Authorities did not and would not would not have any further interest in him upon return or removal to Sri Lanka, because he had not been subsequently detained after his detention and torture on suspicion of LTTE smuggling in 2007, the Authority failed to consider a primary claim of the applicant as a member of a particular social group of undisclosed former LTTE smugglers/imputed cadres, at risk of coming to the attention of the Sri Lankan authorities and being subject to detention and rehabilitation as a result.         

Particulars:

i.    The finding [at 24] that the Authority was not satisfied that the Applicant faces a real chance of harm on return to Sri Lanka because of his actual … assistance to the LTTE – a fact which was undisclosed at the date of his departure from Sri Lanka, – lacked any reasoning, probative or logical basis and was material to the outcome: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[40]; DBX16 v Minister for Immigration and Border Protection [2021] FCA 238.

ii.    The Authority at [19-20] found that the Applicant was an undisclosed LTTE smuggler between 2006-2008.

iii.    The Authority found that the appellant was not of adverse interest because of his actual assistance to the LTTE because he had successfully deceived the Sri Lankan authorities.

iv.    The Authority accepted that the Applicant had convinced the Sri Lankan authorities that he had not smuggled for the LTTE prior to him being tortured in 2007.

v.    The Authority specifically accepted that the Applicant had successfully concealed from the Sri Lankan authorities his subsequent LTTE smuggling in 2008.

vi.    The Authority assessed at [56] that the Applicant was not of adverse interest to the Sri Lankan authorities at the time of his departure for his LTTE smuggling up to 2007.

vii.    The Authority did not consider the risks of his 2008 smuggling coming to the attention of the Sri Lankan authorities.

viii.    The Authority findings placed the Applicant in the Particular Social Group referred to in the January 2017 DFAT report at 3.32 of imputed former cadres who if coming to the attention of the Sri Lankan authorities now would likely be detained and subject to rehabilitation.

ix.    The Authority failed to consider the claim to fear harm for coming to the attention of the Sri Lankan authorities since his departure [IAA at 24] or now [IAA at 58-59] as a former LTTE smuggler, upon or through the process of removal as a failed asylum seeker, including through questioning upon return, or otherwise disclose by third parties.

x.    The characteristic of being a former LTTE smuggler is an immutable characteristic for the purpose of s.5J(3) Migration Act 1958.

xi.    The Authority [at 58-59] unreasonably dealt with the Applicant's claim that he would be unable to conceal his LTTE smuggling during questioning by the authorities upon removal or return to Sri Lanka [S.5J(3) Migration Act 1958]

xii.    The Authority's expectation that he should, could, and would be able to, conceal an immutable characteristic of being a former smuggler for the LTTE, was not permitted by s.5J(3) Migration Act 1958.

(3)     A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would: (b) conceal an … immutable characteristic of the person;

xiii.    The Applicant without a lawful basis assumed the applicant would, should, and could, lie to the Sri Lankan authorities to conceal his LTTE smuggling when questioned by the Authorities on return. KK and RS (Sur place activities: risk) Sri Lanka [2021] UKUT 0130 (IAC) at paragraph 413.

xiv.    The 2017 DFAT report states:

Imputed membership of the Liberation Tigers of Tamil Eelam (LTTE)

3.32 The most recent UNHCR Eligibility Guidelines for Sri Lanka (December 2012) note that a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection. Although the nature of these links can vary, this may include:

… former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

Low-profile former LTTE members

… 3.42 DFAT assesses 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.

2.    The Authority failed to intellectually engage with or deal with the claim of the Applicant that he remained subject to threats not to divulge or report that he was subjected to torture inflicted by the State

Particulars

i.    The Authority failed to deal with a claim of the Applicant, that he would suffer serious or significant harm on account of the outstanding threat that he must not tell anyone about his torture

ii.    The Authority accepted that the Applicant was warned by the Sri Lankan authorities not to tell anyone or report about the torture that was inflicted on him, and did not consider whether the threat remained extant and would be carried out

iii.    The Authority failed to identify his s.5J immutable characteristic - as a victim of torture by the Sri Lankan authorities who because of the ongoing threat not to reveal it would for this reason be deprived of access to necessary treatment in Sri Lanka due to a real risk of being targeted if he revealed this information even to a medical practitioner.

iv.    The Authority did not consider whether the applicant remaining subjugated to this threat would constitute a violation of the requirements of s.5J of the Migration Act 1958 to conceal an immutable characteristic, of being a victim who was subjected to torture by the Sri Lankan Authorities

v.    The Authority made an error of the type identified by the European Court of Human Rights in Case C-353/16 MP v Secretary of State for the Home Department Court of Justice of the European Union, such that he would be unable to rehabilitate from it in Sri Lanka because of the intentional failure of the Authorities to provide effective mechanisms of redress and medical treatment for torture inflicted by the Sri Lankan authorities.

(Errors in original, footnotes omitted)

24    The principles governing the grant of leave to argue new grounds of appeal are summarised in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 (Kiefel, Weinberg and Stone JJ, as her Honour then was) at [46] - [48]:

Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

25    As stated by Bromwich J in Han v Minister for Home Affairs [2019] FCA 331 at [18]:

It follows that it may be important to consider whether, irrespective of merit, leave should be refused because the other factors are, individually or collectively, sufficient to exercise the discretion adversely. This will help to ensure that the ends do not justify the means driven by merit alone.

26    The other considerations, identified by Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; 147 FCR 51 at [166], include:

1) Do the new legal arguments have a reasonable prospect of success?

2) Is there an acceptable explanation of why they were not raised below?

3) How much dislocation to the Court and efficient use of judicial sitting time is really involved?

4) What is at stake in the case for the appellant?

5) Will the resolution of the issues raised have any importance beyond the case at hand?

6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

7) If so, can it be justly and practicably cured?

8) If not, where, in all the circumstances, do the interests of justice lie?

27    The appellants made limited submissions as to the justification for granting leave to argue new grounds of appeal. After hearing the Minister’s submissions, Ms Harendran (in reply) asserted from the bar table that Ms BRU17 had been unable to raise her claim regarding having been raped earlier due to having male representation, that it would cause her problems with her family, and that she is from an extremely conservative background. There was no evidence advanced in support of those submissions. The appellants primarily focused on the merits of the grounds of appeal.

28    The Minister opposed leave being granted to rely on all of the proposed new grounds, for the following reasons:

(1)    No explanation has been provided as to why these grounds were not raised before the primary judge where the appellants were represented by a solicitor and counsel.

(2)    The grant of leave effectively turns this Court into a trial rather than an appellate court, and would therefore deny the Minister the right of appeal had the grounds been raised below.

(3)    There is no merit in the new grounds of appeal.

29    Both Ms Harendran and Mr Taylor relied on APC17 v Minister for Immigration and Border Protection [2018] FCA 1332 (Thawley J) and made general submissions that the matter should be remitted for reconsideration by the Authority as had occurred in that case. While APC17 is an example of new grounds and fresh evidence being allowed on appeal, it is distinguishable on its facts.

30    In that matter one of the appellant’s protection claims was that he feared harm because in 2009 his younger brother was killed and his body desecrated by the Sri Lankan Army (SLA). At the time the claim was made, the appellant had no knowledge that his brother was associated with the LTTE. Before the hearing conducted by the Authority, the appellant became aware of his brother’s links to the Liberation Tigers of Tamil Eelam (LTTE) and provided “new” written submissions to the Authority, including that in 2016 there was a Facebook post dedicated to LTTE martyrs which identified his brother. The Authority affirmed the delegate's decision on a number of bases including by drawing an inference that at the time that the appellant had come to the attention of the authorities his connection with his brother was already known to them. The Circuit Court dismissed the appellant’s application for judicial review which relied on two grounds. On appeal to this Court, the appellant initially ran the same two grounds as those advanced below. He then sought leave to amend his notice of appeal arguing that the Authority's decision was affected by jurisdictional error through inferring that that the SLA not only desecrated, but also identified, the appellant's brother at the time of his death. The Minister did not oppose the amended grounds of appeal as they were plainly arguable.

31    Thawley J found that, although the “new” material was “ambiguous”, it made it sufficiently clear that the Facebook post only came to the attention of the Sri Lankan authorities in 2016. His Honour found that the Authority had assumed that the SLA knew in 2009 that the body which had been desecrated was that of the appellant's brother, rather than simply knowing it to be the body of an LTTE cadre. Therefore, the Authority did not consider whether the SLA learned of the identity of the body in 2009 or at some time later. Thawley J found that “[i]t was sufficiently clear from the submission read with the ‘review material’ that the appellant’s claim was that, prior to 2016, the Sri Lankan authorities had not drawn a connection between the desecrated body and the appellant, but now had”. This led the Authority to jurisdictional error. Accordingly the matter was remitted to the Authority for rehearing.

32    In these appeals, the draft amended grounds of appeal are not plainly arguable.

consideration

Ms BRU17

33    The first amended ground for Ms BRU17 is that the Authority's decision is affected by jurisdictional error in that it failed to consider a primary claim that she was raped. Ms Harendran referred to the following evidence that was before the Authority, which they contend plainly raises a claim of rape:

    In a written submission by Mr BNY17 dated 2 February 2016, it is stated at paragraph 83 and 84:

Two men grabbed me around my neck and punched me in my face. I was taken to the front door where I was forced to witness my motorbike being smashed in the front of our compound. My wife was screaming as I was being kicked and punched many times to the floor with my nose and head bleeding. A pistol was pointed at my wife and she was ordered to switch off the lights.

The men told me I was being punished for helping the TNA to oppose the President of Sri Lanka. I was told that worse would happen if I continued to support the TNA. The next morning, I had to attend a private medical clinic in Pesalai.

    In a written submissions by Ms BRU17 dated 2 February 2016, it is stated at paragraphs 36 – 38:

The man was dressed in civil clothes (shirt and trousers) and he pulled my hair and he held me tightly and he tried to squash me forcibly and he told me not to make any noise. He put one hand over my mouth and squashed my mouth and he told me that he could do anything to me and he said you known what happens to the women so we can wait until after you have this baby and find you at any time.

Then he dragged me to the ground and I could not get up as I was heavily pregnant. My head was smashed on the ground. When people came out of their houses they raised me up and took me inside and the men drove away in a hurry.

I experienced a lot of pain and bleeding after this incident and I reported this incident to my doctor. My doctor advised me to leave my work earlier than I had planned.

34    Ms Harendran contended that the Authority failed to deal with the fact that she was bleeding, and "a woman who has been raped can only say she has been raped in so many terms". Ms Harendran argued that these statements raised "fair and square" that the appellant was raped, citing AYY17 v Minister of Border Protection [2018] FCAFC 89; 261 FCR 503 at [18]:

It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration & Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

•    The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

•    The Tribunal is only required to consider such claims where they are either:

(a)    the subject of substantial clearly articulated argument, relying on established facts; or

(b)    clearly emerge from the materials: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration & Border Protection [2017] FCA 512 per Barker J (at [67]).

(Emphasis in original)

35    In the draft amended grounds of appeal, Ms Harendran also contended that during her protection visa interview, the Department "did not permit the appellant to go into further detail".

36    The statements above do not raise a "substantial and clearly articulated argument" of rape: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 178 ALD 304 (Kiefel CJ, Keane, Gordon and Steward JJ) at [27]. The Authority accepted Ms BRU17’s claim of the assault, but noted that she did not claim to have been subject to further threats or harm and was not satisfied that she would face a real chance of harm if returned to Sri Lanka. Furthermore, the Authority was not satisfied that Ms BRU17 faced a real chance of harm on the basis of being a woman, and made this finding with reference to country information which discussed the prevalence of sexual assaults and rape in Sri Lanka. There was nothing put to the Authority, or anything raised fairly and squarely on the evidence which claimed that she was raped.

37    Upon review of the Department transcript, which was exhibited to the affidavit of Mr Chelliah read by Mr Taylor at the hearing, there is no evidence that Ms BRU17 was cut off, or “not allowed to say certain things”. The specific sections in the transcript relied upon by Ms BRU17 include where the case officer said:

Case officer: With any of these things, particularly with your father, and also when we talk about what's happened to you, any of the parts of it that are quite traumatic, so if there's anything regarding assaults or torture, you do not have to tell me any of that information, the specifics of it, unless for any reason you feel that you wish to. I don't need you to give me the details.

…

Case officer: In most cases, it's enough for us to ask you questions around these incidences, without actually having you to go into detail about them. Because we don't wish to put you through having to talk about it again.

…

Case officer: You don't need to provide these details, okay? Unless you feel like you wish to, I don't need you to provide those details, okay?

38    These statements do not show that Ms BRU17 was cut off at any time, or told not to say certain things. On the contrary, the case officer said multiple times that you can provide the details that you wish to provide. None of these statements can be said to be cutting off Ms BRU17 from speaking.

39    Ms BRU17 also contended that the Authority failed to intellectually engage with the claim that Ms BRU17 remained subject to threats not to divulge or report that she was subjected to torture inflicted by the State. Ms Harendran argued that the Authority failed to consider whether it would constitute a breach of s 5J(3) of the Act to conceal an immutable characteristic, namely being a victim of torture by the SLA. Section 5J(3) of the Act provides:

(3)     A person does not have a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b) conceal an innate or immutable characteristic of the person; or

(c) without limiting paragraph (a) or (b), require the person to do any of the following:

(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii) conceal his or her true race, ethnicity, nationality or country of origin;

(iii) alter his or her political beliefs or conceal his or her true political beliefs;

(iv) conceal a physical, psychological or intellectual disability;

(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status. 

40    This claim was not raised before the Authority. Nothing in the Authority’s reasons suggest that Ms BRU17 will need to lie or otherwise take reasonable steps to avoid harm upon return to Sri Lanka. Rather the Authority concluded that Ms BRU17 would not be of interest to the authorities in Sri Lanka, therefore s 5J is not relevant.

41    Lastly, in oral submissions, Ms Harendran argued that the Authority failed to engage with Ms BRU17’s claim that she feared harm because she was tortured. Ms Harendran contended that Ms BRU17 brought up a claim of torture at the IHMS examination, and referred broadly to s 473CB of the Act, as well as "SZION" and "DKA18". I assume Ms Harandran was referring to SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; 191 FCR 123 (Bennett, Rares and McKerracher JJ) and DKA18 v Minister for Immigration, Citizenship and Multicultural Affairs (Second Amendment Application) [2023] FCA 157. Ms Harendran made no specific submissions as to how these cases relate to the current matter.

42    The relevance of SZION is unclear. In that matter, the Full Court of this Court held that a breach of the Secretary's requirements under s 418(3) of the Act by failing to provide medical documents to the Administrative Appeals Tribunal cannot be a failure that extends to the Tribunal, and therefore does not give rise to jurisdictional error. Nor did the Full Court find that the Secretary's failure vitiated the Tribunal's decision making process. While it was acknowledged that there may be some "extreme circumstances" in which it may be found otherwise, no submissions were made by Ms Harendran as to how this matter falls within that category.

43    The relevance of DKA18 is also unclear. In this matter, the appellant, represented by Mr Taylor, sought leave to amend a ground of appeal which argued that the Authority's statutory task was miscarried as the Secretary failed to comply with its mandatory obligations under s 473CB(1)(c) of the Act, in that it failed to provide IHMS records to the Authority. Perram J refused leave, stating at [7]:

I think it can be fairly said that three years into the appeal is not the time to be raising a fresh matter which was not pursued at trial unless the point presented is one which is accompanied by a powerful explanation for delay and also is one which exhibits substantial prospects of success and merit.

44    I agree with the reasons of Perram J in their entirety.

45    In circumstances where the claim of fearing harm due to being tortured was not raised in the evidence before the Authority, and any failure of the Secretary to provide documents to the Authority does not contaminate the Authority's decision making process, I am not of the view that there is any merit in this ground.

Mr BNY17

46    Mr BNY17’s first amended ground was that the Authority failed to consider a primary claim that as a member of a particular social group, being undisclosed former LTTE smugglers/imputed cadres, he was at risk of coming to the attention of the Sri Lankan authorities. Mr Taylor contended that Authority expected that he should conceal his immutable characteristic of being a former LTTE smuggler, which is not permitted by s 5J(3) of the Act. Furthermore, Mr Taylor contended that the Authority assumed that he should lie to the Sri Lankan authorities to conceal his LTTE smuggling when returned to Sri Lanka.

47    There were 14 particulars provided with ground one, which made a number of assertions as to the findings the Authority made in its decision, including that Mr BNY17 "successfully deceived the Sri Lankan authorities", that "[t]he Authority accepted that [Mr BNY17] had convinced the Sri Lankan authorities that he had not smuggled for the LTTE prior to him being tortured in 2007", and that the Authority expected "that [Mr BNY17] would, should and could, lie to the Sri Lankan authorities to conceal his LTTE smuggling". Mr Taylor was asked to take the Court to the paragraphs of the Authority's decision which make the findings specified in the particulars. Mr Taylor referred specifically to the Authority's findings at paragraphs [23] and [43], which state:

During the protection visa interview the first applicant claims that, because of this incident, he had ongoing problems with the CID and could not live in the area although he admits he was not detained again after this occasion. He claimed that he only had a few further encounters with the CID where they came to his house and asked him general questions about what he was doing and to ensure he was not involved in anything. He claims he was not assaulted on these occasions. He also claimed that he had to go every month to sign in at the Sunni Village Camp up and until the last month before leaving Sri Lanka which I accept. However, I am not satisfied the Sri Lankan authorities had any further adverse interest in the first applicant in regards to their suspicion that he assisted the LTTE in transporting goods since his release from detention in 2007 or that he was imputed to be a LTTE member or supporter for this reason. In making this assessment I have given weight to the fact that he was not further detained and particularly not at the end of the civil war when thousands of Tamils were detained for having any link to the LTTE as per country information that was before the delegate. Although I accept that he had to report to the navy camp every month I have also given considerable weight to the fact that the first applicant left the country legally on his own passport (as further discussed below), strongly indicating the Sri Lankan authorities had no further concern about the previous allegations made against him in 2007. The first applicant has also claimed that, after he left Sri Lanka, his parents were questioned about his whereabouts but did not indicate who questioned his parents. Given the applicant departed Sri Lanka on his own passport I do not accept that the Sri Lankan authorities would then question his parents as to his whereabouts as country information before the delegate indicates that the Sri Lankan security forces maintain a significant presence and a high level of awareness of the civilian populations in the north and, therefore, I am satisfied they would have been aware that he had left the country legally.

…

In the covering submission to the application for protection it claims the applicant is a Tamil man from a former LTTE controlled area. However the information in the materials before me does not support this claim and the applicant, himself, has not claimed that Pesalai was a former LTTE controlled area. I am not satisfied that Pesalai was a former LTTE controlled area. Even if it was, I am not satisfied that Tamils from former LTTE-controlled areas face a real chance of harm from any person or group on return in Sri Lanka. In making this assessment I have given weight to the current Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (2012 UNHCR Guidelines) by the United Nations High Commissioner for Refugees which assessed that originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.8 The UNHCR has also noted that, real or perceived, former LTTE supporters who transported goods for the LTTE may be exposed to treatment which may gave rise to a need for international protection. However, in the first applicant's case, I am satisfied that, after his 2007 release from detention he was no longer of interest to the Sri Lankan authorities as a suspected LTTE member or supporter.

(Footnotes omitted)

48    These paragraphs simply do not make the findings which Mr Taylor asserts they do. In actuality, the Authority expressly deals with the fact that Mr BNY17 was a smuggler for the LTTE, and finds that the Sri Lankan authorities had no further interest in him. Furthermore, nowhere does the Authority state or imply that Mr BNY17 must lie to the Sri Lankan authorities, it rather finds that the authorities are not interested in Mr BNY17. There is no reference to s 5J in the Authority's reasons.

49    The second amended ground of appeal contends that the Authority failed to intellectually engage with the claim that Mr BNY17 remained subject to threats not to divulge or report that he was subject to torture inflicted by the State. Mr Taylor argued that the Authority failed to identify a s 5(J) immutable characteristic as being a victim of torture, and that continuing to be threatened to conceal this was a violation of s 5J(3) of the Act. Mr Taylor submitted that Mr BNY17 wants to seek therapy due to the torture, and would be unable to do so in Sri Lanka as he cannot divulge that he was tortured.

50    On the evidence this claim was never made to the Authority. Even so, the Authority was not satisfied that Mr BNY17 would face a real chance of harm from the men who threatened him or from any other group if he was returned to Sri Lanka.

51    Mr Taylor relied on APC17 at [41] regarding how the Sri Lankan authorities were not aware that Mr BNY17 had continued to smuggle after 2007:

These passages, read in context, show the Authority understood the claim to be that the Facebook page provided “evidence” or “proof” to the Sri Lankan authorities of the brother’s involvement with the LTTE. That is consistent with part of what the appellant’s submission expressly stated. However, as indicated above, the submission read as a whole and properly understood in context could only have been that the Facebook page provided proof of something the Sri Lankan authorities did not already know. The Authority assumed that the appellant’s claim involved the proposition, or necessarily required the conclusion, that the Facebook page provided proof of something the Sri Lankan authorities already knew.

52    This case is distinguishable for the reasons set out above. In any case, there was no claim advanced by Mr BNY17 that the Sri Lankan authorities were not or are not aware that he smuggled since 2007. There were no assumptions made by the Authority in that respect, and in any event, the Authority was not satisfied that the appellants would be at a risk of harm if returned to Sri Lanka. I find this an insufficient basis for granting leave to argue the new grounds of appeal.

53    The draft grounds raised by Mr BNY17 do no more than seek impermissible merits review. Mr Taylor took the Court to a number of paragraphs in the Authority's decision, and made arguments which essentially are complaints with the overall finding of the Authority, rather than disclosing any error of law. Further, the arguments relating to the proposed grounds of appeal simply do not arise on the material.

Leave is refused

54    The draft grounds of appeal for Ms BRU17 and Mr BNY17 are devoid of merit. For this reason, and the reasons that follow, leave to advance the new grounds on appeal and new evidence is refused, as I am not satisfied that it is in the interests of justice to do otherwise.

55    The appellants have failed to provide any adequate or acceptable explanation as to why these grounds were not raised before the primary judge, in circumstances where the appellants were represented by a solicitor and counsel. As has been set out above, Ms Harendran submitted that Ms BRU17 did not raise the claim relating to rape as her representatives were male. I am not satisfied with this submission in circumstances where Ms Harendran also submits that the claim of rape was fairly and squarely raised in the evidence before the Authority. I also note that the migration agent assisting Ms BRU17 before the Authority was female. Mr Taylor provided no explanation as to why Mr BNY17’s new grounds were not raised in the Court below. That the appellants are now represented by different solicitors from those below, who take a different view, is not a sufficient explanation: Matthews v Minister for Home Affairs [2020] FCAFC 146 at [62] (Middleton, Perry and O’Bryan JJ).

56    I am of the view that the Minister would be prejudiced if leave were to be granted to rely on the draft amended grounds of appeal. It is not just an issue or pleading that is new, but the very basis upon which this case was brought to the Court below has changed: Han at [18]. The Minister's only source of appeal is by way of special leave to the High Court, which is rarely allowed. As emphasised by Perram J in AAM15 v Minister for Immigration & Border Protection [2015] FCA 804; 231 FCR 452 at [14]:

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.

57    It is for this reason that intermediate courts such as this one ought to be regarded as the final courts of appeal: BZD17 v Minister for Immigration & Border Protection [2018] FCAFC 94; 263 FCR 292 at [29] (Perram, Perry and O’Callaghan JJ).

58    Lastly, the appellants failed to comply with the requirements of r 36.57 of the Rules in filing the fresh evidence, or in one case not even filing the fresh evidence but simply emailing it to my Chambers. Accordingly, the evidence upon which they sought to rely was not properly before me.

59    While what is at stake for the appellants is their right to remain in Australia which is an important consideration, they have not been able to satisfy me that the Authority made any error that would warrant remitting the decision for reconsideration. There is no reasonable prospect of success in relation to any of the draft amended grounds of appeal advanced by Ms BRU17 and Mr BNY17.

conclusion

60    The applications for leave to rely on the draft amended notice of appeals and fresh evidence in the matter of Ms BRU17 and Mr BNY17 are refused. Accordingly, their applications are dismissed. As the children had no protection claims of their own and raised no grounds of appeal in their own right, their appeals must be dismissed. The appellants must pay the first respondent's costs as agreed or assessed.

Associate:

Dated:    7 August 2023