The absence of appellable error
8 The Grounds of appeal as set forth in the Notice of Appeal filed in this Court rely (in part) upon the Grounds relied upon before the Federal Circuit Court.
9 The Grounds relied upon in the Federal Circuit Court were there expressed (again without alteration) as follows:
1. The Respondent erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me.
2. The Respondent made an error in law, with the error being a jurisdictional error, by not complying with section 424AA.
3. I intend to provide Transcript of the Respondent's hearing to this Court.
10 As was correctly submitted on behalf of the Respondent Minister, the task that this Court is now called upon to discharge is the exercise of its appellate jurisdiction - and not an exercise of its original jurisdiction.
11 The nature of an appeal to this Court, as is now well-established, is in the nature of a "rehearing" and is a jurisdiction to be exercised for the correction of error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [20] to [21], (2001) 117 FCR 424 at 434 to 435 ("Branir"). In commenting upon Branir and other decisions of this Court, Griffiths, Kerr and Farrell JJ in Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33, (2017) 248 FCR 1 at 13 to 14 ("SZVFW") have helpfully summarised the position as follows:
[40] It is important to now say something about the nature of the appeal. The appeal is brought under s 24 of the Federal Court of Australia Act 1976 (Cth). It is an appeal in the nature of a rehearing. This has important implications for the nature and scope of the appeal. It is well established that a rehearing is not a new hearing during which the original application is determined without regard to what happened in the Court below and without regard to its findings …
[41] It is equally well established that the role of the Court on an appeal by way of rehearing is the correction of error. As Allsop J (as his Honour then was) emphasised in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 (Branir) at [21] in such a case there is a "need to show error on appeal". It is desirable to set out in full that paragraph from his Honour's judgment (noting that Drummond and Mansfield JJ agreed with it):
However, this conclusion does not alter the need to show error on appeal. In Hamsher Beaumont J and Lee J identified the need for the demonstration of error in the trial judge's findings or conclusions and they expressed the view that the statements in Warren v Coombes (1979) 142 CLR 531 (dealing with an appeal by way of rehearing) that an appellate court must not shrink from giving effect to its own conclusion were premised on a conclusion that the decision of the trial judge was wrong and should be corrected.
[42] The need to identify appealable error in an appeal by way of rehearing and the incorrectness of an approach which simply invites the Full Court to consider the matter afresh and come to its own view, which appeared at least at one point to be the position advanced by the Minister, is reflected in the following passage from the joint judgment of Siopis, Gilmour and Katzmann JJ in Mesa Minerals Ltd v Mighty River International Ltd (2016) 241 FCR 241 at [85] (which, notably, refers approvingly to Allsop J's observations in Branir):
In effect, Mesa sought to re-run the case it lost below. Yet, the appeal is in the nature of a rehearing; it is not a hearing de novo. The Court's task is to correct error. The determination of the question of whether Mighty River was acting in good faith and the inspection was sought for a proper purpose was largely an evaluative one. The primary judge's decision is entitled to be given some weight. Where, as here, the nature of the issues is such that there cannot be said to be one truly correct answer, the availability of a different view or a preference for a different view, is unlikely to be sufficient: Branir v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [25] per Allsop J (as his Honour then was), Mansfield and Drummond JJ agreeing. As Allsop J went on to explain at [30]:
The proper approach is not to ask the court to survey all the evidence, directed by the otherwise unassailable findings on credit, and to ask it to arrive at its own conclusions, without "essaying the necessary task of positively demonstrating that the trial judge was wrong" … It is not appropriate to treat the appeal as though it were a new trial on the evidence and constrained merely by the unassailable factual findings. Error must be demonstrated … The views and conclusions of the trial judge ultimately have to be shown to be wrong. They should not be laid to one side and a simple re-argument of the case take place.
12 The Appellant ADF15 has failed to expose any appellable error.
13 The primary Judge considered and rejected the first Ground relied upon below.
14 The primary Judge concluded that the Tribunal had considered the complementary protection criterion: [2016] FCCA 3230 at [21]. No appellable error is discernible in the reasons of the primary Judge for so concluding. As the primary Judge concluded, the Tribunal had in fact addressed and resolved the claim for complementary protection. The reasons for decision of the Tribunal thus recognise at the outset the need to consider a "complementary protection" claim. In summarising the relevant law, those reasons thus state in part as follows:
RELEVANT LAW
3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa.
15 Those reasons thereafter separately consider as follows the criterion to be satisfied:
Complementary protection criterion
14. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ('the complementary protection criterion').
15. 'Significant harm' for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. 'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment', and 'torture', are further defined in s.5(1) of the Act.
16. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
16 Having set forth this analysis, the Tribunal thereafter addressed the evidence and claims made. The Tribunal then returned to the question of complementary protection as follows:
CONCLUDING PARAGRAPHS
69. The applicant has not made any other claims to fear harm in Sri Lanka. On the evidence before it and for the reasons outlined above the Tribunal is not satisfied the applicant has a well-founded fear of persecution for a Convention reason in Sri Lanka.
70. For the reasons discussed above, the Tribunal is also not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Sri Lanka, there is a real risk the applicant will suffer significant harm.
71. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
72. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
73. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
17 Any contention that the Tribunal failed "to consider in full the complementary protection obligations Australia owed to" ADF15 is contrary to the express reasons provided by the Tribunal. The Tribunal considered the relevant legal requirements and applied those principles to the facts.
18 The primary Judge was correct in rejecting the first Ground: [2016] FCCA 3230 at [21] to [22].
19 No submissions were advanced before the primary Judge in respect to Ground 2 and no transcript was provided, as envisaged by Ground 3. Ground 2 was nevertheless characterised by the primary Judge as "an unparticularised claim the Tribunal failed to comply with (in effect) s.424AA of the Act" and the primary Judge concluded that the claim "disclose[d] no jurisdictional error": [2016] FCCA 3230 at [23]. No appellable error is discernible in the reasons of the primary Judge for rejecting Ground 2.
20 The primary Judge also resolved an argument that was not to be found in the Grounds of application but rather (apparently) in submissions advanced during the course of the hearing. That argument placed reliance upon a "letter", which was identified as a translation of a newspaper article published on 12 January 2015. The translated newspaper article had been sent to the Tribunal after the hearing and was expressly referred to by the Tribunal at para [24] of its reasons for decision. An argument that the "letter" had not been "seriously" considered was, accordingly, rejected: [2016] FCCA 3230 at [18] to [20]. There is again no error apparent in the reasons of the primary Judge.
21 The Grounds of appeal, as expressed in the Notice of Appeal by reference to the arguments relied upon before the Federal Circuit Court, accordingly fail.