AFE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The nature of the appeal 22 The notice of appeal identifies no error affecting the judgment of the primary judge. Indeed, it bears little relationship to the grounds of review upon which the appellant relied in the court below. Although the appellant's signature appears on the notice of appeal, it was abundantly clear at the hearing of the appeal that he had no idea of its contents. He informed the Court that the document had been prepared (for a fee) by a lawyer named Tony, although the lawyer was not identified in the document itself and he claimed not to be able to recall the author's surname. 23 The focus of the notice of appeal is the Authority's decision. It alleges that the Authority fell into jurisdictional error in respects that are different from the errors about which the appellant complained in the court below. It is in truth an application for judicial review under the guise of a notice of appeal. In other words, it is an attempt to set aside the decision of the Authority after the first attempt failed. 24 An appeal to this Court from the Federal Circuit Court is not a hearing de novo (or new hearing) in which the case agitated below can be run afresh with no regard to the original findings. It is an appeal by way of re-hearing and the task of a court in an appeal by way of re-hearing is the correction of error: Branir v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [21]-[22] (Allsop J, Drummond and Mansfield JJ agreeing); SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11]. It is therefore incumbent on an appellant to persuade the Court that the primary judge fell into appealable error. The lodgement of an appeal is not an opportunity for an appellant to have another shot at the decision under review.

The question of leave 25 It was not in dispute that the points raised by the notice of appeal had not been raised below. That means that leave is required to raise them here. The first order sought in the notice of appeal recognised that leave was required to rely on grounds 1 to 4. But all the grounds are new and leave is required to rely on any and all of them. 26 Whether or not leave should be granted depends on whether it is expedient in the interests of justice to do so: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). As the Full Court explained in VUAX at [48], the Court may grant leave to raise a new point if the point clearly has merit and there is no prejudice to the respondent in allowing it to be agitated, but if there is no adequate explanation for the failure to take the point below, and the point is of doubtful merit, leave should generally be refused.

The submissions 27 The Minister submitted that leave should not be granted for the following reasons. 28 First, the Minister would be prejudiced, since the appeal court would become the de facto trial court and the Minister would be deprived of the right of appeal conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). 29 Second, to allow new grounds on appeal would defeat the statutory scheme by which the relevant jurisdiction is conferred on the Federal Circuit Court. 30 Third, unless there are exceptional circumstances, a party should be bound by the way the case was conducted in the court below. 31 Fourth, there has been no explanation, let alone a satisfactory one, why the new grounds now sought to be advanced were not put to the court below. 32 Fifth, the issues raised by the grounds are factual ones, not discernibly novel, special, or of general importance. 33 Sixth, none of the grounds has merit. 34 The appellant filed no submissions. At the hearing, he had nothing to say about the Minister's submissions. He did, however, offer an explanation for the new grounds. 35 When asked why the matters raised in the notice of appeal were not raised in the court below, the appellant said that he was unaware of the grounds pleaded in the application. He blamed his lawyer. He said that the lawyer who represented him in the Federal Circuit Court advised him not to attend the hearing and failed to explain to him the grounds that he had included in the application to that court. 36 That account simply revealed an ignorance of the subject matter of the show cause application. Since the appellant was also ignorant of the contents of the notice of appeal, it did not explain the different attack on the Authority's decision being mounted in the notice of appeal. The apparent explanation for that is the fact that a different lawyer prepared the notice of appeal. So there was a belated explanation, in the circumstances, which I do not consider to be satisfactory or complete. 37 With that qualification, the Minister's submissions should be accepted. 38 The High Court said in University of Wollongong v Metwally [1985] HCA 28; 60 ALR 68 (also reported as University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481) that it is "elementary that a party is bound by the conduct of his case" and "[e]xcept in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so" (60 ALR at 71; 59 ALJR at 483). There are no exceptional circumstances here. While the appellant is unrepresented in this Court, he had the benefit of legal representation in the court below. As Bromwich J observed in Han v Minister for Home Affairs [2019] FCA 331 at [15]ff, to allow a wholly new case to be advanced on appeal would potentially prejudice the Minister and subvert the statutory scheme. In his reasons for refusing leave in that case, his Honour said, amongst other things (at [20]): (4) Allowing the proposed ground to be advanced in this case would subvert the evident design of Part 8 of the Migration Act and in particular the evident purpose of s 476A in precluding this Court having original jurisdiction in a case of this nature. As noted in the passages reproduced above from [AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452] endorsed by the Full Court in [BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 161 ALD 441], Part 8 generally operates to provide for one substantive trial in the Federal Circuit Court and for one substantive appeal in this Court, with very limited prospects of going further due to the barriers in obtaining special leave to appeal to the High Court. Special leave to appeal may still be, and often is, refused even when an error is identified in a decision made in the exercise of the appellate jurisdiction of this Court, because, e.g., the case is not considered a suitable vehicle to agitate the point. (5) The appeal on the proposed ground would amount to no more than a de facto trial on an entirely new basis. It would be an appeal in name only as a matter of formal jurisdiction and power. This Court would have to decide the entirety of the case as if the appeal was a trial. This would ordinarily deny the Minister any practical right of appeal if issue is taken with the conclusions reached, a point of prejudice embraced by the Minister at the appeal hearing. It is no answer, as Ms Han suggested, that any lasting problem affecting subsequent cases may be rectified by legislative or regulation amendment. (6) The appellate jurisdiction should only be used for advancing what is, in substance, a trial point that could and should have been run below rather than on appeal in compelling circumstances. Such compelling circumstances are not apparent in this case, beyond Ms Han's personal and entirely understandable desire for a different outcome. 39 These remarks apply equally to the present case.

The merits of the appeal 40 The proposed appeal is without merit. At the hearing, the appellant was invited to address each of the grounds but was unable to do so. Instead, he sought to impress upon the Court the merits of his claims for asylum. He insisted that he had been truthful in his account to the Authority. He said he had evidence that there had been a change for the worse in Sri Lanka. 41 Ground 1 of the notice of appeal reads as follows: The Immigration Assessment Authority (hereinafter referred as "the Authority" made a jurisdictional error by making findings of fact without regard to the circumstances of the SHEV application and the SHEV interview and/or adopted an inappropriately narrow understanding of the scope of the term "exceptional circumstances" in applying s 473DD of the Migration Act 1958. (Original emphasis.) 42 In the particulars the appellant relied on MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at [56]-[57] for the first proposition and BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 (White J) for the other. 43 In MZZJO at [56], after referring to inconsistencies the Refugee Review Tribunal identified between the appellant's accounts of what had happened to him and his failure to mention certain things at his entry interview, the Full Court remarked: On this latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called "people smuggling". They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile. 44 It is clear from the particulars that this ground challenges the Authority's findings in [7] and [8] of its decision that it was not satisfied that there were any exceptional circumstances to justify considering the new information. Particular (g) identifies the alleged error. It reads (without alteration): The Authority reasoned that, because the applicant did not make these claims at the Arrival interview, in Statutory Declaration, or during the SHEV interview, I am not satisfied that any exceptional circumstances to justify considering the new information." at [paragraph 7]. 45 It will be recalled that s 473DD prohibits the Authority from considering any new information unless: (1) the Authority is satisfied that there are exceptional circumstances to justify considering the new information (para 473DD(a)); and (2) the applicant satisfies the Authority either that the new information was not, and could not have been, provided to the Minister before he made his decision (para 473DD(b)(i)) or is credible personal information which was not previously known and which, had it been known, may have affected the consideration of the applicant's claims (para 473DD(b)(ii)). 46 The term "exceptional circumstances" is not defined in the Act. It follows that the term is to be given its ordinary meaning. As the Full Court observed in AQU17 at [13], although they "need not be unique, unprecedented, or very rare" (see Plaintiff M174/2016 at [30] per Gageler, Keane and Nettle JJ), circumstances are exceptional if they may reasonably be seen as producing a situation which is out of the ordinary, unusual, special or uncommon. 47 In BVZ16, where, in contrast to the present case, the appellant had provided an explanation for the late disclosure of the information, White J decided that the Authority had failed to consider the significance of the new information in light of the appellant's personal circumstances, either generally or in the way in which the claims in the new information related to the earlier claims made by the appellant. His Honour said that there was no indication that the Authority considered the new material against the criterion in para 473DD(b)(ii) and, for this reason, the Authority fell into jurisdictional error. See BVZ16 at [35]-[36]. His Honour concluded, too, that the Authority had adopted an inappropriately narrow interpretation of the term "exceptional circumstances" by confining its consideration of whether there were exceptional circumstances to the evaluation of the appellant's explanation for not having provided the information earlier: BVZ16 at [46]-[47]. 48 In Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111, a case in which no explanation was offered for the delay in disclosing the information, the Full Court approved of White J's approach in BVZ16 and held that the Authority in that case had made a similar error by addressing only the lack of explanation. 49 The Authority was required to decide, by examining the material before it, what, if anything, took the circumstances of the appellant's case out of the usual or ordinary course so as to justify the consideration of the new information: see AQU17 at [15]. In this case, as in AQU17, the appellant was unable to point to any fact or matter materially bearing on the Authority's consideration of this question that was not taken into account and, if it had been, would have had a material effect on its deliberations. In this case, as in AQU17, nothing appears to have been put to the Authority about the appellant's personal circumstances or, for that matter, anything else which would indicate that his circumstances were exceptional. Unlike in BVZ16, the Authority in the present case considered both alternatives in para 473DD(b). Unlike in BBS16, the Authority in the present case did not confine itself to addressing only the lack of explanation for the delay. Indeed, it considered a range of potentially relevant matters, including the fact that the appellant was not represented at the SHEV interview. The notice of appeal did not identify what other circumstances should have been considered and, at the hearing, neither did the appellant. 50 There is no reason to believe that the Authority's understanding of the scope of the term "exceptional circumstances" was unduly narrow. 51 In particular (h) the appellant alleged that the Authority's refusal to accept new information was legally unreasonable. 52 When the appellant was asked at the hearing what was legally unreasonable about the Authority's decision in this regard, he replied: "[p]eople here, the authority officers, they were not aware of exact situation, what's going on there, because we are the people who lived in my country and we knew what's really happening there". Even if he were right, this would not make the Authority's decision legally unreasonable. 53 In Singh v Minister for Home Affairs (2019) 267 FCR 200 at [61], the Full Court explained: The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [54]-[60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J). Such a conclusion might be drawn, for example, if it: (1) is "illogical", though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: SZVFW at [10] (Kiefel CJ); [82] (Nettle and Gordon JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] (Hayne, Kiefel and Bell JJ); (2) "lacks an evident and intelligible justification": Li at [76] (Hayne, Kiefel and Bell JJ); SZVFW at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ); (3) is plainly unjust, arbitrary, capricious or lacking in common-sense: Stretton at [11] per (Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] (Flick, Perry and Charlesworth JJ). 54 Here, the Authority's conclusions on the new evidence questions were undoubtedly within the scope of its statutory authority. They were not illogical, plainly unjust, arbitrary, capricious or lacking in commonsense. Nor were they devoid of an evident and intelligible justification. 55 Ground 2 of the notice of appeal states that: The Authority made a jurisdictional error by making material findings of fact which were legally unreasonable. 56 It appears from the particulars to this ground that the relevant findings are at [15], [19], and [43]. It appears from the authorities mentioned in those particulars that the point being made is that these findings "lacked an evident and intelligible justification" and/or involved the imposition on him of "an arbitrary standard of knowledge". There is nothing to indicate that the Authority imposed on the appellant some "arbitrary standard of knowledge". For the reasons indicated below, the findings contained in the paragraphs of the Authority's decision mentioned in the particulars are supported by reasons such that it cannot be said that they lack an evident and intelligible justification. 57 At [15] of its decision, the Authority referred to a claim made by the appellant that in 2008 he had been shot at and pursued by Sinhalese security guards the morning after four Sinhalese security guards had been killed by the LTTE. The incident was described in the previous paragraph: The applicant was living in a village on the Sinhalese border and one night four Sinhalese security guards were killed by the Liberation Tigers of Tamil Ealam (sic) (LTTE). The next morning he went along with some other people, to collect fish at the pond and Sinhalese security guards shot at him and chased him because they thought he had killed the men. He was able to escape by running to the neighbouring village. In his statement of claim (statutory declaration dated 21 January 2016) the applicant indicated that after this incident Sinhalese people would sometimes pass his house on motorbikes and scream at him and his family. At the SHEV interview however, the applicant indicated the path allowing movement between the Sinhalese and Tamil areas was not built until 2011, and the people did not start making noise and yelling from their motorbikes until after the land dispute in 2012. The applicant claims he is still very scared after this incident, however, other than the description of the incident, no evidence has been provided to support that the applicant was of any interest to anyone because of the 2008 incident. 58 The Authority said at [15] that, while it accepted as plausible the possibility that there was an incident involving the killing of Sinhalese men in a village near where the appellant lived, it did not accept that the appellant was shot at, chased, or suspected of killing those men. In fact, it went so far as to find that the evidence had been fabricated. That conclusion had "an evident and intelligible justification". It was based on what the Authority said earlier in that paragraph, namely: The appellant did not mention the incident during the arrival interview. Although he said that he did not have enough time to tell his story at the interview, the Authority listened to (the recording of) the interview and considered that he had ample opportunity to do so. There was an inconsistency in his account as to when the Sinhalese people started shouting when passing his home. If he had been genuinely suspected of involvement with the shooting of the men there would have been further adverse interest from the Sri Lankan authorities or the local Sinhalese people and there was no evidence of that. Moreover, the appellant was able to continue to reside in the same area until the time he left for Australia in 2012. 59 At the hearing, when the appellant was asked why the Authority's conclusion was legally unreasonable, he merely replied: "They don't know much about what's going on there, because I'm the person who lived there. I know really what has happened". For the reasons given above, even if the appellant were correct, that would not make the Authority's conclusions legally unreasonable. 60 At [19] the Authority referred to a letter of support from a Sri Lankan parliamentarian, who claimed to know the appellant well, which the appellant had submitted with his visa application. The letter stated that: He was being searching by the Government Forces on the suspicion of LTTE Activities in so many occasions and accordingly, he was searched very highly by the Army CID on 15.08.2012 at early morning during the period of by the search operation occurred all over the places of the village, of the village, but he had escaped from which search operation and at present he is living in Australia seeking asylum status. Further, I understand through his father that the unknown persons comes to him very frequently in search of [the appellant] and as such, I feel that if he come to this country in this situation, he may face danger to his life. 61 The author did not identify the source of the account in the first paragraph. 62 The Authority accepted that the letter was written by the parliamentarian but said it accorded it little weight. Once again, the Authority's reasons offered "an evident and intelligible justification". First, the Authority said that the author did not appear to be recounting incidents of which he had first-hand knowledge. Second, the Authority was struck by the fact that the author referred to a particular date whereas the appellant did not do so at any relevant time. 63 When asked what was legally unreasonable about the Authority's treatment of this matter, the appellant responded: "My family members, they approached this Member of Parliament. He's a Tamil MP member of parliament, and they described my situation and ask him to provide this letter". He said that he was unable to explain why the Authority's position was unreasonable. In fact, his response rather supports the Authority's conclusion. Nor was he able to do so in relation to [43] of the Authority's reasons. At this point, the appellant simply protested that he had told the Authority the truth. 64 At [43] the Authority recorded its conclusion that it was not satisfied there was a real chance the appellant would suffer persecution now or in the reasonably foreseeable future for any of the reasons he had claimed "or any combination of [them]". The justification for reaching that conclusion is set out in the preceding paragraphs. 65 In ground 3 the appellant alleges that: The Authority fell into jurisdictional error for not considering the applicant's claims cumulatively or collectively, he had a well-found fear of persecution. 66 In the particulars to this ground, the appellant referred to W352 v Minister for Immigration & Multicultural Affairs [2002] FCA 398 at [21] in which French J observed that, "in determining whether an applicant for a protection visa has a well-founded fear of persecution for a Convention reason, the Tribunal must have regard to the whole of the case advanced by the applicant". He also referred to Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478 and to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294-295 (Kirby J), where remarks to similar effect were made. 67 There is no substance to this ground. In recording its conclusions with respect to the refugee claim at [43], the Authority made it clear that it had considered the appellant's claims cumulatively or collectively. In recording its conclusions in relation to the complementary protection claim at [50], the Authority expressly stated that it had "[c]onsider[ed] the applicant's circumstances individually and cumulatively". There is no reason to think that the Authority did not mean what it said, and the appellant did not point to any material to suggest otherwise. 68 Ground 4 of the notice of appeal reads: The Authority made a jurisdictional error of legal unreasonableness including by identifying inconsistency without proper appropriate caution or a relevant justification. 69 The particulars allege that the Authority made assumptions about the behaviour of the appellant's family towards the appellant. Those assumptions are not identified. Nor is the relevant inconsistency. The alleged assumptions were said to have been made in paragraph 67 of the Authority's decision. But there is no paragraph 67. The decision consists of only 51 paragraphs. As the Minister noted in his submissions, there are a number of references to the appellant's family in the Authority's reasons and none of them indicates that the Authority made any such assumptions. 70 Ground 5 is in the following terms: The Authority made a jurisdictional error by failing to consider a claim of the applicant or integer thereof or an important item of evidence or failing to give proper genuine and realistic consideration to the applicant's case or by legally unreasonable. Particulars a. The Authority said at [paragraph 21] "I accept as plausible [t]hat the applicant's brother-in-law was the victim of such a disappearance, and that the lady may have been killed. However, no evidence has been provided to link these incidents to the applicant, or to suggest there were any adverse consequences for the applicant as a result of the incidents. I am not satisfied the applicant is at risk of harm as a result of either incident." b. The Authority's reasoning recounted at (a) did not properly or logically have regard to the relevant Applicants' claims of ongoing interest to the Sri Lankan authorities due to his actual or imputed personal or familial links to the LTTE, or on account of his previous claimed interactions with the Sinhalese people and the Sri Lankan authorities. 71 This ground is hopeless. 72 At [21] the Authority referred to a claim by the appellant that his brother-in-law was abducted by men in white vans in 1988 and that he was scared that the same thing would happen to him. 73 In full the paragraph reads: The applicant claims his brother-in-law was abducted by men in white vans in 1988, and he was scared this would happen to him. Country information supports that there were a considerable number of cases of disappearances or Tamils during the conflict, including the so-called white van disappearances. In addition, at the Arrival interview in 2012 the applicant referred to a lady called Aunty who went to graze her goats and was killed five or six years ago. The applicant said he thinks the army killed this lady because they were near the army camp. I accept as plausible that the applicant's brother-in-law was the victim of such a disappearance, and that the lady may have been killed. However, no evidence has been provided to link these incidents to the applicant, or to suggest there were any adverse consequences for the applicant as a result of the incidents. I am not satisfied the applicant is at risk of harm as a result of either incident. 74 As the Minister submitted, the impugned finding was open to the Authority. Its conclusion was not legally unreasonable. The reasons provide an evident and intelligible justification. The appellant did not suggest that he had in fact provided any evidence to establish a link between him and the two incidents, or either of them. The allegation that the Authority's reasoning "did not properly or logically have regard to 'the relevant [appellant's] claims …'" is merely an attempt to cavil with the Authority's conclusion on the merits as it is plain that the Authority did consider his claims. The fact that it did not accept them does not denote error, let alone jurisdictional error. 75 It is trite to observe that an administrative decision-maker, like the Authority, which is required by statute to consider any matter, must give that matter "proper, genuine and realistic consideration". That means that the decision-maker must engage in an "active intellectual process" directed to the matter: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45] (Griffiths, White and Bromwich JJ). A failure to do so is a failure to undertake or complete the statutory task and will therefore constitute jurisdictional error. But a conclusion that a decision-maker has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence: Carrascalao at [48]. The appellant, who bears the onus of proof, pointed to no such evidence and the reasons of the Authority do not indicate that it made such an error in this case.

Conclusion 76 For all the reasons set out above, I do not consider that it is expedient in the interests of justice to allow the appellant to raise any of the new points made in the grounds of appeal. Leave should therefore be refused. It follows that the appeal must be dismissed. The appellant should pay the Minister's costs. There will be orders accordingly. I certify that the preceding seventy-five (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.