ANL15 v Minister for Immigration and Border Protection

1. The appellant has leave to amend the ground of appeal as follows: 'The primary judge failed to examine my evidence in my appeal and did not follow the rules of natural justice in deciding my case'.
2. The appeal is dismissed.
3. The appellant must pay the costs of the first respondent, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKSON J: 1 This is an appeal from a decision of the Federal Circuit Court of Australia dismissing an application seeking judicial review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of Sri Lanka. He claimed to be entitled to protection on the basis of political activities in which he engaged, largely, in 2011. It is not necessary to go into detail about that aspect of his claims as it did not figure in the application for judicial review. Rather, the application concerned a claim that the appellant left Sri Lanka illegally, so that he would face imprisonment if he were to return. He claimed that even if he only faced a fine on his return, he did not have the means to pay bail or any fine, so he would be imprisoned for a long time. 3 The appellant contended before the primary judge that these claims activated the requirement in Ministerial Direction No 56, which the Minister made under s 499 of the Migration Act 1958 (Cth), to comply with a document known as the Procedures Advice Manual 3, Refugee and Humanitarian Guidelines - Complementary Protection Guidelines (PAM3 Guidelines). Among many other things, those guidelines contain guidance on prison conditions and whether they can amount to significant harm for the purposes of the complementary protection criterion for protection visas which may be found in s 36(2)(a) and s 36(2)(aa) of the Act. While the Tribunal mentioned the PAM3 Guidelines in its reasons, the appellant claimed that the Tribunal failed to consider or make a finding about their relevance when it made findings on the complementary protection aspects of his visa application. That was the only ground of review that was pressed before the primary judge. 4 After summarising the appellant's claims for protection and his contentions and submissions in support of his application for judicial review, the primary judge defined the issue before the court as whether the Tribunal actively engaged with and considered the PAM3 Guidelines: at [9]. His Honour also put the issue another way, as whether the Tribunal had merely recited the requirement that the factor be taken into account. 5 The primary judge considered the reasons of the Tribunal as a whole to determine whether the Tribunal did deal with the matters the subject of the PAM3 Guidelines, albeit without specifically referring to those guidelines, or whether the Tribunal did not deal with them because they were not material to the Tribunal's reasons. After recounting the various matters on which the Tribunal relied in the part of its reasons dealing with the treatment the appellant would receive from the Sri Lankan authorities on his return, the primary judge noted in particular that the Tribunal had found that if the appellant was charged for his illegal departure from Sri Lanka, he would be detained for a short period, fined and bailed, and that if he could not afford to pay the fine he would be able to make arrangements to pay it by instalments: at [14]. The Tribunal had not been satisfied that there was a real chance that the appellant would not be able to find employment on his return to Sri Lanka. The primary judge noted that the Tribunal dealt with the question of prison conditions and the likely process if the appellant was charged, bailed and fined on his return: at [16]. His Honour found that the Tribunal had engaged with the claims made by the appellant at the appropriate intellectual level: at [17]. 6 The primary judge went on to refer to certain authorities (AAH15 v Minister for Immigration and Border Protection [2016] FCA 104; SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; and AJW15 v Minister for Immigration and Border Protection [2016] FCA 197) which he said were all Federal Court decisions in which the decision-maker below had mentioned the PAM3 Guidelines in a similar manner to the way the Tribunal had mentioned them here. 7 In each case, the court had declined to infer that the decision-maker had failed to take the PAM3 Guidelines into account. Here, the primary judge found it significant that the Tribunal had referred to the PAM3 Guidelines in the body of its reasons just before its consideration of the appellant's claims. The Tribunal engaged with the definition of 'significant harm' as it related to the appellant's return to Sri Lanka. The Tribunal had found that the appellant would only experience a short period of detention. His Honour inferred from this that the Tribunal did not consider the other parts of the PAM3 Guidelines to be relevant. He noted that, in any event, the Tribunal had considered country information about the prison conditions in Sri Lanka in the context of the short period of imprisonment likely to face the appellant on his return, as the PAM3 Guidelines required it to do. The primary judge concluded that the Tribunal had taken the guidelines into account: at [26]. His Honour found no jurisdictional error in the Tribunal's decision: at [29]. 8 The appellant was represented by counsel in the Federal Circuit Court but represented himself at all stages of the appeal to this court. The notice of appeal as it was originally filed contains one ground. It is handwritten and not very legible. As best the court can make out, it reads: The primary judge did not examine the evidence produced of the jurisdictional error of the wrong procedures followed by the second respondent. 9 At the hearing of the appeal the appellant had the assistance of an interpreter. He handed up a document entitled 'Submissions - ANL15 v Minister for Home Affairs and another'. The document stated: 1. I am the appellant in the above case. 2. I wish to make the following submissions: a. The Second Respondent and the Primary Judge had failed to examine my evidence in my appeal based on jurisdictional error and not following the rules of natural justice in deciding my case. b. The situation in Sri Lanka has not been assessed in relation to my position as a political target. c. Sri Lanka has been a terror state with laws like the Prevention of Terrorism Act which is used by those in political power to harm their political enemies in the most adverse manner. d. The human right abuses by the Sri Lankan armed forces are yet being investigated by UN agencies. e. Specifically they relate to torture arbitrary arrests and human rights abuses extending to death and disappearances at the hands of the Sri Lankan armed forces. f. Though the civil war ended in 2009 successive governments have not removed the Prevention of Terrorism Act and the rules framed under the Public Security Act. This has led to the police and armed forces virtually doing and influencing the day to day public administration in Sri Lanka. g. In my situation my political opponents have sworn to harm me and harass me if I return to Sri Lanka. h. After the Easter bombings in the churches and hotels in Sri Lanka the Sri Lankan armed forces are more armed with the provisions of the Prevention of Terrorism Act. i. I therefore have a well-founded fear of retuning to Sri Lanka as I strongly feel that the state and government in Sri Lanka will not give me the needed protection, and that my life is in danger. My appeal is that my application for a Protection Visa under the Migration Act be considered a fresh. 10 I indicated to counsel for the Minister that in view of the difficulty in reading the handwritten ground of appeal set out in the original notice of appeal, it seemed to me that, subject to any submissions she wished to make on behalf of the Minister, it would be appropriate to treat what is set out at paragraph 2(a) of the document as the appellant's ground of appeal in this court. Counsel for the Minister indicated, subject to one objection, that she was content for me to take that course. 11 The objection was, similarly to an objection raised in the Minister's written submissions concerning the handwritten ground of appeal, that the claims that the Tribunal failed to examine the evidence in the appeal and the Tribunal did not follow the rules of natural justice were not agitated before the primary judge. Counsel for the Minister submitted that in view of the fact that the appellant was represented by counsel in front of the primary judge, it should be inferred that counsel made a forensic decision not to pursue those matters in the application for judicial review before the primary judge, and that it would be inappropriate for the appellant to be permitted to raise those matters for the first time in this appeal. The written submissions for the Minister also indicated that the grounds were unparticularised and of insufficient merit to justify leave being granted. 12 In Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 the Full Court discussed the principles governing the discretion to grant leave to raise grounds of appeal to raise points that were not put below in the particular context of migration appeals. In that case Griffiths and Perry JJ denied leave to amend the grounds of appeal, although Mortimer J would have granted leave. To summarise the principles as set out in Griffiths and Perry JJ's reasons (at [19]-[20]): (1) 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; (2) it is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at trial, otherwise that would reduce the proceedings in the court at first instance to little more than a preliminary skirmish; (3) in migration appeals 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 Minister in permitting it to be agitated; (4) if 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; and (5) generally speaking the court is more likely to grant leave to permit a fresh issue to be raised if the new point turns only on a question of construction or upon a point of law, or where the facts are not in controversy. 13 In CHZ19 v Minister for Home Affairs [2019] FCA 914 at [35]-[39], Colvin J identified a number of other considerations which can be relevant to applications for leave to amend of this sort in refugee cases. One is the serious consequences of a decision adverse to the appellant. Another is the difficulty that litigants in person often have in formulating their complaints properly, and the fact that they may sometimes receive assistance in doing so for the first time on appeal. It may also be relevant to consider that if the court, in substance, determines a case against a respondent as if at first instance by entertaining new grounds of appeal, then the respondent will have no right to appeal from that determination and will need to seek special leave to appeal to the High Court. That can, however, assume less significance if the new point is a point of law that does not require extensive consideration of the evidence before the primary judge. 14 In the course of the hearing I indicated that I would not grant the appellant leave to raise, in his grounds of appeal, allegations that the Tribunal had failed to examine evidence and that the Tribunal had not followed the rules of natural justice. The explanation given by the appellant for any omission to raise those matters before the primary judge was that he was advised by counsel representing him not to attend the hearing before the primary judge, so he did not. The appellant said that he had relied upon his lawyer to say everything which could be said on his behalf before the primary judge. 15 The appellant indicated, in connection with some further documents he sought to hand up, which I will deal with shortly, that the lawyer expressed some reluctance to put the materials before the primary judge and that made the appellant suspicious about whether the lawyer was going to do so. In any event, because he was advised not to attend the hearing before the primary judge and did not attend, he could not say now what was and was not put before his Honour. 16 I understand why the appellant might have some reservations about the manner in which counsel conducted the case before the primary judge. That is not because I see any grounds for criticism of the manner in which counsel conducted the case; there is nothing in the materials before me to indicate that counsel did anything other than raise the sole point which could fairly be raised on his client's behalf. But because the appellant did not attend the hearing and because, no doubt, he has difficulties understanding the process in view of the language barrier and his lack of experience of Australian legal processes, he may well have some reservations about whether all the material which, in his view, should have been put before the primary judge, was put in front of the judge. However, the fact remains that he was represented by competent counsel who may be taken to have made a proper forensic choice about what grounds, if any, to press before the primary judge, and what grounds should not be pressed. 17 The position is therefore quite different to the position of an applicant who was entirely self-represented before the court of first instance. That is a factor which, in my view, weighs strongly against granting leave to raise new grounds now. Also, having considered the nature of the grounds and the fact that they are unparticularised, I am unable to discern any apparent merit in either of them. I have read the reasons of the Tribunal which, in my view, indicate that it reviewed the evidence before it thoroughly, and there is nothing to indicate that the Tribunal failed to accord natural justice to the appellant or otherwise failed to give him a fair hearing. Given that the appellant was represented in the Federal Circuit Court and did not raise these grounds, and given that there is no apparent merit in the grounds, leave to include the new grounds in the ground of appeal in this court was refused. 18 The upshot was that the ground of appeal which the appellant was permitted to agitate in this court was to the effect that the primary judge had failed to examine the evidence in the appeal concerning jurisdictional error, and that the primary judge had not followed the rules of natural justice in deciding the appellant's case. The appeal proceeded on that basis. 19 As I have indicated, the appellant also sought to hand up another bundle of documents for consideration by the court. The documents included a photograph of a broken roof, certain documents which appeared to have been generated in Sri Lanka, such as records of complaint to the police, and a letter dated 26 January 2015. The bundle of documents also included typewritten documents which advanced factual claims in support of the appellant's case. Some of the claims seemed to be new, as they did not appear in the decision of the Tribunal. Some appeared to relate to matters which had been advanced before the Tribunal. 20 I did not accept any of those materials into evidence. They were not before the Tribunal, and therefore it is difficult to see how they could be used to establish any error on the part of the Tribunal, even if leave were otherwise granted to advance such an argument in this court. Once again, the appellant repeated, on several occasions, that he had provided these materials to his lawyer, but his lawyer had not put them before the primary judge. Given that the materials were not put before the Tribunal, and therefore in the absence of unusual circumstances could not have been taken into account by the primary judge for the purposes of determining whether or not the Tribunal fell into jurisdictional error, the apparent decision on the part of counsel for the appellant in the Federal Circuit Court not to tender the materials is readily explicable. However, whether or not that decision is justifiable (and I see no reason why it would not be), it is a matter between the appellant and his counsel in the Federal Circuit Court and cannot provide a basis for this court receiving those materials into evidence for the first time. 21 In any event, and perhaps even more fundamentally, the materials could not be relevant to any issue before this court. As has been explained in the discussion of the revised ground of appeal which the appellant has been permitted to pursue in this court, what is relevant is evidence of what was put before the primary judge, and what the materials indicate about the extent to which the primary judge examined that evidence, and any evidence that might bear on the claim that the primary judge failed to accord natural justice. For those reasons, the tender of the materials was refused. 22 Therefore, the sole new document received in the appeal was the one I have quoted at paragraph 9 above. As I have explained, that was received partly by way of a revised ground of appeal, and the balance by way of submissions. The court has taken those submissions into account. But it is clear that they seek to agitate the underlying merits of the appellant's claims to protection. That would be to engage in impermissible merits review and for that reason it is not appropriate for me to go into the claims made in the submissions in any detail. 23 I therefore proceed to determine the appeal on the basis that the appellant asserts error on the part of the primary judge in failing to examine evidence, and in not following the rules of natural justice. 24 As far as the complaint about a failure to examine evidence goes, the appellant could identify no specific evidence which should have been considered, but was not. I acknowledge that he has no legal representation in this court and faces obvious difficulties in identifying and articulating any error on the part of the primary judge, but it is not for this court to perform the function of identification of error, at least when no error is apparent: EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 at [12]. It is apparent from a review of his Honour's careful and thorough reasons that his Honour had a comprehensive regard to the materials which were before him in the court book. I see no basis to find that his Honour failed to examine any relevant evidence that was before him. 25 In relation to the allegation that his Honour denied natural justice, there is no apparent basis in any of the materials to support that claim. As I have said, in the Federal Circuit Court the appellant was represented by counsel and had an opportunity to file an amended application for judicial review, which he did. Paragraph 5 of the primary judge's reasons sets out in detail comprehensive submissions which were made on behalf of the appellant, and there can be no suggestion that his Honour accorded him anything other than a full and fair hearing. 26 I have summarised the primary judge's reasons for decision above. They constituted a straightforward and correct application of the principles that apply when a decision maker is said to have failed to take a mandatory matter into account. The Tribunal did refer to the PAM3 Guidelines in its reasons, and those reasons reflect a genuine engagement with the considerations as to when imprisonment can amount to significant harm, which those guidelines relevantly raise. The Tribunal found, on the basis of country information, that the appellant would only be detained for a short time on his return to Sri Lanka. The Tribunal acknowledged that the conditions he might experience during that short time would probably be unpleasant, but concluded that that would not be enough to constitute significant harm. In my view, that is the extent of the engagement with the relevant PAM3 Guidelines which was required in the present case. 27 The appellant has therefore demonstrated no error in the decision of the Federal Circuit Court. The appeal will be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jackson.