BDT18 v Minister for Home Affairs

Federal Circuit Court 6 The appellant was not represented in the Circuit Court. He relied upon three grounds of review which were described by the learned primary judge as follows (at [26]-[28]): Firstly, the applicant claims that the Authority fell into error by failing to consider the new information that was put forward by the applicant and did not apply s 473DD(b) of the Act correctly. Secondly, the applicant claims that the Authority fell into error when it refused to consider the STARTTS document. Thirdly, the applicant claims that the Authority failed to consider that the applicant met the risk profiles found in the Department of Foreign Affairs and Trade ("DFAT") report and thus faces a real chance of harm if he is returned to Sri Lanka. 7 Each ground was dismissed. As to the first ground, following consideration of the High Court's decision in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600, the primary judge concluded at [33]-[34] as follows: I am not satisfied, taking account of the requirements set out by the High Court in Plaintiff M174/2016, that there was a requirement to consider the new information that the applicant had provided. The information was clearly known to the applicant when he arrived in Australia. The suggestion that the applicant's family may suffer harm in travelling to Colombo to obtain his release from prison is at best a speculative assertion and is not backed by any evidence. I am not satisfied that this "new material" would have affected the consideration of the claim by the Authority. Accordingly, ground one fails. 8 The primary judge was also of the view that the Authority did not err in not considering the STARTTS material. At [37]-[38], his Honour said: … a fair reading of the material contained within the STARTTS document indicates it is more in the nature of detail regarding the claims that have already been made by the applicant. The claims that the applicant may suffer a deterioration in his mental health are also not supported by any clinical diagnosis or material from an appropriate health professional. The Authority also noted some inconsistencies with previous information that had been provided. I'm not satisfied that the material within the STARTTS document would have affected the consideration of the applicant's claims, even if it had been admitted. This second ground consequently fails. 9 Finally, the third ground of review was rejected on the basis that the learned primary judge was satisfied that the Authority had properly assessed the appellant's risk profile in the light of available country information. That included findings in favour of the appellant that he was a driver for the LTTE, but also findings that the appellant was nonetheless not a person of adverse interest to the authorities when he left Sri Lanka, and that this remained the case.

Appeal 10 Before me the appellant was represented by Mr Rajadurai, a solicitor. The Minister was represented by Ms Graycar of Counsel. 11 The three original grounds of appeal were as follows: 1. His Honour erred making a jurisdictional error by failing to hold that the Authority made a mistake. Particulars Authority did not apply s 473DD 2. His Honour erred making a jurisdictional error by failing to hold that the Authority made mistake. Particulars Authority failed to consider psychological report. 3. His honour erred jurisdictionally. Particulars Authority failed to consider risk profile of the Appellant. (Errors in the original.) 12 Before me, none of these grounds were pressed. Instead, the appellant relied upon an entirely new claim never raised before the Authority or the Court below. It was in these terms: Ground Authority made a jurisdictional error by failing to consider a relevant issue Particulars Authority overlooked the proposition that Appellant, having served for the LTTE for extensive period of time, been arrested, detained and mistreated, will be forced to provide information against his will to the Sri Lankan authorities to allay any fears of being persecuted. 13 This ground was summed up in the appellant's written submissions by posing the following question: Should a refugee-claimant who has worked for the LTTE for a prolonged period of time provide information about events and persons, after being arrested and mistreated by the persecutors, to allay any fear of persecution [?] 14 It was submitted that if the answer to this question was "yes" the Minister should succeed and the appeal should be dismissed. If the answer to this question was "no" then, subject to granting leave to rely upon this new grounds, it was said that it would follow that the appeal should be allowed. As best as I understood it, the essence of this new ground was that given the appellant's history with the LTTE, "it is quite possible", to use the language of the appellant's written submissions, that if returned to Sri Lanka, the authorities would want to use him as an informant. In other words, as someone able to "identify people and obtain information", again using the language of the appellant's submissions. It was said that the appellant may not want to become an informant and that by resisting, he would be harmed. It was said that there was material before the Authority about Sri Lanka's intelligence network, which the Authority referred to in its reasons as follows: Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including 'stop' and 'watch' electronic databases. 'Stop' lists include names of individuals having an extant court order, arrest warrant or order to impound their Sri Lankan passport. 'Watch' lists include names of those individuals Sri Lankan security services considered to be of interest, including due to separatist or criminal activities. It was said that being forced to become an informant would "conflict with a characteristic that is fundamental to" the appellant's "conscience" for the purposes of s 5J(3)(a) of the Act. 15 Presented in this way, this ground is not a new ground of judicial review. It is a new claim to fear harm and I was asked to adjudicate it on its merits having regard to the material in the appeal book, and, I assume, to make such inferences from the evidence as would be required. It had not been pursued before the Authority and consequentially, no factual findings about it have been made. 16 Unsurprisingly, the Minister opposed the grant of leave to rely on this new ground. He submitted that it lacked sufficient merit because it was, in substance, an impermissible attempt to review the ultimate conclusions reached by the Authority about the risk of harm on the merits. 17 I put the Minister's concern to the appellant's solicitor and asked him if he could refer the Court to an authority which supported the proposition that the Court could entertain an entirely new claim on its merits, in an appeal from a judicial review proceeding. He referred the Court to Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788. In that case, the appellant sought leave to rely on three new grounds of judicial review which had not been raised at the trial. The case concerned a decision of the former Refugee Review Tribunal. Heerey, Moore and Goldberg JJ said at [16]: An appellate court has power to allow grounds to be argued on appeal which were not argued before the primary judge. Where the facts are not in issue and have been finally determined or the point is one of construction or law, the relevant principle to apply is whether it is expedient and in the interests of justice to allow the grounds to be argued. The relevant authorities were considered by R D Nicholson J in Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32. His Honour referred to a number of authorities and said at 47: "… The effect of these authorities, as I view them, is that where the new grounds could possibly have been met by calling evidence at the hearing or may have resulted in the case of the respondent being differently conducted at the trial, leave will be refused (the first proposition). However, where all the facts have been established beyond controversy or where the point is one of construction or of law, then it is a question for the Court of Appeal whether it is expedient and in the interests of justice to entertain the point (the second proposition) … The authorities to which I have referred, while stressing the importance of the public interest in ensuring the finality of litigation, do not view that interest as likely to be paramount where the new grounds are within the second proposition. Lord Watson in Connecticut [Fire Insurance Co v Cavanaugh [1892] AC 473] at 480 said that in the case of the second proposition 'it is not only competent but expedient in the interests of justice, to entertain the plea'. The rule derives, at least in part, 'from public policy considerations directed to ensuring the finality of litigation' and, so far as it does so derive, 'the relevant consideration is that the case sought to be made on appeal is a new or different case from that which emerged at the trial': Banque Commerciale SA [(in liq) v Akhil Holdings Ltd (1990) 169 CLR 279] at 284." 18 I respectfully do not think that this case assists the appellant. It was concerned with the seeking of leave to add new grounds of judicial review. It was not concerned with an application to raise an entirely new claim to be adjudicated upon on the merits. In my view, absent authority, it is not appropriate for this Court to consider such a claim. On an appeal from a judicial review proceeding, the concern of the Court is the identification of jurisdictional error in the reasons of, here, the Authority. Subject to cases where the claim was apparent on the face of the record and was thus sufficiently raised (as to which see below), an error of law is not made if the decision-maker fails to address issues of fact and/or law which had not been raised before it: SZBZJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 771. See also Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726; Federal Commissioner of Taxation v Perkins (1993) 26 ATR 8. 19 Thus, in BFS16 v Minister for Immigration and Border Protection [2017] FCA 142, Robertson J dismissed a new claim made before his Honour for the first time. His Honour said at [54]: As to the first submission, this claim was not put to the Tribunal. It did not fairly arise from the material. There was no jurisdictional error on the part of the Tribunal in not accepting [the new claim]. 20 The applicant also relied upon the well-known decision in Coulton v Holcombe (1986) 162 CLR 1. Again, that case does not address the issue before me. Mr Rajadurai also mentioned in passing a 2015 or 2017 case called "CIC" but I have been unable to find such a case. 21 Ms Graycar, in opposing the grant of leave, said that applicable principles were to be found in SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145 and in Singh v Minister for Immigration and Border Protection (2018) 261 FCR 556. 22 In SZLPH, Besanko, Gleeson and Burley JJ said at [28]-[29]: The appellant acknowledges that proposed grounds (1) and (2) are new grounds raised for the first time on appeal. Thus, the proposed amended notice of appeal does not in substance engage with the decision of the FCCA but rather focuses on that of the delegate. The appellant requires the leave of this Court to rely on them. The relevant principles for deciding whether to grant leave to raise a ground of challenge for the first time on appeal are set out in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48], as follows: [46] … 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] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[24] and [38]. [47] In Coulton v Holcombe [1986] HCA 33; (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. [48] 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. The statement of principle in Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 at [89]-[90] is to similar effect. In MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1, the Full Court addressed an application for leave to raise on appeal matters not put to the Federal Magistrates Court of Australia, where the appellant had been unrepresented. The Full Court said (at [66]-[68]): [66] In our opinion, if there was some merit in grounds 2 and 3, this would be a case where it would be expedient in the interests of justice to allow the grounds to be put for the first time. [67] However, we do not mean to say that appellants in administrative law matters of the kind with which this Court is concerned are entitled to think that they can put forward any new argument that occurs to their legal advisers on the appeal, whether or not it has been put before the Court at first instance. [68] All arguments, which an applicant wishes to put before the Court, must be put before the Court at first instance to be dealt with by that Court. The parties in a proceeding are entitled to expect that the opposing party, if an applicant, will have put all arguments upon which that applicant claims to be entitled to any relief or, if a respondent, will have put all defences upon which that respondent relies for dismissing the application. The Full Court is entitled to have the benefit of the reasons for judgment of the Court at first instance in respect of all arguments, in conducting its rehearing of the appeal. Although on this application we are inclined to decide the application by reference to the merits of the proposed new grounds, it cannot be thought that this Court should proceed on that basis in all cases. If the Court were compelled to consider an application of this kind by reference to whether or not the application would succeed, then that would have the de facto result that an appellant could raise any ground the appellant liked without reference to the arguments put before the Court at first instance. 23 In Singh, Griffiths and Moshinksy JJ said at [59]-[63]: 59. Although the majority in Maharjan was prepared to grant leave to permit the appellant there to successfully run the same ground which the appellant here now seeks leave to run, for the following reasons we were not persuaded that leave should be granted in the particular circumstances here. 60. First, in contrast with the position in Maharjan, there was a lengthy delay in the appellant seeking to raise the new ground. As noted above, the application was only made during the course of the hearing and after the Court had drawn the parties' attention to cases such as Gill, Singh 2016 and Maharjan. The decisions in Gill and Singh 2016 were published well before the hearing below. At the time of the hearing below, the Full Court had reserved its judgment in Maharjan, but that judgment was not delivered until after the primary judge published his judgment. 61. Secondly, Mr Arch confirmed that he had made a deliberate forensic decision not to run this ground in the proceedings below, notwithstanding that he was aware at that time of both Gill and Singh 2016. He explained that this forensic decision had been made in light of the evidentiary issues in the case. Accordingly, no challenge was made below to the validity of the visa application itself. Instead, the appellant simply challenged the AAT's decision as being vitiated by jurisdictional error. In circumstances where the appellant had legal representation below and a considered decision was made not to raise a particular ground of review, we consider that it would only be in exceptional circumstances that a party should be permitted to run that point on appeal. 62. Thirdly, it is important to consider whether the point which the appellant now wishes to raise for the first time on appeal could possibly have been met by calling evidence below. The importance of this consideration in determining whether or not to grant leave has been emphasised by the High Court in many cases, including Park v Brothers [2005] HCA 73; 222 ALR 421 at [34] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 497 per Mason CJ, Wilson, Brennan and Dawson JJ; Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438 per Latham CJ, Williams and Fullagar JJ; University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481 at 483 and Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7-8 per Gibbs CJ, Wilson, Brennan and Dawson JJ. Mr Arch properly and candidly acknowledged that if proposed ground 3 had been raised below so as to add a challenge to the validity of the visa application, it could have affected the evidence in the FCCA. Mr Reilly confirmed that the Minister may have wished to adduce evidence in response and to cross-examine any witnesses called by the appellant in support of this ground if it had been run below. 63. In our view, these matters are fatal to the application for leave and, for these reasons, leave was refused. 24 Ms Graycar also said that, to her knowledge, there were no decisions of this Court which had permitted the raising of an entirely new claim to fear harm to support an application of either s 36(2)(a) or (aa) in an appeal from judicial review proceedings. I respectfully agree with Ms Graycar's submissions. In my view, an appellant cannot raise on an appeal from judicial review proceedings in the Circuit Court an entirely new claim, not being a new ground of judicial review, but a new contention that is said on its merits to satisfy the grant of a visa. The cases identified by the appellant do not support the contrary position. Leave is therefore not granted. 25 Ms Graycar, very properly, also submitted that the new ground might perhaps be construed beneficially, as a contention that the claim arose sufficiently on the papers, but that the Authority had erred in not investigating it. That way of construing the ground may be supported by the contention that the Authority had "overlooked" it. In NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695, Allsop J (as his Honour then was) said at [15]: The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [55]-[63] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated. See also Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389, 394 [24], 408 [95] and Applicant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 71; (2003) 203 ALR 112. From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy. 26 Ms Graycar submitted that the claim that the appellant might be required to become an informant did not arise sufficiently from the material before the Authority. It was not a claim that the appellant had ever made before in materials submitted either to the delegate or to the Authority. Mr Rajadurai did not suggest otherwise. In that respect, Ms Graycar noted that the appellant was represented for the purpose of making submissions to the Authority. 27 I respectfully agree with Ms Graycar's submission. In my view, the specific claim that the appellant would be obliged to act as an informant and that this would constitute a well-founded fear of persecution - as it would conflict with a characteristic fundamental to the appellant's conscience - was not something which emerged from the materials before the Authority. In my view, the reference in the Authority's reasons to watch and stop lists and the maintenance of sophisticated intelligence databases in Sri Lanka is insufficiently connected to the claim now articulated for the first time. It could not reasonably have put the Authority on notice about it. There was no material led, or statements made, about the appellant's conscience and the risk that he might become an informer. In my view, and with respect, the appellant should not be given leave to rely on the proposed new ground on this alternative basis. 28 I have otherwise reviewed the judgment below and the decision of the Authority to determine whether any error of law had been made. I also reviewed the Minister's submissions which address the original three grounds of appeal. I am satisfied that there was no such error. 29 For these reasons the appeal should be dismissed with costs as agreed or assessed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.