BIJ16 v Minister for Immigration and Border Protection

1. The appellant's application to amend his notice of appeal dated 30 October 2017 be refused.
2. The appeal be dismissed.
3. The appellant pay the first respondent's costs, to be agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'CALLAGHAN J: 1 These reasons for judgment were delivered ex tempore at the hearing on 3 September 2018 and accompany the orders set out above. 2 This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) delivered ex tempore on 9 October 2017. Although the reasons were delivered on 9 October 2017, the published reasons for judgment were not provided until 7 March 2018. The primary judge ordered that the appellant's application for judicial review of a decision of the second respondent (the Tribunal) dated 6 May 2016 be dismissed. The Tribunal affirmed a decision of the first respondent, the Minister for Immigration and Border Protection (the Minister) by his delegate, not to grant to the appellant a Protection (Class XA) visa (the visa). 3 The appellant is a citizen of Sri Lanka. He arrived in Australia as a so-called "unauthorised maritime arrival" on 15 July 2012 and applied for the visa in October of that year. In his accompanying statutory declaration, the appellant said that he feared persecution in Sri Lanka. He claimed to be a Tamil and a Sunni Muslim from the north of Sri Lanka. He said that he was persecuted by the local Sinhalese and police members due to his religion as a Muslim, his ethnicity as a Tamil, and because he had been a resident in a Sri Lankan refugee camp. 4 The appellant said that he had run a hotel at which Sinhalese people and policemen would come to eat without paying for their food. He said that the Sinhalese people and policemen were rowdy like gang members and would hit the waiters. He claimed that the policemen sought bribes from him and threatened to kill him and, because of that, he had to give up his business and flee to Australia. 5 The appellant attended an interview with a delegate of the Minister on 21 February 2013. Shortly thereafter, the appellant provided to the Department documents which he said evidenced a lease agreement with the hotel where he claimed to operate the hotel. By a decision dated 12 March 2014, the delegate refused to grant the visa. 6 On 19 March 2014, the appellant applied to the Tribunal for a review of the delegate's decision. Shortly thereafter, the appellant's agent provided written submissions to the Tribunal in support of that application. The appellant invoked, or sought to invoke, section 36 of the Migration Act 1958 (Cth) (the Migration Act) and Part 866 of Schedule 2 of the Migration Regulations 1994 (Cth). 7 By those provisions, it followed that the appellant need to satisfy the Tribunal (as he needed to have satisfied the delegate) that: (1) under section 36(2)(a) of the Migration Act, he was owed protection obligations under the Refugees Convention; or (2) under section 36(2)(aa) of the Migration Act, there was a real risk that he would suffer significant harm if he returned to Sri Lanka. That required the appellant to demonstrate that he had a well-founded fear of persecution for a reason specified in the Refugees Convention or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that he would suffer significant harm. 8 The appellant attended at a hearing before the Tribunal in April 2016 with the assistance of an agent. Part of the evidence upon which the appellant relied was a letter from a Member of Parliament in Sri Lanka (the MP) concerning the problems that the appellant said he had experienced at the hotel. 9 On 6 May 2016, the Tribunal delivered its reasons for rejecting the appellant's claims and affirming the decision of the delegate not to grant to the appellant the visa. 10 It is unnecessary for the purposes of these reasons to traverse in any significant detail the grounds upon which the Tribunal reached its decision. It is sufficient to note that the Tribunal made a number of unfavourable findings about the credibility of the appellant's evidence. By way of example, the Tribunal rejected the appellant's claim that he owned or ran a hotel or restaurant business. The Tribunal rejected that claim, in part, because the appellant had produced two leases with different dates, only one of which contained the appellant's name. 11 The Tribunal also found that the appellant had provided incoherent evidence about the role of the appellant's brother-in-law at the hotel. The Tribunal also rejected the appellant's claims that he was targeted or was at risk of harm from underworld gangs or the police for reasons which it set out in detail at paragraph [73], [74], [77], [81] and [82]-[84] of its reasons. 12 The appellant applied to the Federal Circuit Court for judicial review of the Tribunal's decision on 2 June 2016. As I say, the application was heard and ex tempore reasons were given on 9 October 2017. The appellant appeared without the benefit of representation. It is unnecessary for present purposes to further record the reasons for decision of the primary judge because the grounds of appeal raised before the primary judge bear no resemblance to the grounds now sought to be argued in this court. 13 The appellant seeks leave to rely on the following two grounds of appeal, which read as follows: 1. The Tribunal has not assessed the appellant's claim cumulatively being a Tamil of Muslim faith from the North of Sri Lanka with perceived political opinion against the State. It is a jurisdictional error not to assess the appellant's claim cumulatively. The learned judge erred in holding that this claim was assessed and thereby the tribunal fell into jurisdictional error. 2. The appellant is yet to receive the reason for the decision and reserve[s] his right to amend the grounds once the written decision is handed down. 14 In deciding whether to grant leave to the appellant to rely on these grounds of appeal not raised below, it is important to bear in mind, as counsel for the Minister submitted, the following passage from the decision of the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588, at [48] as follows: 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 … 15 In this case, the Minister made no particular point about the failure of the appellant to provide any or any adequate explanation for the failure to raise these proposed amended grounds below. Whether or not leave should be given therefore falls to be determined primarily by reference to the potential merits of the grounds. 16 Taking the first ground of appeal, this ground has no merit at all, in my view. That is so because it is plain from the express words of the Tribunal's decision that it did the very thing that the proposed ground of appeal asserts that it did not. That is to say, it did expressly consider each of the individual claims cumulatively and did so in the context of both section 36(2)(a) and section 36(2)(aa) of the Migration Act. 17 Having dealt with each of the claims individually and in detail at paragraphs [69]-[124], at paragraphs [125] and [126], the Tribunal stated as follows: The tribunal does not accept that the [appellant] faces a real chance of serious harm at the hands of Sinhalese, an underworld gang or group, the police or other authorities due to, either separately or cumulatively, his claimed Tamil ethnicity, Muslim religion, profile as a Tamil/Tamil Muslim or Tamil-speaking Muslim from the North, as a displaced person from Mannar/refugee from Sri Lankan camps, successful (Muslim) businessman or owner, returnee from the west/failed asylum seeker, any imputed political opinion or for any other Convention ground. The tribunal finds the [appellant's] fear of persecution is not well-founded. 18 This is paragraph [126]: Having considered the [appellant's] separate and cumulative claims, the tribunal is further not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that the [appellant] will face significant harm from Sinhalese, an underworld gang/group, the police or anyone else due to his profile as a Tamil/Tamil Muslim/Tamil-speaking Muslim from the North, as a displaced person from Mannar/refugee from Sri Lankan camps, perceived dissident or LTTE supporter, successful (Muslim) businessman or owner, returnee from the west/failed asylum seeker or for any other reason. 19 It was for all those reasons, considered individually and cumulatively, that the Tribunal found first, that it was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under the Refugee Convention and therefore did not satisfy the criterion set out in section 36(2)(a) of the Migration Act. The Tribunal secondly found that it was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Migration Act. 20 In those circumstances, it seems to me that the proposed ground of appeal which seeks to contend that the Tribunal did not assess the appellant's claims cumulatively cannot succeed, because it is manifestly clear from the Tribunal's reasons that that is precisely what it did. 21 I turn now to the second ground which is sought to be relied on. That ground reads: The appellant is yet to receive the reason for the decision and reserve[s] his right to amend the grounds once the written decision is handed down. 22 That purported ground is no ground of appeal at all. It has its origin, no doubt, in the fact that some time was taken by the primary judge to produce the written reasons, but the appellant has had those written reasons since March this year and has had ample opportunity to amend the grounds of appeal in any event. 23 At the hearing before me today, where the appellant appeared with the benefit of an interpreter, I asked the appellant whether he wished to add anything to the grounds of appeal and whether he wished to make any oral submissions in support of the appeal. (The appellant did have the opportunity, as a Registrar of this court directed, to file written submissions 10 days before this hearing date, but declined to file any such written submissions.) 24 In response to my question of him, the appellant said: I cannot return to my country. I wish to stay here. 25 I have no doubt about the sincerity of the appellant in that regard, but it is not this court's function to provide a merits review and consideration of what the appellant said is irrelevant to this court's function on such an appeal. 26 The appellant also mentioned in his response to my question a letter sent by an ex-MP and an MP from Sri Lanka, both of which, in one way or another, apparently were said by the appellant at the hearing before the Tribunal to support his case that his claims about what had happened at the restaurant were true. It is clear, however, that the Tribunal did consider both letters, one from the ex-MP and another from the MP, but given what it referred to as "significant discrepancies", the Tribunal gave the letter from the MP little weight and for other reasons to do with discrepancies, gave the letter from the ex-MP little weight. It is clear, therefore, that the Tribunal took into account those letters, and any suggestion (were it to be made) that the Tribunal engaged in jurisdictional error by attributing the wrong amount of weight to those letters is unsustainable. 27 For those reasons, the appellant's application to amend his grounds of appeal must be refused. Further, for the reasons I have given, the appeal must be dismissed. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.