Consideration
43 This ground of appeal should be dismissed for the following reasons.
44 While there can be no doubt that the scenes BTJ17 describes at the army camp are horrific, in the context of a hard-fought civil war, the transport of corpses and wounded to an army camp and the removal of dead bodies to bulldozers is not, of itself, indicative of a war crime or human rights abuse. Contrary to the particulars, BTJ17's evidence given in the May 2016 statement at [40] to the same effect to the delegate did not extend to BTJ17 saying that he was forced to participate in or witnessed the "disposal" of living wounded.
45 I perceive no error in the FCCA Judge's reasoning at J[41]-[42]. In the May 2016 statement at [40], BTJ17 refers to corpses and wounded people, and treats them separately. BTJ17's evidence to the delegate also treats "bodies" and "injured people" separately: see [5] and [6] above. BTJ17 said he did not know what happened to the bodies after they had been put in bulldozers and offered no evidence as to what happened to the living injured. In the section of the May 2016 statement addressing "future fears", BTJ17 made no mention of being fearful of returning to Sri Lanka because he had unloaded bodies and living wounded at the army camp or because he was a witness to atrocities. Unlike other interactions with the SLA which BTJ17 described involving attempts by soldiers to extract bribes or the supply of materials or use of a motorcycle (summarised at D[24]-[25] set out at [13] above), BTJ17 gave no evidence of consequences in the aftermath of his decision to cease the activities that led to him being required to remove bodies and living wounded from vehicles.
46 I am satisfied that BTJ17 neither expressly nor implicitly claimed to have witnessed an atrocity at the army camp in relation to living injured or any antecedent war crime or human rights abuse or to fear serious harm as a result of being such a witness. Accordingly, there is no error in the quality of the Authority's engagement with BTJ17's evidence or the process of reasoning leading to the Authority's finding at D[26] that, while it accepted that BTJ17 had been forced to remove dead bodies from vehicles, there was no evidence before it that BTJ17 witnessed atrocities being committed and that he had never claimed to have done so or undertaken any activity that would lead to him being targeted. The appellants' contention that the Authority misunderstood the factual basis underlying BTJ17's claim that he was at risk for having witnessed atrocities must be rejected.
47 The method of reasoning employed by Mr Taylor cannot be accepted. The fact that BTJ17 gave no evidence about, and said he did not know, how the living wounded were in fact treated after they were removed from the vehicles at the army camp does not prove that they were the subject of human rights abuses and war crimes or that BTJ17 witnessed atrocities such as the burial of the living wounded. Nothing turns on the language used by the FCCA Judge in BTJ17 (No 2) at [18] where his Honour said what is extracted in particular k. BTJ17 did not give evidence that he witnessed removal for burial of living wounded. The FCCA Judge was correct not to accept that such a claim had been made. Further, the extracted sentence was part of reasoning rejecting proposed redactions from the primary judgment. Those remarks do not aid the appellants' appeal from the primary judgment.
48 In my view, the FCCA Judge did not err (at J[43]) in finding (for the reasons given) that there was no error in the Authority failing to consider whether there had been an antecedent atrocity to the delivery of the corpses and living wounded to the army camp. Mr Taylor contended that it was not open to the Authority to infer that the corpses and living wounded were LTTE operatives and combatants but it is not apparent that the Authority drew any such inference. BTJ17's evidence was that they were "Tamil people attacked and killed by the army", but that is not determinative of whether the "Tamil people" were combatants, collateral victims of combat or victims of war crimes or human rights abuses. To say that 2009 was a time of heightened human rights abuses at the conclusion of the civil war is an insufficient probative basis to make good the assertion that BTJ17 was a witness to antecedent human rights abuses or war crimes when he saw dead and wounded "Tamil people" in the trucks which arrived at the army camp and dead bodies were put in bulldozers.
49 The appellant cites ABT17 as authority for the contention that the Authority erred in making the findings it did without first inviting (or considering whether to invite) BTJ17 to an interview to provide further information. The circumstances of this case are far removed from those applying in ABT17. In ABT17, the High Court considered when it would be legally unreasonable for the Authority to depart from a delegate's credibility assessment without inviting the referred applicant to an interview. The High Court held (at [22]-[25]) that although the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate, legal unreasonableness may arise where information that had been before the delegate was not before the Authority, so as to place the Authority in a disadvantaged position in comparison with the delegate in its credibility assessment. In this case, the Authority was not at an informational disadvantage relative to the delegate, because the Authority based its findings on the same material that had been before the delegate when making its decision. The Authority had no obligation to invite, or consider inviting, BTJ17 to a hearing to pursue his claim by giving further information: see s 473DC of the Migration Act. It is for the review applicant to make good his or her claims and provide evidence in support of them. The force of Part 7AA of the Migration Act is that the Authority will review the delegate's decision by considering information provided to the delegate and "new" information within the bounds described in s 473DD of the Migration Act. BTJ17 was represented before the delegate and did not seek to provide further information about the factual basis of his claims.
50 Further, the appellants have not demonstrated any error in the reasoning of the FCCA Judge at J[44]-[45]. Contrary to Mr Taylor's submissions, on a plain reading, the UNHCR Guidelines made it clear that the "witnesses" to "atrocities" regarded as being at risk are people participating in the giving of evidence, making claims or otherwise bringing human rights abuses to public attention. This issue was fundamental to the question of whether any fear held by BTJ17 was well-founded.
51 The factual basis for the assertion that BTJ17 was a member of the particular social group of witnesses to an atrocity within s 5J of the Migration Act was not claimed by BTJ17 in his evidence to the Authority. BTJ17 had not given any indication of ever having wanted to speak publicly or make a complaint about his alleged experiences or having actually done so. The basis for BTJ17 having a well-founded fear of persecution as a witness to an atrocity was not established having regard to the country information. In all of those circumstances:
(a) The Authority did not err when it made its finding at D[26];
(b) The FCCA Judge did not err at J[46]-[47]; and
(c) The decision in BFV18 on which the appellants relied has no relevance to this appeal.
52 It is necessary to say something about particular m. which seeks to raise on appeal the same issue as particular (d) of the second ground of review which was expressly abandoned before the FCCA Judge.
53 The principles applicable to whether leave should be granted to argue a new ground on appeal were set out in the Full Court's decision in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48] (Kiefel, Weinberg and Stone JJ) as follows:
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) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs [[2000] FCA 1348]; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].
In Coulton v Holcombe (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.
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.
54 The appellant offered no explanation as to why the issue raised in particular m. is agitated on appeal, having been abandoned at first instance. That is somewhat surprising, given that the need for leave to raise such a ground was discussed at the case management hearing held in September 2021.
55 The failure to provide an explanation weighs heavily against the grant of leave. Although this Court has regularly entertained an issue raised for the first time on appeal in migration cases, this has generally been where the migrant was not legally represented in the FCCA proceedings. In this matter, the appellants were represented in the FCCA proceedings by the same representative as on the appeal. The abandonment of the equivalent particular in the FCCA must be taken to have been a forensic decision which militates strongly against the granting of leave to raise it on appeal: Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; (2021) 285 FCR 187 at [13]-[18]. Even if particular m. were meritorious, that alone is insufficient to find that it would be in the interests of the administration of justice to allow it: Han v Minister for Home Affairs [2019] FCA 331 at [15], [18]; Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90; (2020) 276 FCR 516 at [43].
56 Particular m. contends that the Authority's assessment of whether BTJ17 was a witness to an atrocity was illogical. In circumstances where I have found that the Authority's reasoning in D[26] was open to it, particular m. lacks merit. It does not add anything to the appellants' case that would justify the grant of leave.
57 Accordingly, leave for the appellants to rely on particular m. of the second ground of appeal is refused.