DMO17 v Minister for Immigration and Border Protection

Leave to advance fresh grounds of appeal 17 In Coulton v Holcombe (1986) 162 CLR 1 at 7 Gibbs CJ, Wilson, Brennan and Dawson JJ observed: 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. 18 Even so, it is established that where a new ground of appeal could not have been met by calling evidence in the hearing below, an appellate court has a discretion to permit an appellant to argue a new ground where it considers that it is expedient in the interests of justice to do so: Water Board v Moustakas (1988) 180 CLR 491 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ). Generally speaking, the Court is more likely to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy: O'Brien v Komesaroff (1982) 150 CLR 310 at 319 (Mason J); Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 at [126]-[131] (Tracey, Gilmour, Jagot and Beach JJ). 19 Recently, the Full Court in CGA15 v Minister for Home Affairs [2019] FCAFC 46 (Murphy, Mortimer and O'Callaghan JJ) observed (at [36]): There is a particular sensitivity to whether the interests of justice favour a grant of leave in refugee cases, because an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ). The merit of the proposed new ground is an important consideration. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25]: The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law. See also SZQBN v Minister for Immigration and Border Protection (2014) 226 FCR 68; [2014] FCA 686 at [55] (Flick J). 20 In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [166] Madgwick J (with whom Conti J agreed) set out a non-exhaustive list of the considerations relevant to a grant of leave to raise new grounds, which have been applied in numerous decisions. Other than the merits of the applicant's case, the relevant considerations in the present case point in favour of allowing the proposed new grounds. First, the applicant was not legally represented before the Federal Circuit Court and the new grounds of appeal were not identified until he obtained legal representation, which in large part explains the failure to advance the grounds earlier. Second, the new grounds raise questions of law, the facts are not in controversy, and the appeal will essentially involve legal issues. Third, the Minister does not contend that he will suffer any prejudice if leave to advance new grounds is granted, whereas the prejudice suffered by the appellant may be significant if leave is refused.

Leave to appeal 21 Before leave to appeal is granted the following two tests must usually be satisfied: (a) whether in all the circumstances the decision below is attended by sufficient doubt to warrant its being reconsidered; and (b) whether substantial injustice would result if leave were refused, supposing the decision below to be wrong : Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 (Sheppard, Burchett and Heerey JJ). Their Honours described the discretion to allow grant leave to appeal under s 24(1A) of the FCA as an "unfettered discretion" conferred in "unqualified terms". 22 Although cumulative, the two limbs bear on each other such that the degree of doubt which is sufficient in one case may be different from that required in another: Cavar v Greengate Management Services Pty Ltd [2016] FCA 961 at [5] (Bromwich J). That is relevant in the present case because in my view that the applicant may suffer substantial injustice if, assuming the judgment of the Federal Circuit Court to be wrong, leave to appeal is refused. 23 In the circumstances of the present case, although the primary judgment is interlocutory and does not determine the substantive rights of the parties, its practical effect is to finally determine the applicant's entitlement to the relief he sought. Leave to appeal will be more readily granted in relation to such decisions, as compared to decisions concerning practice and procedure: Johnston v Cameron (2002) 124 FCR 160; [2002] FCAFC 251 at [8] (Branson J); Rivera v United States of America [2004] FCAFC 154 at [12] (Heerey, Sundberg and Crennan JJ). 24 In relation to the first limb of the test, the applicant is required to show that there is a reasonably arguable case that the decision of the Federal Circuit Court was affected by appellable error: Re CSR Limited (2010) 265 ALR 703; [2010] FCAFC 34 at [5] (Keane CJ and Jacobson J). 25 The applicant must show that the proposed new grounds of appeal have sufficient merit that leave should be granted to advance them for the first time on appeal. If leave to advance the new grounds is granted, the applicant is required to show a reasonably arguable case that the primary judge erred in failing to find that the Authority fell into jurisdictional error as alleged under the new grounds. 26 I will deal with the merits of each proposed ground in turn.

Ground 1 27 Ground 1 in the draft notice of appeal is as follows: The Federal Circuit Court erred in finding [at 16] that the Authority found that the applicant had withdrawn his complaint to the Fisherman's Association. It is unnecessary to set out the particulars relating to this ground. They essentially take issue with the Authority's characterisation of the applicant's evidence, which the primary judge picked up. 28 In its decision the Authority said (at [16]) that it did not accept the applicant's claims to have made a complaint to the Fisherman's Association about his brief detention by the SLN: …I found the applicant's answers at the protection visa interview on this aspect of his claims to be vague and unconvincing, he stated "can't remember if complained to the association as not remember if it was the Navy or Army". The delegate gave him a further opportunity to clarify his evidence he was again asked whether he remembered making a complaint, he stated "no". 29 The applicant argues, and the transcript of the protection visa interview confirms, that the applicant did not state he could not remember whether he made the complaint. The interviewer asked if the applicant remembered when he made the complaint, to which he answered "no". The applicant contends that the primary judge made a further error in stating that the applicant "withdrew" his complaint, when there is nothing in the materials to show that was the case. 30 The fundamental problem with this ground of appeal is that, assuming the applicant made a complaint to the Fisherman's Association, the making of the complaint or its withdrawal does not appear to have had any significant bearing on the Authority's assessment of whether the applicant faced a real risk of serious harm if returned to Sri Lanka. 31 The Authority accepted the applicant's other evidence about his occupation, licence requirements, interactions with the authorities relating to his fishing, and restrictions on Tamil fishermen during the civil war, but did not accept that it gave rise to a real risk of serious harm. It concluded at [19] that: I am satisfied that even if the applicant were to return to Sri Lanka and continue to work as a Tamil fisherman and that such laws and restrictions were still in place, he applicant would not suffer harm, significant economic hardship or the denial of the capacity to earn a livelihood which would threaten his capacity to subsist or otherwise constitute serious harm. I am not satisfied the applicant faces a real chance of serious harm as a young Tamil fisherman on his return to Sri Lanka now or in the reasonably foreseeable future. It made similar findings about the applicant's relatively low level of activity and attention from authorities at [21]-[22], [27]-[29] and [33]-[34]. 32 The applicant did not identify how, in light of these findings, the asserted error by the Authority was material, such that if the error had not been made there was a realistic possibility of a different outcome: see Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780; [2018] HCA 34 at [25]-[31]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45]. I am not persuaded that it is reasonably arguable that any error by the Authority was jurisdictional in nature.

Ground 2 33 Ground 2 in the draft notice of appeal is as follows: The Authority [erred] in rejecting the claim of having made a complaint made to the Fisherman's Association because of not being able to recollect whether he complained about the army or navy, misunderstood the applicant's evidence. It also relates to the Authority's finding at [16] that it did not accept the applicant made a complaint to the Fisherman's Association. 34 Again, it is unnecessary to set out the particulars to this ground. The applicant essentially contended that in his protection visa interview the applicant had difficulty in communicating which resulted in the interviewer misunderstanding his evidence. Particular (viii) suggests that in the part of the interview dealing with the applicant's detention and the alleged complaint to the Fisherman's Association the applicant may have been thinking about an incident with the SLA, while the delegate was concerned with the SLN. This is said to have resulted in a communication error and the rejection of the applicant's claim about making a complaint to the Fisherman's Association. 35 However, in his written statement the applicant said that he came back from fishing one day and forgot to report to the SLN, and the next day he was not allowed to go fishing but was instead detained by the SLN. He said he was detained until his parents came to the docks and pleaded for him to be released. The statement then says "I made a complaint to the Fisherman's Association about this incident but nothing happened". 36 The relevant portion of transcript of the interview is as follows: CASE OFFICER: Another time you forget to report, you describe forgetting to report to the Navy officers on coming back from fishing one day. And the Navy comes for you and the Navy holds you the following day. What happened to you on this occasion? INTERPRETER: Is that the incident happen when they asked me fish and I denied to give it to them, is that the incident? CASE OFFICER: No this is the incident where later you make a complaint to the Fisherman's Association about it. You state that on returning from fishing one day, you forgot to report to Navy officers. The following day they took you in. Do you remember what they said to you? INTERPRETER: Cannot remember. CASE OFFICER: Do you remember anything else of what happened? INTERPRETER: I can remember that I went to medical, complained to the association - CASE OFFICER: To which? INTERPRETER: To the Fisherman's Association that I can remember, but I can't remember that the problem that I had what [sic] with the army or navy. CASE OFFICER: Well if you can remember making the complaint can you remember what you complained about? INTERPRETER: That as I did not register with them and the following day they did not allow me. 37 I can see no communication error or misunderstanding that might found the alleged jurisdictional error under this ground. The applicant's written statement clearly stated that the SLN detained him, and that he then made a complaint about this. It was open to the Authority to characterise the applicant's answers in his protection visa interview as vague, and in light of his inability to say whether the problem was with the SLA or SLN to be unconvinced by his account. I am not persuaded that it is reasonably arguable that this constitutes jurisdictional error.

Ground 3 38 Ground 3 of the draft notice of appeal is as follows: The Authority [erred] in rejecting that the applicant complained to the Fisherman's Association (in paragraph 16) because the applicant could not recall whether the complaint was about the army or navy (or both) failed to consider whether this could result from disordered memories arising from torture and trauma as claimed. The particulars allege that the assault on the applicant amounted to "torture" and that the Authority erred in failing to consider if this was a reason for the applicant's vague and inconsistent answers about the incident. 39 I can see little merit in this ground. In my view it was open on the evidence for the Authority to reject the applicant's account. 40 In any event, even if the Authority is assumed to a fallen into error in this regard, its finding about this incident are of only marginal importance to its assessment that the applicant did not face a real risk of serious harm if he returned to Sri Lanka. The applicant did not make out a reasonably arguable case that the asserted error was material, such that if the error had not been made there was a realistic possibility of a different outcome.

Ground 4 41 Ground 4 of the draft notice of appeal relates to the grease men incident, following which the applicant claimed that he and others were rounded up by the SLA and beaten with wooden poles. It states: The Authority failed to consider an integer of the applicant's claims, that he had been subjected to physical torture, such that his profile of adverse interest to the local authorities of the Sri Lankan Armed Forces was of sufficient gravity that he would face a real risk of harm if he returned to his home. The applicant contended that the Authority misunderstood the seriousness of the assault, and by failing to understand that the applicant was "tortured", misunderstood his profile of adverse interests in relation to specific officers of the local SLA. This was said to give rise to a real risk of torture if the applicant is returned to his local area. 42 The solicitor for the applicant sought to reinforce the significance of this event by contending that the complaint the applicant made to the Fisherman's Association could have related to the beating, rather than to his detention by the SLN because he went fishing without a licence. 43 I can see little merit in this ground. Contrary to the particulars to this ground, the Authority accepted that the claimed assault had occurred and that the applicant received medical attention for the injuries sustained (at [21]). The Authority went on (at [22] and [24]) to consider whether this event, combined with previous interactions, meant that the applicant had a profile of adverse interest to the Sri Lankan authorities. It concluded: …I do not accept that as a result of the applicant's involvement in the 'grease men' event combined with his previous interactions with Sri Lankan authorities he was then a person of adverse interest to the Sri Lankan authorities as he was perceived to be a person who was "prepared to stand up and protect Tamils against the abuse of the Sri Lankan authorities". Nor do I accept the applicant has been sought by the authorities for this reason since his departure. … The applicant's own evidence is that on each of the occasions he was stopped, questioned, detained and physically assaulted by the Sri Lankan authorities he was released. The applicant was not detained for any period longer than a few hours and he was never charged with any offence or taken to court or prison. At least ten months passed between the applicant's last interactions with the Sri Lankan authorities in 2011 and his departure from Sri Lanka in October 2012. Other than his involvement in the events claimed, the applicant has made no mention of his involvement with any political organisations or any other anti-government activities. 44 It said further at [28]: I do not accept that the applicant's past activities and interactions with the Sri Lankan authorities would bring him to the adverse attention of the Sri Lankan authorities on return. I find the applicant's past activities to be low level in nature and that his past interactions with the Sri Lankan authorities indicate that there was a lack of interest in the applicant given that each time he was detained it was for a short period of time and he [was] released. I am not satisfied that the applicant's activities, in aggregate with the country information, can be equated with that of an active government critic or anti-government in any way or that he would be perceived as such by the Sri Lankan authorities on return. I am not satisfied the applicant faces a real chance of harm as a young Tamil male from the Northern province, who has been previously stopped, questioned, detained and physically assaulted by the Sri Lankan authorities and who was involved in seeking to protect his village from 'grease men' will be imputed with any type of adverse profile on his return to Sri Lanka now or in the reasonably foreseeable future. 45 I am not satisfied that there is an arguable case that the Authority failed to consider the relevant part of the applicant's claim. While reasonable minds may differ as to the conclusion drawn, the Authority's assessment that the applicant is not a person of adverse interest to Sri Lankan authorities is based on logical inferences from the fact he was only ever detained for a short period before being released, and his activities largely lacked any explicit anti-government character. 46 There is also little merit in the applicant's further contention that the Authority should have found the complaint to the Fisherman's Association related to the grease men incident and subsequent beating. In his written statement the applicant said: One time I got back from a day of fishing and forgot to report in to the Navy officers that I had returned. The next day, the Navy officers refused to allow me to go fishing and detained me. Some people from my village saw me detained and told my parents. My parents came down to the docks and after they cried and pleaded with the Navy officers, the Navy officers released me. I made a complaint to the Fisherman's Association about this incident but nothing happened. 47 Nor does the transcript of the protection visa interview assist the applicant in this regard. The following passage of that transcript is relevant: CASE OFFICER: No this is the incident where later you make a complaint to the Fisherman's Association about it. You state that on returning from fishing one day, you forgot to report to Navy officers. The following day they took you in. Do you remember what they said to you? INTERPRETER: Cannot remember. CASE OFFICER: Do you remember anything else of what happened? INTERPRETER: I can remember that I went to medical, complained to the association - CASE OFFICER: To which? INTERPRETER: To the Fisherman's Association that I can remember, but I can't remember that the problem that I had what [sic] with the army or navy. CASE OFFICER: Well if you can remember making the complaint can you remember what you complained about? INTERPRETER: That as I did not register with them and the following day they did not allow me. (Emphasis added.) 48 The applicant's solicitor relies on the highlighted passage to argue that the word "medical" most likely refers to the applicant's hospitalisation after the beating, and therefore the complaint could have been about this. This contention however ignores the fact that the applicant expressly stated that the complaint related to his failure to register with (or report to) the SLN.

Ground 5 49 Ground 5 of the draft notice of appeal also relates to the grease men incident and subsequent assault. It alleges: The Authority failed to consider an integer of the Applicant's claims, which arose clearly on the evidence, that the physical torture to which the Applicant was subjected indicated that his profile of interest to local authorities was of sufficient gravity to place him at a real risk of significant harm from the Sri Lankan Armed forces. The particulars allege that while the applicant's periods of detention were short, the Authority should have considered the intensity of the punishment inflicted on the applicant during his detention, which "amounted to the infliction of physical torture, causing permanent injury, and thus indicating a significantly higher profile of adverse interest". 50 I am not satisfied that this ground is reasonably arguable. As I said in relation to Ground 4, while reasonable minds may differ as to the appropriate conclusion, there was a logical and rational basis in the evidence for the Authority's decision that the Sri Lankan authorities did not take an adverse interest in the applicant. 51 Further, the Authority was required to consider the applicant's claims as they were put, and it did so. It was not required to engage in a constructive or creative activity in order to make the claim emerge (NABE v Minister for Immigration (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58]) or undertake an independent analytical exercise of the material for discovery of potential claims (NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]). The applicant's written statement and the transcript of his protection visa interview do not make any reference to torture, and it is something of a stretch to describe the claimed incidents as torture. I do not consider the Authority was required to deal with his claims on the basis that torture had been raised as a separate claim or integer of claim.

Ground 6 52 Ground 6 of the draft notice of appeal is as follows: The Authority made a listening error in relation to the Protection Visa Interview, misunderstanding the question of the delegate and so misunderstanding the evidence of the applicant in response to the question. This listening error caused the Authority to make a fatal credibility finding in relation to the Applicant's claims to have made a complaint to the Fisherman's Association. 53 This ground and the particulars set out in support of it, is essentially the same as for Grounds 1 and 2. For the same reasons, I am not persuaded it is reasonably arguable.

Conclusion 54 Having regard to my view on the merits of the proposed appeal it is appropriate to refuse leave to advance the proposed new grounds of appeal. It follows that the application for leave to appeal must be dismissed with costs. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.