Analysis
23 The circumstances which are relevant to the issue of whether a new ground of challenge can be raised were discussed by the Full Court of this Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 (VUAX). The Court said at [46]-[48]:
46 In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. 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; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].
47 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.
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.
24 Shortly after the passage in Coulton v Holcombe (1986) 162 CLR 1 referred to by the Court in VUAX, Gibbs CJ, Wilson, Brennan and Dawson JJ said:
In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see: Suttor v Gundowda Pty Ltd; Bloeman v The Commonwealth.
(Footnotes omitted.)
25 In VUAX, the Court identified the explanation for the failure to raise the ground below, the apparent merit of the new ground and any prejudice to the respondent if the new ground is raised as matters relevant to whether the Court will permit a new ground of challenge to be raised on appeal.
26 I will deal first with those new grounds of challenge which do not involve the adducing of further evidence on appeal or any suggestion that the Minister would have adduced evidence in the Court below had they been raised in that Court.
27 The first of these grounds is in the existing Notice of appeal and is to the effect that the Federal Circuit Court erred in not finding that the IAA had committed a jurisdictional error in failing to consider the appellant's claims cumulatively.
28 The appellant submits that the IAA found that there was a chance or risk that he would suffer harm as a result of three matters which the IAA considered individually, but failed to consider cumulatively. The appellant submitted that the obligation on the decision-maker to consider the cumulative effect of individual claims is well-established and he referred to the decision of the Full Court of this Court in Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188. In that case, the Court said (at [33]):
Counsel for the respondent adopted as correct the following submissions made on behalf of the Minister:
Broadly speaking, it can be accepted that there is an obligation to consider the parts of a Visa applicant's claim for protection cumulatively. It can also be accepted that the same principles as to whether a visa applicant meets the criteria for protection as a refugee apply, by analogy, to the complementary protection criteria in s 36(2)(aa) of the [Act] [citing MZZUG v Minister for Immigration and Citizenship [2015] FCA 1151 at [47]].
The obligation to give cumulative consideration to a visa applicant's claims arises as part of the decision-maker's obligation to consider the case before them. In that context, a decision-maker is required to consider each integer of a visa applicant's claims, whether they are raised expressly or arise clearly on the material [citing Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at 139 [7]]. Further, as part of the decision-maker's duty to address the case raised by the material before them, the decision-maker must consider the whole of the case put forward by the visa applicant [citing Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31]]. There may be a combination of factors that create the profile of the person who meets (relevantly here) the complementary protection criteria [citing MZZUG at [47]], or causative factors that may not give rise to the relevant risk on their own, but may do so collectively [citing W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]].
29 The appellant accepted that there was no obligation to make a cumulative assessment where individual claims had been rejected as a matter of fact, or had been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country. The appellant submitted that that was not this case.
30 The three matters upon which the appellant relied are as follows. First, the appellant relied on a finding by the IAA that extortion continues to happen. The IAA did make such a finding, but it is to be noted that immediately after this finding, the IAA found that the chance that the appellant would face instances of extortion amounting to serious harm, or violence or other harm, was remote. The IAA also found that there would not be a real chance that the appellant would suffer serious harm on return to Sri Lanka. Secondly, the appellant relied on a finding by the IAA that by reason of the fact that the appellant had departed from Sri Lanka illegally, he may be detained and questioned at the airport for up to 24 hours, be fined for breaching the Immigrants and Emigrants Act 1949, and may face a period of time held in prison. The IAA made this finding. However, the significance and extent of the finding is illuminated by earlier findings made by the IAA. These findings were as follows. As a returnee, it is likely that the appellant will be questioned by police at the airport and charged under the Immigrants and Emigrants Act 1949. As part of this process, most returnees are fingerprinted and photographed. Returnees are transported to the nearest magistrates court at the first available opportunity. Returnees may be required to remain in police custody at the Criminal Investigation Department (CID) airport office for up to 24 hours. The IAA found that in circumstances where a magistrate is not available before this time, such as a weekend or public holiday, returnees may be held at a nearby prison. Thirdly, the appellant relied on a finding by the IAA that as a person of Tamil ethnicity, he faces societal discrimination at a moderate level. The IAA referred to a Department of Foreign Affairs and Trade (DFAT) report to that effect and there is nothing in its reasons to suggest that it did not accept that assertion.
31 I am not satisfied that this new ground of challenge has reasonable prospects of success. The IAA was clearly aware of the need to consider relevant claims cumulatively. It did so in the context of its consideration of the appellant's claim for complementary protection (see para 55). Even if the appropriate inference is that it did not consider the three matters which the appellant identified cumulatively, I do not consider that it was under an obligation to do so. The harm said to follow from breaches of the Immigrants and Emigrants Act 1949 was short term. The position with respect to the threat of extortion was improving, a matter explained below. The reference to societal discrimination remaining evident in Sri Lankan society at a moderate level was a general finding and I do not think that it adds anything to the other findings.
32 Even if I am wrong and the ground is arguable, or reasonably arguable, I would not give leave to the appellant to raise it. It seems to me that the appellant had an ample opportunity to raise this ground before the Federal Circuit Court. As I have said, he filed three iterations of his Application for judicial review in the Federal Circuit Court and had the assistance of a solicitor or barrister in the case of two of those iterations. There is no explanation in the evidence as to why the point was not raised before the Federal Circuit Court. The only explanation appears to be that, unlike his previous lawyers, his present lawyers consider that the argument is worth advancing.
33 I turn now to Particular 3 in the New Ground 1. In his arrival interview, the appellant stated that he or his family paid 10 lakhs to travel to Australia. He provided further details by saying that his uncle paid 2 at the shore and 8 lakhs after 14 days. He then goes on to say that his uncle paid 8 lakhs altogether, 2 lakhs discount. There is a contradiction within this account between an alleged payment of 10 lakhs and an alleged payment of 8 lakhs. In his application for a SHEV, the appellant states that his uncle did not have 10 lakhs to give to him so that he could comply with the order given by the police officers. He goes on to state that his uncle had no option but to get him out of the country immediately and he made arrangements for one of the agents to take him out of Sri Lanka illegally by boat. The contradiction to which the IAA referred was the contradiction between a statement that his uncle could not afford to provide him with 10 lakhs in August 2012 so that he could comply with the order given by the police and yet was able to pay 10 lakhs to arrange for his departure from Sri Lanka in September 2012. The appellant submits that the IAA should have invited him to comment on the alleged contradiction by exercising its power under s 473DC of the Act. I consider that it is fair to say that this ground was all but abandoned by the appellant at the hearing in light of the decision of the Full Court of this Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [72] and [78]. Nothing of substance was said about the ground at the hearing. In light of this authority, I do not consider this ground to be reasonably arguable.
34 In Particular 1 of New Ground 2, the appellant seeks to raise as a new ground of challenge to the IAA's decision the fact that he claimed on a number of occasions that he had been subject to extortion demands by the Sri Lankan authorities, but the IAA did not deal with this integer of his claims.
35 The appellant did claim that he had been the subject of extortion claims by the authorities in Sri Lanka. He did that in the course of his arrival interview and it appears that he did so in his SHEV interview with the delegate. In that interview, he claimed that he was frequently asked for money by the police during vehicle checkpoint stops and searches. He claimed that he was threatened by CID officers who wanted money from him, or they threatened to destroy him and his van. He claimed that the CID officers made threats over the telephone. Those threats were threats of harm if he did not pay them money. He claimed that the CID officers tried to extort him "many times". In addition, he appears at one point in his application for a SHEV to rely on the claim that the police demanded that he pay them 10 lakhs.
36 In its introductory summary of the appellant's claims at [11], the IAA referred to the appellant's statements to the effect that he fears he will be targeted by the authorities and paramilitary groups as he has been imputed with an LLTE profile, has left Sri Lanka illegally and claimed asylum. The IAA referred to the appellant's claim that he fears that he will be subject to ongoing extortion demands.
37 The IAA addressed the appellant's evidence that he had been harassed and threatened by paramilitaries when working as a driver for his uncle and at the mill. The IAA referred to extortion threats and said that the appellant's claim to have been the victim of such threats was plausible. The IAA noted that independent country information before it reported widely on extortion rings operated by various paramilitary groups, including the Eelam People's Democratic Party (EPDP). However, the IAA found that there had been a significant change in Sri Lanka since the appellant departed in 2012. The IAA was not satisfied that the appellant's fear of facing serious harm from paramilitary groups on return was well-founded. The IAA said that it placed significant weight on the improved security situation since 2012. It said that there were indications that the paramilitary groups had renounced their paramilitary activities, although DFAT was aware of credible reports that these groups continued to be active in criminal activity. The IAA noted that the EPDP was increasingly becoming part of the mainstream and won a parliamentary seat at the 2015 general election. It found that the authorities were taking steps to prosecute members of paramilitary groups for past crimes and the indications were that the police were pursuing crimes of extortion and related threats and kidnappings. It noted the credible reports to the effect that paramilitary groups are involved in criminal activities and it accepted that extortion continued to happen. The IAA then said this:
However, the weakening of the paramilitary groups and their renunciation of paramilitary activities, their move into the mainstream and the prosecution of past members for violent crimes leads me to conclude that the chance the applicant would face instances of extortion amounting to serious harm, or violence or other harm, is remote. I find there would not be a real chance that the applicant would suffer serious harm on return to Sri Lanka.
38 The appellant accepts that the IAA addressed his claim of extortion insofar as it was carried out by paramilitary groups. However, he submits that it did not deal with his claims that the police and the CID were also responsible for extortion. At a prima facie level, that submission is correct, subject to one qualification. The qualification is that the IAA found that the police were pursuing crimes of extortion and related threats and kidnappings and that there was an improved security situation since 2012. This, it might be argued, suggests that the risk of extortion from any party was less than it had previously been.
39 There is merit in this ground and, even though it could have been raised earlier, I would give leave to the appellant to raise it. Other than an argument based on the need for finality which I have taken into account, there is no prejudice to the Minister if the appellant is given leave to raise this ground.
40 In Particular 2 of New Ground 2, the appellant claims that the IAA did not deal with his claim that he faced a real chance of harm by the authorities in Sri Lanka because he was a Tamil. The appellant submits that the IAA did not deal with, or did not properly deal with, this "integer" of the appellant's claims.
41 I do not think that this ground is reasonably arguable. The IAA's reasons indicate that it was aware of the claim and it made detailed reference to DFAT and United Nations High Commissioner for Refugees reports as to the risk of harm to Tamils from former LLTE areas. Having considered the evidence before it, the IAA said the following (at [48]):
I am not satisfied that the applicant faces a real chance of serious harm on return to Sri Lanka as Tamil, or because of any perceived links with the LTTE.
42 Even if this is wrong, the appellant has provided no explanation as to why this matter was not raised before the Federal Circuit Court.
43 I turn now to the new grounds of challenge which involve the calling of further evidence. They are Particulars 1 and 2 of New Ground 1. As to Particular 1, the ground as formulated refers to false or misleading conduct by the officer who carried out the entry interview. Furthermore, in the appellant's outline of submissions, he submits that the evidence suggests the possibility of an improper practice by officers of the Department who conduct entry interviews. The practice was said to be the recording of answers to questions in the name of an applicant in an entry interview record when the officer did not, in fact, ask the applicant the questions and the applicant did not give the answers. It was submitted that, in those circumstances, there was a public interest in allowing the further evidence so that the Court could consider the matter. In his oral submissions, the appellant's counsel drew back from this somewhat because I think he recognised that his application to adduce further evidence was stronger if the further evidence did not necessarily call for a response from the Minister. An allegation of false or misleading conduct was likely to lead to a response, or at least a request for the opportunity to make a response. The appellant's counsel went so far as to suggest that Particular 1 could be restricted in that the nature of the conduct could be excluded as irrelevant. Another way of putting the point is as follows. The matter could be argued on the basis that the reason(s) the answers in the arrival interview were copied into the entry interview were irrelevant and the only relevant fact is that the IAA relied on answers given during the entry interview which were not, in fact, given. On this approach, intention, carelessness or fault would not be relevant to whether jurisdictional error is made out. Although this approach may be open as a matter of theory, I do not think that practically such a restriction would work. The significance of this conclusion is that if the further evidence is allowed, it would have to be on the basis that the Minister be given an opportunity to adduce further evidence in response.
44 In the ordinary case, an application to adduce further evidence will involve a consideration of whether, through the exercise of reasonable diligence, the evidence could have been adduced at the trial and whether it is likely that, had the evidence been produced at trial, it would have produced a different result. Counsel for the appellant suggests that the reasonable diligence aspect of the common law test was not a requirement under s 27 of the Federal Court of Australia Act. I do not think that the cases have gone this far (Moore v Minister for Immigration and Citizenship [2007] FCAFC 134; (2007) 161 FCR 236 at [6]-[7]; Sami v Minister for Immigration and Citizenship [2013] FCAFC 128; (2013) 139 ALD 1 at [7]). In any event, whether the evidence could have been obtained by the exercise of reasonable diligence is at least a relevant consideration.
45 It seems to me that it is very difficult to find that the further evidence could not, by the exercise of reasonable diligence, have been adduced in the Court below. I note the observations of Flick J in SZNSC v Minister for Immigration and Citizenship [2009] FCA 1436; (2009) 112 ALD 490 at [23]-[26] to which I was referred about the difficulties confronting applicants for refugee status. However, the appellant had the relevant material, save for a transcript of the audio recording of the entry interview, in December 2015. He had a migration agent and solicitor at that time, a solicitor or barrister in May 2017 and again in October 2018. The exercise which was eventually carried out in January and February 2019 could have been undertaken before the hearing in the Federal Circuit Court.
46 The second aspect of the test is whether the further evidence is of such relevance and weight that its admission would be likely to lead to a different result. The Minister pointed to some questions and answers in the transcript of the entry interview and submitted that there were some similarities with the written departmental record of the entry interview. There are two answers to this submission. First, there is no suggestion that the IAA did other than rely on the written departmental record of the entry interview. Secondly, the questions and answers are not sufficiently similar to suggest that it could be said that effectively the IAA did rely on questions and answers given at the entry interview.
47 The Minister submitted that, assuming the IAA erred in relying on the written departmental record of the entry interview, the error was immaterial in the relevant sense because the same questions and answers were given at the arrival interview and there is no suggestion that the written departmental record of the arrival interview is inaccurate. He pointed out that the High Court had recently confirmed a materiality requirement in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599 at [45]-[51] per Bell, Gageler and Keane JJ. The Minister submitted that, in the circumstances, it could not be said that the error as to which interview the questions were asked and the answers were given could have realistically have affected the result. The critical question was asked and the critical answer was given at the arrival interview.
48 For his part, the appellant referred to the differences between an arrival interview and an entry interview. He referred to the following passages in the reasons for judgment of Moshinsky J in Minister for Home Affairs v AYJ17 [2019] FCA 591 at [41]-[42]:
In the present case, I consider that it was illogical or irrational in the sense described by Crennan and Bell JJ in SZMDS for the IAA to reject the respondent's claim concerning the death of his brother on the basis that he did not mention it at the arrival interview. First, the purpose of the arrival interview in this case was primarily to obtain details about biodata and travel to Australia; its purpose was not to obtain a detailed description of the respondent's claims. This is indicated by the introduction on page 1 of the form (which is to be contrasted with the "Important Information" set out on page 1 of the entry interview form); the structure of the form (divided into two parts, one dealing with biodata, the other with travel); the length of the form; and the limited space available for a response to question 21.
Secondly, the respondent's response to question 21 (which asked, "Why did you leave your country of nationality (country of residence)?") was: "I was an officer with Police in Iraq + I was threatened by religious groups." In my view, this was a high-level summary of the respondent's claims and was capable of encompassing the respondent's claim regarding his brother's death. As set out in the delegate's decision, the respondent claimed that he was the real target of the bombing due to his employment as a police officer and, in particular, that he was a Sunni working in that field. In light of this, the respondent's response to question 21 was capable of encompassing the claim regarding the brother's death. In addition, I note that the respondent's response to question 21 in the arrival interview was repeated in the entry interview, where it served as the introductory sentence to a longer explanation of why he left Iraq.
49 The extent to which a decision-maker should rely on a failure to mention a particular incident during the course of an interview may be debated, but that is not the present issue. I accept that at a general level there are differences between the two types of interviews, but I am unable to see any material difference in terms of the significance of the relevant questions and answers. Whilst there might be good reason to investigate the reason there are similarities between the written departmental record of the arrival interview and the written department record of the entry interview, that is not a basis, or at least a sufficient basis, to allow the appellant to adduce further evidence on the appeal in circumstances where: (1) the Minister would have to be given the opportunity to file evidence in response; (2) it cannot be said that the evidence could not have been adduced at trial by the exercise of reasonable diligence; and (3) I am not satisfied that the evidence was likely to have led to a different result.
50 I reach the same conclusion in relation to Particular 2 of New Ground 1. The appellant added a refinement to the submission which does not appear in the proposed Amended Notice of appeal. It is a complaint that the IAA "cherry picked" the answer and that if it had chosen the answer insofar as it referred to 8 lakhs and a discount of 2 lakhs, there would have been no contradiction. The first difficulty with this submission is that it was not raised below. Secondly, it seems to me that even if one relied on the second part of the statement, the substance of the contradiction identified by the IAA remains.