DWJ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2020-10-15|Before: Markovic J

Leave to rely on the draft amended notice of appeal filed on 30 July 2020 is refused.
Leave be granted to the appellant to adduce further evidence on appeal, being the affidavit of Joseph Magri affirmed on 9 July 2020 and the annexure thereto and, insofar as necessary, compliance with r 36.57 of the Federal Court Rules 2011 (Cth) be dispensed with.
The appeal be dismissed.
The appellant pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MARKOVIC J: 1 This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for review of a decision of the second respondent (Authority) made on 6 July 2018: see DWJ18 v Minister for Immigration & Anor [2019] FCCA 2659. The Authority had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Safe Haven Enterprise (subclass 790) visa.

The Authority's decision 12 The Authority commenced by addressing the information before it. In doing so, it referred to the Submission. Among other things it: (1) noted that the argument included in the Submission responding to the delegate's decision and addressing information already before the delegate did not constitute new information and that it would have regard to those matters; (2) referred to the Sibling Claim and said that it considered the information provided in relation to that claim to be new information. After outlining the claim, the Authority said at [8]-[9] of its decision record: 8. The applicant's late claims in relation to his siblings, and the additions to his existing claims, raise a number of serious concerns for me. However, I accept these claims are credible personal information, which was not previously known, and, had it been known, may have affected the consideration of the applicant's claims. These claims are personal to the applicant and his family, and if accepted would increase his profile on return to the country. While I am prepared to accept that this is credible personal information, in the sense that it is capable of being believed, that does not necessarily mean that I accept that information or the claims themselves. 9. The applicant was a minor at times during this process, and remains quite young. The changes to his personal claims are potentially quite serious and may account for earlier omissions, and there was considerable uncertainty in his evidence about his siblings. While I have serious concerns, I am satisfied that there are exceptional circumstances to justify consideration of the new information. (3) referred to country information that was included in the Submission which it noted was not before the delegate. The Authority found that that information predated the delegate's decision, and was not satisfied that it could not have been provided to the delegate, and that there was no suggestion that it contained personal information or was otherwise credible personal information not previously known which, had it been known, may have affected consideration of the appellant's claims. Weighing up all the factors, the Authority was not satisfied that there were exceptional circumstances to justify considering that information. 13 The Authority then turned to consider the appellant's claims. 14 It first considered the Sibling Claim. It observed that in his visa application the appellant referred to the fact that his older siblings were not granted visas to the UK but raised no other issue and that in his visa interview his evidence about his siblings was vague and unconvincing. The Authority noted that it was only when the matter progressed to it that the appellant raised the Sibling Claim. At [23] of its decision record the Authority said the following about that claim: The applicant's sister and brother would have been around 15 and 14 respectively at the end of the civil war in 2009. They obtained passports from the Sri Lankan authorities in November 2014 and March 2015. They were living in Batticaloa prior to the visa interview. Prior to the submission to the IAA, there was never any suggestion from the applicant that his father, his family or the applicant himself had any actual LTTE profile. The applicant had also not previously made reference to him or any member of his family having any LTTE links, profile or connections, nor did he suggest that his family had any links to Karuna - one of the most prominent figures in the Sri Lankan civil war. 15 The Authority found that the Sibling Claim was inconsistent with the appellant's evidence given in his interviews, his written application and his post interview submissions, that the age of the appellant's siblings told strongly against their having any LTTE profile and that the appellant's delay in raising the claim counted against its credibility. The Authority concluded that the Sibling Claim was a fabrication designed to explain the appellant's vague evidence about his older siblings and to increase the appellant's profile to suggest that he and his family had an adverse profile with the LTTE and that they were at risk of being targeted, abducted or seriously harmed by the SLA, CID, Terrorist Investigation Department (TID), Sri Lankan authorities or Karuna because of that profile. The Authority found the Sibling Claim to be "implausible and lack credibility" and rejected it. 16 The Authority then turned to consider the appellant's claims about his father. It found those claims to have been reasonably consistent and plausible and, given the appellant's age at the time the incidents took place, considered it understandable that he may not remember specific dates or other details. The Authority also found that the appellant's claim concerning his father's detention, questioning and beating on at least two occasions, was consistent with country information. However, the Authority considered it to be significant that the Sri Lankan authorities' interest in the appellant's father, whilst serious, was intermittent. While the Authority did not discount the seriousness of the two or three instances of detention faced by the appellant's father, it noted that they were comparatively short and, although it accepted that the appellant's father was interrogated and mistreated while detained, it did not consider that he would have been able to avoid extended detention, arrest, rehabilitation or other serious harm from the SLA, the CID or other Sri Lankan authorities if he was seriously considered to have had connections to the LTTE. The Authority noted that the appellant's father was able to continue to live in the same area and to work as a jeweller while his children continued to attend school. It also noted that, had the appellant's father had an adverse profile with the LTTE, he would have likely faced difficulty in obtaining a Sri Lankan passport and would have been unable to leave Sri Lanka in 2013 without interference. 17 The Authority concluded that the appellant's father had no LTTE links or connections, actual or imputed, but rather that he was subjected to systematic and discriminatory conduct because of his limited profile as a Tamil male living in a former LTTE controlled area in the east of Sri Lanka at a time when the authorities were sensitive to the potential re-emergence of the LTTE. As a result, the Authority found that the appellant would not be imputed with any adverse LTTE profile, connection or political opinion through his father or other family members. 18 The Authority next considered the appellant's individual claims concerning the harm he claimed to have suffered at the hands of the SLA and Sri Lankan authorities. It considered that those claims were inconsistent in a number of respects and set out how that was so including, among other things, that his written statement indicated that the SLA had a particular interest in him but his evidence at his visa interview was that they did not have any particular interest in him but rather their interest was in young people in general and that there were inconsistencies in the timeline of the appellant's claims. The Authority noted that in his post interview submissions the appellant had attempted to clarify his claims, had contended that any inconsistency and omission in his evidence was due to trauma and had made submissions about the plausibility of his account, memory failures, his age and the time that had passed. However, the Authority also observed that in his post interview submission the appellant did not refer to any concerns with interpreting at the visa interview, the omission of claims related to sexual violence or that his claims were not adequately explored by the delegate. 19 The Authority then referred to the Submission noting that the appellant contended that he, his father and his family members had a LTTE profile, a claim that had already been rejected, and he and his father had been abused by the SLA and CID on many occasions before they left Sri Lanka, and that the appellant raised, for the first time, claims that he was repeatedly taken by the CID, TID and SLA and was sexually abused. The appellant claimed in the Submission that he was reluctant to mention this to the Department of Immigration and Border Protection (Department) as he was humiliated, immature and unaware of the consequences of not doing so. He said that during the visa interview he repeatedly mentioned that he was abused but that the interpreter did not express or interpret that the abuse he suffered involved sexual harassment and rape. 20 The Authority found, in relation to the appellant's earlier claims, that he had not been consistent about his timeline, where he was living and working and the specific events he claimed he experienced, noting that its concerns were not insignificant. The Authority accepted that the appellant's timeline may be wrong in some respects and that there may be some inconsistency about aspects of his claim or omissions. However, it found that the appellant had failed to provide a clear narrative about his movements between his home area and Colombo and had failed to raise his most significant claim, his abduction, detention and escape, until the visa interview. The Authority took into account the appellant's post interview submissions but was of the view that they did not overcome its serious concerns with the lack of consistency, credibility or plausibility in his evidence. 21 The Authority noted that the appellant also gave no indication at any time prior to the Submission that there was a sexual component to his claims. It weighed a number of factors including his age, the time that had passed, the potential impact of trauma, the stigma of sexual violence claims and the quality of the interpreting. In relation to the complaint about the interpreting, the Authority noted that those concerns were not raised in his post interview submissions, a factor which it considered to be significant. The Authority was not satisfied that there were deficiencies with the interpreting and did not accept that the appellant advanced oral evidence that he suffered sexual abuse or violence during the visa interview. The Authority was also of the opinion that it was very unlikely that the CID or TID would have had any active interest in the appellant, given his lack of profile. 22 Weighing all of the factors together, the Authority was not satisfied that these claims were genuine and was of the opinion that they were recent fabrications designed to overcome the concerns and deficiencies identified by the delegate and to strengthen his claims to be owed protection. The Authority was not satisfied that the appellant ever faced sexual abuse or violence at the hands of the SLA, CID or TID. 23 The Authority similarly did not accept the appellant's claim that he was detained for two or three days by the SLA in early 2012, beaten and tortured, and escaped detention, or that the SLA came looking for him. At [56]-[57] of its decision record the Authority said: 56. I also do not accept his claim as credible that he was detained for two or three days by the SLA in early 2012, that he faced beatings and torture, that he escaped detention, or that the SLA came looking for him. I find this claim is materially inconsistent with his other claims and timeline. I give negative weight to the fact that in order to accommodate this claim, he had to significantly shift his timeline about his travels to Colombo. I also give negative weight to his failure to raise this claim at any earlier juncture, even in a summary way. 57. In terms of his claims to have faced harm from the SLA in his home area and during his stay in Colombo, I consider there has been some conflation about the harm he faced in both areas, and I have concerns about the timeline. However, I consider the submissions made do address those concerns to some degree, and those claims have been consistently advanced, at least in a general sense. I consider it plausible and accept that he faced harassment and mistreatment from the SLA. He has consistently claimed that the SLA made unreasonable demands from him, detained him for brief periods and beat him if he did not provide them with money or goods. As a young and vulnerable Tamil male living in Batticaloa, I consider he would have had to pass through checkpoints to go to school, and this created opportunities for the SLA to annoy, harass and mistreat him. It is also consistent with country information before me about the systematic mistreatment and harassment of Tamils living in former LTTE controlled areas during and in the aftermath of the civil war. As a young Tamil who could not speak Sinhalese, I also consider it plausible he faced similar harassment during his stay in Colombo. However, I do not accept that he was of particular interest to the SLA or the authorities as he claims in his written evidence - his evidence at the visa interview was quite clear that he was not a specific target. 24 The Authority found that the appellant's only profile on return was as a young Tamil male from a former LTTE controlled area in the east of Sri Lanka. It had regard to country information about the situation for Tamils in the eastern province of Sri Lanka and was satisfied that the remaining degree of societal and official discrimination towards Tamils was low level and the risk of such conduct continues to decrease. The Authority accepted that there may be some discrimination for Tamils which, while frustrating for the appellant, would not threaten his capacity to find employment. The Authority was not satisfied that he would be denied access to accommodation and basic services such that it would threaten his ability to subsist or earn a livelihood in Sri Lanka, or otherwise constitute serious harm. 25 The Authority also accepted, based on country information, that questioning or monitoring by the authorities was reducing. It found that, given the appellant's lack of adverse profile, he may still encounter low level monitoring or observation but was not satisfied any discrimination, questioning or monitoring that he may face on return would involve harassment or other harm that would separately or cumulatively constitute serious harm. Based on all of the information before it, the Authority was satisfied that there was no real chance that the appellant would face harm from the SLA, CID, Sri Lankan authorities or any other person or group for reason of his ethnicity as a young Tamil male from a former LTTE controlled area in the east of Sri Lanka and from his and his father's past profile and interactions with the SLA, or on the basis of any actual or imputed political opinion or profile connected to the LTTE. 26 The Authority then considered the appellant's claim that he would be perceived to have supported Tamil separatism while overseas and would be harmed because of his cumulative profile. The Authority noted that it had found the appellant and his family to have no actual or imputed LTTE profile nor any other adverse profile from their time living in Sri Lanka and was satisfied that the appellant and his family have not in fact engaged in any Tamil separatism. The Authority considered that there was no reasonable basis to conclude that the Sri Lankan authorities would assess the appellant as being involved with Tamil separatism or that there was any chance of his being harmed for that reason. 27 The Authority next considered the appellant's claims related to his father's business and wealth, noting that the appellant was equivocal in his written evidence about whether his father was targeted by the SLA because of an actual or imputed LTTE profile or because he was a Tamil business person or owner or a wealthy Tamil. The Authority accepted that the appellant's father was a jeweller and may have had some wealth prior to his departure from Sri Lanka but it was not satisfied that any of the harm or mistreatment faced by the appellant's father or by the appellant from the SLA or other authorities related to his father's actual or perceived wealth or his status as a Tamil business person or owner. The Authority was satisfied that the appellant, his father and his family faced no harm on the basis of his father's profile as a Tamil business person or owner or a wealthy Tamil, their membership of their family or any other iteration of those claims. 28 Lastly, the Authority considered the appellant's claim to fear harm on the basis of his illegal departure from Sri Lanka and as a failed asylum seeker. The Authority accepted that the appellant departed Sri Lanka illegally and that the authorities would require a full history of his past. But, for the reasons already given, the Authority was satisfied that it would be determined that the appellant has no adverse profile and would not be of adverse interest to the authorities nor would he have an adverse profile through his father or other family members. The Authority accepted that the appellant may be charged under the Immigrant and Emigrants Act 1948 (SRI) but was satisfied that he would not be given a custodial sentence or subjected to a period of detention beyond that required for ordinary returnees and, if detained, that detention would not constitute serious harm. 29 Having considered all of the circumstances the Authority concluded that there was not a real chance of the appellant facing harm from the SLA, CID, TID, Karuna, Sri Lankan authorities or any group on the basis of his ethnicity, as a young Tamil male from a former LTTE controlled area in the east of Sri Lanka, any actual or imputed political opinion or profile connected to the LTTE or Tamil separatism, his father's profile, his siblings' profiles, his membership of his family, as a person who spent time in Australia or as a failed asylum seeker. The Authority concluded that the appellant did not satisfy s 36(2)(a) of the Migration Act 1958 (Cth) (Act). 30 The Authority then considered whether the appellant met the criterion for complementary protection. The Authority referred to its finding that the appellant may face a low level degree of official or societal discrimination or questioning or monitoring by the authorities on his return to Sri Lanka which, while potentially frustrating, would not interfere with his ability to find work and accommodation and to access basic services. The Authority also referred to its finding that there was a real chance that the appellant may be detained at the airport, questioned and fined on his return, noting again that, while such treatment would be difficult and frustrating for the appellant, it would not amount to significant harm under the Act. 31 The Authority found that the risk of the appellant being detained on his return in a prison outside the airport was remote and that if he was so detained he may experience poor prison conditions for a brief period. The Authority accepted that a brief detention would be difficult for the appellant but, for reasons already given, was not satisfied that he has any vulnerabilities that would preclude a short period of detention. The Authority also found that the poor prison conditions are not intentional but are the result of a lack of resources, overcrowding and poor sanitary conditions. It concluded that any detention or other penalty, including a fine, would not constitute significant harm. 32 The Authority referred to its previous findings that the appellant had no adverse risk profile and faced no real chance or risk of serious mistreatment or torture from the Sri Lankan authorities. Based on the same information and for the same reasons, it was not satisfied that there was a real risk that the appellant would face significant harm for any of the claimed reasons if he were to return to Sri Lanka. The Authority concluded that the appellant did not satisfy the requirements of s 36(2)(aa) of the Act. 33 Accordingly, the Authority affirmed the delegate's decision.

Federal Circuit Court proceeding 34 The appellant relied on an amended application before the Federal Circuit Court in which he raised four grounds. Only the following part of ground 2 is of some relevance to the grounds on which the appellant now seeks leave to rely. That ground provides: The Authority acted in a legally unreasonable way and/or based its findings on speculation and guesswork rather than reasonably probative evidence and therefore made a jurisdictional error. Particulars … 3 The Authority rejected the [appellant's] claims that he had been detained and mistreated by the Sri Lankan Army and had escaped, and/or that he was sexually assaulted. 35 At [33] of his reasons the primary judge described this ground, referring to it as ground 2(c), as follows: This ground asserts unreasonableness in rejecting the [appellant's] evidence as to his own circumstances. The conclusion that the [appellant] should have raised complaints earlier, regarding the quality of the translation of the visa interview, was incoherent and perverse. 36 The primary judge dealt with this ground at [51] where his Honour said: I am not satisfied that the findings regarding the applicant's own evidence are perverse or are legally unreasonable. I am not satisfied that the criticism by the Authority that the applicant should have raised the claim that he was detained by the SLA for two to three days and escaped was an unfair criticism, as defined in W375/01A. It was reasonable to expect some mention of what was a serious and critical issue in the applicant's claims at an earlier point in time, even accepting that the applicant was traumatised. I do not accept, when read as a whole and without too fine an eye for error, that this decision can be characterised as incoherent and perverse. 37 Given the nature of the appellant's proposed grounds of appeal, it is otherwise not necessary for me to set out the balance of the grounds raised below, each of which was considered and rejected by the primary judge.

The appeal 38 The appellant ultimately relied on a draft amended notice of appeal which sets out two proposed grounds of appeal as follows: The Authority's review of the decision of the delegate miscarried because: 1. In rejecting the claim of the appellant that he was "arrested and detained by the SLA, taken to a camp, beaten and tortured for two or three days, and that he escaped" the Authority failed to consider integer claims and evidence of the appellant, or otherwise made unreasonable findings: Particulars: a. The Authority failed to have regard as explanative of the appellant's raising late claims in the protection visa interview his evidence that he suffered serious mental health issues with self harm without self-knowledge (i.e. in a dissociative state) (Transcript line 79) b. The Authority failed to have regard to the appellant's claims that his mental health issues were caused by his mistreatment and harassment as corroborative of his late claim at the protection visa interview. c. The appellant claimed in the PV interview that the reason subject to the adverse attention of the Sri Lankan authorities was that they were trying to get him to join their team however the Authority did not consider or weigh this reason in considering the claims raised in the protection visa interview. d. The Authority did not consider the appellant s evidence that his mental health issues were caused by the harassment and mistreatment which he suffered in Sri Lanka. e. The appellant gave evidence of a self harm incident which was dissociative in the sense that he has no recollection of the incident, and gave evidence of having long term counselling. … 3. In considering whether the appellant faced a real risk of serious or significant harm, the authority failed to consider the [appellant's] mental health circumstances. Particulars a. In determining whether any period spent detained in a prison or airport would cause severe pain or suffering, the Authority's consideration of the personal circumstances of the appellant [at 98] was affected by jurisdictional error in that his mental health vulnerabilities were not considered. b. In determining whether the appellant would suffer any serious harm the authority failed to take into consideration the appellant's claims concerning his mental health symptoms and condition (Strikeout omitted.) 39 These grounds were not raised before the primary judge. Accordingly, the appellant requires leave to raise them for the first time on appeal. The Minister opposes a grant of leave. 40 The appellant also seeks leave to rely on an affidavit of Joseph Magri affirmed on 9 July 2020 which annexes a part of the transcript of the appellant's protection visa interview. Mr Magri is a paralegal who deposes that he was provided with an audio recording of the appellant's protection visa interview in two parts and that he prepared a transcript from part two of that recording from approximately 34 minutes and 45 seconds to the end of the recording. The appellant has not made an application in accordance with r 36.57 of the Federal Court Rules 2011 (Cth) to rely on Mr Magri's evidence on the appeal and did not seek an order dispensing with the requirement to comply with that rule. The Minister opposes the appellant's application to rely on Mr Magri's evidence.

Leave to rely on new grounds on appeal 41 In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]-[48] a Full Court of this Court (Kiefel, Weinberg and Stone JJ) said the following in relation to when the Court would grant leave to advance a new ground for the first time on appeal: 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) 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. 42 In Han v Minister for Home Affairs [2019] FCA 331 (Han) at [8]-[10] Bromwich J relevantly said: 8 It may be convenient, and in many cases it will be entirely appropriate, to decide the question of whether to grant leave to advance an entirely new proposed ground of review in the form of a ground of appeal by giving dominant, but not exclusive, weight to the merit of the proposed ground. Merit is necessary, but not of itself ordinarily sufficient. Other features will generally need to be absent or present. Possible further considerations for the granting of leave in addition to merit include such things as an acceptable explanation for the ground not being run below, the nature and extent of any injustice (beyond a merely adverse result) that may result if the issue raised is not addressed, and the lack of prejudice to the opposing party. The decision to grant or refuse leave is then made by weighing the competing considerations, which are sometimes finely balanced. 9 The approach of relying predominantly on merit as the basis for leave becomes more problematic when there is no adequate explanation for the ground not having been advanced at the trial in the court below and other circumstances also tell against leave being granted. Care needs to be taken to ensure that a focus on merit does not have the troubling practical effect that a new ground sought to be raised is effectively heard and determined by this Court in the exercise of its appellate jurisdiction as though leave was not required. If that happens, the appellant may get to run an appeal which in truth is a new trial upon nothing more compelling than the fact that it might have succeeded if it had been run below. If the argument in support of the proposed ground finds favour, leave is then granted, and the appeal is allowed. If the argument does not find favour, leave is refused and the appeal dismissed. The grant or refusal of leave then turns on the success or failure of the new ground, making leave a mere formality. If so, an important principle in the administration of justice may be lost in the process. 10 Appeals, even appeals by way of rehearing such as this appeal, are not to be relegated to the role of only providing an opportunity to conduct a second trial upon a different basis, the first trial having failed. Longstanding and much-cited authority of the High Court makes this abundantly clear, supported by related considerations raised by numerous cases in the Full Court of this Court, of which only few will be cited.

Leave to adduce further evidence on appeal 43 Section 27 of the Federal Court of Australia Act 1976 (Cth) provides that the Court may receive further evidence on appeal. In Sami v Minister for Immigration and Citizenship [2013] FCAFC 128 at [6]-[7] a Full Court of this Court (Jagot, Barker and Perry JJ) said: 6 … Section 27 of the Federal Court of Australia Act 1976 (Cth) permits the Court to receive fresh evidence on an appeal. Rule 36.57 of the Federal Court Rules 2011 provides that any such application must be accompanied by an affidavit explaining, amongst other things, the grounds of appeal to which the application relates and why the evidence was not adduced in the court appealed from. 7 The requirements of r 36.57 reflect the principles which apply to questions of fresh evidence on appeals. Generally, if the evidence could have been adduced below by the exercise of reasonable diligence it will not be admitted on appeal (see, for example, Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236; [2007] FCAFC 134 at [4] [7]). Further, unless the evidence is of such relevance and weight that its admission would be likely to lead to a different result it also will not usually be admitted on an appeal. In the present case, the potential relevance and weight of the proposed fresh evidence must be assessed having regard to the limits on the Court's jurisdiction to review the decision of the AAT - that is, for jurisdictional error only, no review of the merits of the AAT's decision being permissible by this Court either at first instance or on appeal.

Should leave be granted to rely on the new grounds of appeal? 44 The appellant gives no evidence explaining why his new grounds of appeal were not raised before the primary judge. The appellant was represented by a solicitor and counsel in the court below, a factor which tells against a grant of leave: see Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 (Sun) at [92]. The appellant submits that a "new set of eyes" has come into the matter and new grounds have been raised. However, that a new solicitor, who has seemingly identified different grounds of review not raised below, has come onto the record is not of itself a sufficient reason why leave to rely on new grounds of appeal would be granted. 45 As was observed in Han, an appeal is not to be viewed as a second run of a trial where the first attempt has failed. In this case a grant of leave to rely on the new grounds on appeal would undermine the appellate process and, given that the grounds raised below have in effect been abandoned, render the first instance proceeding irrelevant: see Sun at [92]. 46 As I have already observed, the Minister opposes the grant of leave to rely on the new grounds on appeal. While he cannot point to any prejudice that he would suffer should leave be granted, he submits that, as there is no explanation as to why the grounds were not raised below, permitting reliance on the new grounds would turn this Court into a trial rather than an appellate court and, in any event, there is no merit in the grounds. 47 I turn then to consider the merits of each of the proposed grounds of appeal.

Proposed ground 1 48 The essence of proposed ground 1 is that, in rejecting the appellant's claim that he was arrested and detained by the SLA, taken to a camp, beaten and tortured, detained for two or three days and he then escaped, the Authority failed to consider the appellant's evidence and the integers of that claim or otherwise made unreasonable findings. The appellant includes five particulars to this ground which he says are matters which the Authority failed to consider as part of the rejection of that claim. The appellant wishes to rely on Mr Magri's evidence in support of this ground.

The appellant's submissions 49 The appellant relied on his written submissions which he supplemented orally, attempting to further illuminate them. The appellant says that the Authority's rejection of his claim was unreasonable because it failed to give "intellectual consideration" to the appellant's mental health issues and it failed to have regard to his claim that his mental health issues were caused by his mistreatment and harassment at the hands of the SLA. 50 The appellant submits that this is not a new ground as it arises out of ground 2(c) raised before the primary judge (see [34]-[35] above). 51 The appellant submits that the Authority's reasoning was unsound because it relied on the lateness of the claimed arrest, detention and beating to reject it and because it did not consider his claimed mental health condition, including his infliction of self harm without knowledge of his own actions. Relying on the transcript annexed to Mr Magri's affidavit, the appellant contends that there was clearly evidence that he had awareness and memory problems in relation to traumatic incidents and serious mental health issues. The appellant submits that the Authority did not recognise the appellant's claim in this regard and did not consider his claim that the significant mental health issues he suffered were the consequence of harm he experienced in Sri Lanka. 52 The appellant says that, if the Authority had considered his claim to mental harm caused by his mistreatment in Sri Lanka, it would have necessarily found that to be potentially corroborative of his claim to have been arrested and beaten as he claimed at the protection visa interview. He said that any psychological symptoms he suffered could have impacted on his ability to present his case and answer questions. 53 The appellant submits that, although he did not rely on medical evidence of psychological harm, his own evidence was that he had psychological symptoms including sadness and the infliction of self harm without knowledge or recall. The appellant submits that his absence of recall was a specific claim in relation to traumatic events and his inability to raise the claim of his arrest and beating in the detention camp until his protection visa interview could be explained based on the claims he did raise. He contends that if the Authority had considered the evidence it could have come to a different conclusion about the credibility of his claims raised in the protection visa interview concerning his arrest, detention and beating. The appellant notes that, in addition, the Authority accepts that he did not claim to have been targeted personally but as a subgroup of Tamil youth, referring to [57] of the Authority's decision record. 54 The appellant submits that, while the Authority considered and rejected the other written claims submitted on his behalf to the delegate, it did not consider the reason provided by him orally at the hearing, namely that the reason for the harm was that he believed that the Sri Lankan authorities wanted him to join them. The appellant says that this was his claim, it should have been considered and, if it had been considered, there could have been a different result. He says that the absence of a reason for the harm was necessarily within the matrix of reasons for refusing the claim and so the consideration of the reason claimed by the appellant could have necessarily resulted in a different outcome. The appellant submits that cumulatively the failure to consider these issues makes the Authority's decision all the more unsafe. 55 The appellant submits that he specifically claimed that he had been affected mentally by his mistreatment in Sri Lanka and as a result of which, in turn, he engaged in self harm of which he had no knowledge and no recollection, and that he required counselling over several years. The appellant contends that the presence of dissociative self harm symptoms related to his mistreatment and harassment in Sri Lanka was relevant to the inquiry as to whether he would experience severe pain or suffering if he returned to Sri Lanka. The appellant says that this was an issue that is explicitly an integer of his claim which was not determined. He says that, even if not expressly raised as a claim, there can be no doubt that his mental health arose squarely on the material and should have been considered. 56 The appellant submits that the material disclosed that he has mental health issues, relying on the transcript annexed to Mr Magri's affidavit, and that the lack of mental health facilities in Sri Lanka is highlighted in submissions and derives from documentation provided by the Department of Foreign Affairs and Trade (DFAT). 57 The appellant submits that, in view of the fact that the Authority accepted that he was subject to mistreatment and harassment, it can be inferred that his mental health issues arose, at least in part, from his experiences in Sri Lanka but says that causation is not a necessary precondition to relevance. He contends that the Authority did not consider the effect of his mental health issues in the sense referred to in AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 (AGA16) in that the potential seriousness of the effects of his experiences give rise to a special vulnerability. The appellant contends that, in this sense, the Authority failed to determine whether he had a subjective fear of persecution, having regard to his particular vulnerabilities as a person with a mental health condition caused by his mistreatment as a child by the Sri Lankan authorities. The appellant submits that, having failed to make such an assessment, the Authority could not then proceed to consider whether the fear was well-founded and thus the assessment was affected by jurisdictional error.

Consideration 58 Proposed ground 1 concerns the Authority's findings at [56]-[57] of its decision record (see [23] above). 59 As set out at [50] above, the appellant contends that this is not a new ground but that it arises from the ground referred to as ground 2(c) by the primary judge. That ground and the primary judge's findings in relation to it are set out at [34]-[35] above. 60 It is difficult to see how proposed ground 1 arises from ground 2(c) in the court below. Ground 2 in the court below was an allegation that the Authority acted in a legally unreasonable way and that its findings were speculative. One of the particulars to that ground focused on the claim by the appellant that he had been detained by the SLA for two to three days and beaten, and that he then escaped. Here the proposed ground is that, in rejecting that claim, the Authority failed either to consider an integer of the appellant's claims or aspects of his evidence. The only commonality is that both grounds focus on the same claims but, in my view, the grounds are otherwise different and I do not accept that proposed ground 1 is concerned with or arises from ground 2(c) in the court below. 61 That conclusion is supported by the fact that neither in proposed ground 1 or his submission does the appellant allege any error on the part of the primary judge in his treatment of ground 2(c) nor does he refer at all to the primary judge's reasons. 62 Even if I am wrong about that, for the following reasons proposed ground 1 has no merit. 63 First, at [48] and [51]-[52] of its decision record, the Authority explicitly considered and rejected the appellant's claim in his post interview submissions that inconsistencies and omissions in his evidence were explained by his trauma. There the Authority relevantly said: 48. In his post-interview submission, the applicant sought to clarify his claims. He said that he relocated to Colombo in November 2011 (which contradicts the timeline given in his visa application, which states January 2011 to April 2012). He returned home in March 2012, and was detained by the SLA after a few days. The applicant returned to Colombo, but was again subjected to harm by the SLA. Then he returned to his home area in April 2012. The submission contends that any inconsistency and omissions in his evidence were due to trauma, and made further submissions about the plausibility of the account, memory failures, his age and the time that has passed. In the post-interview submission, the applicant did not refer to concerns with the interpreting at the visa interview, the omission of claims related to sexual violence, or that his claims were not adequately explored by the delegate. … 51. I have weighed the post-interview submissions made by the representative, but in my view those considerations do not overcome the serious concerns I have with the lack of consistency, credibility or plausibility in his evidence. The applicant was represented at the time of the application and the interview, yet his core claim about his abduction and detention was not raised until the visa interview. When those claims were advanced, it became apparent that they were incompatible with his earlier timeline. This required the applicant to significantly revise the previous timeline of his claims. Even now, he has not explained how he managed to avoid the further scrutiny of the SLA between April 2012 and September 2012 when he left the country. 52. The applicant also gave no indication at any point prior to the IAA submission that there was a sexual component to his claims. I have weighed a number of factors, including his age, the time that has passed, the potential impact of trauma, the stigma of sexual violence claims, and the quality of the interpreting. (Emphasis added.) 64 It is evident from those passages that the Authority did not reject the appellant's claim to be suffering trauma. Rather it found that the trauma and its potential impact did not explain or overcome its concerns with the appellant's credibility and the lack of consistency or plausibility in his evidence. 65 Secondly, in support of his contention that the Authority failed to have regard to his evidence of suffering mental health issues to explain why he only raised his claim of capture, detention and beating by the SLA at his protection visa interview, the appellant relies on the following exchange recorded in the extract of transcript annexed to Mr Magri's affidavit: 78. Case Officer: I am reaching towards the end of the interview. Is there anything else you would like to add which you have not already said so far? 79. Interpreter: I was really upset when after coming here, I cut my arm. And without my knowledge I cut my arm, and I did not know what I was doing, so I was upset. 80. Case Officer: So what happened after that? 81. Interpreter: My carer took me for counselling. 82. Case Officer: When was this? 83. Interpreter: When I was studying here. 84. Case Officer: Are you still attending counselling? 85. Interpreter: It was in Brisbane and after coming here I stopped. Even in Perth I had been to there 2, 3 times. 86. Case Officer: How long have you been in NSW for? 87. Interpreter: More than a year. 66 In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] (Applicant WAEE) at [46] a Full Court of this Court (French, Sackville and Hely JJ) said: It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. 67 In this case, the Authority referred to the claim made by the appellant that inconsistencies and omissions in his evidence could be explained by the trauma he was suffering. It was not necessary for the Authority to refer to every piece of evidence and, more particularly, to refer to the additional evidence given by the appellant to that same effect. 68 Thirdly, the evidence given at the protection visa interview by the appellant that he cut his arm without knowing what he was doing (see [65] above) does not rise to the level of a claim that his mental health issues were caused by his mistreatment and harassment at the hands of the SLA, even when seen in the context of the preceding exchange that took place at the protection visa interview, as recorded in the transcript annexed to Mr Magri's affidavit. That earlier part of the transcript records the exchange in which the appellant raised for the first time his claim that the SLA took seven children, including him, to a camp in 2012, where they beat, tortured and detained him for two days after which he escaped. The appellant's statements that he cut his arm without knowing what he was doing do not rise to the level of a clearly articulated claim that his mental health issues were caused by his claimed mistreatment at the hands of the SLA. That being so, the contention that it was unreasonable for the Authority to reject that claim cannot succeed. 69 Fourthly, the appellant's contention that the Authority erred at [57] of its decision record in not addressing his evidence to the delegate that "maybe" the SLA wished him to join their team cannot succeed. In that regard, there was no clearly expressed claim which arose from the material before it that the Authority was required to address: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 114 FCR 1 at [58]. In any event, even if such a claim was made, it was implicitly rejected by the Authority (at [57] of its decision record) where it concluded that the appellant was not of particular interest to the SLA. As the Full Court said (at [47]) in Applicant WAEE: The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 70 Finally, although difficult to understand, the appellant's submission based on AGA16 does not assist him. In that case the appellant's single ground of appeal, on which she succeeded, was that "the primary judge erred by not finding that the Tribunal failed to perform its statutory function according to law, in that it failed to consider the appellant's claim to be entitled to a protection visa arising from her membership of a particular social group, constituted by women in Egypt": at [8]. In the particulars to that ground it was contended that the Tribunal failed to consider certain matters that formed part of the appellant's claim including that, because of the appellant's history and medical condition, experiencing further instances of sexual harassment or sexual assault would cause serious or significant harm to her. 71 At [31] and [35], in summarising the relevant principles, Moshinsky J said: 31 It has been held that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it that, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Migration Act and thereby a jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) at [63]; SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452 (SZTQP) at [50]. Further, where the Tribunal fails to make a finding on a "substantial, clearly articulated argument relying on established facts" that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]-[25], [95]; NABE at [55]; SZTQP at [50]. It has also been said that consideration of a representation or submission involves an "active intellectual process" directed at the representation or submissions: Tickner v Chapman (1995) 57 FCR 451 at 462; WZAQU v Minister for Immigration and Citizenship (2013) 233 FCR 534 at [12]; see also NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [46], [212]. … 35 In oral submissions, counsel for the appellant referred to SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497 as a convenient reference point for extracts from a number of commentaries that support the proposition that, in assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities: see SZTEQ at [144] and [151], citing Hathaway JC and Foster M, The Law of Refugee Status (2nd ed, Cambridge University Press, 2014), p 198; and Storey H, "Persecution: Towards a Working Definition" in Chetail V and Bauloz C (eds), Research Handbook on International Law and Migration (Edward Elgar, 2014), p 476. The appellant's proposition is consistent with the Full Court's observations in SZTEQ at [153]. Counsel for the Minister accepted that it is relevant to take into account the personal circumstances of the applicant in assessing whether he or she has a well-founded fear of serious harm (T20). Thus there did not appear to be any dispute about the appellant's proposition, which I accept. 72 Having set out the principles, Moshinsky J then considered whether the Tribunal had considered or sufficiently considered the claims made by the appellant. His Honour found that it had not and that the primary judge had erred in her conclusion. At [45]-[46] Moshinsky J said: 45 Further, the Tribunal did not consider and make a finding as to whether gender-based violence, sexual harassment or unwanted physical contact amounted to "serious harm" or "significant harm" to the appellant. The matters referred to in the second half of [51] do not address whether gender-based violence, sexual harassment or unwanted physical contact would amount to serious or significant harm to the appellant. No reference was made to the appellant's personal circumstances, including her vulnerabilities, in connection with gender-based violence, sexual harassment and unwanted physical contact. To the extent that a finding was made as to serious or significant harm, it related to societal discrimination, not to gender-based violence, sexual harassment or unwanted physical contact. 46 It is true that the Tribunal stated, in the first sentence of [52], that, "[i]n making these findings, I have taken into account the applicants' ages and the [appellant's] physical and psychological vulnerabilities". However, the fact that a matter has been noted as "considered" does not preclude an analysis as to whether that matter has been given consideration as required by law: Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 at [27]. ... 73 Here, no clearly articulated claim was made by the appellant that his mental health issues arose from his treatment at the hands of the SLA nor did the appellant claim, as was the case in AGA16, that due to his medical condition experiencing further instances of mistreatment would cause serious or significant harm. Thus there was no occasion, in assessing the seriousness of harm to the appellant, for the Authority to consider his personal vulnerabilities, namely his mental health.

Proposed ground 3 74 By this proposed ground the appellant contends that, in considering whether the appellant faced a real risk of serious or significant harm, the Authority failed to take into account his mental health. In the particulars, the appellant says that: first, in considering whether he would suffer any severe pain or suffering if detained for illegal departure on his return, the Authority failed to consider his mental health vulnerabilities; and secondly, in determining whether the appellant would suffer any serious harm the Authority failed to take into account his claims about his mental health symptoms and condition. 75 I pause to note that, in oral submissions, the solicitor appearing for the appellant noted that the appellant intended to amend this proposed ground by removing the words "serious or". However, in the draft amended notice of appeal filed after the hearing, that amendment was not made. Accordingly, I have proceeded on the basis of the draft amended notice of appeal as filed.

The appellant's submissions 76 The appellant submits that it is clear from the evidence that he was suffering from psychological symptoms and a likely psychological condition such that he had a self harm incident which he could not recollect, following which his carer took him to counselling which he needed to attend long term. 77 The appellant submits mental health issues are relevant and should be taken into account in the following ways: (1) in the sense referred to in AGA16 in that the potential seriousness of the effects of his experiences give rise to a special vulnerability. The appellant says that personal vulnerability is relevant when determining the seriousness of harm and in his case the significance is in the effect of even a short period of detention on return and how his mental health condition could contribute to severe pain and suffering during such detention; (2) in considering the question of complementary protection, the availability of mental health services is relevant to determining whether he will suffer significant harm during any period of detention. The appellant contends that the presence of a mental health issue and the availability of mental health services during any detention is relevant to that inquiry; (3) persons with mental health issues are the subject of social stigma in the Sri Lankan community as evidenced in the DFAT reports before the Authority; and (4) any psychological condition suffered by the appellant could have impacted on his ability to present his case, referring to the Department's Refugee Law Guidelines at Pt 15.4. 78 The appellant observes that, at [86] of its decision record, the Authority found that any period of detention, together with subsequent monitoring, would not lead to him being harmed or seriously or significantly harmed. The appellant contends that the difficulty with this finding is that it does not take into account the effect of his mental disorder. He says that his incident of self harm with apparent dissociation or inability to recall the event means even a short period of detention can be considered to be serious and significant harm. 79 The appellant submits that a determination of whether temporary detention amounts to significant physical harassment for the purpose of s 91R(2)(b) of the Act will require the decision-maker to consider the facts in individual matters, referring to Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 at [51]. He contends that the failure to consider the effect of his mental health disorder is a failure to give active intellectual consideration to the claim or otherwise a failure to consider all the evidence. The appellant says that the question of complementary protection cannot be determined in isolation from consideration of his mental health issues, exacerbated by the causation of that harm through his past experience of mistreatment by the Sri Lankan authorities. 80 The appellant submits that the Authority's task to review the decision miscarried in that it failed to consider the appellant's mental health condition in assessing the risk of serious or significant harm during any detention on return and failed to determine the potential duration of that detention.

Consideration 81 The Authority considered the appellant's claims related to asylum and his illegal departure commencing at [73] of its decision record. At [87]-[88] it said: 87. Whether a loss of liberty constitutes serious harm requires a qualitative judgment, including an evaluation of the nature and gravity of the loss of liberty. I have found he has no adverse profile. The applicant is apparently able-bodied, and beyond reference to some past counselling, he has not presented evidence that he has any health or other vulnerabilities that would preclude a short detention. 88. Should the applicant be held over a weekend or public holiday until seen by a Magistrate, or face any other sort of delay, I am satisfied he would face only a brief period in detention. While I again accept there are credible reports of risks to those with certain profiles in terms of interrogation, torture and detention, I am not satisfied the applicant, as a person with no adverse profile, would be at a chance or risk of harm from security or prison officials or other prisoners, during any brief period of detention. I acknowledge the representative's submissions in terms of the poor prison conditions. I accept any detention would be challenging and stressful for the applicant, however even having regard to the generally poor prison conditions, I do not consider that a brief period of detention would constitute the necessary level of threat to his life or liberty, or significant physical harassment or ill treatment under s.5J(5) of the Act, or that it would otherwise constitute or amount to serious harm for the applicant. 82 By accepting that any detention would be challenging and stressful for the appellant, the Authority took into account his particular circumstances but concluded that it would not amount to serious harm. 83 At [98] of its decision record, the Authority referred to its finding that the appellant may be detained for a short period at the airport or at a prison and, on the evidence before it, accepted that a brief period of detention would be difficult for the appellant but noted that it was not satisfied that the appellant "has any vulnerabilities that would preclude a short period of detention". 84 Further, as set out at [63] above, the Authority had previously referred to and taken into account the appellant's claimed trauma. 85 In those circumstances, it is not possible to conclude that the Authority failed to consider the appellant's claim that he had suffered trauma and the effect of that trauma on his being detained for a short period at the airport or in a prison on his return. 86 This proposed ground has no merit.

Conclusion 87 Given its deployment in support of the draft amended notice of appeal and its apparent relevance to the proposed grounds of appeal, I will grant leave to the appellant to rely on Mr Magri's affidavit. However, in light of the matters set out above, that is that the appellant has failed to provide an adequate explanation for the failure to raise the new grounds of appeal before the primary judge and the lack of merit in the grounds, it is not expedient in the interests of justice that those grounds be raised for the first time on appeal. Accordingly, I refuse leave to rely on the draft amended notice of appeal filed on 30 July 2020. 88 It follows that the appeal should be dismissed and the appellant should pay the Minister's costs of the appeal as agreed or taxed. 89 I will make orders accordingly. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic.

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