Applicant M169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

the court: 1 Before the Court is an appeal from a judgment delivered on 4 May 2004 by a judge of this Court. His Honour dismissed an application made by the appellant for the issue of constitutional writs. That application was filed in the High Court of Australia and then remitted to this Court. In his application, the appellant sought orders setting aside a decision of the Refugee Review Tribunal (the Tribunal) dated 20 November 2000 in which the Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, not to grant a protection visa to the appellant. 2 The appellant is a citizen of Sri Lanka who is 63 years old. His mother was a Dutch Burgher and his father was a Tamil. He claimed to fear persecution on the grounds of his Tamil ethnicity if he were returned to Sri Lanka. 3 The grounds of appeal which were argued are confined, and it is only necessary to examine one aspect of the Tribunal's reasoning for present purposes. The appellant claimed, before the Tribunal, that he had obtained work in Sri Lanka as a teacher only because he was able to conceal his Tamil background. The Tribunal described this aspect of the appellant's claim as follows: 'The Applicant had largely lived on his father's earnings, as he could not find employment as a Tamil. His father, however, was employed as a principal of a boys' school only because he had pretended to be a Burgher, and he was able to arrange a teaching job for the Applicant in 1974. After a few years he was advised to go for training, but he refused because he would have had to produce his birth certificate. Eventually, a student discovered in 1979 that the Applicant and his father were Tamils and they had to leave their jobs. According to his application form, the Applicant left in 1982. He then started a job as a manager of a home for the destitute.' 4 The Tribunal rejected this part of the appellant's claim as follows: 'The Tribunal does not accept the Applicant's claim that his father is a Tamil but was able to pretend he was a Burgher while he was the principal of a leading private school and that the Applicant also lived with the same pretence when his father arranged a job for him at that school. The Applicant has a birth certificate stating that he is a Tamil and it is implausible that he (or his father) could establish their bona fides and identity without producing documents that would disclose their race. He claims his Tamil ethnicity was discovered by a student in 1979 but he remained in the same school until 1982, contrary to his evidence that it was untenable to work once his ethnicity was discovered. In the circumstances, the Tribunal is satisfied that both the Applicant and his father were able to find employment in prestigious schools regardless of their race.' 5 The way in which the Tribunal dealt with this aspect of the appellant's claim was not the subject of any complaint to the primary judge. Nonetheless, his Honour made reference to the matter at the end of his judgment as follows: 'There is, however, one aspect of the tribunal's reasons which does cause me concern. It relates to the tribunal's finding that it was unlikely that the prosecutor and his father were able to pass themselves off as Burghers to obtain employment in a private school without having to produce their birth certificates which stated they were Tamils. The tribunal said that it was "implausible" that the prosecutor and his father could establish their "bona fides and identity without producing documents that would disclose their race". I have considered the transcript of the hearing before the tribunal and I am of the tentative view that the tribunal may have misled the prosecutor into thinking it had accepted his claim that he was only able to obtain employment at a private school by concealing his Tamil heritage. In other words, the tribunal seemed to accept that the prosecutor's birth certificate had impaired his employment opportunities. This is in contrast to its finding that the prosecutor was able to obtain employment despite his birth certificate stating he was Tamil. While this is not a matter about which the prosecutor has complained, that does not prevent me from giving it consideration. In the end, whilst the point is a troubling one, even if the tribunal did act unfairly (as I suspect it did) it is not an error which would have affected the outcome having regard to the other findings made by the tribunal.' 6 Perhaps encouraged by his Honour's tentative comments, the appellant filed a notice of appeal which included grounds reflecting his Honour's observations. Those grounds were the only grounds argued on the appeal, and they read as follows: '1. His Honour erred in not holding that the decision of the RRT was infected by jurisdictional error or that the Tribunal had failed to exercise jurisdiction in that: (a) in making its finding that it was implausible that the applicant and his father "could establish their bona fides and identity without producing documents that would disclose their race" was made without procedural fairness in that during the hearing the Tribunal informed the appellant that it had accepted as a fact either directly or by inference that the appellant could obtain employment only by withholding information about his race and the appellant was thereby denied the opportunity from putting submissions or evidence on the point; 2. In approaching the question of procedural fairness his Honour erred in applying a test of whether the denial "would have affected the outcome" rather than the correct test of whether the breach might possibly have affected the outcome.' 7 The first respondent objected to the Court entertaining these arguments because the appellant had not raised them before the primary judge. Whether this Court should entertain such arguments in these circumstances depends upon whether it is expedient in the interests of justice that the issues should be argued and decided: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74. A relevant consideration in determining where the interests of justice lie is an examination of the prospects of the new arguments succeeding on appeal. It is to that issue which we now turn. 8 The appellant's argument on the first ground of appeal is set out in his written submissions as follows: 'On a fair reading of the transcript it appears that the Tribunal conducted the hearing on the basis that the applicant had suffered discrimination but this could be avoided by his concealing his ethnicity either by changing his birth certificate or concealing it (TS p8) as he had successfully done at his school until he was exposed. The Tribunal did not in any way alert the applicant to the possibility of a finding that the appellant's claims about the circumstances in which his father and he came to be employed were implausible. Indeed the Tribunal went further and built its inquiry on the foundation that it was possible for the appellant to conceal his Tamil ethnicity. Either the Tribunal failed to alter [sic alert] the appellant to significant matter on which the case turned or misled the appellant into believing a part of his claims had been accepted. Its failure to do so amount to a denial of procedural fairness. It was unfair to conduct the hearing on one basis and essentially to decide on another. Especially where the basis ultimately relied on involve a significant rejection of the appellant's credibility: WAJR v MIMIA (2004) ALR 624 at [56]; WACI v MIMIA [2003] FCAFC 171. 9 The main evidence upon which the appellant relies to establish the argument is a passage from the transcript of the hearing before the Tribunal which reads as follows: 'TV [Tribunal Member]: Well! What else do you think will happen to you. You might get insulted if people know you are a Tamil, I mean you don't look like a Tamil You look like a Burgher EJ [The Appellant]: I used to keep my brother's birth certificate in my drawer so that anybody who opens my drawer will know that I'm a Burgher, so that I can pass over as a Burgher. TV: Change your birth certificate, why don't you change you birth certificate so that is shows that you are a Burgher. I just understand from your submissions that even though your father has a birth certificate which says he is a Tamil, his death certificate shows that he is a Burgher. Just move to another place where they don't know you. Why can't you do that? Isn't it your problem: Nobody knows you're a Tamil unless they know from your history, your birth certificate' 10 The question which is central to the appellant's submission is whether the Tribunal indicated directly or indirectly during the hearing that it accepted that the appellant could only obtain employment by concealing the fact that was part Tamil. The high point of the appellant's contention lies in the sentence appearing in the extract of transcript above 'Nobody knows you're a Tamil unless they know from your history, your birth certificate'. 11 It is necessary to read this observation in context. The observation occurred in series of questions which started with Tribunal's enquiry: 'So what do you think will happen if you go back'. The appellant responded by saying that he could be killed by reason of the fact that he is a Tamil. The Tribunal asked a series of questions probing the proposition that the appellant would be recognised as a Tamil. The Tribunal suggested that the appellant's identity could be concealed by him having his birth certificate changed. The appellant responded by explaining that the local people knew who were Tamil. Then, the Tribunal suggested that the national identity card did not identify the ethnicity of the holder, the appellant's surname did not identify him as a Tamil, and his appearance was not like a Tamil. The appellant replied that his name was identifiable as a Tamil name. The sequence of questions ended with the Tribunal saying as to that answer: 'TV: It might be a case but one of your claims is that your father was able to trick in the school he was the principal thinking that he was a Burgher.' 12 Thus, during these exchanges the Tribunal was exploring whether the appellant was identifiable as a Tamil in order to test his claim that he was in danger of being targeted for that reason. The last observation by the Tribunal indicates that the line of questioning was based upon the claim made by the appellant that the appellant's father was able to trick his employer into thinking he was a Burgher. There is no basis to construe this line of questioning as an acceptance of the appellant's claim that he or his father had obtained employment by concealing their Tamil identity. 13 The tentative view expressed by the primary judge was not informed by the full argument which has been addressed to us on this application. After consideration of that argument, and detailed reference to the transcript, we have come to the view that the first ground of appeal sought to be argued by the appellant has no prospect of success. The appellant is unable to make out the initial necessary element, namely, that the Tribunal represented that it had accepted that the appellant had obtained employment by concealing his identity. It follows that there is no purpose in permitting the appellant to raise the ground for the first time on appeal. In the light of this conclusion it is not necessary to address the remaining ground of appeal as it depends for its success on the acceptance of the first ground. 14 As the only grounds of appeal sought to be relied upon by the appellant are the new grounds, and as we have determined that the appellant should not be permitted to agitate those grounds, the appeal must be dismissed. The appellant must pay the first respondent's costs of the appeal.