Gomez v Minister for Immigration & Multicultural Affairs

THE COURT 1 The appellant, his wife and their infant son (then aged four) arrived in Australia from Sri Lanka on 23 July 1996. Some seven months later, the appellant lodged an application for a protection visa with the Department of Immigration and Ethnic Affairs pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act"). The appellant's wife and son were included as applicants by virtue of their being members of his family unit but, as there are no special circumstances applying to either of them, it will be sufficient to concentrate on the history of the appellant and the submissions that have been made on his behalf. The application for the protection visa was unsuccessful, as was the subsequent application to the Refugee Review Tribunal ("the Tribunal") for a review of the Department's decision. The appellant then sought an order for review by a judge of this Court. However, once again he was unsuccessful. He has now appealed to this Court against the judgment in the Court below. 2 The substance of the appellant's claims rested in his association with his brother-in-law who was referred to, in his Honour's reasons, as "Trevon". We will also use that name. 3 The appellant had worked in the Sultanate of Oman from 1990 until 22 June 1996 when he returned to Sri Lanka. On the next day, he, his family, Trevon and Trevon's family were travelling together in a motor van that had been supplied by Trevon's employer. The driver of the van, according to the appellant, had approached a railway level crossing and, so it appeared, the vehicle had stalled on the railway line. A train was approaching. The driver was said to have panicked; in any event, he left the vehicle and fled. The train struck the vehicle and Trevon's wife, his children and another relative were killed. The appellant, his family and Trevon escaped serious injury. 4 On a later occasion, the appellant and Trevon were travelling on a motor cycle when, according to the appellant, a vehicle deliberately forced them off the road. A few days later, on two different occasions, unknown people had sought out the appellant and Trevon. 5 At the time when these events occurred, Trevon was working for a man and, so the appellant claimed, Trevon had discovered that this man, together with some members of the Sri Lankan Government and police force, were involved in organised crime. Later, Trevon had allegedly discovered an audio cassette at his place of work and its contents had indicated that his employer was aware that Trevon had information about the involvement of certain persons in organised crime. The appellant said that Trevon had confided in him what he had learned about his employer and about organised crime in Sri Lanka. It was then, said the appellant, that he came to realise that the level crossing accident had not been an accident at all; he came to the conclusion that the incident at the level crossing was a premeditated attempt to kill him and Trevon. The appellant said that he and his family left Sri Lanka thereafter because of his belief that attempts were being made to trace him and Trevon. 6 The Tribunal initially recorded that both the appellant and Trevon were members of the United National Party ("the UNP"), the opposition political party in Sri Lanka, although at a later stage of its reasons the Tribunal noted that, at the Tribunal hearing, the appellant had told the Tribunal that he was only a UNP sympathiser - not a member of that organisation. The appellant told the Tribunal that he feared for his life if he were to return to Sri Lanka; he believed that Trevon's employer would target him because of what he knew. He said that the employer, who was a supporter of the Peoples' Alliance Party, knew him to be a UNP sympathiser. He also claimed that he feared persecution because he had information about the intended criminal activities of certain politicians and police officers. He felt that he would not be able to obtain the protection of the Sri Lankan authorities. In addition to those matters, the appellant tendered, at the hearing before the Tribunal, two letters from relatives in Sri Lanka, dated 21 December 1997 and 2 May 1998, saying that men were still looking for him and that they were inquiring when he would be returning to Sri Lanka. 7 The Tribunal did not accept the evidence of the appellant. It did not accept that he would have been sought out by persons who might wish him harm on the day following his return to Sri Lanka after an absence of six years. Although the Tribunal accepted that the accident at the railway level crossing had occurred, and that members of Trevon's family had been killed, the Tribunal considered that it had been an accident. Furthermore, it did not find convincing the appellant's evidence to the effect that he had important information about planned criminal activities in Sri Lanka. It described his evidence on that subject as "vague and unconvincing". The Tribunal was not prepared to accept that anyone was trying to kill either the appellant or Trevon and it did not accept that Trevon had found an audio cassette such as that to which earlier reference has been made. The Tribunal would not accept the appellant's evidence about being run off the road nor did it accept that unknown people had been inquiring about his whereabouts. It described his evidence of these subjects as "vague and general". 8 A factor that influenced the Tribunal in reaching its decision was that the appellant and his family, having obtained visas to enter Australia, did not depart Sri Lanka until 23 July 1996, some twelve days after obtaining them. The Tribunal noted that if the appellant truly feared for his life, he could have even returned to Oman for he held a current visa that would have permitted him and his family to return to that country. The Tribunal said: "Had they indeed been in fear for their lives, I consider that they would have left Sri Lanka as soon as they could, by any means they could." That passage was quoted, with apparent approval, by his Honour. 9 The Tribunal also rejected the appellant's claim that he and his family were at risk of harm by virtue of his support for the UNP or his relationship to Trevon. It said: "I find that there is not a real chance that the applicants would be harmed for reason of their political opinion, imputed political opinion or membership of their extended family if they were to return to Sri Lanka now or in the foreseeable future. I therefore find that the applicants do not have a well founded fear of persecution for this or any other reason if they were to return to Sri Lanka now or in the foreseeable future." 10 Although the appellant was not represented in the Court below, he had the assistance of pro bono counsel in the preparation of his application for an Order of Review and in the preparation of two other documents. One of those documents was entitled "Particulars of Grounds" whilst the other was described as "Contentions of Fact and Law". Those documents identified the appellant's two fundamental complaints as follows: · first, that his and his family's evidence had not been accepted by the Tribunal; and · secondly, that neither the Minister nor the Tribunal had investigated the Sri Lankan police report about the level crossing accident. 11 As to the first ground, his Honour correctly pointed out that his powers on review were limited to the matters contained in s 476 of the Act as then enacted prior to the 2001 amendments; he did not have jurisdiction to inquire into the merits of an application. The occasions when a review Court or an appellate Court can interfere with findings of fact are limited and interfering with questions of credit is even more difficult. One has to be able to find within the Tribunal's reasons an error of such dimensions as to invoke one of the grounds of review that were then contained in subs 476(1). His Honour was of the opinion that no such error was apparent from a consideration of the Tribunal's reasons. 12 His Honour dealt with the failure to make inquiries of the Sri Lankan police by addressing s 56 of the Act relating to the powers of the Minister and his delegate, and par 427(1)(d) relating to the Tribunal. He noted that there were decisions of this Court to the effect that neither s 56 nor par 427(1)(d) created a duty in any general way upon the Minister, his delegate or the Tribunal to make inquiries: each provision merely contained an enabling power. Thus he concluded that s 56 permitted the Minister to obtain any information that he or she considered relevant to an application for a visa. His Honour also concluded that par 427(1)(d) was in the same general terms; it permitted the Tribunal to require the Secretary "to arrange for the making of any investigation …". He was of the view that neither provision required the Minister or the Tribunal to conduct a particular line of inquiry: see Kabir & Ors v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 295 at 306; and Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426. Nevertheless, his Honour allowed for the possibility that there could be a case where it might be said that the circumstances were of such a nature as to oblige the Minister or the Tribunal to consider whether he or it ought to exercise such a power. However, his Honour said that he did not think that this case disclosed any material whereby it could be said that a duty to exercise any such power could be implied such as would found a ground of review under s 476. As his Honour was of the opinion that no ground had been established that would warrant him interfering with the Tribunal's decision, he concluded that the application for an order of review should be dismissed. 13 The appellant in his notice of appeal to this Court listed five grounds of appeal. Two of those - grounds two and three - have been abandoned. The first ground of appeal was based upon the submission that the Tribunal had failed to determine: · whether the appellant could be imputed with an adverse political opinion because of his knowledge that members of the Sri Lankan Government and senior police officers were involved in organised crime; and · whether the appellant was a member of a particular social group by virtue of his family connection with his brother-in-law, Trevon. It was said that the learned primary judge fell into error in deciding that the Tribunal had not so failed. 14 The next ground of appeal, the fourth listed in the notice of appeal, was that the Tribunal had taken into account irrelevant considerations and that his Honour was in error in not so finding. Those irrelevant considerations were said to be: · the fact that the appellant and his family did not leave Sri Lanka until twelve days after obtaining their Australian Visas; · the fact that the appellant had applied for a subclass 435 visa, a temporary protection visa for Sri Lankans, rather than a permanent protection visa; · the fact that the appellant had, twice previously, applied unsuccessfully for an Australian Visa; and · the fact that all of the appellant's close relatives were residing in Australia. We note in passing that the Tribunal had also relied on the fact that the appellant, if he was genuinely in fear for his life, could have returned to Oman, but the appellant did not list that fact as one of the alleged irrelevant considerations. 15 The last of the grounds of appeal was inartistically framed, but its effect was to allege that the respondent Minister should have inquired further into the level crossing accident. The complaint was addressed in different ways but it is sufficient, for the purposes of identifying it, to quote the first of the applicant's particulars: "1(a) The respondent has failed to obtain information relating to the "accident" as comprised in the report of the investigating police in Sri Lanka." 16 Counsel for the Minister alleged that the first two grounds of appeal - grounds one and four - sought to impugn the decision of the Tribunal on grounds that had not been argued before the learned primary judge. She submitted that new grounds would only be entertained on an appeal in exceptional circumstances. Rather than taking time to deal with that objection before proceeding to the appeal proper, the Court invited counsel to address all grounds of appeal as well as the question of whether the matters raised in grounds one and four were new grounds of appeal. The Court did so upon the premise that it would resolve the preliminary objection when giving its reasons for its decision on the appeal. 17 We turn first to consider whether grounds one and four were argued before the primary judge and, if they were not, whether leave should be granted to raise them as new grounds of appeal. Ms Germov, counsel for the appellant, argued that grounds one and four did not raise new matters: rather, she submitted, they were matters that had been placed before the Tribunal but not considered by the Tribunal in its reasons. That, in our opinion is no answer. The appellant could have raised the questions of imputed political opinion and membership of a social group in the Court below; he could have likewise raised the question of irrelevant considerations. He did not do so and by now seeking to agitate those matters in this Court, he is seeking to argue matters that were not argued before the primary judge. 18 The issue of raising new grounds of appeal has been discussed recently in two decisions of the Full Court of this Court. In H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348, Branson and Katz JJ said at [8]: "… The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration." In Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788, Heerey, Moore and Goldberg JJ said at [22-24]: "… We recognise that there is a particular sensitivity in refugee cases where an adverse decision may have very serious consequences for an applicant. Although it is in the interests of justice that decisions be made on the true merits of the case sought to be argued, the structure and integrity of the appellate process must also be taken into consideration. It is incumbent upon parties bringing applications to the Court to review decisions of tribunals such as the Refugee Review Tribunal to make it clear from the outset what are the substantive grounds of review relied upon … However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success. We also consider it appropriate to take into account whether the appellant had the benefit of legal representation at the hearing before the primary judge." In a third case, Gyles J, sitting as a member of a Full Court in Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 said at [61-62]: "… The submissions for the appellant make it perfectly clear that he did not seek to overturn the primary judgment because of any error in it. He simply wishes to make another, and fresh, attack upon the RRT's decision. … In my opinion, it is contrary to principle to permit this appeal to proceed on the basis that the judgment below is simply put to one side and ignored. A Full Court hears appeals from primary judges, it has no role in judicially reviewing decisions of the RRT de novo. There are, of course, situations in which points not argued below can be raised on appeal. This is not one of them. In my opinion, it is wrong to analyse the question which arises here as requiring a balancing of prejudice. Departure from the proper role of appeal in the court system is not simply a discretionary procedural decision. Furthermore, in public law matters like this, it can always be said that no actual prejudice apart from costs is suffered by the respondent compared with the prejudice to the appellant. It can easily be overlooked that there is a significant public interest in the timely and effective disposal of litigation. This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible. In the present case, there was no bona fide ground of appeal from the primary decision and the litigation should have ended at that point more than seven months ago." The relevance and importance of these remarks is not to be questioned. On the other hand, they are not to be taken as laying down inflexible rules. The High Court, in a joint judgment in Metwally v University of Wollongong (1985) 60 ALR 68 at 71 ("Metwally") said: "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so." The reference to "exceptional circumstances" indicates that there remains a discretion in the Court to entertain a new ground of appeal if it is expedient and in the interests of justice to do so: c.f. Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32 at 47 per RD Nicholson J. In this present appeal, it was felt appropriate, at the least, to invite counsel to argue the new grounds, for they were short, direct issues of which the respondent had had notice and they did not unduly prolong the hearing of the appeal. However, a consideration of the grounds not argued below makes it clear to us that they are without merit. We briefly state our reasons for arriving at this conclusion. 19 The insuperable difficulty that the appellant faced - a difficulty that he could not overcome in the court below - and one which he was unable to overcome in this Court, was that the Tribunal did not accept the evidence that he gave with respect to his claims that he and his family were entitled to refugee status. The Tribunal refused to accept the appellant's evidence about the level crossing accident, the motor bike incident, the audio cassette and the strangers who were inquiring about the appellant's whereabouts. As a consequence, the whole basis for giving consideration to his claimed political affiliations and his family connections, was removed. 20 Counsel for the appellant complained that the Tribunal had dismissed the contents of the letters from the appellant's family in Sri Lanka. The letter from his sister contained the following passage: "… things are still bad for you'll (sic) over here. Those guys want to know when you all are returning, they still want to harm you all …" The terms of his mother's letter were very similar. The Tribunal alone had the task of evaluating that evidence. It approached its task by listing the matters upon which the appellant had relied and by setting out its reasons for rejecting them. As to the subject of harassment, for example, the Tribunal said: "I found the applicant husband's claimed subsequent harassment unconvincing. The alleged incidents of being run off the road, and having unknown people call to find out where he was, were vague and general. I note that in his initial claims he said there was one visit, and at hearing that there was two. I note that at no time was any report made to the authorities about this matter." That finding was made together with findings that: · the evidence of the appellant about the events that occurred immediately before the level crossing accident was "unconvincing"; · that his evidence about the planned political killings was "vague and unconvincing"; · that the evidence about the audio cassette should be rejected; and · that the appellant's evidence that his brother-in-law had any information about the supposed criminal activities of his employer should also be rejected. It was in that context that the Tribunal found that it could not place any weight on the contents of the two letters. 21 Many of the authorities, upon which counsel for the appellant relied in arguing the first ground of appeal, were based upon a Tribunal accepting an appellant's evidence but then holding that the evidence was insufficient to identify a convention reason for granting refugee status: Ranwalage & Ors v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 173 was one such authority. The Tribunal's reasoning in that case is identified in the following passage at 176: "In the Tribunal's view if the applicant does have knowledge that others do not want revealed, then this is something personal to the applicant. It is not because of some expression of political opinion that the applicant is sought, but to prevent this knowledge reaching the public. It is not therefore related to the applicant's political opinion." It was held that the Tribunal had drawn an impermissible distinction between knowledge or imputed knowledge of a fact on the one hand and opinion on the other. As his Honour said at 177: "In a political context, an assertion of fact can be perceived by those in authority (or by others whom those in authority cannot control) as just as dangerous, perhaps more so, than an expression of opinion (in the strict sense) and thus warranting the persecution of those who state such facts." In Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 95 FCR 517, the appellant, a citizen of Colombia, after arriving in Australia, received financial demands and threats from criminals who were responsible for the death of her brother. The Tribunal accepted that evidence and also accepted her evidence that the authorities were either unable or unwilling to provide her with any meaningful protection. However, the Tribunal held that it was not satisfied that the harm that she and her family feared if they were returned to Colombia arose for a Convention reason. The Full Court concluded that the Tribunal had fallen into error; it said at [13]: "In its reasons for decision the Tribunal failed to recognise that one person may be motivated to persecute another for more than one reason. It appears to have acted on the basis that a finding that the criminals were motivated by self-interest to recover the money they believed was owing to them by the applicant's deceased brother was necessarily inconsistent with a finding that they were motivated by a purpose or desire to harm the Applicant by reason of her family membership or relationship to her brother as such." Unlike Ranwalage and Sarrazolo, the Tribunal in this case did not accept the evidence of the appellant that had been advanced as the basis of the appellant's claim for refugee status. That, as we have already noted, was the appellant's insuperable difficulty. 22 During the course of argument, Counsel for the appellant raised two additional matters. In the first place, she argued that the Tribunal had not made findings in relation to the claims that had been advanced by the appellant concerning the extent of corruption in official circles in Sri Lanka. That, so it was argued, was a central aspect of the appellant's claim and the Tribunal was obliged to address it. In support of that proposition counsel referred to and relied upon the decision of a Full Court of this Court in Paramananthan & Anor v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28. The flaw in that submission was, however, the fact that the Tribunal was not prepared to accept the appellant's evidence about the events that were so important to his claim. It did not accept his version of the accident at the railway crossing nor of the other events which, if they had occurred, might have pointed to persecution. It was not, therefore, necessary for the learned primary judge to examine the further material upon which counsel relied because its relevance (if indeed it could be treated as relevant) would have only arisen if the essential aspects of the appellant's evidence had been accepted. 23 The second additional matter related to the alleged responsibility of the primary judge when reviewing the decision of the Tribunal. Counsel for the appellant asserted that the learned primary judge erred: "… in not examining the Tribunal's decision beyond the grounds advanced by the appellant at the hearing at first instance …" Counsel submitted that there was some form of obligation on a primary judge to examine the Tribunal's decision in order to ascertain whether there might be reviewable grounds over and above those that had been advanced on behalf of the appellant. That is a somewhat novel submission as it is tantamount to calling upon the judge to assume the role of an advocate. In support of her argument, counsel relied on a passage from the judgment of Carr J in Kianfar v Minister for Immigration and Multicultural Affairs [2001] FCA 1754. That was a case where an unrepresented party was seeking review of a decision of the Refugee Review Tribunal which had denied him refugee status. His Honour said at [6]: "… I have scrutinised the papers and the Tribunal's reasons to see whether there was reviewable error." His Honour found such an error: one which had not been identified in the appellant's grounds of appeal. He regarded it as being of such importance that he remitted the matter back to the Tribunal for further consideration. The course of conduct that was followed by his Honour in Kianfar's case cannot be faulted; his Honour did what he was required to do. He carefully read the papers that were relevant to the application that was then before him and in the course of doing that, he noted that the Tribunal had failed to give consideration to a matter of material importance to the appellant's case. That is the limit of the judge's duty. Where a mistake clearly appears in the Tribunal's reasons, justice and fair play requires that it be addressed. It would be a travesty to think otherwise. There is not, however, any obligation on a judge to undertake the role of the advocate for an unrepresented litigant. 24 It is not necessary in this case to consider the relationship between the statutory ground of review in par 476(3)(d) of the Act and the case where the taking into account of an irrelevant matter constitutes an error of law. We accept for present purposes that if the Tribunal took account of an irrelevant fact, a ground of review would be available. We note that McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [2001] 180 ALR 1 at [22]: "What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law." Contrary to the submissions of counsel for the appellant, it was, in our opinion, highly relevant for the Tribunal to note that, if the appellant and his family were so fearful for their lives, they could have left for Oman immediately. It would appear that it was an unusually long delay to wait twelve days after obtaining their visa to fly to Australia. The remaining factors, whilst not relevant, are of such little importance as to be disregarded. The location of relatives in Australia, the appellant's previous attempts to visit Australia and his obtaining of a temporary visa would not have been inconsistent with a genuine claim for protection status. However, they are also factors that could be considered to be consistent with a person seeking to settle in Australia for reasons of personal choice. They could not be described as findings on "material facts": cf the remarks of Kirby J in Re Minister for Immigration and Multicultural Affairs: Ex parte "A" (2001) 185 ALR 489. Having regard to them did not vitiate the decision of the Tribunal. 25 The grounds of appeal, as contained in grounds one and four, were devoid of merit. They could not possibly agitate the "exceptional circumstances" that were referred to in Metwally. It is for these reasons that we have concluded that leave should not be granted to the appellant to argue grounds of appeal that had not been argued before the primary judge. 26 The remaining ground of appeal that therefore needs to be considered is the consequence (if any) of the Minister and the Tribunal failing to obtain details from the Sri Lankan police about the level crossing accident. The conduct that was under review by the learned primary judge was the conduct of the Tribunal - not the conduct of the Minister or his delegate. The failure to make that distinction is apparent from a reading of the "Contentions of Fact and Law" that were prepared by counsel on behalf of the appellant. However, putting that issue to one side, there is not, in our opinion, any substance in this ground of appeal. A Full Court of this Court in Minister for Immigration and Multicultural Affairs v Anthonypillai (above) has held that par 427(1)(d) "does not impose any duty on the Tribunal to make further inquiries ..." [86]. McHugh J in Re Minister for Immigration and Multicultural Affairs and Ors: Ex parte Cassin (2000) 175 ALR 209 at [12-14] also discussed par 427(1)(d). Although he allowed for the possibility that a failure by a Tribunal to make inquiries about the claims or the evidence of an applicant might sometimes be a breach of the rules of natural justice or render the decision unreasonable, he nevertheless said that the Tribunal had no general duty to make inquiries about an appellant's claim. In the circumstances of this case, the wholesale rejection by the Tribunal of the appellant's evidence meant that it was unnecessary for the Tribunal to make any further inquiries. As McHugh J pointed out, the powers that are conferred by par 427(1)(d) are discretionary, not mandatory. In our opinion, there was no obligation on the Tribunal to make inquiries of the Sri Lankan authorities about the level-crossing accident. 27 The appeal must be dismissed. The appellant is to pay the respondent's costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, O'Loughlin and Tamberlin.