MZPAL v Minister for Immigration & Multicultural & Indigenous Affairs

(1) obtained a passport and other relevant documents without being "intercepted" by the politician;

(2) failed to seek refugee protection "in a timely fashion";

(3) had done no more than "offer his premises to host meetings and provide food for those who attended the meetings";

(4) had no involvement in politics in Sri Lanka for 12 years; and (5) had some influential connections of his own. The Tribunal concluded that, in the circumstances, it was not satisfied that the appellant faced any real fear of persecution for the reason he gave. It said: "He is not at real risk of being attacked by [the politician] or his thugs and nor does he face a real chance of persecution for any other Convention reason." 5 In her reasons for judgment (MZPAL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 229) dismissing the application for review, the learned Chief Federal Magistrate held: (1) that the Tribunal understood and considered that applicant's claim that that "it was [the politician's] political vendetta which was the source of the persecution being alleged and the continuing influence of [the politician] in the political arena;"

(2) that the appellant's claim relating to his restaurant business and the threats by the politician to ruin his business and livelihood was not articulated as a ground before the Tribunal; and

(3) that the Tribunal was entitled to take account of "the evidence given to the first tribunal". 6 There were three grounds stated in a notice of appeal from her Honour's judgment but the appellant abandoned these grounds on the hearing of the appeal. At the hearing of the appeal, the appellant sought leave to amend his notice of appeal in order to assert jurisdictional error on the Tribunal's part because: "The Tribunal failed to deal with an element or integer of the Appellant's claims that he had a well-founded fear at the time of the decision of ongoing adverse interest from a Sri Lankan politician who is now a Special Minister of State in the government and is in a quantitatively different situation to harm the Appellant than was the case before." The appellant conceded that this ground was not argued before the Chief Federal Magistrate. 7 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: see Water Board v Moustakas (1988) 180 CLR 491 at 497; and O'Brien v Komesaroff (1982) 150 CLR 310 at 319. A number of matters may fall for consideration in this regard. First, in H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 at [8], Branson and Katz JJ commented that an appellate court such as this was likely to scrutinise a claim that it was expedient in the interests of justice for the court to consider a fresh point with more care than in the past. Their Honours explained at [8]: "The interests of justice 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."

8 It may be borne in mind that, in Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]-[23], Heerey, Moore and Goldberg JJ recognised not only the particular sensitivity of refugee cases where an adverse decision may have very serious consequences for an appellant, but also that the parties had a responsibility to put matters to the court at first instance to maintain the structure and integrity of the appellate process. 9 Second, in the Federal Magistrates Court, the appellant had the benefit of legal representation. The appellant acknowledged in his outline of submissions that the proposed ground could have been taken before the Chief Federal Magistrate, although the Minister conceded in written submissions that, given the nature of the proceeding, it was difficult for her to show actual prejudice. 10 Although there is much force in the comments of Branson and Katz JJ in H and of Heerey, Moore and Goldberg JJ in Iyer, we determined to refuse the leave sought by the appellant because, if leave were given, the proposed ground had no reasonable prospect of success. The grant of leave would have been fruitless. 11 In written submissions, the appellant stated that his proposed new ground was, in substance, that the Tribunal failed to consider the claim of a fear of harm of a "specific nature" and from a "specific source"; and that therefore the "nub" of his fears was not addressed. The appellant said that "[t]hose fears are of ongoing adverse interest from a politician who is in a qualitatively different situation" now than in 1996 when the appellant left Sri Lanka because in 1996 the politician was in a non-governing party and now he is a Minister in the Government. The appellant also makes reference to the fact that the politician's supporters visited his wife in January 2003, asking for the appellant's whereabouts. 12 The appellant apparently raised the politician's change of status and the visit to his wife in written submissions before the Tribunal. The Tribunal specifically said: "[The appellant] explained that he was harassed by a UNP politician … because he supported the local SLFP candidate … . … He stated that he was detained in December 1991 by unknown men and kept at an unspecified location until March 1992, and expressed the view that he had been detained at the behest of [the politician]. … On the day prior to the hearing, the Applicant provided a further submission, stating that [the politician] is again a Minister with the recently re-elected UNP government and is still angry with the Applicant and others who opposed him. He claimed that many of his friends who had worked against [the politician] "were punished and persecuted by the henchmen of [the politician] after they returned to Sri Lanka recently". He said his wife informed him in January 2003 that [the politician's] supporters were still asking for his whereabouts and when he would be returning to Sri Lanka. Along with those submissions, the Applicant provided letters from four people. … [The appellant] explained the [the politician] lost his parliamentary seat in the 1994 general elections and has recently been appointed as a special Minister by the newly-elected UNP Prime Minister. He says that [the politician] is a wealthy and influential person in the Applicant's area and will continue to persecute him because he contributed to his earlier political demise. … He claims that [the politician] is still harassing his wife and asking after him, and he says that he cannot go to any other place in Sri Lanka because it is a small place and he will be tracked down by [the politician's] thugs." 13 These extracts from the Tribunal's reasons show that the Tribunal was well aware of the appellant's claim that the politician responsible for his persecution in the past was even better placed than before to harm the appellant because he was now a government Minister; and that the politician continued to maintain an adverse interest in the appellant. If these reasons are fairly read, we cannot say these claims were not taken into account. 14 In any event, these claims were bound up in the appellant's case that: (1) he feared that he would be killed or harmed by the politician and his supporters if he returned to Sri Lanka;

(2) the reason for this fear was the enmity the politician bore him together with the fact that the politician was wealthy and influential in the appellant's local area and therefore in Sri Lanka;

(3) before leaving Sri Lanka, he had suffered harm from the politician and had gone into hiding to avoid further harm; and

15 The Tribunal considered the appellant's case on the basis that the politician was in a position to harm the appellant, whether or not the politician was in government, assuming that, as the appellant put it, the politician was a wealthy and influential man. The appellant's case failed largely because the Tribunal did not accept that the appellant had been in hiding after 1992. It found instead that, after this date, the appellant had a prosperous business and that, apart from being briefly detained for unknown reasons in 1993, no other harm had befallen the appellant and his family after 1992. In stating that for these, and the other reasons mentioned at [4] above, it was not satisfied that the appellant faced a real chance of persecution "of being attacked by [the politician] and his thugs", the Tribunal necessarily took account of an assumed capacity on the politician's part to harm the applicant, whether or not a member of the government. Further, as already stated, bearing in mind the Tribunal's repeated references in its reasons to the politician's new ministerial status, the reasons also show, when fairly read, that the Tribunal's state of non-satisfaction took account of this change in circumstance. 16 For these reasons, yesterday we ordered that leave to amend the Notice of Appeal be refused and that the appeal be dismissed the appeal with costs. In conformity with SAAP v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2004) 215 ALR 162, we ordered that the Tribunal be joined as a respondent to the appeal. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: Victoria Legal Aid

Date of Hearing: 3 August 2004

Date of Order: 3 August 2004

Publication of Reasons for Judgment: 4 August 2004