MZWVH v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) from a judgment of the Federal Magistrates Court given on 7 October 2005 upon an application pursuant to s 39B of the Judiciary Act 1903 (Cth) for writs of prohibition and certiorari, and for a declaration, in relation to a decision of the Refugee Review Tribunal made on 29 October 2004 to affirm the decision of a delegate of the Minister not to grant the appellants protection visas under the Migration Act 1958 (Cth) ("the Act"). 2 The appellants are citizens of Sri Lanka. The first and second appellants are husband and wife who arrived in Australia on 13 November 2003. The third appellant is their son, who was born in Australia on 19 July 2004. The first and second appellants applied for protection visas on 24 December 2003 and the third appellant applied for such a visa on 16 September 2004. The criterion upon which the first appellant relied was that set out in s 36(2)(a) of the Act, namely, that he was a non-citizen in Australia to whom the Minister was satisfied that Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. There was no suggestion that that criterion applied directly to the second appellant or to the third appellant; rather, the second appellant relied upon the circumstance that she was a non-citizen in Australia who was the spouse of the first appellant, and the third appellant relied upon the circumstance that he was a non-citizen of Australia who was a dependant of the first appellant, in each case on the assumption that the first appellant would be successful in obtaining a protection visa. 3 In the circumstances, the case before the Tribunal turned substantially upon the entitlement of the first appellant to a protection visa under the criterion set out in s 36(2)(a) of the Act. In this regard, the critical finding of the Tribunal was that it was not satisfied that the first appellant had a well-founded fear of persecution within the meaning of Art 1A(2) of the Refugees Convention as defined in the Act, which in turn governs the operation of s 36(2)(a) of the Act. 4 It is not necessary for present purposes fully to rehearse the factual claims made by the first appellant to support his proposition that he had a well-founded fear of persecution. The particular circumstances which are relevant to his contention that the Magistrate erred in not ordering certiorari in relation to the decision of the Tribunal centred on an incident in Sri Lanka in August 2003 in which it was said that a motor van in which the first appellant and other members of his family were travelling was struck by gunfire, injuring the second appellant and killing their daughter. It seems that the gunfire was associated with a successful attempt to assassinate one Ranasinghe, an assassination which the Tribunal accepted was probably politically motivated. At the time he was shot, Ranasinghe seems to have been in, or at least in the immediate vicinity of, a trishaw in which he was, he had been, or he was to be, travelling. The first appellant's factual case before the Tribunal was that Ranasinghe had been travelling in the van with the first appellant and his family, had alighted therefrom and was in the act of boarding a trishaw, or had just done so, when he was shot by a person or persons travelling, or who had been travelling, in a second trishaw. The case was that the assailants intended to target not only Ranasinghe, but also the first appellant, and that the gunfire which struck the second appellant and her daughter was intended for the first appellant, or at least consciously aimed towards his van with the first appellant in mind. 5 The Tribunal did not accept the appellant's version of the facts at the time of the shooting. The shooting itself was a matter of public record, and was adverted to in the press. The Tribunal did not accept, however, that the first appellant or any member of his family was the target of the shooting. Indeed, it did not accept that Ranasinghe was ever in the van with the first appellant. There was an apparently contemporaneous press report before the Tribunal which described a scenario in which one trishaw was pursuing the other. The Tribunal held that the presence of the first appellant and his family at the scene of the shooting was incidental, and the fact that the second appellant and her daughter were struck by gunfire was a tragic coincidence. 6 In the result, the Tribunal affirmed the decision of the delegate not to grant protection visas to the appellants. 7 In their amended application in the Federal Magistrates Court dated 14 April 2005, the appellants relied upon the following grounds: - "(i) the tribunal failed to address or deal with a significant aspect of the applicant husband's claims that he feared harm as an eyewitness to the politically motivated killing of Ranasinghe because he knew the identity of the killer. (ii) having accepted the risk of future harm from non-state agents for reasons of political opinion, the tribunal misunderstood and/or misconstrued the test and/or applied the wrong standard in assessing whether in relation to any harm feared by the applicant, effective and adequate state protection was available and/or the state was able to provide such protection and/or whether the harm feared constituted persecution within the meaning of the convention." Additionally, in his judgment dated 7 October 2005, the Federal Magistrate noted that it had been argued on behalf of the appellants that the Tribunal had failed to identify a "Convention reason"; that is, the Tribunal had failed properly to consider the nexus between the Convention and the claim made by the appellants. 8 The essence of the first ground advanced by the appellants before the Federal Magistrates Court was that, quite apart from any question as to whether Ranasinghe was travelling in the first appellant's van, and from any question as to the first appellant's own political or like associations which might have provided a justification for any fear of persecution, the Tribunal ought to have examined specifically the question whether the mere fact that the first appellant had witnessed a politically motivated shooting had the real potential to expose him to the risk of harm. The learned Magistrate dealt with this point in pars [30] and [31] of his reasons. Having found that the Tribunal had thoroughly and carefully considered the first appellant's claim, he continued: "I do not accept that an error can be demonstrated by simply seeking to separate from the consideration of the facts a specific issue whereby it is claimed the [first appellant] witnessed the killing and then to use that as a basis to establish a convention-related reason upon which the [appellants'] can rely. To do so would be a somewhat artificial process in the context of significant and indeed quite specific claims by the [first appellant] in relation to his role, both as an escort and indeed otherwise in relation to his claimed role and activities of a political nature which essentially were rejected." His Honour continued to the effect that, having rejected certain evidence upon which the first appellant relied in an attempt to establish certain specific political connections, the Tribunal was not obliged independently to consider the mere fact that the first appellant had witnessed the shooting. 9 Mr Appudurai, who appeared with Mr Phillips for the appellants, submitted that these findings were wrong. He submitted that there was a real issue concerning the first appellant's recognition of the person who did the shooting, and that the Tribunal did not deal with this issue. Mr Appudurai added that the fact that Ranasinghe's assassination appeared to be a culmination of a number of other recent assassinations in which the State was directly or indirectly involved would have given the first appellant all the more reason to be in fear of harm because he knew the assassin's identity. 10 The present proceeding is not a first instance application to review the decision of the Tribunal. That task has been carried out by the Federal Magistrates Court. My task, in an appeal such as this, is to consider first whether the appellants have demonstrated that the learned Magistrate fell into error. His task, of course, was not to hear an appeal from the Tribunal, but only to consider whether the Tribunal either exceeded, or failed to exercise, its jurisdiction under the Act. 11 I am quite unpersuaded that the learned Magistrate fell into error, in relation to the appellants' first ground advanced before him. Mr Appudurai submitted that the Magistrate was wrong, and reiterated the proposition advanced on behalf of the first appellant in the Tribunal, but nothing he submitted gave me the slightest concern that the learned Magistrate had erred or that the Tribunal had exceeded, or failed to exercise, its jurisdiction. 12 I should add that, in response to an inquiry by the Court, Mr Appudurai informed me that the point in question - that the mere fact that the first appellant was a witness to the shooting provided a basis for a well founded fear etc - was not put to the Tribunal in those terms by the appellants. Undeterred by that circumstance, Mr Appudurai submitted that the procedure before the Tribunal was inquisitorial rather than adversarial, and that for the Tribunal to have failed to address a discrete argumentative point, even one which was not raised, constituted jurisdictional error. I cannot accept that proposition. 13 The other grounds upon which the Federal Magistrates Court decided the application before it were not the subject of the appellant's appeal to this Court. 14 The appellants also sought to argue, on this appeal, a number of points which were not argued before the Federal Magistrates Court. Given that this is an appeal by way of rehearing and not an appeal de novo, Mr Appudurai required the Court's leave to advance, and to rely on, these additional points. Needless to say, in no instance was it demonstrated that the learned Magistrate below fell into error, for the simple reason that the points were not ever taken before him. 15 It was submitted that I should, in considering whether to grant leave to argue these additional points, follow the judgment of the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158: "46 In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff(1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; andBranir 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." I accepted that submission, and considered the question of leave accordingly. I declined to grant leave to argue these additional points because each one of them was, in my assessment, without merit. I shall identify the points concerned, and set out my reason for that view in each case. 16 The first point concerned a fundamental issue before the Tribunal, namely, whether the first appellant's van was deliberately targeted by the gunman or gunmen who shot Ranasinghe or whether, as suggested in at least one contemporary press report, the round which struck the second appellant and her daughter was a "stray bullet". The first appellant gave evidence on this subject before the Tribunal and, as I have indicated above, the Tribunal decided the point against him. Mr Appudurai's point in this Court, however, was that the Tribunal had not asked any question of the second appellant specifically on this subject. To the extent that the point had a legally significant dimension, I take it to be that for the Tribunal not to have asked any such question was to fail to comply with the natural justice hearing rule in a particular respect. The subject with which the point is concerned, however, is within the matters dealt with by s 425 of the Act which, by s 422B thereof, must be taken as an exhaustive statement of the requirements of the hearing rule in relation to those matters. It follows that the Tribunal was not required to go further than s 425 and, of its own initiative, to address questions to the second appellant upon every aspect of every relevant fact. Although, given the terms of s 422B of the Act, the common law hearing rule does not arise for consideration, I should add that I do not consider that there was any departure from the requirements of that rule in the course adopted by the Tribunal, especially when the second appellant was herself a party to the proceeding and when she must be taken to have appreciated what is now submitted on her behalf, namely, that evidence of a particular kind might well have assisted her case. 17 The next point concerned a letter upon which the appellants relied before the Tribunal. That letter, which bore a date subsequent to the first and second appellants' arrival in Australia, was written by Berty Premalal Dissanayake, Chief Minister, North Central Province. In the letter, the writer states that the first and second appellants were long standing members of the Sri Lanka Freedom Party and had been supporting the writer in all his political activities for over 10 years. The writer says that, at the time of the shooting in August 2003, the first and second appellants were indeed escorting Ranasinghe in their van. The letter concludes by stating that the first appellant and members of his family were being threatened by unidentified parties not to come forward to give evidence regarding the matter of the shooting, "and as such their life is in danger". The greeting at the head of the letter is "To Whom It May Concern", and the letter concludes by requesting "any capable authority that they be given adequate protection, and shelter to save their lives, till this case is over". 18 At the conclusion of the first appellant's evidence before the Tribunal, the appellants were informed that the Tribunal might correspond with them to provide further information, or to seek further submissions. This was in fact done by letter from the Tribunal to the first appellant dated 14 September 2004. In that letter, the Tribunal said that it had information from the Department of Foreign Affairs and Trade which suggested that false endorsements of visa applications could be obtained in Sri Lanka from high level persons, including officials. The Tribunal continued: "This affects the weight that can be given to Chief Minister Dissanayake's statement that you were escorting Ranasinghe on the day of the shooting." The Tribunal provided the first appellant with the information from the department to which it referred. That information was as follows: "Document fraud is widely and well practised in Sri Lanka. The problem of falsification of immigration-related documents has been recognised by the Sri Lankan government: the amended Immigrants and Emigrants Act (1998) now provides for significant penalties upon conviction for document fraud, among other things. The legislation makes the 'aiding and abetting of persons in possession of falsified documentation' an offence. Nevertheless, this does not seem to have curtailed the practice of document fraud. It would not be difficult to obtain a fraudulent copy of any of the enumerated documents, in fact it is a known practice. A police criminal investigation department raid in Colombo last month uncovered fraudulent visas, passports, police reports and notices, court certificates and various stamps and seals. As one official put it, the issue is not whether it is happening but keeping up with it. The Supreme Court Registrar attests that a fraudulent copy of a court seal could be obtained 'in five minutes for a minimal price'. Conceivably also it would be possible to arrange for 'genuine' documents from such people for a price or some other consideration. For example, we have reported high level endorsement or sponsorship of irregular visa applications in the past. Corruption and malfeasance is present in Sri Lankan officialdom and the legal profession. 19 A written submission was made on behalf of the appellants in response to the Tribunal's letter of 14 September 2004. However, the appellants submitted before me that the process followed by the Tribunal was inadequate. Mr Appudurai said that the Tribunal ought to have questioned the first appellant about the information obtained from the Department of Foreign Affairs and Trade during the hearing. It was not sufficient, in his submission, for the Tribunal to have done this by way of correspondence. He referred me to the well-established jurisprudence under which an appellate court would generally respect the advantage which a trial Judge enjoys by reason of having seen and heard the witnesses in a case give their evidence directly. His complaint was that the Tribunal had, in effect, denied itself this advantage in relevant respects by dealing with this point in correspondence only. Mr Appudurai reinforced his submission by referring to earlier proceedings in which the Tribunal was constituted by the same member and in which the same communication from the Department of Foreign Affairs and Trade had been referred to. His point was that the member of the Tribunal concerned must be taken to have been well aware of that information at the time that the appellants were giving their evidence. 20 Once again, to the extent that this point had a legally significant dimension, it would come under the natural justice hearing rule and would, therefore, be covered by the codifying provisions of Div 4 of Pt 7 of the Act. In this instance, the matter is covered by s 424A of the Act under which the Tribunal's only obligation was to give the appellant, in the way that the Tribunal considered appropriate in the circumstances, particulars of the information in question. This the Tribunal did. Even if I were considering the common law of natural justice, I think it would be only in the most exceptional of cases that a court exercising a supervisory, as distinct from an appellate, jurisdiction would second guess, in effect, the means by which a primary Tribunal had chosen to provide the parties before it with a fair opportunity to comment upon adverse material. The present is a very long way from being such an exceptional case. The manner in which the Tribunal dealt with this aspect of the proceedings before it was, in my estimation, both fair and appropriate in the circumstances. Indeed, the written submissions subsequently filed on behalf of the appellants dealt with the point on its merits, and did not advance any complaint of the kind which Mr Appudurai now makes. 21 The next point involved an allegation that the Tribunal had given the Chief Minister's letter no weight because it had already made up its mind that the first appellant did not have a well-founded fear in the terms of the Convention. As I understand it, this point is essentially a grammatical one and is based upon the way the Tribunal expressed itself in the following passage of its decision: "The applicant was the victim of a terrible, unconscionable crime in which the lives of innocent bystanders were completely disregarded. It was also probably politically motivated. However, having considered all the evidence, the Tribunal does not accept the applicant or his family was the target of the shooting. The Tribunal does not accept that this event was the culmination of a campaign of political intimidation against the applicant. It finds that the applicants' presence at the scene was a tragic coincidence, as reported by the media. The Tribunal does not accept that the applicant was "escorting" Ranasinghe. The Tribunal gives no weight to the letter from Dissanayake, in light of the DFAT advice on the prevalence of false immigration endorsements. As put to the applicant in the hearing, the applicant is a businessman whose affairs are in Panadura. This was not readily consistent with his claim to have, in effect, been driving Ranasinghe to and from court at Dissanayake's direction, using a Council vehicle. The applicant did not provide a persuasive explanation for this." Mr Appudurai invited me to treat this paragraph as a literal, sequential, revelation of the process of thinking which led to the Tribunal's conclusion, such that, for example, the Tribunal first decided that the appellants' presence at the scene was a tragic coincidence and that the first appellant was not escorting Ranasinghe, and then turned to a consideration of whether it should give any weight to the Chief Minister's letter. The construction which Mr Appudurai would have me place upon the above passage from the Tribunal's decision is far- fetched. Manifestly, the Tribunal was here stating some of its factual conclusions, and then why it reached those conclusions, and specifically what part the Chief Minister's letter played in that respect. The submission that the passage set out above portrays a failure to exercise jurisdiction, or some other jurisdictional error, is manifestly unmeritorious.