MZXEN v Minister for Immigration & Citizenship

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 31 October 2006 dismissing an application to set aside a decision of the Refugee Review Tribunal ("the Tribunal") dated 28 September 2005 and handed down on 2 November 2005. In that decision the Tribunal affirmed the decision of the delegate of the Minister to refuse the appellants protection visas pursuant to the Migration Act 1958 (Cth) ("the Act"). 2 The appellants are citizens of Bangladesh. The first and second appellants are husband and wife who arrived in Australia on 31 October 2003 on student visas. The third appellant is their daughter, who was born in Australia on 14 November 2004. The first and second appellants applied for protection visas on 8 October 2004. The criterion upon which they relied was that set out in s 36(2)(a) of the Act, namely, that they were non-citizens in Australia in relation to whom the Minister was satisfied that Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. 3 The appellants' attempts to challenge the decision of the Tribunal followed a course in the Federal Magistrates Court which could only be described as unsatisfactory. They failed to comply with a direction that they file contentions of fact and law. When their application came before the Federal Magistrate on 17 July 2006, they sought an adjournment. The adjournment was refused, and it seems from the Magistrate's reasons for judgment that the appellants made no submission of any substance in support of their application. Notwithstanding that he had refused the adjournment, the Magistrate gave the appellants until 31 July 2006 to file a written submission. They did not do so. Neither in their application filed on 22 November 2005 nor in any other document filed in or, it seems, in any submission made to, the Federal Magistrates Court did the appellants provide the slightest inkling of any ground on which they sought the relief claimed in the application. 4 The appellants filed their Notice of Appeal in this court on 17 November 2006. In it, they specified three grounds of error said to have been made by the Federal Magistrate. I shall refer to them presently. The appeal was listed for hearing on 20 February 2007. On the application of the appellants based on the ill-health of the second appellant, I adjourned the hearing until 22 March 2007 (later changed to 23 March 2007), and I directed the appellants to file an outline of their submissions by 15 March 2007. They did so. When the first and second appellants appeared before me on 23 March 2007, they sought to hand up, and to rely upon, a 25-page written submission. This had not previously been served upon the respondent Minister. In the circumstances, I received no oral submissions from the parties on 23 March, but made directions for the Minister to file a written reply to the appellant's document, and for the appellants to rejoin to that reply if they chose. In the result, the appeal has been conducted wholly on the papers. 5 In the Tribunal, the first appellant claimed to have a well-founded fear of persecution at the hands of the Bangladesh National Party because of his political involvement with the Awami League, that false charges had been laid against him, and that he would be gaoled or given a death penalty were he to return to Bangladesh. The second appellant claimed that she would be harmed by her ex-husband if she were to return to Bangladesh. She claimed that she would be subjected to physical and sexual abuse and that her child (the third appellant) would be kidnapped should they return. The second appellant claimed that these things would happen because of her divorce from her ex-husband. The third appellant relied upon the circumstance that she was a non-citizen of Australia who was a dependant of the first appellant, on the assumption that the first appellant would be successful in obtaining a protection visa. 6 The Tribunal accepted that the first appellant was a member of the Awami League and had joined the Uttara Thama Unit, a section of the Awami League at the starting level of the party. The Tribunal also accepted that the first appellant had participated in many protests and processions and on one occasion was beaten by police, along with others in the crowd, but did not accept that he was shot at a different protest. The Tribunal did not accept that the first appellant was targeted by the police because of his particular political profile, and did not accept that his involvement in the Awami League had led to him being the subject of false charges, nor that he would be gaoled or given the death penalty if he returned to Bangladesh. Therefore, the Tribunal was satisfied that the first appellant did not face a real chance of persecution in his home country. The Tribunal accepted that shortly after the appellants' marriage, the first appellant received threatening telephone calls from the ex-husband of the second appellant demanding that he leave his wife. However, the Tribunal found it "far fetched the applicant wife's ex-husband would persistently threaten the applicant husband and demand he leave the applicant wife over a considerable period of time" and therefore did not accept that there was "a real chance the applicant husband would receive similar calls on his return to Bangladesh, now or in the reasonably foreseeable future, especially given the further lapse of time since the applicant wife and her ex-husband divorced and the years he had been married to the applicant wife." 7 In relation to the second appellant, the Tribunal accepted that she had experienced problems in her first marriage, and that she may have received threats from her ex-husband following her divorce in September 1995. However, the Tribunal expressed serious doubts as to the veracity of her claims, and did not accept that she had been harassed for many years by her ex-husband to the extent that she claimed; nor that she had been physically abused by her uncle as she also claimed. The Tribunal did not accept that the second appellant belonged to a particular social group of "divorced women in Bangladesh" as she had been married (ie to the first appellant) since September 1999. While the Tribunal did accept that the second appellant may have been subjected to inappropriate behaviour by various men, it believed that these advances were motivated not by the fact that she had been divorced, but rather due to the fact that she was a single woman. The Tribunal arrived at the conclusion that she would not be subjected to these types of advances, now or in the foreseeable future, given that she was now a married woman with a child. It also found that should she continue to maintain a subjective fear of such persecution in Dhaka it would be reasonable for her and her family to relocate to another part of Bangladesh. 8 In the result, the Tribunal affirmed the decision of the delegate of the Minister not to grant protection visas to the appellants. 9 In their Notice of Appeal in this court dated 17 November 2006, the appellants rely upon the following grounds: 2. Federal Magistrate McInnis FM erred in his decision of 31 October 2006, in that he failed to conclude that the RRT erred in their decision that my wife did not belong to a Special Group. 3. Federal Magistrate McInnis FM erred in is decision of 31 October 2006, in that he did not conclude that the RRT committed judicial error in that it failed to take into consideration the fact that my wife suffered persecution for convention reason. 4. Federal Magistrate McInnis FM erred in his decision of 31 October 2006, in that he failed to conclude that the RRT committed judicial error in its failure to take into consideration the fact that I suffered persecution for convention reason. 10 Since the appellants advanced no arguments at all before the Federal Magistrate, their grounds of appeal necessary involve - indeed, they consist of - points which were not taken below. In the circumstances, they require the leave of the court to rely upon their grounds of appeal. The principles by reference to which such leave should be granted or refused were stated by Madgwick J, with the assent of Conti J, in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 CLR 51. His Honour identified (at 85) eight questions which should be asked in this respect, the first of which was: "Do the new legal arguments have a reasonable prospect of success?" He derived this question from what the Full Court had said in Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 (at [24]): 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. I do not think that Madgwick J contemplated that the appellate court would embark upon a detailed consideration of the merits of a new point sought to be argued for the purpose of deciding whether the point had a reasonable prospect of success. That would, as the Full Court noted in Iyer, make the requirement for leave meaningless. How the court should approach the matter of "a reasonable prospect" in a practical sense may be seen in the way Madgwick J approached the question in NAJT itself. His Honour said (147 FCR at 85, [167]): As to 1), the prospects of success, it is enough, at the leave stage, to say that counsel for the appellant has been able to mount at least a respectable argument in relation to all of the grounds proposed (including the additional matter raised in submissions) and in relation to some grounds, on any view, an apparently strong argument. The appellant surmounts that hurdle. 11 I shall consider the second appellant's grounds of appeal first. In relation to ground 2, I take it that the reference to a "Special Group" should be taken to refer to a "social group" as mentioned in the convention. The ground alleges that the Federal Magistrate failed to conclude that the Tribunal erred in its decision that the second appellant did not belong to such a group. It was, however, no part of the Magistrate's function to consider whether the Tribunal made such an error. Whether the second appellant belonged to a social group was a question within the jurisdiction of the Tribunal and to be determined by it without appeal to any court. In presently relevant respects, the second appellant's cause of action lay in mandamus, and could be made good only by demonstration of an actual or constructive failure to exercise jurisdiction, eg by the Tribunal having asked itself the wrong question. No such failure is alleged in the ground of appeal. I conclude, therefore that the ground does not have a reasonable prospect of success in this court. 12 I should add, lest it be thought that my disposition of this point in the way I have in the previous paragraph involves too fine a distinction to be made in the case of an unrepresented litigant, that it is clear that the Tribunal did consider the question whether the second appellant was a member of a social group. It held that she was not a member of a group consisting of "divorced women in Bangladesh" for the very reason that she was (and had been at the time of arriving in Australia) married to the first appellant. In written submissions to this court, the second appellant sought to accuse the Tribunal of not appreciating that the group in question ought not to have been so defined but, rather, consisted of women in Bangladesh who had initiated their divorces. From the Tribunal's recitation of the presentation of the second appellant's case before it, this formulation of the group on which her case is now said to be based was not articulated either at all or with the emphasis which it has recently received. However that may be, it is manifest from a fair reading of the Tribunal's decision as a whole that it took the view that the fears which the second appellant expressed were unrelated to the fact that she belonged - if she did belong - to a "group", but arose instead from the personal antipathy of her ex-husband towards her individually. 13 Turning to ground 3, to the extent that the second appellant thereby seeks to challenge the facts found by the Tribunal, the ground would not have been justiciable in the Federal Magistrates Court. To give the ground at least some relevance to the prerogative remedies which the second appellant sought, I shall read it as though the words "take into consideration the fact that my wife suffered persecution for a convention reason" are to be taken to mean "consider whether my wife suffered persecution for a convention reason". As so clarified, the ground is manifestly hopeless: the Tribunal's primary factual concern, as expressed in its written decision, was this very question. I conclude, therefore, that this ground too does not have a reasonable prospect of success in this court. 14 Ground 4 relates to the first appellant, but is otherwise identical to ground 3. I would re-cast it, so as to make it relevant to a proceeding of the kind that he instituted in the Federal Magistrates Court, in the same way that I did in relation to ground 3. There is no substance in the ground. As with the second appellant, the Tribunal was extensively concerned with the question which the first appellant contends it failed to consider. I conclude, therefore, that ground 4 does not have a reasonable prospect of success in this court. 15 The appellants filed lengthy written submissions in this court. I need say only three things about them. First, they demonstrate a degree of argumentative sophistication, and an understanding of the relevant jurisprudence, which belies any suggestion (which, I should add, was not made) of naivety on the part of the appellants. Secondly, they give no more than the most cursory acknowledgment to the requirement that the Federal Magistrate should be shown to have been in error: otherwise, they proceed according to a silent assumption that the proceedings before the Magistrate never existed. Thirdly, they are replete with statements of fact by reference to which this court should, apparently, decide the present appeals, without those statements being sourced in anything found by the Tribunal: indeed, in most cases, quite the contrary. In the circumstances, I have been little assisted by those submissions. 16 The second question on Madgwick J's list in NAJT is whether there is an acceptable explanation as to why the points now sought to be raised on appeal were not raised below. The appellants made no submission on this subject. The Federal Magistrate himself considered why the appellants had not filed their contentions before they appeared before him on 17 July 2006, and was clearly of the view that there was no proper basis for the grant of an adjournment. He gave the appellants until 31 July to file written submissions. It is apparent from his reasons for judgment of 31 October 2006 that the appellants neither filed such submissions nor provided any explanation for why they had not done so. The matter was taken no further in their submissions in this court. In the circumstances, I am not satisfied that there is an acceptable explanation as to why the points now sought to be raised on appeal were not raised below. 17 The third question on Madgwick J's list is how much dislocation to the court and to the efficient use of judicial sitting time would really be involved if the new points were to be considered on their merits. Because the appeals were - and would be - decided on the papers, the matter of "sitting time" does not really arise. Further, because of the way I think it most probable that the appellant's grounds would be decided (as dealt with under the first question) any hearing of the appeals, whether or not on the papers, would have been rather short. However, if the court had been required to work through the detail of the appellant's written submissions, I am inclined to think that a great time of Judge-time would have been involved. 18 The fourth question on the list - what is at stake for the appellants - must clearly be answered in their favour. There is much at stake. Should they lose their appeals, the realistic prospect is that they will no longer be able to reside in Australia. 19 The fifth question on the list - will the resolution of the issues have any importance beyond the case at hand - should be answered in the negative. Whether as expressed in their grounds of appeal, or as expressed in their written submissions filed in this court, the case which the appellants desire to run is concerned with their own circumstances alone. 20 The sixth question on the list - is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent - should also be answered in the negative. The respondent Minister did not advance the existence of any such prejudice as a reason for the exercise of my discretion against allowing the appellants to raise these new points on appeal. That being the case, the seventh and eighth questions do not arise. 21 For the above reasons, but substantially because of the view which I take as to the prospect of the appellants' grounds succeeding on appeal and as to the absence of an acceptable explanation as to why those grounds were not advanced before the Federal Magistrate, I refuse the appellants' leave to rely upon those grounds in their appeals. Since those are the only grounds advanced in support of the appeals, it follows that the appeals must be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.