SZKMS v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal against an order of a Federal Magistrate made on 1 August 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) given on 5 March 2007 and handed down on 20 March 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (as the Minister was then known) to refuse to grant Protection (Class XA) visas to the appellants. 2 The appellants, who are husband (SZKMS) and wife (SZKMT), are citizens of Sri Lanka who arrived in Australia on 10 September 2006. On 17 October 2006 the appellants lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (as it was then known). A delegate of the first respondent refused the application for protection visas on 27 November 2006. On 1 December 2006 the appellants applied to the Tribunal for a review of that decision. 3 Both appellants made claims under the Refugees Convention. The appellant husband claimed a well-founded fear of persecution because of his political opinions. He claimed that as a member of the National Youth Front, being the student wing of the United National Party (UNP), he had worked for a Cabinet Minister, the Prime Minister, and a local politician. He claimed that throughout this period he received threats to stop working for the UNP, including being beaten and having a gun put in his mouth. 4 On the night of local elections the appellant husband claimed that while he was at the politician's house, political opponents entered the appellant husband's home whilst his then fiancée (SZKMT), mother and aunt were at home. They destroyed some items, asked where the appellant husband was and, when the appellant wife who was then his fiancée refused to answer, they mistreated her and threatened to kill her. The appellant husband claimed that shortly thereafter he made a complaint to the police and he and his then fiancée moved to his sister's house in Kandy. He claimed to have been beaten and have his life threatened by supporters of the People's Liberation Front (Janatha Vimukthi Peramuna (JVP)) when standing at a bus stop with his fiancée in Kandy. When he returned to Columbo he was dragged into a car, had a gun pointed at him and warned that if he continued in politics he would "definitely" be killed. The appellant husband claimed that as a result of his fear he became sick and he and the appellant wife moved to her aunt's house in Ganemulla before leaving for Australia. He feared that if he returned to Sri Lanka he would be killed by his "political enemies". 5 The appellant wife also claimed she had a well-founded fear of persecution. She said that at the end of January 2006 she moved into live with the appellant husband at his house in Attidiya, Columbo. In mid-February she was taken by her husband to the mayor's house for a dinner where her husband and the mayor discussed the upcoming local elections to be held on 30 March 2006. 6 She said that in mid-March one morning she saw a lot of people gathered around their house. When she went outside people started to laugh at her. She said she was embarrassed to see her name and humiliating things about her character were spray painted on the walls. She said that the words meant that her husband had used her to get votes for the party by "sending me with the politicians". 7 She said, "I cannot explain how embarrassing and humiliating it was, I walked out there." She said that the next day people pointed at her and were talking about her. She said that during the home invasion referred to in the appellant husband's claims, she was asked where the appellant husband was and was threatened that if she told the police about the attack they would rape and kill her. Further, she witnessed the beating of her husband at a bus stop in Kandy and, as a result, she was constantly fearful. The appellant wife claimed that after the husband told her he had been kidnapped and his life threatened, she took him to her aunt's place. She realised both their lives were in danger so they decided to move to Australia. She fears that they will both be killed should they return to Sri Lanka. 8 The Tribunal accepted that the appellants were citizens of Sri Lanka. The Tribunal accepted that the appellant husband was a member of the National Youth Front of the UNP. The Tribunal gave no weight to that involvement because of the appellant husband's evidence that not all UNP supporters face harm in Sri Lanka and because the appellant husband consistently claimed that the harm he faced, and still faces, was specifically based on his work undertaken directly on behalf of UNP politicians rather than merely his affiliation with the UNP. The Tribunal also gave no weight to independent country evidence provided by the appellant in relation to harm caused to members of the National Youth Front. 9 The Tribunal found that the appellants were not credible witnesses because the appellants could not provide any evidence to support their claims. The Tribunal found the appellants' reasons for the lack of such information "unimpressive and evasive", and concluded that the appellants' claims of persecution were fabricated. The Tribunal also found that the claims in relation to the home invasion lacked credibility. The Tribunal concluded by finding that, on the evidence, the appellant husband had no ongoing interest in politics in Sri Lanka and that neither appellant had any significant relationship with the UNP. 10 On 12 April 2007 the appellants applied to the Federal Magistrates Court for a review of the Tribunal's decision. The appellants claimed that the Tribunal committed jurisdictional error because it misunderstood the test of well-founded fear of persecution; breached s 424A of the Migration Act 1958 (Cth) (the Act) by not informing the appellants that they failed to provide documentary evidence in support of their claims; and based its decision on hypothetical questions and situations, particularly in relation to the alleged home invasion. In written submissions, the appellants also claimed that the Tribunal failed to consider the claim that the wife appellant was threatened with rape and murder. 11 Her Honour described ground 1 as "a disagreement with the finding of the Tribunal that the Applicant husband has 'any genuine, ongoing interest in politics in Sri Lanka.'" Her Honour found that the Tribunal was not satisfied that the appellants held a well-founded fear of persecution because of their failure to provide evidence and the Tribunal's finding that they lacked credibility, which were findings open to the Tribunal on the evidence and the material before it. Her Honour also noted that the Tribunal informed the appellants of its concern regarding the lack of evidence and had adjourned the hearing to allow for the presentation of further evidence. 12 In relation to the second ground, her Honour noted that the Tribunal informed the appellant on several occasions that it required further evidence from the appellants to support their claims. Her Honour said there was no obligation on the Tribunal to require particular documentary evidence from the appellants. Her Honour found there was no obligation to raise the issue of a lack of evidence in the Tribunal's letter sent pursuant to s 424A as it was part of the Tribunal's thought processes and not "information": SZBYR v Minister for Immigration and Citizenship [2007] HCA 26. 13 The Federal Magistrate held that the Tribunal conducted a fair hearing under the Act and based its findings on the evidence before it. Her Honour found that the "hypothetical questions" referred to by the appellants merely represented the Tribunal's thought processes. 14 Lastly, the Federal Magistrate held that the appellants' claims that the appellant wife was threatened had been properly considered by the Tribunal. However, it was not satisfied that the home invasion was linked to the appellant husband's political involvement. Therefore, her Honour noted that the Tribunal could not find the appellant wife had a well- founded fear of persecution relating to a Convention reason arising from those threats. 15 On 21 August 2007 the appellant filed a notice of appeal to this Court. Three grounds were raised. First, that the Federal Magistrate erred in not finding the Tribunal came to the wrong conclusion on the evidence. Secondly, that the Federal Magistrate erred in law "by reading into the s 424 (sic) letter her own version." Thirdly, that the Federal Magistrate erred in not finding the Tribunal based its decision on hypothetical issues. 16 On 25 January 2008 the appellants filed a further amended notice of appeal in which the appellants abandoned their original grounds of appeal. The grounds raised in the further amended notice of appeal are: 1. The Tribunal failed to make findings on material questions of fact in accordance with the Tribunal's obligations under s 430(c) of the Act. The material questions of fact said to be overlooked are particularised. 2. The Tribunal failed to consider critical integers of the applicant's claim. 3. The Tribunal breached s 425 of the Act in that its invitation to appear before the Tribunal was, in the circumstances of the case, "a hollow shell or empty gesture". 4. The Tribunal erred in finding that the appellants' claims were "fabricated" without first addressing all the appellants' claims. 17 At the hearing the appellants sought leave to amend the notice of appeal in accordance with the further amended notice of appeal. They also sought leave to adduce further evidence on the appeal, namely, the transcript of the hearing before the Tribunal on 18 January and 14 February 2007. 18 The first respondent opposed the application to amend the notice of appeal on the ground that the proposed amendments raised grounds of appeal which were not grounds relied on by the appellants in their application for review before her Honour. The proposed grounds of appeal do raise issues which were not relied on for the relief sought in the Federal Magistrates Court. Moreover, the further amended notice of appeal abandons all of the grounds which were relied upon by the appellants before the Federal Magistrate. The result would be, if leave were given to allow the further amended notice of appeal to stand as the grounds of appeal, that this Court would be called upon to consider for the first time an application for judicial review of the Tribunal's decision based upon these new grounds. It would mean that the Appeal Court would be determining issues of fact and considering arguments for itself without the benefit of the opinion of the Court from which the appeal is brought. Such a course is self-evidently unsatisfactory. No explanation has been given for the failure to raise these grounds before the Federal Magistrate, save that the appellants were unrepresented before her Honour. It was also put that the first respondent would suffer no prejudice. 19 It may be accepted that a person who is unrepresented on an application for judicial review is at a disadvantage. Such persons find it difficult to understand the limits of the inquiry on an application for judicial review. Moreover, they often find it difficult to articulate the grounds which might give rise to a successful application. The concept of jurisdictional error is not easy for unrepresented parties to understand. 20 However, that being said, being unrepresented on the application cannot, by itself, be enough to permit the unrepresented party to raise grounds which were not raised in the Federal Magistrates Court. Nor is the fact that the Minister will not suffer any prejudice enough. 21 Parliament has given the Federal Magistrates Court jurisdiction in relation to applications of this kind to the exclusion of this Court: s 476A of the Act. All of the issues which are sought to be ventilated should be addressed at the trial in that Court. Parliament has provided for a right of appeal to this Court and in matters of this kind the appellate jurisdiction of this Court may be exercised by a single Judge: s 25(1AA) of the Federal Court of Australia Act 1976 (Cth). Indeed, that is the case on this appeal. 22 The High Court has made it plain that, ordinarily, a party is confined in its grounds of appeal to matters which have been raised in the Court below. The High Court said in Metwally v University of Wollongong (1985) 60 ALR 68 at 71: 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 has 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. 23 In Coulton v Holcombe (1986) 162 CLR 1, the majority said 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 instances to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. 24 The appellate process is to correct error. If a party is entitled to raise issues for the first time on appeal, the appeal court will become de facto the primary court. That is undesirable. It is particularly undesirable where the appellate jurisdiction of the Court is being exercised by a single judge and any right of appeal from that single judge is to the High Court. If a party is entitled to raise an issue for the first time on appeal in this Court, the High Court will be burdened by applications for leave to appeal from judges sitting alone who have not had their decision reviewed. That must be particularly undesirable from the High Court's point of view. 25 Moreover, to allow new grounds of appeal is to defeat the purpose of the legislation which requires that judicial review of a decision of the Refugee Review Tribunal to be within solely the jurisdiction of the Federal Magistrates Court. If new grounds are advanced on appeal, it effectively means that the jurisdiction is being exercised by this Court. 26 Of course, appeals of this kind are particularly sensitive: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788. It is particularly important to the party seeking refugee status that that party's claim be considered by the Tribunal in accordance with law. That said, however, it seems to me that it is necessary to protect the integrity of the appellate jurisdiction that parties be bound by the way in which they conducted their application for judicial review before the Federal Magistrates Court: H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43. 27 However, the Full Court of this Court has recognised that a residual discretion resides in this Court to allow a party to advance a ground of appeal not advanced before the Court from which the appeal is brought where it is in the interests of justice to do so: Iyer [2000] FCA 1788. In Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543, the Full Court adopted the test propounded by the High Court in appeals to that Court in Metwally v University of Wollongong 60 ALR 68 at 71 that a party is bound by the conduct of the party's case in the Court below except in "the most exceptional circumstances". 28 In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, the Court said that leave to argue a ground of appeal not raised before the trial judge should only be granted "if it is expedient in the interests of justice to do so." After referring to the dicta in Coulton v Holcombe 162 CLR 1, the Court said that the Court may grant leave if the point which has not been raised in the Court below has merit and there is no real prejudice to the respondent in permitting the point to be ventilated. 29 Rarely will the Minister in an appeal to this Court from a migration judgment of the Federal Magistrates Court be able to point to any prejudice of the conventional kind. That cannot be a reason to allow a party to raise issues not raised in the Court below. In Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71, Gyles J said at 86: In my opinion, it is wrong to analyse a 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 7 months ago. 30 The Minister has a legitimate interest in the timely disposal of applications for protection visas. There are other public interests, however, to which regard should be had. There are good reasons why this Court should not be made de facto the Court of original jurisdiction when sitting on appeal. Otherwise its role as an intermediate Court of Appeal will be undermined. The High Court should not be burdened by applications for leave to appeal from decisions of this Court which have not been reviewed. 31 The respondent conceded that I needed to consider whether any of the grounds had any merit before determining whether or not I should allow the application to amend. The concession was rightly made having regard to the decisions of this Court and, in particular, VUAX [2004] FCAFC 158. Adopting that procedure, however, means that in every case where there is an application to raise a ground not previously raised in the Court below, the party seeking to have the ground agitated will by reason of the application itself require the Court to consider the ground. It is a curious result when the Court would otherwise discourage such applications but a result which arises because the Court's overriding duty is to do justice. The reason for the power to allow a party to raise a ground on appeal for the first time is to do justice. 32 The appellants contended in their written submissions that the thrust of grounds 1, 2 and 4 is that there was a failure by the Tribunal to consider all integers of the appellants' claims as contained in their written statements and their evidence at the Tribunal. 33 Ground 1 identified what was said to be material questions of fact about which there were said to be a statutory obligation to make findings. But the written submissions did not identify the integers of the appellants' claims which were not considered by the Tribunal. 34 I attempted to elicit from the appellants' counsel what claim it was that the Tribunal had failed to address but I was unable to obtain a direct answer as to the particular claim which the appellants made which was not addressed. 35 The appellants' counsel sometimes contended that the appellant wife's claim of fear of persecution arose out of her political opinion and sometimes contended that her persecution arose out of her membership of a social group, being women who go with politicians for the purposes of securing votes. At different stages he withdrew both contentions but, at other stages, renewed them. 36 In the end result, in my opinion, neither claim was before the Tribunal. The only claims on a reading of the appellants' documentary evidence and oral evidence was a claim that she feared persecution by reason of an imputed political opinion, being that of her husband's and a claim that she was a member of a particular social group, namely, the appellant husband's family. 37 The appellants' counsel sought to support his submission that the appellant wife had other claims which had not been considered by referring to the transcript of the hearing of the Tribunal on 18 January 2007 and 14 February 2007. 38 That necessitated a further application by the appellants to adduce further evidence on the appeal. The Court has power to receive further evidence on appeal: s 27 of the Federal Court of Australia Act 1976. The transcript was not relevant in the grounds relied on in the application made to the Federal Magistrate. It would only be relevant if, of course, leave were given to the appellants to amend their grounds of appeal in accordance with the further amended notice of appeal and further leave be given to allow the appellants to raise issues not raised in the Federal Magistrates Court. The first respondent opposed the tender of the transcript on the ground that it would not be relevant if I were to rule that the notice of appeal should not be allowed to be amended. The appellants' application therefore to adduce further evidence depends upon the appellants succeeding on their application to amend the notice of appeal. 39 I will have regard to the transcript to determine whether there is evidence to support the submission that the appellant wife's claims were not considered. 40 The Tribunal conducted a hearing on 18 January 2007 at which both appellants gave evidence. During the appellant wife's evidence she said that she did not know much about politics in the context of her being present at the dinner with the mayor prior to the 30 March 2006 election. She was unable to say who had won that election on 30 March 2006. She was asked about the episode in mid-March 2006 when she had said that humiliating things were spray painted on the walls of their house. 41 It was contended that her answers to these questions suggested that she might have been acquiescing in the proposition that she was a person who went with politicians. It was contended that that was evidence of her involvement in politics. 42 She was asked: AW: They wanted like you know, where he is. I didn't say anything, I was scared, I didn't want to just because though [A] is involved politics and they have said he has said all the stuff I always looked out for him I didn't really get involved with him, you know just to encourage him. They wanted to know because anyway he had got threatened at that time and I forgot to tell you just before the elections as well they had written some stuff on the walls and spray painted that [A] is using me to go out with politicians and you know. M: And he was using you, your husband? AW: Yes. M: He was using you to go out with politicians? AW: Yes, in very bad language. It was so humiliating too for me to go outside even. Because it was a small area at Dehiwala so everyone knows what's happening around. 43 I do not accept that to be a fair reading of her evidence. I think it is clear from her evidence that she was not acquiescing in the proposition that she went with politicians but agreeing with the Tribunal that that was what was painted on the walls of their house. That seems to me to be clear by her last answer where she talks about "very bad language." That is also consistent with her written complaint to the Tribunal which I think makes it quite clear that she was humiliated by what she said were false claims made about her. 44 I think it is clear on reading her evidence before the Tribunal on 18 January 2007 that she was not making a claim that she held political opinions or was interested in politics such that she feared persecution. 45 On 18 January 2007 the Tribunal hearing was adjourned to allow the appellants to comment on relevant material. On 23 January 2007 the appellants were sent a letter from the Tribunal pursuant to s 424A inviting them to comment on certain aspects of evidence given at the hearing and explaining that the information was relevant as it went to the plausibility of the appellants' claims. On 5 February 2007 the appellants sent a response to the Tribunal. The hearing resumed on 14 February 2007. 46 The appellant wife again gave evidence at the resumed hearing. She said: Like that day, when you asked me who won the election I didn't know. It was that a parliamentary election or presidential election it's known by everyone, it was just a normal local council election so I was not quite interested. Even if it was presidential election after the votes were there, after two or three days I would know who had won and who is the president. I was not quite interested about politics I know my situation is totally different to his. He is into politics and I am not so after I was with him I experienced a lot of situations where I saw him getting beaten up and I was mistreated which the way I was brought up I was not I have never experienced it and you know because I was with grandmother and you know I experienced a lot of stuff and my parents are not being with me. And so I get really close to him and I don't want anything happening to him or us, so we decided to stay there as long as we can but later on I told my mum and that's why we decided to come here. 47 I think her evidence on both 18 January 2007 and 14 February 2007 make it clear beyond doubt that her claim to a protection visa did not arise out of her political opinions. She disavowed any knowledge of politics. Nor did it arise, as her counsel contended, as part of a particular social group, being women who go with politicians for the purposes of securing vote. 48 In those circumstances, her claim to be a refugee depended on her husband establishing that he had a well-founded fear of persecution because of his political opinions. 49 Insofar therefore as it is contended that the Tribunal failed to consider an integer of the appellant wife's claim, that contention must be rejected. 50 For completeness, it would be appropriate to consider that aspect in ground 1 which complains about the failure by the Tribunal to make findings on material questions of fact "in accordance with s 430(c) of the Act." 51 Section 430(1)(c) provides: (1) Where the Tribunal makes its decision on review, the Tribunal must prepare a written statement that: (c) sets out the findings on any material questions of fact; and … 52 Section 430(1)(c) does not oblige the Tribunal to make findings of fact that a court may consider to be material. In Minister for Immigration v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ said at [68]-[69] that the obligation on the Tribunal is to set out in its written statement its findings on what it considered to be material questions of fact. 53 Grounds 2 and 4 address, as was contended by the appellants, the issue as to whether the Tribunal considered all integers of the appellants' claim. 54 It follows, therefore, that grounds 1, 2 and 4 which claim that the Tribunal failed to consider integers of the appellants' claims and, in particular, the appellant wife's claims, could not succeed. 55 Ground 3 complains of the Tribunal's failure to comply with s 425 of the Act. Whilst the ground complains that the Tribunal's invitation was a "hollow shell or empty gesture", the ground does not identify in what way it is said that the Tribunal failed to comply with s 425. 56 However, in the appellants' written submissions, it was put that the Tribunal reached its decision by reference to an issue other than that considered dispositive by the delegate, which was that the appellant husband had no significant relationship with the UNP in circumstances where the Tribunal failed to notify the appellant of that possibility which led the appellant to believe that his support and affiliation with the UNP "would not be questioned". 57 There are a number of difficulties with this ground. First, the premise upon which it is based is not made out. There was no finding made by the delegate that the appellant husband was a member of the UNP. There was an observation that that was his claim. The delegate did not, on the delegate's reasoning, need to make a finding of that kind. Secondly, the appellants were put on notice that their involvement in politics was a live issue. In the letter written by the Tribunal to the appellants on 23 January 2007 pursuant to s 424A, the appellants were told that on the state of the evidence before the Tribunal "[t]his could lead the Tribunal to doubt that the household, including [SZKMS], is involved in politics in the manner or to the degree claimed." That letter clearly put the appellants on notice that the degree of their involvement in politics was a matter under consideration which needed to be addressed by the appellants. The appellants had an opportunity to address that issue both in response to the s 424A letter and when the hearing before the Tribunal resumed on 14 February 2007. 58 The proposed ground of appeal is without merit. 59 That would be enough to deal with the proposed grounds of appeal. However, in their counsel's written submissions, counsel raised even further issues. It was submitted that the Tribunal erred in failing to address the question of relocation. Next, it was submitted that the Tribunal erred by misconstruing the test of persecution. Lastly, it was said that any lack of corroboration of the appellants' evidence did not support the Tribunal's findings where there is no obligation in law to adduce corroborative evidence. 60 It would probably be enough to deal with these further submissions by observing that they do not address either the grounds of appeal in the existing notice of appeal or any of the proposed grounds of appeal in the further amended notice of appeal. 61 However, for completeness, I shall address the matters briefly. There was no need to consider the question of relocation because a finding was made that the appellants had not established that they had a well-founded fear of persecution. The question of relocation would only have arisen if a contrary finding had been made. The Tribunal did not err by inquiring into whether the appellant had suffered "sustained or systemic" harm in circumstances where it found that the appellant had suffered no harm. It did not thereby misconstrue the test of persecution. Lastly, the Tribunal did not purport to suggest that corroboration was required as a matter of law. It simply found that there was no corroborative evidence in circumstances where such evidence should have been available. 62 The application to amend the notice of appeal is rejected because the proposed grounds of appeal were not grounds upon which the appellants relied in their application for judicial review before the Federal Magistrates Court and each of the grounds lack merit. The application to adduce further evidence is refused because leave to amend the notice of appeal has been refused and, in those circumstances, the proposed evidence is not relevant to any of the existing grounds of appeal. 63 It follows from my refusal to allow the appellants to amend their notice of appeal that the grounds of appeal identified in the existing notice of appeal must be considered. I shall