SZLCL v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from orders made by the Federal Magistrates Court on 28 March 2008. By those orders the Federal Magistrates Court ordered that an application for constitutional writ relief in respect of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal), be dismissed with costs. The decision in question was made by the Tribunal on 18 June 2007 and was notified to the present appellant on 28 June 2007. By its decision, the Tribunal affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), to refuse to grant to the appellant a protection visa. 2 The appellant is a citizen of Indonesia. He arrived in Australia on 19 November 2006 and applied for a Protection (Class XA) Visa under the Migration Act 1958 (Cth) (the Act) on 15 December 2006. The Minister's delegate refused to grant a visa on 23 February 2007 and the appellant applied to the Tribunal on 28 March 2007 for review of the delegate's decision. The application to the Federal Magistrates Court for Constitutional writ relief in respect of the Tribunal's decision was filed on 25 July 2007. There were four grounds of review. In her reasons of 28 March 2008 the primary judge dealt comprehensively and fairly with each of those grounds and concluded that none of them was established. 3 On 17 April 2008 the appellant filed a notice of appeal to this Court from the orders of the Federal Magistrates Court. The notice of appeal specified four grounds. Grounds 2, 3 and 4 repeated grounds 1, 2 and 3 in the application to the Federal Magistrates Court. On the hearing of the appeal today counsel for the appellant abandoned grounds 2, 3 and 4 in the notice of appeal. The first ground in the notice of appeal was not a ground in the original application to the Federal Magistrates Court. The ground is as follows: The second respondent denied the appellant natural justice by asking questions of the official interpreter. Those questions and answers were not interpreted for the appellant. 4 Counsel for the appellant acknowledges that the appellant must obtain the court's leave to raise that new ground. The new ground itself is dependent upon the admission of fresh evidence on the hearing of the appeal. The fresh evidence consists of a transcription of a recording of the hearing before the Tribunal, afforded to the appellant pursuant to s 425 of the Act. The hearing took place on 25 May 2007. 5 The process of appeal from the Federal Magistrates Court to this Court is a process to correct error on the part of the Federal Magistrates Court. In the ordinary course, a party to an appeal is not entitled to raise issues for the first time on appeal. If that course is permitted, the appeal court becomes the court of first instance in relation to that issue. Such a course is particularly undesirable where the appellate jurisdiction of the Federal Court is exercised by a single judge such that any right of appeal that exists is direct to the High Court. The High Court is, in those circumstances, deprived of the opportunity of an intermediate appellate consideration of the first instance decision. In particular, if a party is permitted to raise an issue for the first time on appeal to the Federal Court from the Federal Magistrates Court, the High Court will be required to deal with any application for leave to appeal without any intermediate review. 6 Further, to allow new grounds of appeal to raise issues that were not raised at first instance before the Federal Magistrates Court, will tend to defeat the purpose of the provisions in the Act that provide that the Federal Court has jurisdiction at first instance in relation to a migration matter only if the matter is referred to the Court by the Federal Magistrates Court. Apart from the Constitutional jurisdiction of the High Court, the Federal Magistrates Court has exclusive jurisdiction in relation to migration matters. 7 It is necessary, in order to protect the integrity of the appellate jurisdiction, that parties be bound in the way in which they conduct an application for judicial review before the Federal Magistrates Court. On the other hand, before rejecting an application to raise a new ground for the first time on appeal, it will normally be incumbent upon the appellate court to determine whether the ground has any legal merit. The curious result is that, where an application to raise a new ground was not previously raised at first instance, the Court will need to consider the ground in determining whether or not it should consider the ground in substance (see generally SZKMS v Minister for Immigration and Citizenship [2008] FCA 499, at [24] to [26] and [31]). 8 The only ground that is now pressed should be understood on the basis that the appellant contends that the Federal Magistrates Court erred in not concluding that the Tribunal denied the appellant natural justice. In the course of argument, counsel for the appellant acknowledged the constraints of s 422B of the Act, which provides that Division 4 of Part VII is to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Thus procedural fairness under the general law is not a requirement of the process before the Tribunal. 9 The appellant rather puts the ground on the basis of a failure to comply with s 425, which is within Division 4 of Part VII. 10 Section 425 provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. There are circumstances in which that requirement does not apply. Those circumstances are not presently relevant. In essence, the appellant wishes to raise, as a ground of review, the proposition that the Tribunal failed to give the appellant a fair opportunity to appear to give evidence and present arguments. 11 In the course of the hearing before the Tribunal the appellant produced a newspaper article in Indonesian. The appellant was assisted at the hearing by an interpreter, it being common ground that the appellant does not understand English sufficiently well to be able to communicate with the Tribunal. The Tribunal asked the interpreter to translate the newspaper article. The interpreter proceeded to do so. No compliant is made about that course. However, after the translation had been given by the interpreter, the Tribunal asked several questions of the interpreter concerning the nature of the article. Those questions and the responses were not interpreted by the interpreter for the benefit of the appellant. The thrust of the appellant's complaint is that he was therefore deprived of the opportunity of responding to the answers that were given by the interpreter to the Tribunal in relation to the newspaper article. I shall come back to the detail in a moment. 12 There is no satisfactory explanation proffered on behalf of the appellant as to why this ground was not raised formally with the Federal Magistrates Court. As I have said, there was no reference to it in the original application. The hearing before the Federal Magistrates Court took place on 11 February 2008, some six months after the commencement of the proceeding. It appears that in the course of the hearing before the Federal Magistrates Court, some submissions were made concerning the newspaper article to which I have referred. In her reasons, the primary judge observed that the appellant had made a submission that the article was translated before the Tribunal by the interpreter and that the Tribunal was critical of the article because it was almost a replica of the appellant's statement attached to his protection visa application and was written in the first person, as if he had himself written the article. 13 The primary judge observed that no transcript of the hearing before the Tribunal was available and that no complaint had been made to the Tribunal. Later in her reasons, her Honour referred to the appellant's submissions concerning the newspaper article which her Honour noted was allegedly attributed to the appellant's wife. Her Honour said that there was nothing on the face of the record of the Tribunal's decision to demonstrate that any complaint had been made to the Tribunal as to the quality of the interpreter. Her Honour again observed that there was no transcript of the evidence at the Tribunal hearing or any other admissible evidence on the point put before the Federal Magistrates Court by the appellant in support of his submissions. 14 Counsel for the appellant initially foreshadowed an application to amend the notice of appeal to include, as a further ground, that the Federal Magistrates Court erred in rejecting a tape recording of the hearing before the Tribunal. I was informed by counsel for the appellant, that when tapes were tendered, the primary judge rejected them on the basis that the Rules of the Federal Magistrates Court required a transcription. 15 While there is unchallenged evidence before me that the reason why a transcript was not tendered to the Federal Magistrates Court was that the appellant was impecunious and could not afford the expense of having the transcript typed, there was no explanation as to why some attempt to obtain a transcript had not been made prior to the hearing in the Federal Magistrates Court. It appears that the impecuniosity of the appellant has been overcome, since the fresh evidence that the appellant seeks to tender is a transcript of the tapes. For present purposes, I will assume that the transcript that is now proffered is an accurate transcription of the tapes that were tendered to the Federal Magistrates Court and that those tapes are a recording of the hearing before the Tribunal. 16 It is necessary, in a case such as this, for an appellant to explain why the Court should depart from the normal rule that the appeal is one by way of rehearing, on the evidence before the court at first instance. There is no satisfactory explanation as to what steps, if any, were taken by the appellant to endeavour to obtain a transcript prior to the hearing before the Federal Magistrates Court. There is no explanation as to why the ground now sought to be ventilated was not included as a ground in the original application to the Federal Magistrates Court. The grounds for granting leave to raise the new ground are slim indeed. Nevertheless, the administration of justice may require the Court at least to examine the proposed new ground to see if it has any merit at all. I shall do so. 17 In the course of the hearing, the Tribunal asked the appellant for details about what he was doing between December 2005 and November 2006. He responded that he was in Jakarta and stayed with a friend. The Tribunal asked whether that was with his wife and children and he responded yes. After further questions, the Tribunal asked the appellant whether he was wanted by the police or arrested or detained or questioned. He responded "no", but then said that his wife was approached by people whom she did not know. He said that she was asked about her life story and that the person asking her was very interested in asking her. He said that there was then news in the newspaper. When asked "what news", the appellant said that the story of his life was reported, about the ups and downs. 18 The Tribunal said that what the appellant was saying was completely confusing to the Tribunal. The Tribunal pointed out that the appellant had said that a person talked to his wife and asked her about her life story and that that then appeared on the news. After several further exchanges, the Tribunal asked the appellant whether his life story was on the news. The appellant responded that it was in the news. He responded that his particular story was in the news and that his name was in the news. He was then asked what they said. His response was that it told about his life in relation to certain incidents. 19 When asked what the incidents were, the appellant said the questions were put to his wife. The Tribunal asked what it said about the appellant. The appellant responded that it said that he was a teacher and was rejected by the community and that he then moved to another village and was finally in Kalimantan. 20 The Tribunal then asked whether it was written or it was on television. The appellant responded that it was in a newspaper. When asked whether he had a copy of the newspaper, the appellant identified a magazine, which had been handed to an officer of the Tribunal. The appellant was asked to identify the passage in the magazine that talked about the appellant and he identified a particular article on a specified page. The Tribunal then asked the interpreter to browse through the article and tell the Tribunal what it said. As I have said, no complaint is made on behalf of the appellant concerning the adoption of that course. Indeed, no complaint could fairly be made, insofar as the interpreter was doing no more than translating for the Tribunal the article in Indonesian proffered on behalf of the appellant. 21 After the interpreter had completed that exercise, the Tribunal had the following exchange with the appellant: The Tribunal: This article basically sounds like it was an interview with you not an interview with your wife? The Appellant: But it was my wife who explained everything. The Tribunal: But it says that - it quotes you directly?‑‑‑ The Appellant: But it was made such. The Tribunal: And basically you've retold in this statement that you made with your application. It's not going to be very much different, is it?‑‑‑ The Appellant: Yes. That's not very much different. Because we are always together, my wife knows everything so my wife knows whatever incidents I have experienced. 22 The Tribunal then asked the interpreter to translate the last two paragraphs of the article. At the end of that process, an exchange took place between the Tribunal and the interpreter, which is the subject of the appellant's complaint. The exchange is relevantly as follows. The Tribunal: "So could I just ask you, Mr Interpreter, is that a narration of his? It's not an independent report of a newspaper. He's relating his story. It's his narrative." The Interpreter: "Correct." The Tribunal: "So it's not an independent report by the newspaper?" The Interpreter: "No word of 'he' is used here in quoting." The Tribunal: "So it's an article written by him?" The Interpreter: "An article written by the journalist." The Tribunal: "Journalist?" The Interpreter: "Yes, but with quotation marks. It is always 'I' not 'he'." The Tribunal: "So okay, so it's his narrative?" The Interpreter: "Yes. So my children, my wife and myself ran away to a paddy field. Not far from the street next to the paddy field a car passed. We stopped. The car also stopped. We then were taken to a safer place but the following day we received the news that … one of the members of the congregation died." … The Interpreter: "My children and my wife - I took my wife and my children to a place of a friend. I, myself, was in hiding in a safer place. Sometimes when the situation looked a bit safer I went back to see my children and my wife. On the suggestion of a friend, I was asked to be in hiding in Australia. Such violence did not only - was not only directed to the group of Islam Jamaiah but also to other Islamic groups, particularly in the conflict areas. That is the last of the article. " 23 The following exchange then took place between the Tribunal and the appellant. It appears that this exchange was interpreted. The Tribunal: Okay. I'm happy to have that read. Let me just make a few observations. First of all, it looks as if you've copied that article straight into your claims and the article itself is not a verification of the events that you say occurred because it's your own narrative. It says that - in the article that you claim, it says "I, myself, was in hiding in a safer place." But you just told me that you and your wife and your children all stayed together at your friend's place in Jakarta? The Applicant: I was separated from my wife at that particular time. In Jakarta that's the following event. That's another time all together. 24 The essence of the appellant's complaint is that he could not have understood the importance of the Tribunal's questions about the article, because he was not privy to those exchanges between the interpreter and the Tribunal. He says that he was therefore deprived of the opportunity of understanding and responding to the significance that the Tribunal might attach to the article. 25 In its reasons, the Tribunal dealt with the article as follows. As evidence of his involvement and persecution, the applicant provided the Tribunal with a newspaper article which he claims was the result of an interview with his wife. However, the article all but replicates the statement made with his original application, and is written as if recounted by the applicant himself. When the Tribunal put this to the applicant he was evasive and unable to provide an explanation except to assert that his wife was interviewed by the journalist. The Tribunal rejects the applicant's claim that the article was independently written as the result of a happenchance encounter between the journalist and his wife, and does not accept it as evidence supporting the applicant's claims. 26 It has not been suggested on behalf of the appellant that what was said by the interpreter to the Tribunal, either in the course of translating the article or in answering the Tribunal's questions about the article, was in any way inaccurate. The only complaint is that, by reason of the appellant's failure to understand the significance of the exchange, there was a failure to give him the opportunity to appear before the Tribunal to give evidence and to make submissions. There may be a question as to whether or not that could constitute jurisdictional error. However, I do not consider that there is any substance in the complaint in any event. The exchange which I have set out demonstrates that the Tribunal made perfectly clear to the appellant its concern that the article appeared to be an interview with the appellant, rather than recording something said by his wife. 27 That was put to the appellant and it is fair to say that his response was evasive. The appellant could have been under no misapprehension but that the Tribunal was saying to him that the article could not be treated as any corroboration of his statement in support of his visa application because the article did no more than record what he himself had said. The exchange between the Tribunal and the interpreter that is the subject of the complaint does no more than clarify the translation that had been given. That is to say, it confirmed what had just been put to the appellant was correct. What is more, at the end of the exchange, the matter was repeated to the appellant. 28 The Tribunal said that it looked as though the article had been copied straight into the appellants claims, and that the article itself was not a verification of the events that the appellant said had occurred, because it was his own narrative. I do not see how there was any unfairness involved, in circumstances when, both before and after the exchange complained of, the Tribunal's concern as recorded in its ultimate reasons were put fairly and squarely to the appellant. 29 I do not see that there is any basis, at all, for contending that there was a failure on the part of the Tribunal to give the appellant the opportunity of appearing before it to give evidence and present arguments relating to the issues in relation to the decision under review. The ground has no substance whatsoever. It follows that leave to raise the ground and to adduce the fresh evidence, consisting of the transcription of the recording of the hearing, should be refused. In those circumstances, since no other ground in the notice of appeal is pressed, the appeal should be dismissed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.