SZNAO v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court of Australia given on 7 May 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") signed on 11 November 2008. In that decision, the Tribunal affirmed two earlier decisions of a delegate of the respondent Minister, made on 22 September 2008, not to grant protection visas under the Migration Act 1958 (Cth) ("the Act"), in response to applications lodged by the first appellant, the fourth appellant, and their respective families. 2 The first, second and third appellants are a married couple and their son. The fourth appellant is the adult son of the first and second. The fifth, sixth and seventh appellants, are the wife and family of the fourth. The appellants are citizens of India who arrived in Australia on 28 May 2008. On 1 July 2008, they lodged applications for protection visas with the Department of Immigration and Citizenship. 3 The case turns substantially upon what the first appellant claims is a well founded fear of persecution from militant Muslim organisations in India, including Lashkar-e-Toiba, based substantially on the appellant's Hindu religion and his past service in the Indian Army. It is not necessary for me to rehearse for the grounds on which the appellants relied in the Federal Magistrates Court, because they no longer press those grounds on appeal. Rather, they rely in their Notice of Appeal upon two grounds which were not taken before the Federal Magistrate. Counsel for the appellants recognised that he needed the leave of the court to argue these new grounds, and he sought that leave. 4 The question whether leave should be granted to argue points which have not been taken below has been the subject of a number of judgments of this court in recent years. The principles by reference to which such applications should be approached were referred to in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578, [7]-[11]. Foremost amongst those principles, particularly in a case such as the present where the respondent to the appeal does not assert prejudice, are whether the appellants have put forward a satisfactory explanation for their failure to run the points below and whether the points sought to be raised would have reasonable prospects of success. Because of the view I take in relation to those two considerations, it will not be necessary for me to turn to other discretionary matters which might bear upon the course taken in less clear cases. 5 The appellants have provided no affidavit by way of explanation for why they did not advance the points now sought to be taken before the Federal Magistrate. Their counsel has informed me that they were not then legally represented. However, the circumstance that they are now legally represented gives rise at least to an assumption that they might well have been legally represented before the Federal Magistrate had they chosen that course. Their counsel informs me that the appellants made some attempts to obtain representation before the Federal Magistrate and when those attempts were unsuccessful, the first appellant decided that he would conduct his own case and that of the other appellants at that level. Counsel for the Minister has invited me not to accept that explanation, in the absence of an affidavit providing a satisfactory factual basis for it, and a basis that could, if necessary, be tested. I am disposed to accept that invitation. If the appellants want the court to accept that they have a satisfactory explanation for not advancing below the points which they now seek to run, it is incumbent upon them to establish that case in the normal way. Given the availability of legal services in the community, I am not prepared to adopt, as it were, a starting point that parties in the position of the appellants would have been unable to obtain legal representation if they had made reasonable and conscientious efforts to do so. As I say, I make these observations in a context in which the appellants have apparently had little difficulty in obtaining representation in this court. As I observed to counsel for the appellants in the course of argument, I do not think it altogether satisfactory that a party to first instance proceedings should make less than vigorous and conscientious efforts to put, their best foot forward at that stage, but rather leave such matters to the appellate stage. For those reasons, I am not satisfied that the explanation put forward by the appellants for their omission to take the points below that they now set to raise is a satisfactory one. 6 Turning to the other main consideration, namely, whether the proposed points have reasonable prospects of success, I must confess to some difficulty understanding how either of the two points now relied upon could be urged in support of a case that the Tribunal constructively failed to exercise its jurisdiction (which, in the circumstances, must be the case advanced on behalf of the appellants). Both of the points relate to contacts by way of phone call which the appellants, or at least one of them, received in 2002 and in 2008. It is apparent from the reasons of the Tribunal that the appellants' case at that level was that the first appellant was contacted by telephone by persons unknown in 2002 and told that he would be harmed in some way if he returned to his village; whereas in 2008, another phone call was made, not necessarily by the same parties, in which it seems the question was asked, "How long are you going to run away from us, we will catch you eventually". 7 Counsel for the appellants said that the Tribunal erred in two respects in the way in which it dealt with this evidence. The first was that it failed properly to consider the 2002 threat and the 2008 threat as separate claims of persecution which the appellants legitimately feared. It was submitted that the Tribunal should have perceived that those were different threats and should have treated them differently, rather than simply treating them as a supposed continuum by reference to which a single case of a well‑founded fear stood to be determined. However legitimate these submissions may have been in point of substance, manifestly they do not give rise to jurisdictional issues. 8 The Tribunal had before it all of the evidence upon which the appellants relied. It is manifest from the Tribunal's reasons that the two phone calls were significant elements of that evidence. It was the Tribunal which was invested with the task of assessing the matter and, at the end of the day, making a single judgment, namely, whether the appellants were absent from their country of citizenship by reason of a well‑founded fear of persecution in the Convention sense. If there was a perception that the Tribunal dealt with the two telephone threats by way of a continuum instead of identifying them as separate events, it could, in my view, only be because the Tribunal was discharging its statutory obligation to address that question. 9 As it happens, I do not think there is anything in the accusation which is levelled at the Tribunal by the appellants. The Tribunal noted that, after the 2002 telephone call, the appellants were able to live in India without any apparent danger or threat of persecution, more or less until the next threat was made in 2008. This was the way the case was put to the Tribunal and this was the way the Tribunal dealt with it. I am not persuaded that there is any substance in the suggestion that the Tribunal failed to perceive that these were different threats made at different times and quite possibly by different people. 10 The second way in which the appellants now seek to put their case relates also to the two separate phone calls, but is more of an evidentiary point. It was submitted on behalf of the appellants that the Tribunal's fact‑finding exercise miscarried when it came to consider what facts would provide a basis for a well-founded fear in the sense explained by the High Court in Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559. However, as counsel for the Minister pointed out, there was little for the Tribunal to decide at this level of sophistication, since it was not persuaded that the appellants had an actual fear of persecution. In this respect, the Tribunal held that the applicant claimed that he became fearful after the 2008 telephone call because these people had found his telephone number and threatened his son. It said: When questioned about his actions after the 2008 telephone call, the applicant claimed that he was fearful because he remained as a target after six years and because his telephone number was located. He did not believe that his residential address became known. Despite this fear, however, he remained the same home for a further two months collecting money and making arrangements to leave the country. He has not left his house immediately after the threats received in 2008 to avoid harm, and certainly not after the tension in 2006. Thus, while the Tribunal accepts that the applicant may have received the phone call in 2008, the Tribunal does not accept that he was fearful of persecution after the 2008 telephone call. 11 The Tribunal also found that, to the extent that the applicant did have a fear of persecution, he could move to another part of India. Although something seems to have been made about the Tribunal's finding in relation to relocation before the Federal Magistrate, that point is not sought to be agitated in this court. 12 I can, for my own part, see nothing jurisdictionally wrong or even suspect about the way in which the Tribunal approached its fact-finding function, specifically with respect to the question whether the appellant had a well-founded fear of persecution after having received the telephone call in 2008. 13 In the circumstances, the view I take is that the proposed points would have little prospect of success and I am not persuaded that the appellants have put forward a satisfactory explanation for why those points were not advanced before the Federal Magistrate. 14 In the circumstances, I refuse leave to advance points different from those advanced below, and since there were no other points relied upon in the appeals the conclusion must be that the appeals be dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.