SZNSC v Minister for Immigration and Citizenship

The Grounds of Appeal 10 Notwithstanding the fact that the Appellant is unrepresented, it is not considered that leave should now be given for him to rely upon Grounds previously raised for resolution but abandoned. No real explanation has been forthcoming as to the manner in which the Application as initially filed in the Federal Magistrates Court came to be drafted or why the Grounds there set forth were abandoned or not pressed. Nor has there been any explanation as to why only one Ground was sought to be agitated before the Federal Magistrate. All that is known is that the now Appellant had some legal assistance in the drafting of the sole ground advanced before the Federal Magistrate. 11 The difficulties confronting unrepresented litigants must readily be acknowledged, as must the difficulties confronting those who do not speak English and who are seeking protection as a refugee. 12 But recognition of those difficulties cannot overshadow the need for there to be at least some explanation for the apparently ever-changing basis upon which an application is advanced for judicial resolution. In the absence of explanation, no course should be encouraged - or even readily permitted - whereby a litigant can seek to advance a claim upon one basis, be unsuccessful, and then retreat to a claim differently expressed with a view to seeing whether that different claim has any greater prospects of success. 13 In the present proceeding, three considerations (at least) warrant attention, namely: · to raise on appeal grounds not previously relied upon requires the leave of the Court; · the role of this Court as an appellate court and the role that this Court plays in respect to any subsequent application that may be made to appeal to the High Court of Australia; and · relevant to the grant or refusal of leave are various factors, including the fact that a ground sought to be raised was previously abandoned. Although these three considerations may be separately identified, consideration of any one of them may well overlap with consideration of another. Each of these considerations has also been repeatedly addressed in decisions of this Court - but some brief overview of these considerations is perhaps appropriate, lest the Appellant be left with the impression that his appeal has been dismissed on a "technicality" divorced from principle or merit. It is in that context that a fourth consideration should also be addressed, namely: · the merit of the new grounds sought to be raised. The serious consequences that may attend a wrongful refusal of a protection visa may also be taken into account when determining whether it is expedient in the interests of justice that leave be given: SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886 at [16] per Branson J. The serious consequences that attend the refusal of leave to raise a new ground in any appeal is, however, a matter warranting careful consideration and migration cases - it is considered - attract no different consideration: cf SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578at [9]. 14 In identifying these considerations, it should obviously be recognised that they do not constitute an exhaustive list. 15 In the specific context of migration cases, in (for example) NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [166], 147 FCR 51 at 85, Madgwick J identified relevant questions to be addressed as including the following: 1) Do the new legal arguments have a reasonable prospect of success? 2) Is there an acceptable explanation of why they were not raised below? 3) How much dislocation to the Court and efficient use of judicial sitting time is really involved? 4) What is at stake in the case for the appellant? 5) Will the resolution of the issues raised have any importance beyond the case at hand? 6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? 7) If so, can it be justly and practicably cured? 8) If not, where, in all the circumstances, do the interests of justice lie? See also: SZFYK v Minister for Immigration and Multicultural Affairs [2007] FCA 624 at [20] per Edmonds J.

Leave To Raise New Grounds on Appeal and New Evidence - s 27 16 The principles to be applied when exercising the discretion to entertain a ground different from those resolved by the trial judge are well settled. In Metwally v University of Wollongong(1985) 60 ALR 68 at 71, Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ stated: 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 had 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. And in Coulton v Holcombe (1986) 162 CLR 1 at 7, Gibbs CJ, Wilson, Brennan and Dawson JJ observed: 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. 17 And, when entertaining an appeal, this Court has power "to receive further evidence …": Federal Court of Australia Act 1976 (Cth), s 27. That section provides in part as follows: In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence …

The Role of the Federal Court 18 In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499, Lander J was confronted with an application for leave to amend a Notice of Appeal and an application to adduce further evidence, being the transcript of the proceeding before the Tribunal. In refusing leave to amend, His Honour referred to those principles relevant to the grant of leave to raise new grounds on appeal but further observed (in part): [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. … [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. These observations of His Honour were recently endorsed by Spender J in SZMRD v Minister for Immigration and Citizenship [2009] FCA 598 at [11]. 19 "To allow too readily the running of new points, or indeed a whole new case, on appeal is to undermine the appellate process by rendering the trial process almost irrelevant": WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 at [19], 204 ALR 624 at 629 per French J.

Leave To Raise Grounds Previously Abandoned 20 Differing factors have been identified in respect to whether a ground which has been expressly abandoned at first instance should later be permitted to be "resurrected" on appeal. 21 In SZLWE v Minister for Immigration and Citizenship [2008] FCA 1343, Perram J reviewed some of these different outcomes as follows: [19] It is then useful to say something about the Tribunal's confusion of the Appellant's membership of the Lebanese forces with membership of the Lebanese Armed Forces. In the Appellant's amended application to the Federal Magistrates Court such a claim was expressly included. However, at the hearing in the Federal Magistrates Court the Appellant, who was represented by counsel, abandoned that argument. There may be some circumstances in which an appellate court will permit a party who has expressly abandoned a point at trial to raise it afresh on appeal. Gyles J would have permitted such a course in Dovuro v Wilkins (2000) 105 FCR 476 at 527 [181] at least where the point involved no prejudice to the other party. Branson and Finkelstein JJ took the opposite view: 487-488 [38] and 508-509 [119]-[120]. There may be something to be said for the view that where a point is expressly abandoned that the doctrine of waiver is relevant to the question: cf. Browne v Dunn (1894) 6 R 67 at 75 per Lord Halsbury, 80 per Lord Bowen; applied by the Privy Council in Yorkshire Insurance Co v Craine [1922] 2 AC 541 at 552-553 per Lords Buckmaster, Atkinson, Sumner, Parmoor and Wrenbury. If that were so, the question of whether an appellate court should entertain a fresh ground might not be relevant - there might be no ground to raise. However, whether the question is posed as one about the circumstances in which an appellate court should permit a point abandoned below to be resurrected on appeal, or, instead, one of waiver leading to the conclusion that the point no longer juridically exists - the outcome is the same in this case. I would not permit the abandoned ground to be entertained. It is not necessary in the present appeal to pursue His Honour's views as to the possible application of the doctrine of waiver. 22 There are unquestionably instances where an argument has been permitted to be raised on appeal even though "unequivocally disclaimed" before the primary judge: e.g. CA Henschke & Co v Rosemount Estates Pty Ltd [2000] FCA 1539 at [30] to [35], 52 IPR 42 at 57 to 60. In the specific context of migration cases, leave to raise on appeal an argument abandoned before a Federal Magistrate may thus be permitted where (for example) there has been "an error of judgment by [an appellant's] counsel in abandoning a point which had originally been taken, and which was plainly viable": White v Minister for Immigration and Multicultural Affairs [2000] FCA 232 at [35], 96 FCR 511 at 519; SZBLY v Minister for Immigration and Citizenship [2007] FCA 765 at [36], 96 ALD 70 at 77. 23 It has generally been recognised that the considerations relevant to whether an argument which has previously been abandoned should later be permitted to be "resurrected" include the circumstances in which the argument was previously abandoned, whether a party was legally represented and whether the argument requires further evidence if leave is given. Other considerations include the importance of the argument sought to be raised and any potential prejudice to an opposing party. 24 Whatever may be the correct approach which may ultimately prevail, the difficulties confronting applicants for refugee status should nevertheless be constantly recalled. Such applicants may have very little (if any) appreciation of either the arguments which are sought to be advanced on their behalf before the Federal Magistrates Court or the significance which may later be given to those arguments by this Court on appeal. As in the present proceeding, the arguments are often drafted by so-called "friends" who neither appear before the Court to explain the arguments sought to be advanced nor explain to the litigant in advance of any hearing the substance of the arguments to be resolved. The quality of the assistance provided by such so-called "friends" may frequently be doubtful. 25 In such a context, there is thus an element of unreality in concluding that an unrepresented litigant has "abandoned" or "not pressed" an argument which he did not really understand he was otherwise advancing for resolution. In many migration cases, and the present is no exception, the Appellant understands little other than the fact that he has not been successful. Not surprisingly, many unrepresented applicants for refugee status cannot explain the concept of "jurisdictional error" or even less esoteric terms such as "actual bias" or "procedural fairness". Yet such is the language frequently employed in their Grounds of Appeal. 26 Consideration of those factors relevant to an informed decision being made to abandon an argument in circumstances more apposite to civil litigation in which litigants are well-represented may assume little (if any) importance in an appeal such as the present. But some significance, it is considered, is nevertheless to be given to even an ill-informed unrepresented litigant apparently abandoning an argument otherwise available to him and thereafter seeking to resurrect on appeal the very same argument. The "interests of justice", it is to be recalled, encompass the interests of both the unrepresented Appellant and the interests of the Respondents to an appeal. An unconstrained freedom on the part of an unrepresented Appellant to pursue all such arguments as may advance his own interests may well be inconsistent with the interests of a respondent or the more generally expressed public interest in the orderly administration of justice. An absence of prejudice claimed by a respondent may not be a sufficient reason to allow an argument to be raised for the first time on appeal: e.g. NBMB v Minister for Immigration and Citizenship [2008] FCA 149 at [23] to [33], 100 ALD 118 at 128.

The Merits of the Grounds Sought To Be Raised 27 In considering whether leave should be given to permit a new ground to be raised on appeal it is also relevant to give attention to the apparent merits of the argument sought to be raised. 28 In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 the grant of leave was thus addressed by reference to whether it was "expedient in the interests of justice" to grant leave. Kiefel, Weinberg and Stone JJ there concluded (citations omitted): [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 ... Their Honours referred to Coulton (1986) 162 CLR 1and continued: [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. Applied: NAJT [2005] FCAFC 134 at [163], 147 FCR at 84 per Madgwick J (Conti J agreeing). 29 And in Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788, Heerey, Moore and Goldberg JJ also observed: [24] … 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.

The Grounds Abandoned 30 In the present proceeding the Federal Magistrate has in fact gone on to express brief "views" as to those arguments which were at least embraced by the Grounds set forth in the Application as initially filed. To that extent, this Court has had the benefit of the obiter views helpfully expressed by the Federal Magistrate. In addressing these further Grounds, the Federal Magistrate concluded (in summary form): (i) Procedural fairness: There was held to be no denial of procedural fairness. The now Appellant was said to have been given an opportunity of being heard in respect to the adverse conclusions as made by the Tribunal, and those adverse conclusions were held to have been made in reliance on the now Appellant's own evidence. (ii) Jurisdictional error: The Federal Magistrate observed that "no particulars" of this Ground were provided. To the extent that a challenge was made to the manner in which the Tribunal reached its state of "satisfaction", the Federal Magistrate observed that the Tribunal was "not required to uncritically accept any, or all, of the applicant's claims". (iii) The decision was "unjust": In respect to this Ground the Federal Magistrate observed that no jurisdictional error was exposed as "[t]he Tribunal's findings were open to it on what was before it". It was further observed that "[t]he Tribunal gave cogent reasons in support of its findings". (iv) A failure to consider an aspect of the claim: This Ground was rejected by the Federal Magistrate upon the basis that the Tribunal did consider the claim advanced. "At best", the Federal Magistrate observed, the Ground was "an assertion that the applicant meets the definition of "refugee" as set out in Article 1A(2) of the Refugees Convention". (v) A failure to investigate and "actual bias": The Federal Magistrate rejected a contention that there was a "general duty to inquire" and further concluded that there was "nothing before the Court to suggest bias, or the apprehension of bias, on the part of the Tribunal …". No appellable error is exposed in these conclusions of the Federal Magistrate - even if leave is to be granted to raise the matter addressed as Grounds of Appeal. 31 The final Ground of Appeal that the Appellant seeks to raise, Ground 7 in the Notice of Appeal, was not raised at any stage of the proceeding before the Federal Magistrate. The Ground does not make sense, even allowing for the fact it may have been drafted by someone whose native language is not English. For this reason, this Ground too has no prospects of success. 32 A substantial difficulty confronting the now Appellant is the fact that adverse findings as to his credit were made against him by both the delegate and (more importantly) the Tribunal. The very basis upon which he was advancing his claim, namely conversion from the Sunni Muslim faith to the Shia Muslim faith, was rejected. The findings of fact made by the Tribunal were findings open to it. No jurisdictional error is discernible.

Conclusions 33 There is a very considerable public interest in all litigation being resolved as quickly and as expeditiously as the administration of justice permits. There is a recognised public interest in applications for refugee status being resolved in a timely manner and in accordance with the procedure prescribed by the Migration Act: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62], 192 ALR 71 at 86 per Gyles J; SZKMS [2008] FCA 499 at [30] per Lander J. 34 Leave to raise the Grounds of Appeal now set forth in the Notice of Appeal is refused. The new arguments seek to raise in large part arguments which were either abandoned before the Federal Magistrate or not pressed in that Court. No explanation has been advanced for the change in the course that the Appellant now wishes to plot. And the new arguments are not considered to have sufficient prospects of success to warrant the grant of leave. 35 The appeal is to be dismissed. There is no reason why costs should not follow the event.

ORDERS 36 The Orders of the Court are: 1. Appeal dismissed 2. The Appellant is to pay the costs of the First Respondent. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

The Appellant: The Appellant appeared in person

Solicitor for the First Respondent: Mr R Baird (Clayton Utz)