FEDERAL COURT OF AUSTRALIA

Wimalaratne v Minister for Immigration & Multicultural Affairs [2000] FCA 1737

SENAKE SIRISENA WIMALARATNE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 863 OF 2000

RYAN, SUNDBERG and EMMETT JJ

29 NOVEMBER 2000

SYDNEY

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

BACKGROUND

1                     The appellant is a citizen of Sri Lanka who came to Australia on 22 November 1996.  He lodged forms B and C of his application for a protection visa with the Department of Immigration and Multicultural Affairs on 17 December 1996.  In the form that concerned his claim to refugee status, the appellant said he left Sri Lanka “in fear of being persecuted” but said he would provide details later.  He also said details would be provided later in response to questions concerning what he feared would happen if he returned to Sri Lanka, who he thought might harm him, and why he thought he would face harm.  In relation to another question, he said he did not think protection would be provided to him in his country of origin, but that his explanation for this would be provided later.

2                     On 21 January 1997 a Departmental officer wrote to the appellant stating that his application had been received and was being given attention.  The letter also said that if the appellant had any further information, it could be provided to the Department and would be taken into account in deciding the application.  On 28 January another officer wrote to the appellant noting that his application stated that further information would be provided, and indicating that that information should be provided within 28 days.  On 3 March the appellant lodged a detailed statement together with supporting material.  On 18 November a delegate of the respondent, taking into account, amongst other things, all the material provided by the appellant, refused his application.  The delegate’s decision was affirmed by the Refugee Review Tribunal.  The Tribunal accepted the bulk of the appellant’s claims as to his experiences in Sri Lanka, but did not accept that the actions of the authorities were motivated by a Convention reason.

On 15 November 1999 the appellant filed an application for an order of review of the Tribunal’s decision.  The grounds relied on included claims that the Tribunal had failed to observe procedures required to be observed in connection with the making of the decision.  See s 476(1)(a) Migration Act 1958 (Cth).  On 19 June 2000 an amended application was filed which contained only one ground, namely that the Tribunal did not have jurisdiction to make the decision complained of because the appellant had never filed a valid protection visa application.  Katz J dismissed the application.

PRIMARY JUDGE’S DECISION

3                     Since the appellant does not appeal against the primary judge’s rejection of the only ground raised at first instance, it is sufficient to say that in dismissing the application his Honour relied on two Full Court decisions in which arguments to the same effect as those deployed by the appellant had been rejected.  See Nader v Minister for Immigration and Multicultural Affairs [2000] FCA 908 and Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906.  The primary judge indicated that had he accepted the submission that the Tribunal had no jurisdiction to make its decision, in the exercise of his discretion he would have refused to grant the appellant a remedy.  In this connection his Honour said:

“The applicant was legally represented on his application to the Tribunal.  He did not submit to the Tribunal that he had not had a valid application before the delegate; instead, he proceeded before the Tribunal on the basis that his application before the delegate had been a valid one and made submissions solely on the merits of that application.  The Tribunal gave him a hearing on the merits of his application and decided against him on those merits.

The applicant did not submit before me, in the alternative to his ‘no valid application’ argument, that the Tribunal had committed some judicially‑reviewable error in its disposal on the merits of his application to it.”

NOTICE OF APPEAL

4                     By his Notice of appeal the appellant “appeals from the whole of the judgment” of the primary judge.  The first ground of appeal is that

“His Honour erred in holding that the Refugee Review Tribunal complied with its obligations under s 430 of the Migration Act 1958.  His Honour ought to have found that the Tribunal completely ignored the fact that the Respondent refused the Protection visa for the Appellant before the Appellant had the opportunity to lodge the claims within the time frame given by the Respondent, was a material finding of fact and that the Tribunal failed to give its reasons for that finding.  His Honour ought to have found that the Tribunal erred by failing to address that the Appellant was not given the opportunity within the time frame to lodge his claims with the Respondent.”

The second ground of appeal is that

“His Honour erred in holding that the Refugee Review Tribunal complied with its obligation under s 430 of the Migration Act 1958.  His Honour ought to have found that the Tribunal erred in failing to give consideration to the relevant public documents available in confirming his claims put forward by the Appellant with regard to his fear of persecution and the sufferance faced by the Appellant before he fled from his country.”

All that need be said at this stage about those grounds of appeal is that the primary judge did not hold that the Tribunal had complied with s 430.  That issue was not raised before him.

LEAVE TO RAISE GROUNDS OF APPEAL

5                     The appellant needs the Court’s leave to argue the two grounds that he did not raise before the primary judge.  In H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 Branson and Katz JJ said (par 8):

“In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future.  The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions.  It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge.  The interests of justice extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration.”

We agree with their Honours’ observations.  They went on to say that there was little merit in the fresh point sought to be raised by the appellant, and that no evidence explaining why it was not raised before the primary judge had been provided.  Leave to rely on the new ground was refused.

6                     We would refuse the appellant leave to raise his “fresh” grounds for three reasons.  The first is that what is sought to be raised was covered by the original grounds of review.  Those grounds were all abandoned at first instance, where the appellant was represented by experienced counsel.  The second reason is that the appellant has provided no evidence as to why the matters, having been initially pleaded, were abandoned, or why he should be permitted to resurrect them now.  The third is that the new grounds lack merit.  The first ground is difficult to follow.  We have already observed that the primary judge did not hold that the Tribunal had complied with its obligations under s 430.  There are other difficulties with the ground, but in order to sustain it the appellant must establish (amongst other things) that the respondent refused his visa application before he had the opportunity “to lodge the claims within the time frame given by the respondent”.  As we have said in par 2, on 28 January 1997 an officer of the Department wrote to the appellant giving him 28 days (plus seven days for the deemed delivery of the letter) to make any claims he wished to make.  The appellant lodged his claims within that time frame.  The “fact” that the Tribunal is alleged to have ignored did not exist.

7                     The second ground has no substance.  As we have said in par 2, the Tribunal accepted the appellant’s claims as to his experiences in Sri Lanka, but concluded that they were not motivated by a Convention reason.  Having regard to his success in persuading the Tribunal that he feared persecution and had experienced suffering in Sri Lanka, he cannot appeal on the ground that the primary judge failed to give consideration to public documents confirming his fear of persecution and the suffering he faced before he fled.  Again we observe that the primary judge was not asked to consider the documents to which the proposed second ground of appeal refers.

CONCLUSION

8                     As we have said, the appellant does not attack the primary judge’s decision on the only point argued before him, and leave having been refused to raise the other matters, the appeal must be dismissed.

Associate:

Dated:              29 November 2000