FEDERAL COURT OF AUSTRALIA

Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788

MIGRATION – appeal – refugee – protection visa – decision dismissing application to review decision of the Refugee Review Tribunal – when leave required to raise grounds not argued before primary judge – whether expedient and in the interests of justice – whether real chance of persecution in foreseeable future – whether failure to give adequate reasons.

Migration Act 1958 (Cth) s 430(1)

CA Henschke & Co v Rosemount Estates Pty Ltd [2000] FCA 1539  referred to

Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32  referred to

Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631  referred to

H v Minister for Immigration & Multicultural Affairs [2000] FCA 1348  referred to

Minister for Immigration, Local Government and Ethnic Affairs v Mok (1995) 55 FCR 375  referred to

NIRMALESWARAN SOMASUNTHARA IYER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 148 OF 2000

HEEREY, MOORE AND GOLDBERG JJ

15 DECEMBER 2000

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

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.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

Introduction

1                     The appellant, a citizen of Sri Lanka, appeals against the decision of a Judge of the Court on 4 February 2000 dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) on 14 May 1999 affirming the decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant the applicant, his wife and three children a protection visa.

2                     The reasoning of the primary judge was not challenged on the appeal.  Rather, the appellant sought to raise what were said to be three reviewable errors made by the Tribunal.  Before considering these issues and whether the appellant should be given leave to argue them, it is helpful to understand the claims which were made by the appellant and how the appellant put the case to the primary judge.

The appellant’s claims

3                     The appellant claimed that he was a Tamil Hindu priest and that in 1983 he had been abducted by the Liberation Tigers of Tamil Eelam (“LTTE”) and ordered to encourage children to join the organisation.  From 1984 to 1989 he had been taken to army camps on numerous occasions and had been assaulted to extract information regarding LTTE hide outs. When the Indian Peace‑Keeping Force (“IPKF”) arrived in Sri Lanka in 1987 he was arrested by the IPKF on suspicion of protecting the LTTE and was later arrested, assaulted and tortured.

4                     The appellant first came to Australia in April 1995, leaving his family in Jaffna.  In June 1985 he returned to Sri Lanka to apply to the Australian High Commission for a work visa.  He also applied to the LTTE for passes for his family so that he could bring them to Australia.  The LTTE insisted that he leave his young son in Sri Lanka.  However, after payment of a bribe, the LTTE gave him passes for all his family to leave.  On one occasion he was asked to show his identity card and was interrogated regarding his stay in Colombo.  He was taken to a police station but released after paying a bribe.

5                     The appellant and his family arrived in Australia in September 1995.  The appellant then arranged for his brother and mother to travel from Jaffna to Colombo.  The appellant’s brother was later arrested on suspicion of being a suicide bomber.  The appellant returned to Sri Lanka in March 1996 because of his mother’s health, but she died before he arrived.  He arranged her funeral and the release of his brother after the payment of a bribe.  The appellant sent his brother back to Jaffna and returned to Australia in April 1996.

The proceeding before the primary judge

6                     The primary judge considered the submissions made by the appellant at the Tribunal hearing and analysed the Tribunal’s reasoning.  The primary judge observed that the Tribunal did not find the appellant an impressive witness.  It had set out significant inconsistencies in his evidence and had concluded that it did not accept him as a witness of truth.  The Tribunal did not accept that from 1984 to 1989 the appellant was arrested and taken to army camps numerous times and assaulted and tortured, nor did the Tribunal accept the appellant’s account of his three arrests in Colombo in August and September 1995.  The Tribunal did not accept that documents produced by the appellant provided credible corroboration of the arrests which he had alleged.  The Tribunal found the evidence regarding the appellant’s brother’s arrest and detention unconvincing and did not consider there was a real chance that the appellant would be arrested if he returned to Jaffna by reason of his brother’s circumstances.  Further, the Tribunal did not accept that the appellant’s son would face a real chance of being arrested in Jaffna as a member or supporter of the LTTE by reason of the fact that he was a young Tamil.  The Tribunal concluded that if the appellant returned to Jaffna now or in the foreseeable future, there was not a real chance that he would be persecuted by reason of his Tamil race, the political opinion that may be imputed to him, support for the LTTE or his membership of a particular social group of Hindu priests.

7                     The appellant submitted before the primary judge that:

·                    The Tribunal either misunderstood or misapplied the principles in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 when reaching its conclusions as to whether there was a real chance that the appellant would be persecuted if he and his family returned to Sri Lanka;

·                    When the Tribunal concluded that the appellant did not have the relevant degree of subjective fear because he had returned twice to Sri Lanka after having come to Australia, it had not given proper weight to his particular circumstances and reasons for returning to Sri Lanka;

·                    The Tribunal failed to give adequate reasons in respect of its main findings and therefore failed to comply with s 430(1) of the Migration Act 1958 (Cth) (“the Act”).

8                     The primary judge found that the Tribunal had set out correctly the relevant principles which it was bound to apply, in particular in relation to the meaning of “persecution” and when a fear of persecution can be regarded as well‑founded.  The primary judge found that the Tribunal had not applied the relevant principles incorrectly and concluded that the appellant’s submissions, insofar as they related to the application of the relevant principles, merely challenged the factual findings and the basis for those findings.  The primary judge observed the Tribunal’s conclusions were reached after rejecting as untrue the appellant’s evidence about actual torture and persecution. 

9                     The primary judge noted that the appellant’s two return visits to Sri Lanka from Australia before making his application for a protection visa were central to the Tribunal’s findings that he did not have an actual or subjective fear of persecution.  The primary judge noted that the Tribunal had concluded that these two visits were voluntary and that they supported a conclusion that the appellant did not have the necessary fear of persecution required by someone seeking refugee status.  The primary judge concluded that it was open to the Tribunal to reach this conclusion on the evidence and that it had not fallen into legal error in so doing.

10                  The primary judge considered that the appellant was really submitting that if the whole of the evidence had been addressed, a different conclusion would be reached.  The primary judge reasoned:

“The problem with the applicant’s case is that, on important issues, he was disbelieved and his documentary material treated sceptically and given little weight.  This was not a case of a wrongly applied test but of adverse factual findings which precluded the conclusion the applicant sought.  No error of law is made out.”

The primary judge held that, as the Tribunal had found that the appellant did not have the necessary fear of persecution, it did not need to go further in its analysis of the claim, although it did in fact consider the objective circumstances in Sri Lanka.

11                  Although it was not necessary to do so, the primary judge considered the appellant’s submissions that, in accordance with s 430(1)(d) of the Act, the Tribunal was required to deal expressly in its reasons with probative evidence which was adverse to its findings to explain why such evidence was rejected or not preferred.  The primary judge rejected this submission in the following terms:

“In my view, the proper interpretation of s 430(1)(d) does not impose that obligation.  What is required is that the Tribunal make findings supported by probative evidence, on matters material to its conclusions as to the refugee status of the applicant.  The fact that there is contrary evidence is irrelevant to this statutory obligation.”

This statement by the primary judge is consistent with authority:  Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 422‑423.

The appeal

12                  In his amended written submissions the appellant submitted that the Tribunal made three reviewable errors and that the primary judge erred in not allowing the application for review of the Tribunal’s decision.  These errors were not raised before the primary judge and were not the subject of submissions before her.  The errors were explained in the following terms:

·                    The appellant feared the LTTE would try to recruit his son if he and his family were required to return to Sri Lanka.  In considering whether there was a real chance that the appellant’s son would be forcibly recruited by the LTTE if the appellant’s family was required to return to Sri Lanka, a question of fact was whether there was a real chance that the LTTE would regain control of Jaffna in the future.  There was country information before the Tribunal in relation to this issue, which was a material question of fact, and the Tribunal failed to set out its findings on that question of fact.

·                    The Tribunal did not make a finding that the appellant was unable to bring his children out of Jaffna unless he paid the LTTE a bribe.  Two questions of fact arose, namely whether the appellant experienced the extortion he claimed and, if so, whether it constituted Convention‑based persecution.  It was submitted that these two issues were material questions of fact in respect of which the Tribunal was bound to make a finding in accordance with s 430 of the Act.

·                    In making its finding that the appellant did not have a genuine fear of persecution, the Tribunal did not consider the appellant’s claim that he feared that the LTTE might forcibly recruit his son and that he thereby feared exposure to further extortion.

13                  The appellant submitted that leave was not required to raise the grounds not argued before the primary judge because they were within the scope of the broadly worded grounds set out in the application for an order of review.  The grounds were as follows:

“1.       While considering the facts in issue, the Tribunal failed to fully comprehend the provisions, Section 420 (2) b of the Migration Act 1958 because it did not take into proper consideration the merits of the case.

 2.        That procedures that were required by this Act or regulations to be observed in connection with the making of the decision were not observed according to Section 476 (a) of the Migration Act 1958.

 3.        That the decision involved an error of law, being and [sic] error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision, according to Section 476 (g) of the Migration Act 1958.

 4.        That there was no evidence or other material to justify the making of the decision, according to Section 476 (g) of the Migration Act 1958.”

Although on 22 July 1999 the Court ordered (by consent) that the applicant by 13 August 1999 file and serve any amended application together with full particulars and any affidavit relied upon, no amended application or particulars were ever filed.

14                  We emphatically reject that submission that leave is not required.  The “grounds” set out in the application are not grounds at all.  They simply paraphrase subsections of s 476 of the Act.  They provide no basis for understanding what are the reasons for challenging the Tribunal’s decision.

15                  The appellant therefore requires leave in order to raise the grounds set out in par 12above.  The respondent submitted that leave should not be granted in a case such as this, particularly where the appellant had legal representation.

16                  An appellate court has power to allow grounds to be argued on appeal which were not argued before the primary judge.  Where the facts are not in issue and have been finally determined or the point is one of construction or law, the relevant principle to apply is whether it is expedient and in the interests of justice to allow the grounds to be argued.  The relevant authorities were considered by R D Nicholson J in Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32.  His Honour referred to a number of authorities and said at 47:

“… The effect of these authorities, as I view them, is that where the new grounds could possibly have been met by calling evidence at the hearing or may have resulted in the case of the respondent being differently conducted at the trial, leave will be refused (the first proposition).  However, where all the facts have been established beyond controversy or where the point is one of construction or of law, then it is a question for the Court of Appeal whether it is expedient and in the interests of justice to entertain the point (the second proposition) …

            The authorities to which I have referred, while stressing the importance of the public interest in ensuring the finality of litigation, do not view that interest as likely to be paramount where the new grounds are within the second proposition.  Lord Watson in Connecticut [Fire Insurance Co v Cavanaugh [1892] AC 473] at 480 said that in the case of the second proposition ‘it is not only competent but expedient in the interests of justice, to entertain the plea’.  The rule derives, at least in part, ‘from public policy considerations directed to ensuring the finality of litigation’ and, so far as it does so derive, ‘the relevant consideration is that the case sought to be made on appeal is a new or different case from that which emerged at the trial’:  Banque Commerciale SA [(in liq) v Akhil Holdings Ltd (1990) 169 CLR 279] at 284.”

17                  The relevant principles were considered by the New South Wales Court of Appeal in Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631.  Although the appeal before the Court of Appeal was by way of rehearing, and not an appeal in the strict sense as in this Court, the observations of Mason P are apposite.  His Honour said at 645:

“Since this is an appeal by way of re-hearing, the matter should be approached in accordance with the principle as stated in cases such as Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 and Coulton v Holcombe (at 7‑9).  A party seeking to advance for the first time on appeal a new ground not taken at trial will be precluded from doing so if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial.  Multicon Engineering argues that these principles do not preclude it from raising the constitutional point on appeal, because all that is in issue is the proper approach to be followed in considering whether to adopt a report in a matter in the Federal jurisdiction.  The evidence which each party wished to rely upon was before the judge.

            However there is another principle of more direct relevance.  A party does not have a right to insist that a new point be decided on appeal simply because all of the facts have been established beyond controversy or the point is one of construction or of law, even constitutional law.  This is because it remains a question of whether the appellate court ‘may find it expedient and in the interests of justice to entertain the point’:  Water Board v Moustakas (1988) 180 CLR 491 at 497; see also Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32 at 47.  The rule is not an absolute one, as evidenced by this Court’s decision in Della Patrona v Director of Public Prosecutions (Cth) [No 1] (Court of Appeal, 1 September 1995, unreported).  Unlike the present case, the respondent in Della Patrona failed to raise the ‘procedural point’ until long after the appellant had been given leave to debate it.  This was a very important factor in the Court’s consideration.  For later proceedings in the same case:  see Della Patrona v Director of Public Prosecutions (Cth) [No 2] (1995) 38 NSWLR 257.  However:

‘… it is a sound general principle, leading not only to the maintenance of fair play, but also to the repression of unnecessary litigation, that parties must be bound by the course they deliberately adopted at the trial’:  Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1 at 24, per Isaacs J; see also Browne v Dunn (1893) 6 R 67 at 75; Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 284.

In Coulton (at 7), Gibbs CJ, Wilson J, Brennan J and Dawson J said that:

‘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.’”

18                  In CA Henschke & Co v Rosemount Estates Pty Ltd [2000] FCA 1539, a Full Court of the Federal Court cited this passage from Coulton v Holcombe and said (at par 35):

“Any tendency to treat trials in that way is, in our view, firmly to be discouraged.”

We agree with that observation.

19                  The approach to be taken by a Full Court of this Court to an application for leave to rely upon grounds not argued before the primary judge was recently revisited by Branson and Katz JJ in H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348.  Their Honours restated the principles to be derived from the cases to which we have earlier referred and said (at 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 in this sense extend beyond the interests of he 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 these observations, particularly having regard to the manner in which this proceeding was presented to the Court.  (See also Crampton v The Queen [2000] HCA 60; Harris v Repatriation Commission [2000] FCA 1687).

20                  In the present case the notice of appeal gave no more information than did the application for an order of review (see par 13 above).  The “grounds” of appeal were:

“1.       The learned Judge erred in law in holding that the Appellant’s complaints about the decision of the Refugee Review Tribunal (‘the Tribunal’) did not fall within the term of Section 476(a), 476(e) and 476(g) of the Migration Act 1958.

 2.        That procedures that were required by this Act or regulations to be observed in connection with the making of the decision were not observed according to Section 476 (a) of the Migration Act 1958.

 3.        That the decision involved an error of law, being and [sic] error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision, according to Section 476 (e) of the Migration Act 1958.

 4.        That there was no evidence or other material to justify the making of the decision, according to Section 476 (g) of the Migration Act 1958.”

21                  This document failed to give to the respondent or the Court the slightest hint as to why it would be argued on the appeal that the primary judge was in error. 

22                  This is not a case where the new grounds might have been met by calling evidence at the hearing or might have resulted in the case of the respondent being differently conducted.  Accordingly, a consideration whether leave should be granted depends upon whether it is expedient and in the interests of justice to allow the grounds to be argued.  We recognise that there is a particular sensitivity in refugee cases where an adverse decision may have very serious consequences for an applicant. 

23                  Although it is in the interests of justice that decisions be made on the true merits of the case sought to be argued, the structure and integrity of the appellate process must also be taken into consideration.  It is incumbent upon parties bringing applications to the Court to review decisions of tribunals such as the Refugee Review Tribunal to make it clear from the outset what are the substantive grounds of review relied upon.  The way in which the appellant presented his application for review and his notice of appeal is unacceptable.  It is important in cases such as this that the issues to be determined by the primary judge and by the Full Court be particularised in sufficient detail to enable the respondent and the Court to understand fully what are the relevant issues to be determined.  In this context we refer again to the observations of Branson and Katz JJ in H v Minister for Immigration & Multicultural Affairs at par 19 above. 

24                  However, 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.

25                  We have given consideration to the grounds sought to be argued by the appellant and have reached the conclusion that they have no reasonable prospect of success.  We shortly state our reasons.

26                  The Tribunal considered in the following passage the question whether there was a real chance that the appellant’s son would be forcibly recruited by the LTTE if the appellant’s family was required to return to Sri Lanka because there was a real chance that the LTTE would regain control of Jaffna in the future:

“The Applicant also suggested that he feared that his 1X year old son would be forcibly recruited by the LTTE if the family were to return to Jaffna but, while there is evidence that the LTTE has forcibly recruited children in areas under its control … as I put to the Applicant, Jaffna is no longer under the control of the LTTE and I am not aware of any evidence that the LTTE is forcibly recruiting young boys on the Jaffna peninsula now.  Having regard to the view I have formed of the Applicant’s credibility, I do not accept his assertions that this is still occurring …

I consider, therefore, that if the Applicant returns to his family home on the Jaffna peninsula now or in the foreseeable future there is not a real chance that he will be arrested and tortured or otherwise persecuted by reason of his race (Tamil), the political opinion that may be imputed to him (support for the LTTE) or his membership of the particular social group …”

27                  Considered in context, the reference to “or otherwise persecuted” in this passage covers the earlier claims of persecution which included the forcible recruitment of the appellant’s son by the LTTE.  It was for the Tribunal to determine the evidence upon which it would rely as it did.  It is also apparent from this passage that the Tribunal turned its attention to the whether there was a real chance of persecution in Jaffna in the foreseeable future.  The reference to “the foreseeable future” was consistent with the formulation of Sheppard J (which whom Black CJ and Lockhart J agreed) in Minister for Immigration, Local Government and Ethnic Affairs v Mok (1995) 55 FCR 375.

28                  The complaint that there was country information in relation to the issue in respect of which the Tribunal did not make a finding is answered by the principle that the Tribunal was not required to give reasons for rejecting evidence inconsistent with its findings:  Addo v Minister for Immigration and Multicultural Affairs (supra); Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (supra).

29                  Whether the appellant had been obliged to pay a bribe to the LTTE in order to bring his children out of Jaffna, and whether that extortion constituted Convention‑based persecution, was not a material question of fact which the Tribunal had to determine, having regard to the Tribunal’s clear and explicit finding that:

“… I do not accept that the Applicant genuinely fears that he will be persecuted for Convention reasons if he returns to Sri Lanka.  I consider that his claimed fear of being persecuted is ‘merely assumed’ …”

Once this finding had been made, it was not necessary for the Tribunal to determine whether factual occurrences relied upon by the appellant provided an objective basis for the fear of persecution claimed by the appellant.  Once the Tribunal rejected the claim that there was such a subjective fear, it was not necessary for the Tribunal to determine whether the non‑existent fear was well‑founded.  This is so even if the approach of the Tribunal might be viewed as illogical to the extent that it relied upon the appellant’s return to Sri Lanka without his son in circumstances where the well‑founded fear was based, in part, on what might happen to his son in Sri Lanka.

30                  We therefore refuse the appellant leave to raise on this appeal grounds not relied upon before the primary judge.  The appeal will be dismissed with costs.

Associate:

Dated:              15 December 2000