FEDERAL COURT OF AUSTRALIA

Makdessi v Minister for Immigration and Multicultural Affairs

[2001] FCA 1123

MIGRATION – appeal against primary Judge dismissing application for judicial review of decision of the Refugee Review Tribunal.

APPEAL – general principles – whether leave should be given to amend the application for judicial review and notice of appeal – where issues sought to be raised were not argued at first instance.

Migration Act 1958 (Cth)

H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 cited

Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 cited

MOUSSA NICOLAS MAKDESSI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 246 of 2001

MOORE, SACKVILLE AND KIEFEL JJ

17 AUGUST 2001

SYDNEY

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant pay the respondent’s costs.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

Introduction

1                     This is an appeal from a judgment of a Judge of this Court, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 22 December 1999. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) not to grant the appellant a protection visa. The primary Judge gave judgment on 23 February 2001 ([2001] FCA 134).

The Background

2                     The appellant is a citizen of Lebanon of Greek Orthodox Christian faith. He arrived in Australia on 3 April 1997 and lodged an application for a protection visa on 2 July 1997. On 26 September 1998 his application was refused by a delegate of the Minister, and on 30 December 1998 the Tribunal affirmed that decision. The appellant sought review of the Tribunal’s decision in this Court and, on 2 June 1999, a Judge set aside the Tribunal’s decision and remitted the matter to the Tribunal for re-hearing. On 22 December 1999, a differently constituted Tribunal again affirmed the delegate’s decision.

3                     In support of his application for a protection visa, the appellant claimed he feared persecution if he returned to Lebanon. He pointed to four incidents which occurred between 1988 and 1997, when he was employed by an advertising firm to post advertising bills in Lebanon. The Tribunal accepted that the incidents had occurred substantially as the appellant had recounted them.

4                     The first incident occurred in December 1988 when he was putting up posters which depicted Christmas symbols. He was approached by a police officer, a member of Al Tawheed (a militant Islamist organisation), who said what he was doing was unlawful. The appellant was taken to a police station and detained for several hours until his employer arrived and verified what he had been doing was authorised and legal. The second incident took place in 1995 when the appellant was approached by Syrian soldiers who demanded that he put up posters of the recently deceased son of the Syrian President. The appellant refused, and was taken to the soldiers’ base and severely beaten. The third incident occurred in Beirut in 1996, when the appellant was approached and asked by a group of armed men to put up posters in support of the Ayatollah Khomeini. The appellant refused, and the men retaliated by striking him with a pistol. The fourth and final incident happened shortly before a visit by the Pope in March 1997. The applicant was putting up posters advertising confectionary when he was approached and asked to put up posters depicting Sheik Saeed Shaaban (then the leader of the Al Tawheed). When he refused, a crucifix he was wearing was torn from his neck, thrown to the ground and stamped on. He was told to “[c]onsider yourself dead from this moment!”

The Tribunal’s decision

5                     The Tribunal, while accepting the appellant’s account of the incidents, concluded they did not constitute persecution for a reason contemplated by the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 (“the Convention”). The Tribunal viewed the first incident as involving “nothing more than an officious policeman”.

6                     In relation to the second, third and fourth incidents the Tribunal said:

“[I]n each of the last three incidents detailed above the applicant suffered harm (which on no occasion was of a type or severity that could be called persecution) as a result of refusing to affix another group’s posters on his company’s billboards in lieu of the posters with which he had been supplied. The harm that may have befallen him could be considered an occupational hazard or work-related injury. The Tribunal is satisfied that in none of the three cases is there a Convention nexus.”

7                     As to the fourth incident, the Tribunal said:

“The fourth and final incident is the one where the adviser indicated that the applicant was targeted by his attackers because of his Christianity, a fact advertised by the applicant’s crucifix. However, the applicant was, by his own admission, standing up a ladder working at the billboard. It is not physically possible that he had anything other than his back turned towards people approaching him along the street. He did not turn until they called to him; then he climbed down the ladder, still with his back towards the group. He could not have faced them, thereby possibly displaying his crucifix if his shirt was open, until he was at ground level. The group had called to him on approach about posters: clearly they had in mind that they would tell him to affix their own posters of Sheik Shaaban. Unlike the policeman of the first incident, the group could not have been attracted by any political or religious symbols on the posters with which the applicant was working: they were advertisements for confectionery.

The Tribunal is satisfied that, once again, the applicant was approached because of his billposting activity. Yet again, his refusal to put up other posters at the expense of those supplied by his company provoked an angry reaction. The Tribunal accepts that one of his accosters grabbed his crucifix with force, wrenched it off and stamped on it – but this was done because it presented itself as an expedient way of hurting the applicant for his refusal to do what the group had wanted. The Tribunal is satisfied that the muttered phrase: ‘Consider yourself dead from this moment!’ was a curse uttered in the heat of the moment by an angry person rather than a serious commitment to kill someone for a Convention reason.”

The Tribunal also addressed the relationship between the fourth incident and the appellant’s departure from Lebanon. It said:

“The Tribunal is satisfied that the applicant had made plans to travel to Australia well before the final incident occurred. Whether he would have left his employment and ‘escaped’ from Lebanon simply as a consequence of the fourth incident is something that cannot be determined: there is only the applicant’s assertion that this is so. The Tribunal does not take the applicant’s assertions as gospel, noting that he has exaggerated his statements in various places in order to better support his claims.”

The proceedings before the primary Judge

8                     The appellant sought judicial review of the Tribunal’s decision by application filed on 19 January 2001. The grounds of review were as follows:

“A The procedures that were required by the Migration Act and/or Regulations to be observed in connection with the making of the decision were not observed: Sections 476(1)(a) and 430(1) of the Act.

Particulars

1. Failure to set out findings about the following material facts:-

(i) The fact that the militiamen may have seen the crucifix in the Applicant’s car;

(ii) whether the dangers inherent in the work undertaken by the Applicant were Convention-related;

(iii) whether the State could give effective protection to the Applicant from persecution arising out of religious views;

(iv) whether the refusal to affix posters of a political/religious nature in a country such as Lebanon where religious divisions are consolidated by the Constitution itself may have amounted to an act of a religious/political nature covered by the Convention.

2. (a) Failure to explain why ‘it is not physically possible that he had anything other than his back turned towards people approaching him along the street. He did not turn until they called to him then he climbed down the ladder, still with his back towards the group. He could not have faced them …’

(b) Failure to explain the Tribunal’s conflicting findings at 14.6 of the Reasons for the Decision: ‘the Tribunal is satisfied that in each of the last three incidents detailed above, the Applicant suffered harm …’ and at 15.8: ‘The Tribunal is satisfied that the Applicant has not suffered harm, let alone harm amounting to persecution in the past …’;

(c) Failure to address the effectiveness of the State’s ability to provide protection to citizens such as the Applicant.

B The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law to the facts as found by the Tribunal: Section 476(1)(e).

Particulars

(a) Wrongly assuming that persecution cannot arise unless it is motivated solely by Convention reasons;

(b) Wrongly assuming that persecution to the Applicant does not arise if it is also experienced by others undertaking the same trade;

(c) Wrongly assuming that the Applicant’s claim that he ‘escaped from Lebanon simply as a consequence of the fourth incident is something that cannot be determined (because) there is only the Applicant’s assertion that this is so’;

(d) Wrongly assuming that the Applicant’s refusal to hang posters as requested by the militiamen could not be Convention-related simply because the posters which the Applicant was employed to hang were of a purely commercial nature.”

The first ground was based on the contention that the Tribunal did not observe the procedures in s 430(1) of the Migration Act 1958 (Cth) (“the Act”). At the time the application was filed, the hearing took place before the primary Judge and judgment given, the applicable law was as described by a Full Court in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469. The majority of the Full Court in that case determined that the first ground relied on by the appellant was an available ground of review. However on 31 May 2001 the High Court gave judgment in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 and decided that it was not an available ground of review. The decision in Yusuf removed from consideration in this appeal any alleged error of the primary Judge concerning one of the two bases on which the appellant argued the application for judicial review.

9                     The reasons for judgment of the primary Judge have, in this respect, been overtaken by developments in the law. However reference should be made to some aspects of his Honour’s reasons because they bear on some of the issues sought to be raised in the appeal.

10                  One matter raised and addressed by the primary Judge concerned the finding of the Tribunal that in the fourth incident the appellant initially had his back turned to his attackers when he was up the ladder. Counsel for the appellant submitted to the primary Judge that there was no evidence to support the Tribunal’s finding. This was advanced as a reviewable error having regard to s 476(1)(g) of the Act. The primary Judge rejected this submission and referred to the following exchange in the transcript of the Tribunal hearing, to illustrate that there was evidence from which the Tribunal could have drawn the inference it did:

“MS ZELINKA: Okay, now did the company own billboards or did it just put posters on any surface, any old walls?

THE INTERPRETER: No the company used to own those billboards.”

His Honour said at [15]:

“This indicates that there was evidence that the applicant’s job was to paste posters on billboards. Billboards are more usually placed on walls than on freestanding posts. There was, therefore, evidence to support the Tribunal’s finding, by inference, that he had his back to the group that approached him.”

11                  In the context of the submission concerning s 430, counsel for the appellant submitted that the Tribunal had failed to set out findings about:

“(W)hether the refusal to affix posters of a political/religious nature in a country such as Lebanon where religious divisions are consolidated by the Constitution itself may have amounted to an act of a religious/political nature covered by the Convention.”

As to the motives of individuals inflicting harm, the primary Judge said at [21]:

“This is a material fact within s 430 of the Act. The Tribunal found however that the motivation of the various attackers was not Convention related and that the treatment meted out to the applicant in the various incidents was on account of the frustration and anger, felt by his interlocutors, at the applicants’ refusals to put up posters, not because such refusals were seen as religious or political actions.”

12                  Two further matters raised before the primary Judge by counsel for the appellant related to what were said to be incorrect assumptions by the Tribunal that the appellant “escaped from Lebanon simply as a consequence of the fourth incident”, and the failure of the Tribunal to determine whether or not the various incidents in Lebanon were instrumental in his decision to leave and seek refugee status in Australia. As to the first matter, the primary Judge was satisfied that the Tribunal’s conclusion was not affected by its approach, erroneous or otherwise, as it had decided that the fourth incident was not Convention related. In relation to the second matter, his Honour said at [35]:

“(A)s the Tribunal did not accept that the events that the applicant faced in Lebanon had been Convention related, this inquiry was not necessary.”

Issues in this appeal

13                  The notice of appeal was filed on 16 March 2001. The grounds of appeal were:

“1. His Honour erred in accepting the Tribunal’s finding that lack of malignity in the several assaults against the Appellant meant that the Convention Provisions did not apply.

2. His Honour erred in accepting that the Tribunal had considered the four incidents cumulatively.

3. His Honour erred in ruling that the Tribunal’s failure to properly consider the State’s ability to protect the Applicant from harm was irrelevant.

4. His Honour erred in not finding that the Tribunal’s consideration of motivation for the assaults constituted an error of law.”

14                  In written submissions filed before the hearing of the appeal, counsel for the appellant addressed a range of matters which travelled beyond both the grounds in the notice of appeal and the grounds in the original application for an order of review. At the hearing counsel for the appellant was invited to distil from the application, notice of appeal and the written submissions the issues sought to be raised in the appeal. He was also invited to consider seeking leave to amend the original application for an order of review and the notice of appeal. In the result, five issues were identified:

(i) the Tribunal erred in law by assuming that persecution for the purposes of the Convention, requires personal malignity or enmity directed to the applicant for a Convention reason;

(ii) the Tribunal erred in law by misdirecting itself as to the extent of the seriousness of the harm necessary to constitute persecution. The Tribunal believed the harm had to be serious and physical in nature;

(iii) the Tribunal erred in law by approaching the matter on the basis that for there to be persecution it had to be systematic and State sanctioned;

(iv) there was no evidence to support the Tribunal’s finding that the appellant, in the fourth incident, had his back to the attackers when they approached;

(v) the Tribunal erred in law in that it failed to consider the cumulative effect of the four incidents.

15                  It will be observed that none of these five contentions was raised in the original application filed in this Court. In addition, a sixth ground, identified in the original application, was sought to be raised in the appeal, namely the ground in par B, particular (a), that the Tribunal had erred in law by wrongly assuming that persecution cannot arise unless the conduct causing harm was motivated solely by Convention reasons. By this we understood counsel for the appellant to mean that the Tribunal had erroneously assumed that the Convention definition of “refugee” cannot be satisfied unless the only reason for the persecution is a Convention reason (that is, race, religion, nationality, membership of a particular social group or political opinion).

16                  At the hearing we refused the appellant leave to amend the application and notice of appeal to raise issue (ii) though gave leave to the appellant to amend to raise issue (iv). We indicated in relation to issues (i), (iii) and (v) we would reserve on the question of whether we would give leave to amend, but invited counsel for the appellant to make submissions on the assumption that leave would be granted.

17                  We refused leave to amend to raise issue (ii) as it was not a ground in the original application, had not been argued before the primary Judge, was not a ground in the notice of appeal and had not been addressed in the written submissions filed and served on behalf of the appellant. It appears to be a point conceived, without notice to the respondent, shortly before the hearing. It is manifestly inappropriate to give the appellant leave to raise the point for the reasons we discuss shortly in the context of refusing leave in relation to the other issues sought to be raised.

18                  While issue (iv) was not referred to in the notice of appeal, it was raised before the primary Judge and the respondent was on notice that the appellant proposed to raise it having regard to the appellant’s written submissions in the appeal.

19                  Issue (i) was raised in the notice of appeal, though was not a ground in the original application and was not raised before the primary Judge. Issue (iii) was not a ground in the original application and not raised directly in the notice of appeal and was dependent on a challenge to the Tribunal’s approach to the question of whether Christians in Lebanon were at risk of persecution. There was no such challenge to that approach. Issue (v) was not raised in the original application and not raised before the primary Judge.

20                  A Full Court exercising the Court’s appellate jurisdiction ordinarily determines whether the primary Judge erred in his or her consideration of the issues raised at trial. As Branson and Katz JJ said in H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348:

“An appeal to this Court from a decision of a judge of the Court is an appeal in the strict sense and not an appeal by way of rehearing (Dynasty Pty Ltd v Coombs (FC) (1995) 59 FCR 122 at 129; White v Minister for Immigration & Multicultural Affairs [2000] FCA 232). The appeal power is thus to be exercised for the correction of errors (Coal and Allied Operations Pty Ltd v The Full Bench of the Australian Industrial Relations Commission [2000] HCA 47 per Gleeson CJ, Gaudron and Hayne JJ at para 21). This does not mean that an issue can never be argued on appeal that was not argued at the hearing at first instance. In a case where, had the issue been raised before the primary judge evidence could have been given which might have prevented the point from succeeding, the issue will not be allowed to be raised on appeal (Coulton v Holcombe (1986) 162 CLR 1 per Gibbs CJ, Wilson, Brennan and Dawson JJ at 7-8). In other cases, it will be for the Full Court to determine whether it is expedient in the interests of justice that the issue should be argued and decided (O’Brien v Komesaroff (1982) 150 CLR 310 per Mason J, with whose judgment the other members of the court concurred, at 319; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 per Mason P, with whom Gleeson CJ and Priestley JA agreed, at 645-646; Jones v Minister for Immigration & Ethnic Affairs (1995) 63 FCR 32 (FC) particularly per RD Nicholson J at 47).

As Gibbs CJ, Wilson, Brennan and Dawson JJ observed in Coulton v Holcombe at 7:

‘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.’”

The question of whether an appellant could argue a point not raised at trial arose again in Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929. In that matter the question was addressed by Mansfield and Gyles JJ. Mansfield J said at [25] to [26]:

“The appellant has given no cogent reasons why those matters were not raised before Mathews J, nor why the first of those grounds which was acknowledged by counsel on his behalf as not giving rise to a ground of review under s 476(1) of the Act should now be permitted to be argued. It has been often said that the substantial issues between the parties should be settled at the hearing, and that the hearing should not be treated as a preliminary skirmish with the appellate court being seen as the appropriate place and occasion to really confront the issues. That is a view which I share.

…

Counsel for the respondent very fairly acknowledged that the correct approach in this instance is to determine whether it expedient in the interests of justice to allow those fresh points now to be raised. At a practical level, the prejudice to the respondent if they are allowed to be raised would be the loss of the costs ordered to be paid on the unsuccessful application at first instance if, on appeal, that costs order were to be varied. That prejudice can be met by not disturbing the order for costs. The prejudice to the appellant, if any of his new grounds of appeal are correct, is the loss of the opportunity to have his application before the Tribunal re-heard and determined by a differently constituted Tribunal according to law. In this instance, it is difficult to assess the significance of that prejudice without considering the merits of the points the appellant now wants to raise. However, where the appellant wishes to raise on appeal a matter which was expressly conceded by experienced counsel at the hearing as not giving rise to reviewable error on the part of the Tribunal, and where no explanation for why that concession should now be permitted to be withdrawn, the Court should be very cautious before permitting the appellant to raise the point on appeal.”

Gyles J took a different view. His Honour said at [61] to [62]:

“In my opinion, this chronology of events demonstrates that the appellant has no foundation which would permit this Court to entertain the arguments which have been addressed. The submissions for the appellant make it perfectly clear that he did not seek to overturn the primary judgment because of any error in it. He simply wishes to make another, and fresh, attack upon the RRT’s decision. In deciding not to challenge the primary decision, the appellant was realistic. Her Honour’s decision was careful, reasoned and, in my opinion, correct, even without the later decision of the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 (“Yusuf”) removing one of the bases of the application for review. The appellant, as I have said, has been legally represented at every material point in the process, including up to the judgment below, and had every opportunity of raising whatever legitimate complaint he had. In my opinion, it is contrary to principle to permit this appeal to proceed on the basis that the judgment below is simply put to one side and ignored. A Full Court hears appeals from primary judges, it has no role in judicially reviewing decisions of the RRT de novo. There are, of course, situations in which points not argued below can be raised on appeal. This is not one of them.

In my opinion, it is wrong to analyse the question which arises here as requiring a balancing of prejudice. Departure from the proper role of appeal in the court system is not simply a discretionary procedural decision. Furthermore, in public law matters like this, it can always be said that no actual prejudice apart from costs is suffered by the respondent compared with the prejudice to the appellant. It can easily be overlooked that there is a significant public interest in the timely and effective disposal of litigation. This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible. In the present case, there was no bona fide ground of appeal from the primary decision and the litigation should have ended at that point more than seven months ago. It is unnecessary, for present purposes, to go beyond the authorities cited by Mansfield J on the issue. Leave to argue the points sought to be raised should be refused. The appeal should be dismissed and the appellant ordered to pay the costs of the respondent. In coming to this view, I have had regard to the nature of the points sought to be argued, but not to the ultimate merits of those points.”

21                  We accept that the considerations identified by Gyles J will often, though not always, answer the question of whether, in an appeal such as the present, leave should be given to raise on appeal issues not raised before the primary Judge.

22                  In the present case, issues (i) and (v) concern errors of law that could have been raised before the primary Judge. They were not. That they were not cannot be explained by pointing to the fact that the High Court’s judgment in Yusuf removed from consideration much of the case that had been advanced before the primary Judge. There is no satisfactory explanation as to why the issues were not raised before the primary Judge. Moreover, they do not appear to be issues of substance. There is nothing in the Tribunal’s reasoning to suggest that it regarded “personal malignity or enmity” as a basis for finding that any harm experienced by the appellant did not amount to persecution. So far as ground (v) is concerned, the Tribunal made it clear that it understood the need to assess the cumulative effect of the incidents relied on by the appellant. The difficulty confronting the appellant was that, as the Tribunal found, none of the incidents involved persecution in a Convention sense and none involved the infliction of harm for a Convention reason. A cumulative approach could hardly advance matters from the appellant’s perspective.

23                  Issue (iii) depends, for its success, on success by the appellant on an issue not sought to be raised in the appeal. That is, plainly the reference to “systematic and State-sanctioned persecution” in the Tribunal’s reasons was in the context of its rejection of the claim that Christians as a group in Lebanon were at risk of persecution. Counsel for the appellant made it clear that he was not seeking to challenge the Tribunal’s finding relating to Christians as a group.

24                  Leave should be refused to amend the application for an order of review and, to the extent necessary, the notice of appeal to raise issues (i), (iii) and (v).

25                  Two issues remain to be determined. The first is issue (iv). The other is the contention in the original application that the Tribunal erred in law by wrongly assuming that persecution cannot arise unless it is motivated solely by Convention reasons.

26                  Issue (iv) is without substance. In considering the fourth incident, the Tribunal said:

“It is not physically possible that [the applicant] had anything other than his back turned towards people approaching him along the street. He did not turn until [the attackers] called to him; ….”

We were referred by counsel for the appellant to evidence of the appellant at the Tribunal hearing that he had been up a ladder. Section 476(1)(g) of the Act, when read with s 476(4)(b), identifies, for present purposes, the applicable ground of review as being that the decision of the Tribunal was based on the existence of a fact and that fact did not exist. Even accepting that the fact (the appellant had his back to the attackers) is one on which the decision was based (though it was not in any relevant legal sense) the appellant has not proved the fact did not exist. That is, the appellant has not proved that he did not have his back to the attackers. This is sufficient to dispose of this point, though, as the primary Judge observed, the finding of the Tribunal was based on an inference open on the evidence.

27                  The second issue is based on an assumption that the Tribunal found that any harm inflicted on the appellant was inflicted for both a Convention reason and for other reasons. Counsel for the appellant submitted that the Tribunal had fallen into error by approaching the matter on the basis that the appellant could satisfy the Convention definition of refugee only if the sole reason why persecution had been or might be inflicted was a Convention reason. However, as the primary Judge pointed out, the assumption on which the appellant makes this submission is wrong. The Tribunal found that any harm the appellant had suffered was not for a Convention reason at all. It did not find that the harm was inflicted both for Convention and non-Convention reasons.

28                  We dismiss the appeal and order the appellant to pay the respondent’s costs.

Associate:

Dated: 17 August 2001