FEDERAL COURT OF AUSTRALIA

SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886

MIGRATION – appeal – reliance on sole ground of appeal in notice of appeal abandoned at hearing – seeking to amend notice of appeal to include two grounds not advanced before court below – circumstances where leave will be granted by appellate court – merits of proposed grounds of appeal – consideration of serious consequences where refusal of protection visa involved – where applicant legally represented at all material times – grounds of appeal concerning treatment of independent evidence by Tribunal

Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929 (FC) cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 cited

Wimalaratne v Minister for Immigration & Multicultural Affairs [2000] FCA 1737 (FC) cited

SZEPN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & REFUGEE REVIEW TRIBUNAL

NSD 52 of 2006

BRANSON J

11 JULY 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The application to amend the notice of appeal be dismissed.

2.                  The appeal be dismissed.

3.                  The appellant pays the respondent’s costs.

REASONS FOR JUDGMENT

introduction

1                     The appellant is a citizen of Serbia and Montenegro of Albanian Muslim descent.  He comes from a village in Preshevo, Serbia.  He arrived in Australia in December 2003 and applied for a protection visa in January 2004.

2                     The appellant’s application for a protection visa was refused by a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs. This decision was affirmed by the Refugee Review Tribunal.  The appellant’s application for judicial review of the decision of the Tribunal was dismissed by the Federal Magistrates Court (SZEPN v Minister for Immigration & Anor [2005] FMCA 1664).

3                     The Tribunal in its written reasons for decision noted that the appellant claims that he will face harm if he returns to Serbia and Macedonia because he avoided conscription and because he assisted Kosovo refugees flee to Montenegro during the war between Kosovo and Serbia.  The appellant does not challenge the Tribunal’s conclusion that he would not now face harm in his country of nationality because he avoided conscription.  However, he continues to maintain that he will face harm as a Muslim who assisted Kosovo refugees during the war between Kosovo and Serbia.

4                     The appellant has appealed to this Court from the judgment of the Federal Magistrates Court.  For the reasons set out below, I conclude that his appeal should be dismissed with costs.

procedural history of this appeal

5                     This appeal has had an unhappy procedural history.

6                     First, the appellant required an extension of time within which to appeal from the judgment of the Federal Magistrates Court.  His solicitor swore an affidavit in support of the application for an extension of time in which he deposed to attempting to send a notice of appeal to the NSW District Registry of this Court by facsimile transmission within the time allowed by O 52 r 15 of the Federal Court Rules.  It appears that he did not wait to sight a transmission verification report before departing overseas.  The transmission verification report annexed to the solicitor’s affidavit shows that the fax number to which the solicitor attempted to send the notice of appeal was busy.  This is perhaps fortunate as the number shown on the transmission verification report is not a Federal Court number; one digit was wrongly entered.

7                     On 17 March 2006 this Court ordered that the time within which the appellant could file and serve a notice of appeal be extended up to and including 24 March 2006 (SZEPN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 268).

8                     No notice of appeal was filed in the period between 17 and 24 March 2006.  It appears that an attempt was made to file a notice of appeal on 29 March 2006.  The Registry properly refused to accept the notice for filing.

9                     The respondent thereupon consented to the period of time within which the appellant could file and serve a notice of appeal being further extended.  A notice of appeal was filed and served within the further extended period of time.

10                  Only one ground of appeal is set out in the notice of appeal filed by the appellant.  That ground asserts that the learned Federal Magistrate erred by failing to find that the Tribunal made a jurisdictional error because it ‘overlooked’ a single passage in the independent material available to the Tribunal.  The passage in the independent material to which this ground of appeal refers can be identified by reference to the reasons for judgment of the Federal Magistrate (at [19]). It is an extract from the US State Department Report on the Federal Republic of Yugoslavia for 2001. The Federal Magistrate found that the Tribunal was justified in not referring to that passage because it instead placed reliance on a passage dealing with the same subject matter in the 2003 version of the same report (at [23]-[24]).

11                  I conducted a direction hearing in respect of this appeal on 30 May 2006.  On that day I ordered that the appeal book be filed and served by the solicitor for the appellant 14 days ahead of the hearing date fixed for the appeal.  I also ordered that the appellant file and serve any further written submissions by no later than five clear working days before the hearing date.  Neither of these orders was complied with.  The appeal book was filed and served four days ahead of the hearing date fixed for the appeal and the appellant’s written submissions were filed only 2 clear working days ahead of that time.

12                  At the hearing of the appeal the appellant’s solicitor, who appeared on his behalf both in this Court and in the Federal Magistrates Court, indicated that he wished to amend the notice of appeal – although he was not able to provide the Court, or the respondent, with a draft of the amendments he wished to make.  Ultimately it emerged that the appellant, perhaps unsurprisingly, wished to abandon reliance on the only ground of appeal set out in his notice of appeal. 

13                  In lieu of the ground of appeal set out in his notice of appeal the appellant wished to rely on grounds of appeal to the following effect:

(a)                the Tribunal made a jurisdictional error by referring the appellant to independent evidence which it wrongly characterised as indicating that Serbian forces had withdrawn from Preshevo; and

(b)               the Tribunal made a jurisdictional error by overlooking certain passages in the independent evidence which were corroborative of the appellant’s claims.

14                  Neither of the above arguments was advanced before the Federal Magistrates Court.  No evidence was adduced to explain why the arguments were not advanced below.  The appellant’s solicitor simply advised the Court that he ‘missed’ the arguments. The initial application for an extension of time within which to file and serve a notice of appeal had been supported by an affidavit to which a draft of the appellant’s notice of appeal had been annexed (see O 52 r 15(b)).  It was not argued before me, and it is in any event unnecessary for me to determine, whether the appellant would require a fresh extension of time to allow him to file and serve a notice of appeal raising entirely new grounds of appeal.

should leave be granted to advance new arguments?

15                  An appellant requires the appellate court’s leave to rely on arguments not advanced before the court below.  That leave will only be granted where it is expedient in the interests of justice for the leave to be granted (NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 esp at [163]-[166]).  In NAJT at [166] Madgwick J identified the relevant questions 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?’

16                  The serious consequences that may attend a wrongful refusal of a protection visa may be taken into account in determining whether it is expedient in the interests of justice for leave to be granted in a case of this kind.  However, the authorities reveal that leave is less likely to be granted where the appellant has been legally represented at all times (Wimalaratne v Minister for Immigration & Multicultural Affairs [2000] FCA 1737 (FC); Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929 (FC)).

17                  I heard the parties in full on the merit of the grounds of appeal on which the appellant wishes to rely, as well as on the question of whether leave should be granted to the appellant to rely on them as they do not reflect arguments made to the Federal Magistrates Court.  I considered it appropriate to adopt this course because the merit of the arguments is a significant consideration in determining whether it is expedient in the interests of justice to grant the appellant leave to rely on them.  I reserved ruling on the application to amend the notice of appeal until the publication of these reasons for judgment.

submissions of the appellant

Proposed Ground 1

18                  The reasons for decision of the Tribunal, after referring to the appellant’s claim to fear harm because he avoided conscription, state:

‘The applicant then said that he feared harm because he had helped Kosovar refugees to flee and had escorted them to Macedonia.  The Tribunal referred to the independent evidence as set out in the primary decision maker’s decision, and the independent evidence cited below, which indicated that hostilities were at an end and that Serbian forces had withdrawn from Preshevo.  Moreover, free and fair elections had been held to form a government representative of the local population.  The Tribunal asked in the light of this, why he should still be afraid to return.’ (emphasis added)

19                  The appellant contended that the Tribunal made a jurisdictional error by suggesting to the appellant that the independent evidence indicated that Serbian forces had withdrawn from Preshevo.  I do not accept this submission; no jurisdictional error is involved in the Tribunal’s seeking an applicant’s comments on the Tribunal’s understanding of the independent evidence.  The position might be different if it were established that the Tribunal based its decision on a wrong understanding of the independent evidence.

20                  Later in the Tribunal’s reasons for decision the following passage appears:

‘The Tribunal accepts the independent evidence cited above and cited in the primary decision maker’s record, that the situation in Preshevo has changed such that people like the applicant are no longer oppressed by Serbians.’

21                  The above passage, when read together with the passage set out in [18] above, suggests that the Tribunal accepted the independent evidence to which it referred in the belief that that evidence indicated that ‘Serbian forces’ had withdrawn from Preshevo.  Was this a wrong understanding? 

22                  The independent evidence does not contain a statement that ‘Serbian forces had withdrawn from Preshevo’.  However, it may be inferred from the independent evidence that, as hostilities are at an end, Serbian military forces are no longer in the region as an active fighting force.  It may also be inferred from the independent evidence that there are now no exclusively Serbian forces in the region, as opposed to ethnically diverse forces.  Certainly the independent evidence suggests that civil order in the Preshevo region is now maintained by the new multi-ethnic police force rather than by Serbian military forces.

23                  The reasons for decision of the Tribunal should not be scrutinised over-zealously (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 272).  It is not entirely clear what the Tribunal meant by the expression ‘Serbian forces’.  However, when the reasons for decision of the Tribunal are read as a whole, I do not consider that they suggest that the Tribunal misunderstood the independent evidence to which it referred.  The Tribunal rightly looked to that evidence to see what light, if any, it threw on the question of whether the appellant had a real chance of being harmed by Serbian authorities should he return to his country of nationality.  I think it likely that the Tribunal intended to convey that the exclusively Serbian military forces which the appellant feared were no longer responsible for maintaining order in Preshevo; for that reason the appellant would be able to look to the multi-ethnic police force for protection.  This view of the situation in Preshevo finds support in the independent evidence to which the Tribunal referred.

24                  The independent evidence to which the Tribunal referred was fairly characterised by it as revealing that the situation in Preshevo has changed and that ethnic Albanians are no longer oppressed by Serbians. For example, the primary decision-maker noted that the Department of Foreign Affairs and Trade had advised:

‘… the FRY Government has endeavoured to redress Albanian grievances in Presevo.  Albanians are included in administrative and political structures including in a new multi-ethnic police force.  Municipal elections in July 2002 returned Albanian mayors in two out of three municipalities.  There is considerable international presence in Presevo, which keeps the actions of the authorities under scrutiny.  In short, there is no reason for Albanians from Presevo to fear returning unless, of course, they have committed some genuine criminal offence.’

25                  I conclude that this proposed ground of appeal has limited prospects of success.

Proposed Ground 2

26                  As mentioned above, the appellant’s notice of appeal asserted that the Federal Magistrate had erred by failing to find that the Tribunal had made a jurisdictional error by overlooking one passage in the independent material available to the Tribunal.  Counsel for the Minister thus attended the hearing of this appeal prepared to defend the judgment of the Federal Magistrates Court against criticism of its treatment of the appellant’s arguments concerning that passage.

27                  However, as is also mentioned above, the appellant did not press that ground of appeal.  Rather the appellant sought to advance a new argument, not made to the Federal Magistrates Court, based on other content of the independent material available to the Tribunal.

28                  The appellant’s written submissions on the appeal contained as an annexure sixty pages of independent evidence from the 2003 US State Department Report mentioned in [10] above, with certain passages highlighted in green to indicate that the Tribunal referred to them and others in pink to indicate that the Tribunal did not refer to them.  It appears that this coloured highlighting did not appear in the copy submissions provided to the respondent’s legal representatives.  The single passage to which the appellant’s notice of appeal must be understood to refer was not one of the highlighted passages; that passage is contained in the 2001 version of the report.

29                  I have examined the passages highlighted in pink.  They indicate that at the time with which the report was concerned, human rights abuses to some degree continued in Serbia and Montenegro generally.  They also indicate that poverty and unemployment were highest in southern Serbia and amongst refugees and displaced persons from Kosovo.  Some of the passages have little, if any, relevance to the situation in Preshevo.  Importantly, the passages highlighted in pink do not contradict the material upon which the Tribunal placed reliance.  They do not suggest that it was inappropriate for the Tribunal to conclude, as it did, that there was no reason why the local authorities, who are now representative of the local population and no longer represent the former Milosevic regime, would be interested in the appellant.

30                  I consider that this proposed ground of appeal has no realistic prospects of success.

conclusion

31                  Having regard, in particular, to my above findings as to the merits of the two proposed grounds of appeal, I conclude that it is not expedient in the interests of justice to allow the appellant to rely on those grounds.  The additional factors to which I give weight are that the appellant has been legally represented at all material times, that no satisfactory explanation has been advanced for the proposed grounds of appeal being identified for the first time at the appeal hearing and the apparently cavalier manner in which the appellant’s case has been conducted in this Court.  The application to amend the notice of appeal is therefore refused.

32                  As the only ground contained in the notice of appeal was understandably not pressed, the appeal will be dismissed with costs.

Associate:

Dated:              11 July 2006