FEDERAL COURT OF AUSTRALIA

NBDF v Minister for Immigration and Multicultural Affairs [2006] FCA 1355

MIGRATION – whether Tribunal failed to consider aspect of appellant’s claim – whether Tribunal failed to comply with obligations under s 424A of the Act – whether exception in s 424A(3)(b) applied where appellant referred Tribunal to his original statement – whether Tribunal erred in failing to consider risk of renewed persecution if appellant resumed political opposition should he return to Jordan – Held: no error on part of Tribunal

MIGRATION – appellant seeking to raise new issue not relied on before court below so as to advance sur place claim to the Tribunal – expiry of appellant’s passport while in Australia awaiting determination of application for protection visa – whether Tribunal had a duty to investigate whether expiry of passport would lead to chain of events resulting in persecution of appellant should he return to Jordan – Held: leave to raise this ground of appeal not granted as not relied on before court below

PRACTICE AND PROCEDURE – grounds of appeal not relied on before court below – whether leave to raise new grounds of appeal should be granted – whether expedient in the interests of justice – consideration of merits of new grounds of appeal – Held: leave to raise new grounds of appeal refused

Migration Act 1958 (Cth) s 424A

Abebe v The Commonwealth (1999) 197 CLR 510 cited

Crimmins v Stevedoring Industry Finance Committee (1999) 167 ALR 1 cited

Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 applied

NADG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 893 referred to

NARE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 135 referred to

Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 cited

Pyrenees Shire Council v Day (1998) 192 CLR 330 cited

SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 cited

NBDF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 485 OF 2006

BRANSON J

17 October 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs, including reserved costs, of the first respondent.

REASONS FOR JUDGMENT

introduction

1                     This is an appeal from a judgment of the Federal Magistrates Court which dismissed an application for judicial review of a decision of the Refugee Review Tribunal. By a decision dated 2 February 2004 the Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant the appellant a protection visa.

2                     The appellant is a Jordanian citizen. He claimed to have been socially and economically disadvantaged in Jordan because he comes from a small tribe. He undertook tertiary study in Iraq and claimed that whilst there he developed his political consciousness through involvement with a union for Jordanian and Arab students and spoke out against the Jordanian government. As a consequence, as he asserted, he had been questioned by Jordanian intelligence officers on a number of occasions and ultimately detained for a week and beaten during interrogation.

3                     Additionally the appellant claimed that after completing his tertiary studies he was unable to find a job in Jordan. He obtained work in Saudi Arabia but returned to Jordan after 10 months because of seriously adverse working conditions. Thereafter he applied for, and was granted, as he claimed with the help of a high ranking intelligence officer, a student visa to study in Australia. After being unable to continue his studies in Australia he applied for a protection visa.

reasons for decision of the tribunal

4                     The Tribunal invited the appellant to attend a hearing on 29 January 2004. He did so and had the assistance of an interpreter at the hearing. The Tribunal considered that the appellant’s fundamental claims were credible but considered that the appellant had invented or exaggerated some aspects of his claims.

5                     In relation to the appellant’s claim that he had been questioned each time he returned to Jordan from Iraq, and during the time he was looking for work, the Tribunal considered that whilst repeated questioning may amount to serious harassment, the Jordanian authorities had a legitimate interest in the appellant’s activities because he had spent time in Iraq and Saudi Arabia. However, the Tribunal found that the conduct of the Jordanian authorities constituted persecution for reason of imputed political opinion when they detained the appellant for several days in 1996 and subjected him to physical mistreatment.

6                     The Tribunal did not accept the appellant’s claim that the intelligence services obstructed his attempts to obtain employment. The Tribunal noted that during the hearing, the appellant had confirmed country information that the employment situation was difficult generally in Jordan, and noted that the appellant did manage to find employment both in Jordan and Saudi Arabia.

7                     The Tribunal concluded that there was not a real chance of the appellant being persecuted if he returned to Jordan. It noted that the evidence indicated that the Jordanian authorities had showed decreasing interest in him after his detention in 1996. It observed that the appellant had returned to Jordan of his own accord after working in Saudi Arabia. The Tribunal rejected the appellant’s evidence that he had obtained his passport and visa illegally and noted that the appellant had not lodged his protection visa application for two years after arriving in Australia.

8                     As noted above, the Tribunal affirmed the decision not to grant the appellant a protection visa.

application for judicial review

9                     By a second amended application filed on 28 June 2004, the appellant claimed that the Tribunal had failed to take account of the conditions of work in Jordan and Saudi Arabia. The appellant also claimed that there was a failure to comply with s 424A of the Migration Act 1958 (Cth). At the hearing the appellant further claimed that the Tribunal’s decision was unfair because it was made ‘too early’, and that the Tribunal had therefore not fully listened to nor appreciated various points he had raised.

10                  The Federal Magistrate was not satisfied that the appellant had not been given an opportunity to provide details about his employment in Jordan and Saudi Arabia, nor that the Tribunal ignored the appellant’s claim that the employment he was able to get was not commensurate with his qualifications. His Honour concluded that the findings the Tribunal made in relation to the appellant’s employment were open to it on the evidence. The Federal Magistrate noted that there was nothing in the Tribunal’s reasons to indicate how s 424A might have been enlivened. His Honour treated the appellant’s complaint that the Tribunal had reached a decision too early as a complaint that the Tribunal had a closed mind. His Honour held that an objective bystander observing the Tribunal proceeding would not have ‘formed any such apprehension’, and that the Tribunal’s reasons do not provide any evidence that the Tribunal had a closed mind.

appeal to this court

11                  The notice of appeal does not identify any error allegedly affecting the judgment of the Federal Magistrates Court. The appellant did not comply with a direction made by a Registrar that he file and serve a draft notice of appeal setting out particularised grounds of appeal.

12                  When the appeal was first called for hearing the appellant handed to the Court written submissions which he said had been prepared for him by a lawyer. The content and language of the written submissions are consistent with their having been prepared by a lawyer notwithstanding that they contain the assertion ‘I have been unable to obtain legal assistance’ and are signed by the appellant personally. For the reason which I gave in NADG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 893 at [8]-[11], I consider that if the written submissions were prepared by a lawyer they should have been signed by that lawyer.

13                  The written submissions identify three purported errors said to affect the judgment of the Federal Magistrates Court. As the first respondent’s legal representative had received no notice of the appellant’s intention to rely on these purported errors it was necessary to adjourn the appeal hearing. The first respondent’s solicitors thereafter filed written submissions in response to those handed to the Court by the appellant.

14                  When the hearing of the appeal resumed the appellant was represented by counsel – but his counsel was not the person who had prepared his written submissions.

15                  While not abandoning reliance on the written submissions, the appellant’s counsel did not seek to address the Court in support of them. Rather he indicated that he had only shortly before the resumed hearing received instructions from the appellant which, if substantiated, might suggest that the appellant ought to have advanced a sur place claim to be entitled to a protection visa before the Tribunal. He sought leave to read an affidavit sworn by the appellant on 29 August 2006. The first respondent opposed the grant of leave. I deferred ruling on the admissibility of the evidence set out in the affidavit.

Expiry of Travel Documents

16                  The instructions which the appellant’s counsel conveyed to the Court may be summarised as follows. In approximately August 2003 (ie well before the Tribunal hearing) the appellant approached the Jordanian Embassy in Canberra to seek the renewal of his passport which had expired on 25 July 2003. An embassy official noted that his student visa had expired and asked what sort of visa he was on. The appellant feared that if he disclosed that he held a bridging visa pending determination of his claim to be entitled to a protection visa he might experience persecution for his presumed political affiliations if he were required to return to Jordan. The appellant’s fear was at least partly based on his belief that one of his friends who unsuccessfully applied for an Australian protection visa had been arrested and detained when he returned to Jordan for having criticised the Jordanian government while he was in Australia. The appellant thereafter asked a friend who was travelling to Jordan to take his passport to his brother in Jordan. He contacted his brother and asked him to arrange for the issue of a replacement passport. His brother did as requested with the result that the appellant’s original passport, which shows his departure from Jordan and entry into Australia, was cancelled and his new passport contains no indication that he ever left Jordan or lawfully entered Australia.

17                  While counsel for the appellant invited the Court to allow the appeal for the purpose of allowing the appellant to advance a sur place claim to the Tribunal based on his unwise conduct with respect to his passport, he was unable to support the invitation by reference to authority. The appellant was granted leave to file supplementary written submissions.

Duty to Investigate

18                  By his supplementary written submissions the appellant argued that the Tribunal knew that his passport had expired on 25 July 2003 and therefore knew, or ought to have known, that:

(a)                if the Jordanian authorities became aware that he had applied for a protection visa this would likely result in his persecution for a Convention related reason were he to return to Jordan; and

(b)               the Jordanian authorities would, prior to issuing a valid travel document to him, ascertain the type of visa by virtue of which he was in Australia and would consequently learn that he had applied for a protection visa.

Consequently, the appellant submitted, the Tribunal was duty bound to make enquiries about whether the expiry of the appellant’s passport was likely to lead to a chain of events resulting in his being persecuted for a Convention reason should he return to Jordan.

19                  Understandably, the appellant’s supplementary written submissions do not suggest that the Tribunal knew or ought to have known that the appellant had approached or would approach the Jordanian Embassy in Canberra. It was at the heart of the appellant’s claim to be entitled to a protection visa that he was unable or, owing to a well-founded fear of being persecuted, was unwilling to avail himself of diplomatic or consular protection extended by Jordan to its nationals in Australia (Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 at [17]-[21]). In the circumstances, unless advised to the contrary, the Tribunal might reasonably regard it as unlikely that the appellant had approached or would approach the Jordanian Embassy for any reason.

20                  It is also understandable that the appellant’s supplementary submissions do not suggest that the Tribunal knew, or ought to have known, that he had arranged, or would arrange, to obtain a new Jordanian passport issued in Jordan at a time when he was in Australia. The appellant accepts that it was unwise and foolish for him to have taken this step.

21                  The fresh grounds of appeal upon which the appellant’s supplementary submissions indicate that he wishes to rely are all dependent on the contention that the decision of the Tribunal is affected by error because it failed of its own motion to investigate whether the expiry of the appellant’s travel documents meant that the appellant had a well-founded fear of persecution for reason of political opinion in Jordan.

22                  The first obstacle in the way of the appellant relying on these fresh grounds of appeal is that he did not rely on them before the Federal Magistrates Court. Leave is required to argue on appeal an issue not raised below. The Court must be satisfied that it is expedient in the interests of justice for the issue to be raised for the first time on appeal (SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129). Neither the supplementary submissions of the appellant nor his affidavit address this issue. In particular they provide no explanation of why the appellant did not tell either the Tribunal or the Federal Magistrates Court of his belief concerning the experience of his friend on return to Jordan and of his own fear of experiencing persecution in Jordan because of his claim for a protection visa (see [16] above). His contention that a Jordanian citizen who returns to that country after unsuccessfully seeking an Australian protection visa faces a real risk of persecution for reason of imputed political belief does not, it seems, depend upon the expiry of travel documentation. He has not suggested that his friend’s passport had expired. Revelation of what the appellant believes happened to his friend would not have required disclosure of the appellant’s unwise conduct concerning his own passport.

23                  An important aspect of the inquiry as to whether it would be expedient in the interests of justice to allow the appellant to raise before this Court an issue not raised before the Federal Magistrates Court is the apparent merit of the issue. The appellant placed reliance on the High Court decisions in Pyrenees Shire Council v Day (1998) 192 CLR 330 and Crimmins v Stevedoring Industry Finance Committee (1999) 167 ALR 1. These cases concerned the law of negligence; it was in that private law context that the High Court gave consideration in each case to whether an affirmative common law duty of care required a statutory or public authority to exercise a power. The present case by contrast concerns public law principles of judicial review.

24                  The authorities reveal that an applicant for a protection visa must advance whatever evidence or arguments he or she wishes to rely on in support of his or her claim for a protection visa (Abebe v The Commonwealth (1999) 197 CLR 510 at [189]; NARE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 135 at [15]). As Wilcox J observed in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170:

‘The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries.’

25                  In my view the issue upon which the appellant wishes to rely for the first time before this Court is without apparent merit. If he feared that he would be persecuted in Jordan for reasons of imputed political belief because he had sought asylum in Australia, he was required to place the Tribunal on notice of this. The Tribunal was not under a duty to make a case for him.

26                  It would not be appropriate to grant the appellant leave to raise the issue simply because, as he contended, it would be just to allow him to do so (see NARE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [16]). The decision of the Tribunal may only be set aside for jurisdictional error. The Tribunal did not make a jurisdictional error by failing to consider a claim which the appellant did not make.

27                  In all of the circumstances I conclude that the appellant should not be granted leave to raise before this Court the issue of whether the Tribunal was under a duty to make enquiries about whether the expiry of the appellant’s passport was likely to lead to a chain of events resulting in his being persecuted for reasons of imputed political opinion should he return to Jordan. The affidavit of the appellant is therefore not admissible as its contents are irrelevant to any issue to be determined on this appeal (see [15] above).

28                  I turn, then, to the original written submissions of the appellant.

Particular Social Group

29                  The first error alleged in the written submissions is that the Federal Magistrate erred in rejecting a submission that the Tribunal failed to consider an aspect of the appellant’s claim; namely that he has a well‑founded fear of persecution in Jordan by reason of membership of a particular social class constituted by members of a small Jordanian tribe. The Minister has submitted that the appellant did not advance a claim to fear persecution on the basis of membership of any relevant social group and thus the Tribunal was not required to consider any such claim. Certainly the appellant did little more than hint at such a claim; he made no real effort to substantiate it.

30                  However, it seems to me that on a fair reading of the Tribunal’s reasons for decision, the Tribunal did in fact rule out the possibility of the appellant having a well-founded fear of persecution in Jordan for any Convention reason, including his membership of a small tribe. The Tribunal noted that the appellant had not experienced persecution since 1996, that he had returned to Jordan from Saudi Arabia of his own accord because of poor wages and working conditions there and that he did not lodge a claim for a protection visa for two years after his arrival in Australia. The Tribunal further noted that much of the appellant’s evidence suggested that his purpose in coming to Australia was to obtain a better (I interpolate, as opposed to a safer) life for himself. I infer that the Tribunal concluded that the appellant does not have a well-founded, or indeed any, fear of being persecuted in Jordan because of his membership of a small tribe.

Section 424A of the Act

31                  The second alleged error said to affect the judgment of the Federal Magistrates Court which was identified in the original written submissions of the appellant is that the Federal Magistrate should have found that the Tribunal did not comply with the obligations placed on it by s 424A of the Act. The appellant has not identified the information which he claims that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review of which he should have been provided particulars. His written submissions refer to the Tribunal’s finding that he exaggerated his claims. The appellant gave detailed answers to the Tribunal concerning virtually all material aspects of his claim. I am not satisfied that the Tribunal’s reference to ‘exaggeration’ is not a reflection on that evidence. If I am wrong in this regard, I note that the appellant expressly requested the Tribunal to refer to his original statement. While I doubt that every reference by an appellant to his or her original statement gives that statement the character of information that the appellant gave for the purpose of the application within the meaning of s 424A(3)(b) of the Act, in this case I consider that the appellant did provide to the Tribunal the information in his original statement within the meaning of the subsection, with the consequence that the Tribunal was relieved of its obligations under s 424A(1).

Possible Future Political Activity

32                  The third alleged error identified in the original written submissions of the appellant is that the Tribunal erred in failing to consider whether the appellant would be at risk of renewed persecution in Jordan if he resumed his opposition to the Jordanian regime or if he were imputed with an adverse political opinion because of his years of residence in Australia. I accept the submission of the first respondent that the Tribunal did consider the risk that the appellant might be persecuted in the future if he returned to Jordan. The appellant did not claim that he would engage in political activity in Jordan or that he feared being imputed with a political opinion as a result of his residence in Australia. I am not satisfied that any error attends this aspect of the reasons for decision of the Tribunal.

conclusion

33                  For the above reasons the appeal is dismissed with costs including reserved costs.

Associate:

Dated: 17 October 2006