FEDERAL COURT OF AUSTRALIA

MZXHY v Minister for Immigration and Citizenship

[2007] FCA 622

MIGRATION – appeal – refusal by tribunal of application for protection visa – fresh evidence of business tendered before Federal Magistrate but not admitted – Federal Magistrate not in error in refusing evidence directed to contravening a question of fact before the Tribunal – leave not appropriate to argue new grounds alleged to go to jurisdictional error – such grounds having little prospect of success in any event – no failure by Tribunal to consider membership of a particular social group of businessmen when particularity of group not identified to Tribunal – no arguable denial of natural justice when need to obtain documentation from Sri Lanka not identified to Tribunal – no misapplication of s 424A(1)

Migration Act 1958 (Cth) ss 422B, 424A(1), 424A(3), 424A(3)(b)

Abebe v The Commonwealth (1999) 197 CLR 510

Coulton v Holcombe (1986) 162 CLR 1

Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27

Minister for Immigration and Multicultural Affairs v Lat (2006) 151 FCR 214

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

O’Brien v Komesaroff (1982) 150 CLR 310

Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249

Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396

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

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Re Rudduck; Ex parte Reyes (2000) 75 ALJR 465

S115/00A v Minister for Immigration and Multicultural Affairs (2001) 180 ALR 561

Servos v Repatriation Commission (1995) 56 FCR 377

Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679

Stead v State Government Insurance Commission (1986) 161 CLR141

SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214

SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798

Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109

Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180

VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

MZXHY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

VID 1313 OF 2006

Nicholson J

30 april 2007

MELBOURNE

On appeal from the Federal Magistrates Court of Australia

THE COURT ORDERS THAT:

1.                  The description of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.

2.                  Leave to argue proposed grounds of appeal 2/1, 2 and 3 be refused.

3.                  The appeal be otherwise dismissed.

4.                  The appellant pay the first respondent’s costs of the appeal and the application for leave.

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

On appeal from the Federal Magistrates Court of Australia

REASONS FOR JUDGMENT

1                     These are the reasons for which I dismissed an appeal against a judgment of a Federal Magistrate (Burchardt FM) dated 13 November 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 31 January 2006.

2                     On 20 September 2005, the appellant’s application for a protection visa was refused by a delegate of the first respondent.  On 17 October 2005 the appellant applied to the Tribunal for a review of that decision.

Appellant’s claims

3                     The appellant, who was born on 23 June 1981, is a citizen of Sri Lanka with Sinhalese ethnicity who arrived in Australia on 3 April 2005.  In lodging an application for a protection visa on 16 May 2005 the appellant asserted, amongst other claims, that he was subjected to political persecution in Sri Lanka, particularly from members of the Liberation Tamil Tigers of Eelam (the LTTE). 

4                     Before the Tribunal, the appellant claimed that he had been repeatedly harassed and threatened by members of the LTTE following a belief that he had supported a breakaway faction and passed on information about LTTE activities.  Further, the appellant claimed that his business partner in Sri Lanka was killed by members of the LTTE because of his involvement with this particular faction.  Following the receipt of threatening phone calls warning him to close his business, the appellant claims that his business was repeatedly attacked and he was the victim of an attempted kidnapping.

Tribunal’s reasons

5                     The Tribunal noted several inconsistencies and contradictions in the appellant’s assertions, and subsequently was not satisfied that the appellant was ever involved in any business as claimed.  The Tribunal held that it could not be satisfied that the appellant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees, 1951 and the Protocol Relating to the Status of Refugees, 1967 (the Convention) and concluded that if the appellant were to return to Sri Lanka in the foreseeable future, there would be no chance that he would suffer any serious harm that could be regarded as persecution.

Federal Magistrate’s reasons

6                     Before the Federal Magistrate, the appellant claimed inter aliathat the Tribunal had failed to properly apply the test for determining whether there was a real chance of persecution, and had failed to consider all relevant factors relating to fears for his safety and the inadequacy of state protection.  At the hearing, the appellant presented the Court with a document purporting to be a business registration for a business located in Sri Lanka bearing the name of the appellant.  The relevant reasoning of his Honour on this issue was as follows:

‘52.      I do not believe there is power in this Court to receive evidence in the manner that the Applicant seeks.  What the Court is concerned with is the presence or absence of jurisdictional error such as to give rise to prerogative relief in respect of the proceedings before the Tribunal. 

53.       These documents were not before the Tribunal and the Tribunal’s failure to consider them self evidently gives rise to no error on its part.

54.       Having said that, a fair reading of the Tribunal’s decision suggests that the absence of the certificate of the business conducted with Subramaniam by the Applicant played a very significant part in the Tribunal’s process of reasoning.  Similarly, the presence of the death certificate had it been available before the Tribunal might well have caused the Tribunal to approach the existence of Subramaniam in a different way.

55.       While one is necessarily dealing with a hypothesis, one might reasonably infer that had these documents been available a different outcome would have been very possible.

56.       While for the reasons earlier expressed there is nothing the Court can do to assist the Applicant arising out of these documents in terms of overturning the Tribunal’s decision, these matters may very well be of assistance to the Applicant should he seek to make any application pursuant to s.417 of the Act to the Minister.’

Fresh evidence ground

7                     The first ground of appeal is that the learned Federal Magistrate accepted tendered documents by the appellant and identified in his judgment that had the documents been available to the Tribunal, a different outcome would have been given.  However, he failed to remit the matter to the Tribunal for not allowing sufficient time to produce the documents and thereby made a jurisdictional error. 

8                     It is apparent that the real purpose of the fresh evidence sought to be tendered by the appellant before his Honour was to contradict the factual finding made by the Tribunal on the evidence of the Batticaloa business and the death of his business associate and the Tribunal’s rejection of the appellant’s claims in respect of those matters.  It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal.  Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 380 determined the question of ‘… whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) can adduce evidence which was not before the tribunal at the time of its decision’.  At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal ‘… are only on questions of law’.  His Honour further held at 382 that the Court had no power to receive the fresh evidence:  see also at 385.  Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254 approved Servos 56 FCR 377 in a migration law framework. 

9                     There was, therefore, no error of law in his Honour’s approach to this issue. 

New grounds of appeal

10                  The next three grounds raised by the appellant all relate to alleged issues giving rise to jurisdictional error.  However, they were not grounds that were argued before the Federal Magistrate.  This means that the appellant must demonstrate that it is expedient and in the interests of justice that these new grounds should be raised:  O’Brien v Komesaroff (1982) 150 CLR 310 at 319; Coulton v Holcombe (1986) 162 CLR 1 at 7.  It is appropriate to consider the proposed new grounds to consider whether they have prospects of success on appeal.  For reasons which follow, I have concluded that the new grounds have little prospect of success on appeal.

11                  In addition, the appellant has not sought to explain why the new grounds were not raised in the Court below.  Further, the law in respect of the new grounds was settled and not in a confused or fluid state at the time the application was heard by the learned Federal Magistrate on 9 October 2006. 

12                  Weighing these matters, I concluded that it was not expedient and in the interests of justice to grant leave for these grounds. 

13                  In addition, I note that the relief sought in the notice of appeal, in addition to writs of certiorari and mandamus, include a writ of prohibition.  In relation to the application for prohibition directed to the first respondent, such a claim is inappropriate in the present case and there is no basis for its grant:  see Re Rudduck; Ex parte Reyes (2000) 75 ALJR 465 at [23] per McHugh J. 

Particular social group

14                  The first of the proposed grounds of appeal alleges that the learned Federal Magistrate fell into jurisdictional error in failing to consider the appellant’s expressed claim that he was at risk of persecution because of his association with a particular social group, namely, businessmen. 

15                  In the appellant’s protection visa application, he stated that he was a refugee for his political beliefs and his membership of a particular social group which was being persecuted by the LTTE.  The delegate of the first respondent found that the appellant had not identified what his particular social group might be.  Having considered the appellant’s claims against the Convention grounds of political opinion and race, the delegate did not consider that the appellant attracted persecution through membership of a particular social group.

16                  The Tribunal summarised the appellant’s claims made in his application for protection.  During the hearing before the Tribunal, the appellant indicated that apart from his fear of the LTTE, he did not have any other reasons to fear a return to Sri Lanka.

17                  The Tribunal is not limited to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated.  A claim that is ‘not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal’:  NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58].  At [59] the Full Court discussed whether the Tribunal is required to consider a claim not expressly raised and observed that there is no general rule that the Tribunal can disregard a claim which arises clearly from materials before it:  ‘[t]he Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it’:  at [61].

18                  It is submitted that the claim to persecution for membership of a particular social group did not arise from the material before the Tribunal and was not raised in response to direct questioning by the Tribunal during the course of the hearing.

19                  A claim made to the first respondent and referred to in the delegate’s decision would, ordinarily, be before the Tribunal.  However, where a claim has been made to the delegate and not advanced at all before the Tribunal and does not arise from the material before the Tribunal, the Tribunal is entitled to assume that the claim is no longer made.  The Tribunal is conducting a review of the delegate’s decision but on the basis of the claims advanced and materials before the Tribunal.  If a claim does not so arise and is abandoned, the Tribunal is entitled to take the view that the appellant did not make that claim or a case based on that claim:  SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798 per Bennett J. 

20                  The Tribunal gave the appellant the opportunity to present his claims.  Given the appellant’s statement at AB 184.5, the Tribunal was entitled to consider that apart from the appellant’s claims relating to the suspicions of the LTTE that he was involved in the Karuna  faction, the appellant had not suffered any other problems in the past in Sri Lanka and that the appellant had not suffered any serious harm in the past in Sri Lanka for any Convention related reason. 

21                  Even if the Tribunal was obliged to consider the matter of membership of a particular social group, the Tribunal had already rejected the appellant’s claims on the basis of imputed political opinion such that even if the Tribunal considered the claims on the ground of a particular social group, the outcome would have been the same.  As such, even if there technically is error, relief should still be withheld on discretionary grounds because it would be futile to remit the matter to the decision-maker in light of the Tribunal’s findings:  Stead v State Government Insurance Commission (1986) 161 CLR141 at 145; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [104]; VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 and S115/00A v Minister for Immigration and Multicultural Affairs (2001) 180 ALR 561 at [26] per Finn J. 

22                  Accordingly, there is no likely strength in this proposed ground. 

Failure to accord natural justice

23                  Here the appellant proposes to contend that he was not given an opportunity to provide further documents regarding his business affiliation with Mr Subramaniam.  He asserts the Tribunal only gave two days to provide that documentation and that was not a sufficient time for him to attempt to obtain it from Sri Lanka. 

24                  At the hearing before the Tribunal (as described in the reasons of the Tribunal):

‘The applicant’s adviser indicated that he had nothing to add but sought permission to produce a brief submission after the hearing.  The adviser was told that the Tribunal would not finalise its decision before Friday, 20 January 2006 to allow him time to forward such brief submission.  At the time of making this decision no such submission had been received by the Tribunal.’

It is therefore misleading for it to be submitted that the Tribunal only gave the appellant two days to provide further documentation when no request was made to the Tribunal in that respect. 

25                  Furthermore, the Tribunal’s decision was made subsequent to the insertion of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) on 4 July 2002.  As such, s 422B of the Migration Act 1958 (Cth) (the Act) provides for Div 4 of Pt 7 of the Act to be ‘an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with’:  Minister for Immigration and Multicultural Affairs v Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62.  Any argument that there was a breach of procedural fairness in failing to give the appellant the opportunity to provide further documents before handing down its reasons for decision cannot be made out. 

26                  Further, the Tribunal was not under any obligation to seek additional information that could remedy any deficiency in the evidence presented by the applicant:  Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180. 

27                  Again, there is no strength in the proposed ground of appeal.

Jurisdictional error from failure to comply with s 424A(1)

28                  The appellant’s next proposed ground is that the Tribunal failed to comply with its statutory obligations under s 424A(1) of the Act and so made a decision affected by jurisdictional error.  The non-compliance is said to have been that the business registration and the death certificate of the business associate were vital to the appellant’s case and the Tribunal failed to put information that was adverse to the appellant for comment in writing and such information was a reason or part of a reason for the decision to obtain the documents from his country of origin. 

29                  According to s 424A, the Tribunal must give the appellant particulars of information that would be the reason, or part of the reason, for affirming the decision under review.  It must also explain its relevance and invite the appellant to comment upon it.  This section does not, however, apply to information that is not specifically about the appellant, that the appellant gave for the purpose of the application or that is non-disclosable:  s 424A(3); SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 and Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27.

30                  The authorities are clear that the definition of ‘information’ in s 424A does not encompass the Tribunal’s subjective appraisals, thought processes or determinations:  Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54]; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [95]; VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] nor of defects in the appellant’s case per SZEEU 150 FCR 214 at [206] and [223].

31                  The Tribunal merely dealt with the material provided by the appellant and made an assessment and findings on it.  As such, the Tribunal made its findings based on an assessment of the appellant’s material given to the Tribunal for the purposes of review and there was no obligation on the Tribunal to issue a notice under s 424A to request comments in relation to its concerns about gaps in the evidence of the appellant.

32                  Due to the operation of s 422B noted above, any argument that there was a breach of procedural fairness in failing to give the appellant the opportunity to comment on the material on which the examination by the Tribunal is made cannot be made out.

33                  Further s 424A(1) does not operate as the appellant would have it, that is, it does not oblige the Tribunal to afford the appellant an opportunity to provide further time to obtain additional evidence regarding letters from Sri Lanka, the business registration or his business associate’s death certificate.

34                  The evidence of the individual case had to be supplied by the appellant himself in as much detail as is necessary to enable the Tribunal to make findings of fact.  The Tribunal is not required to make the appellant’s case for him:  see Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170; Abebe v The Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ.  It is for the appellant to present evidence to meet the visa criteria, particularly in circumstances where he was on notice from the delegate’s decision of the first respondent that he lacked evidence to substantiate his claims, which were found to be vague and lacking detail.  The Tribunal was entitled to decide the application on what the appellant chose to place before it.

35                  It should be noted that during the course of the hearing, the Tribunal discussed with the appellant issues in relation to a copy of the business registration certificate for the Batticaloa business, the Sri Lankan letters and his business associate’s death certificate.  The letters and the oral evidence given by the appellant during the hearing fall within the exception contained in s 424A(3)(b) and no obligation arises under s 424A(1). 

36                  Accordingly, this third of the proposed grounds of appeal also lacks strength.

Conclusion

37                  For these reasons at the hearing I concluded that leave should be refused for the new grounds of appeal to be accepted.  Further, that the first ground had not been made out.  Accordingly, I made orders refusing such leave and dismissed the appeal. 

Associate:

Dated:         1 May 2007