FEDERAL COURT OF AUSTRALIA

SZMRD v Minister for Immigration and Citizenship [2009] FCA 598

SZMRD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 155 of 2009

SPENDER J

11 may 2009

sydney

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent, fixed in the amount of $3,200.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The appellant is a male citizen of Nepal born in 1976.  He claimed to fear harm in Nepal due to his imputed political opinion and membership of a particular social group comprising contract builders subject to extortion demands.  He arrived in Australia on 6 November 2007, and on 19 December 2007 lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application for a protection visa on 10 April, and on 5 May 2008 the appellant applied to the Refugee Review Tribunal (the Tribunal) for review of that decision. 

2                     The Tribunal held a hearing on 15 July 2008, and handed down a decision on 29 July 2008 affirming the decision not to grant to the applicant a Protection (Class XA) visa. 

3                     The appellant appealed to the Federal Magistrates Court on 21 August 2008, and filed an Amended Application on 20 November 2008.  The matter was heard on 4 February 2009, and judgment was given that same day dismissing the application.  A Notice of Appeal was filed in the Federal Court on 25 February 2009. 

4                     Before this Court, the appellant was represented by Mr Young of counsel.  In his submissions, counsel for the appellant said of the Amended Application filed on behalf of the appellant in the Federal Magistrates Court on 20 November 2008:

8.         … It is accepted that none of the ground raised before his Honour [Scarlett FM] could warrant reconsideration by the present Court on appeal. 

9.         The Notice of Appeal presently relied on by the appellant is at AB 118-119. It is conceded that this Notice of Appeal raises no valid Appeal point.

5                     The appellant sought leave of the Court to rely upon an Amended Notice of Appeal which was annexed to the written submissions of counsel for the appellant.  In that Amended Notice of Appeal the respondent wishes to argue in these terms:

The appellant appeals from the whole of the judgment and orders of Federal Magistrate Raphael on 4 February 2009.

GROUNDS

1.         The Second Respondent failed to give proper, genuine and realistic consideration to the Appellant’s claims.

2.         The second Respondent found or assumed that:

a.         Compliance with extortionate demands under threat or duress meant that the person so complying would be seen to be a supporter and therefore not subject to persecution, and

b.         Extortionate demands coupled with threats and duress did not and could not therefore amount to persecution or serious harm.

6                     The orders sought are that the appeal be allowed; the orders of Raphael FM be set aside; a writ of mandamus be issued directing the second respondent to determine according to law the appellant’s application before the second respondent; and costs.

7                     I granted leave to file in Court the Amended Notice of Appeal, but the question is whether leave should be granted to argue in respect of those grounds. 

8                     It is immediately apparent that the Notice of Appeal is directed at errors said to have been made by the Refugee Review Tribunal (the Tribunal), the second respondent.  Nothing in the Amended Notice of Appeal alleges any error on the part of Raphael FM.  Having raised this difficulty with counsel, this Court is being asked to proceed on the basis that the Federal Magistrate erred in failing to find that the second respondent behaved in the way alleged in grounds 1 and 2 of the Amended Notice of Appeal.

9                     The question in this case concerns the important question that, even though the extended grounds of appeal were never raised before the Federal Magistrates Court, it is right to permit the appellant to rely on them in this Court. 

10                  A problem similar to the present was considered by Lander J in SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 (SZKMS).  In the case before his Honour, the appellant sought leave to amend the Notice of Appeal in accordance with a further Amended Notice of Appeal.  They also sought leave to adduce further evidence on the appeal, being the transcript of the hearings before the Tribunal on 18 January and 14 February 2007. 

11                  The considerations in relation to whether the appellants should in that case have been  permitted to rely on grounds not relied on by the appellants in their application for review before the Federal Magistrate were discussed at some length by Lander J.  Notwithstanding that length, his Honour’s observations bear repetition, as they are apposite to the considerations in this case:

18        The first respondent opposed the application to amend the notice of appeal on the ground that the proposed amendments raised grounds of appeal which were not grounds relied on by the appellants in their application for review before her Honour.  The proposed grounds of appeal do raise issues which were not relied on for the relief sought in the Federal Magistrates Court.  Moreover, the further amended notice of appeal abandons all of the grounds which were relied upon by the appellants before the Federal Magistrate.  The result would be, if leave were given to allow the further amended notice of appeal to stand as the grounds of appeal, that this Court would be called upon to consider for the first time an application for judicial review of the Tribunal’s decision based upon these new grounds.  It would mean that the Appeal Court would be determining issues of fact and considering arguments for itself without the benefit of the opinion of the Court from which the appeal is brought.  Such a course is self-evidently unsatisfactory.  No explanation has been given for the failure to raise these grounds before the Federal Magistrate, save that the appellants were unrepresented before her Honour.  It was also put that the first respondent would suffer no prejudice.

19        It may be accepted that a person who is unrepresented on an application for judicial review is at a disadvantage.  Such persons find it difficult to understand the limits of the inquiry on an application for judicial review.  Moreover, they often find it difficult to articulate the grounds which might give rise to a successful application.  The concept of jurisdictional error is not easy for unrepresented parties to understand.

20        However, that being said, being unrepresented on the application cannot, by itself, be enough to permit the unrepresented party to raise grounds which were not raised in the Federal Magistrates Court.  Nor is the fact that the Minister will not suffer any prejudice enough.

21        Parliament has given the Federal Magistrates Court jurisdiction in relation to applications of this kind to the exclusion of this Court: s 476A of the Act.  All of the issues which are sought to be ventilated should be addressed at the trial in that Court.  Parliament has provided for a right of appeal to this Court and in matters of this kind the appellate jurisdiction of this Court may be exercised by a single Judge: s 25(1AA) of the Federal Court of Australia Act 1976 (Cth).  Indeed, that is the case on this appeal.

22        The High Court has made it plain that, ordinarily, a party is confined in its grounds of appeal to matters which have been raised in the Court below.  The High Court said in Metwally v University of Wollongong (1985) 60 ALR 68 at 71:

It is elementary that a party is bound by the conduct of his case.  Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

23        In Coulton v Holcombe (1986) 162 CLR 1, the majority said 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 instances to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

24        The appellate process is to correct error.  If a party is entitled to raise issues for the first time on appeal, the appeal court will become de facto the primary court.  That is undesirable.  It is particularly undesirable where the appellate jurisdiction of the Court is being exercised by a single judge and any right of appeal from that single judge is to the High Court.  If a party is entitled to raise an issue for the first time on appeal in this Court, the High Court will be burdened by applications for leave to appeal from judges sitting alone who have not had their decision reviewed.  That must be particularly undesirable from the High Court’s point of view.

25        Moreover, to allow new grounds of appeal is to defeat the purpose of the legislation which requires that judicial review of a decision of the Refugee Review Tribunal to be within solely the jurisdiction of the Federal Magistrates Court.  If new grounds are advanced on appeal, it effectively means that the jurisdiction is being exercised by this Court.

26        Of course, appeals of this kind are particularly sensitive: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788.  It is particularly important to the party seeking refugee status that that party’s claim be considered by the Tribunal in accordance with law.  That said, however, it seems to me that it is necessary to protect the integrity of the appellate jurisdiction that parties be bound by the way in which they conducted their application for judicial review before the Federal Magistrates Court: H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43.

27        However, the Full Court of this Court has recognised that a residual discretion resides in this Court to allow a party to advance a ground of appeal not advanced before the Court from which the appeal is brought where it is in the interests of justice to do so: Iyer [2000] FCA 1788.  In Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543, the Full Court adopted the test propounded by the High Court in appeals to that Court in Metwally v University of Wollongong 60 ALR 68 at 71 that a party is bound by the conduct of the party’s case in the Court below except in “the most exceptional circumstances”.

28        In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, the Court said that leave to argue a ground of appeal not raised before the trial judge should only be granted “if it is expedient in the interests of justice to do so.”  After referring to the dicta in Coulton v Holcombe 162 CLR 1, the Court said that the Court may grant leave if the point which has not been raised in the Court below has merit and there is no real prejudice to the respondent in permitting the point to be ventilated.

29        Rarely will the Minister in an appeal to this Court from a migration judgment of the Federal Magistrates Court be able to point to any prejudice of the conventional kind.  That cannot be a reason to allow a party to raise issues not raised in the Court below.  In Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71, Gyles J said at 86:

In my opinion, it is wrong to analyse a 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 7 months ago.

30        The Minister has a legitimate interest in the timely disposal of applications for protection visas.  There are other public interests, however, to which regard should be had.  There are good reasons why this Court should not be made de facto the Court of original jurisdiction when sitting on appeal.  Otherwise its role as an intermediate Court of Appeal will be undermined.  The High Court should not be burdened by applications for leave to appeal from decisions of this Court which have not been reviewed.

31        The respondent conceded that I needed to consider whether any of the grounds had any merit before determining whether or not I should allow the application to amend.  The concession was rightly made having regard to the decisions of this Court and, in particular, VUAX [2004] FCAFC 158.  Adopting that procedure, however, means that in every case where there is an application to raise a ground not previously raised in the Court below, the party seeking to have the ground agitated will by reason of the application itself require the Court to consider the ground.  It is a curious result when the Court would otherwise discourage such applications but a result which arises because the Court’s overriding duty is to do justice.   The reason for the power to allow a party to raise a ground on appeal for the first time is to do justice.

12                  As his Honour noted in [31], it was necessary to consider whether any of the grounds had any merit before determining whether or not he should allow the applicant to amend. 

13                  In this particular case the argument that the appellant wishes to raise in this Court concerns the findings and observations by the Tribunal which were expressed in [49] of its decision.  At [48], the Tribunal said:

The applicant’s claims centre on the fact that he claims he has been threatened by the Maoists and the YCL and its cadre, and has been repeatedly asked to provide donations, which he claims he has provided a number of times, and the Tribunal accepts these claims as they are supported by the letter provided by the Contractor’s Association of Lalitpur (CAL) Nepal, dated 5 November 2007. … The applicant claims that all of these events occurred in the context of his being involved in two construction projects in 1999/2000 which, from the above-mentioned documentation provided by the applicant, the Tribunal has already found he completed in August 2000.  Again, the tribunal accepts these claims.

14                  Later the Tribunal said:

However, from the claims made by the applicant, the Tribunal has not been able to satisfy itself that the applicant has a well founded fear of serious harm amounted to persecution due to his particular social group, imputed political opinion, or indeed for any other Convention related reason because he has been subject to extortion in 1999/2000, when he and his firm (B.S. Builders) undertook to contract construction projects.

15                  At [49], the Tribunal said:

The Tribunal is satisfied that, while the applicant now some eight years ago received some threats, noting that he was not subject to serious harm over this extensive period (other than one incident in September/October 2007 which is dealt with below). Nor does he claim that he reported the matter to the police or the other authorities in Nepal, stating at the hearing that the reason for this was because he was concerned that if he did so, he would have to declare that he had in fact been financially supporting the Maoist. 

16                  The Tribunal later said:

… the Tribunal is satisfied that he would be seen by the Maoists as being a financial contributor to their cause. … It follows that, given all the above, the Tribunal is satisfied that while from time to time he was approached to make financial contributions to the Maoists/YCL callers, as he made a number of financial contributions to the Maoists, he would therefore have been seen by them by definition as being a financial supporter, so he does not have a well founded fear of serious harm among the persecution for this or any related reason as, if this was the case, then he would have either gone into hiding, or alternatively taken the opportunity to quickly leave Nepal using his valid Nepalese passport after the threats were made.  However, the Tribunal finds that he did neither of these things:  on the contrary, he continued to live in his family home where, by the applicant’s own account, the Maoists claim they knew where he lived but does not claim that they attacked his home, his family or himself.  In short, the Tribunal is satisfied that as he made no attempt to leave his home of many years, let alone not go overseas in order to ensure his own safety, that the applicant does not have a well founded fear of serious harm amounting to persecution for a Convention reason in Nepal.

17                  The argument that counsel for the appellant wishes to put forward is that what the Tribunal appeared to be saying, in [49], is that after 2000, the appellant continued to be the subject of extortion demands made under duress or threat, and he complied with those demands.  As a result of the compliance with the demands, he was seen by the Maoists as a financial contributor to their cause so that he would not be subject to other threats not associated with the extortion demands. 

18                  It was argued that the fallacy in the reasoning of the Tribunal is that it excludes the process of the extortion demands, coupled with threats and duress, from consideration as persecution.  The extortion demands, the threats and the duress were themselves, it is submitted, capable of amounting to serious harm within the meaning of s 91R of the Migration Act 1958 (Cth). 

19                  It is plain that extortion may amount to persecution. Rajaratnam v Minister for Immigration and Multicultural Affairs [2000] FCA 1111 (Rajaratnam) and Minister for Immigration and Multicultural Affairs (1999) 95 FCR 517.  However, as Graham J noted in SZLAN v Minister for Immigration and Citizenship [2008] FCA 904, at [40]:

… it needs to be recognised that the reason why an extorting party has an interest in another may or may not have foundation in a Convention reason.  A person upon whom extortionate demands have been placed may have become the subject of extortion because he or she belongs to a social group identified by a Convention criterion. 

20                  In Rajaratnam, , the Full Court of Moore, Finn and Dowsett JJ said, at [46]:

As this Court has indicated on several occasions, care needs to be taken when considering whether extortion has been practised upon a person for a Convention reason: see eg Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 166 ALR 641 at 645-646.  The need for this is apparent enough.  In the usual case of extortion the extorting party will be acting for a self-interested reason (ie to gain an advantage for himself or herself, or for another).  In this sense, his or her interest in the person extorted can always be said to be personal.  What needs to be recognised, though, is that the reason why the extorting party has that interest may or may not have foundation in a Convention reason.  The extorted party may have been chosen specifically as the target of extortion for a Convention reason, or may have become the subject of extortion because of the known susceptibility of a vulnerable social group to which he or she belongs, that social group being identified by a Convention criterion.  Or, conversely, the person may have been selected simply because of his or her perceived personal capacity to provide the particular advantage sought and for no other reason or purpose.

21                  It is thus necessary, in the context of extortion demands, to consider whether the selection of the person for extortion demands was for a Convention reason.  It is not sufficient that the extorter, the person making the extortion demands, has a political opinion or is a political group or is a religious group or any other social group. The question is whether there is a well-founded fear of persecution for a Convention reason.  And for that reason it is necessary to consider, as the Full Court said in Rajaratnam, whether the party extorted has been chosen as the target of the extortion for a Convention reason, or may have become the subject of extortion because of the known susceptibility of a vulnerable social group to which he or she belongs, that social group being identified by a Convention criterion. 

22                  In this particular case it was suggested, although it was hardly pressed, that the social group relevant in the present appellant’s case was his membership of a construction contractors group.  It seems plain to me that extortion, notwithstanding the person is a member of that group, does not constitute a basis for a well-founded fear of persecution for a Convention reason.  Therefore if it were necessary to consider whether in fact there had been a demonstrable error on the part of the Tribunal, that would not be met in the present case.   It seems to me plain that the Tribunal was of the view that the appellant did not have a well-founded fear of persecution for a Convention reason because of the fact that, as was expressed at the end of [49] of the Tribunal’s reasons:

… if this was the case, then he would have either gone into hiding, or alternatively taken the opportunity to quickly leave Nepal using his valid Nepalese passport after the threats were made.

23                  The Tribunal is there saying that notwithstanding that there had been demands made of him, and payment made in respect of those demands, the appellant does not have a well-founded fear of persecution by reason of the factors to which the Tribunal referred.  The conclusion was one open to the Tribunal, but there is the further difficulty that even if that reasoning were unsupportable, the contention that the appellant was selected for the extortion demands because of his membership of a social group chosen by reference to a Convention reason was not arguable in my view.

24                  The real difficulty is that the arguments which are sought to be advanced on behalf of the appellant ought to have been advanced before the Federal Magistrate, and were not.  It is impossible in those circumstances to conclude that the Federal Magistrate was in error in rejecting the application on the submissions made to it, and in those circumstances it seems to me plain that the appellant ought not to be able to rely on the grounds in the Amended Notice of Appeal in this Court.  In exceptional circumstances, when grounds not argued below are permitted to be relied upon in an appeal court, the reason is that the dictates of justice require that to be done.  I am clearly of the view that this is not a case where justice requires permitting the ground not taken below to be argued in this Court. 

25                  There is no miscarriage of justice in denying the appellant the opportunity of arguing what he wishes to argue in this Court.  It is, in the circumstances of this case, in my judgment, contrary to the principles referred to by Lander J in SZKMS to permit the appellant to argue that there were jurisdictional errors of a kind allegedly committed by the Tribunal.

26                  For these reasons the appeal to this Court is dismissed.

The orders that the Court makes are these:

(1)        The appeal be dismissed.

(2)        The appellant to pay the costs of the first respondent, fixed in the amount of $3200.00.

Associate:

Dated:         2 June 2009