FEDERAL COURT OF AUSTRALIA

SZNSL v Minister for Immigration and Citizenship [2009] FCA 1543

MIGRATION — citizen of Bangladesh — right to enter and reside in Singapore — chance of persecution not for a Convention reason — refusal of refugee status

PRACTICE AND PROCEDURE — grounds of appeal different to those advanced before Federal Magistrate — leave to raise new grounds refused

Held: Appeal dismissed

Migration Act 1958 (Cth) s 36(3), (4), (5)

Federal Court Rules O 62 r 4(2)(c)

Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929, 192 ALR 71, applied

Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332, 116 FCR 154, referred to

SZKMS v Minister for Immigration and Citizenship [2008] FCA 499, applied

SZLAN v Minister for Immigration and Citizenship [2008] FCA 904, 171 FCR 145, referred to

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

SZNSL v Minister for Immigration and Citizenship [2009] FMCA 996, affirmed

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, cited

SZNSL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD 1158 of 2009

FLICK J

22 December 2009

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  Appeal dismissed.

2.                  The Appellant is to pay the costs of the First Respondent fixed in the sum of $3,679.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The Appellant is a citizen of Bangladesh. He also has a right of permanent residence in Singapore.

2                     He arrived in Australia on 21 October 2008 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 20 November 2008. A delegate of the Minister refused that application on 13 February 2009 and on 9 March 2009 he applied to the Refugee Review Tribunal seeking review of the delegate’s decision. That Tribunal affirmed the delegate’s decision on 4 June 2009.

3                     On 1 July 2009 the Appellant filed an Application in the Federal Magistrates Court of Australia. The grounds upon which that Application was advanced were expressed as follows (without alteration):

1.       The Tribunal denied procedural fairness at the time of the assessment of applicant claim

2.       The Refugee Review Tribunal’s decision was unjust and was made without taking into account the full gravity of the applicant’s circumstances of the decision.

That Court addressed those grounds and dismissed the Application on 23 September 2009: SZNSL v Minister for Immigration and Citizenship [2009] FMCA 996. In the course of resolving these two grounds, the Federal Magistrate also set forth the Tribunal’s analysis of s 36 of the Migration Act 1958 (Cth) (the “Migration Act”) and its application to the now Appellant.

4                     A Notice of Appeal was thereafter filed with this Court on 13 October 2009. The Grounds of Appeal were expressed as follows (without alteration):

The Tribunal made a jurisdictional error ‘by failing to apply the correct test to determine that there was a real chance of persecution’ in assessing whether the appellant’s fear of persecution was well-founded.

His Honor committed an error of law in dismissing that the decision involved a jurisdictional error of law involving an incorrect interpretation of the applicable law to the facts of the case found by the Refugee Review Tribunal. The Tribunal decision was an improper exercise of the power conferred by the Migration Act or the regulations.

5                     The Appellant appeared before this Court on 23 November 2009 unrepresented, although he did have the benefit of an interpreter.

6                     The appeal is to be dismissed.

A New Case on Appeal

7                     The textual difference between the grounds of the Application before the Federal Magistrates Court and the Grounds of Appeal as now formulated is self-evident.

8                     If reliance is placed upon the Grounds of Appeal as formulated, the case now sought to be advanced is a case very different to that heard and resolved by the Federal Magistrate.

9                     This Court may permit new grounds to be raised on appeal which were not raised before the Federal Magistrates Court. But there are very real reasons why it should not too readily do so, including:

·                    the fact that the relevant jurisdiction conferred on this Court is an appellate jurisdiction;

·                    the fact that this Court, in exercising that appellate jurisdiction, is entitled to the not inconsiderable benefit of the reasons for decision of a Federal Magistrate in respect to the issues sought to be agitated by a party to the proceeding;

·                    the principle that a party who has had a case resolved against him should usually not be permitted on appeal to raise a completely new or different case to that previously advanced;

·                    the principle that to permit a whole new case to be run on appeal has the potential to undermine the appellate process by rendering the trial process almost irrelevant;

·                    the fact that there is a legitimate public interest in public law matters being resolved in a timely and efficient manner and that the Minister has a legitimate interest in the timely resolution of applications for protection visas; and

·                    the fact that the High Court, in the event that an application for special leave to appeal is granted, is entitled to the benefit of a decision at first instance on the arguments sought to be resolved and to this Court’s reasons for decision in respect to the same issues on appeal. To pursue any other course is to shift to the High Court the appellate role which it is the responsibility of this Court to discharge.

These are but some of the matters that have been referred to in earlier decisions of this Court: e.g. Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62], 192 ALR 71 at 86 per Gyles J; SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 per Lander J; SZMRD v Minister for Immigration and Citizenship [2009] FCA 598 per Spender J.

10                  It must always be recognised, however, that leave to raise a ground of appeal which was not previously relied upon may be granted where “it is expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46].

The Grounds of Appeal

11                  The reference in the Grounds of Appeal to the Tribunal’s alleged failure “to apply the correct test to determine that there was a real chance of persecution” permitted (perhaps) of some ambiguity.

12                  On one view, the Ground could be construed as a broadly expressed challenge to:

·                    the correct construction and application of s 36 of the Migration Act.

On another view, the Ground could be construed as a challenge to:

·                    the findings made by the Tribunal in respect to the “chance of persecution” confronting the now Appellant.

It is not considered that the alternative manner of expressing the Grounds of Appeal raises any different issue.

13                  Not surprisingly, the unrepresented Appellant was unable to assist in identifying the “jurisdictional error” to which reference is made in his Notice of Appeal.

14                  However the Grounds of Appeal are to be construed, it is considered that they seek to advance an argument substantially different to the case as it was advanced for resolution before the Federal Magistrate. Although the Federal Magistrate’s reasons for decision recount the Tribunal’s analysis of s 36, those reasons do not disclose any argument that the Tribunal’s analysis and application of s 36 was in any way legally erroneous.

15                  It is not considered to be in the interests of justice to permit any argument which may be embraced by the Grounds of Appeal to now be entertained.

Section 36

16                  If the Grounds of Appeal are to be construed as a challenge to the manner in which the Tribunal construed or applied s 36 of the Migration Act to the facts, no satisfactory explanation has been provided as to why such questions were not raised by any of the grounds advanced for resolution in the Application before the Federal Magistrate.

17                  Any such argument is, in any event, without apparent merit.

18                  Section 36 of the Migration Act provides as follows:

Protection visas

(1)     There is a class of visas to be known as protection visas.

(2)     A criterion for a protection visa is that the applicant for the visa is:

(a)     a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b)    a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

(i)      is mentioned in paragraph (a); and

(ii)     holds a protection visa.

Protection obligations

(3)     Australia is taken not to have protection obligations to a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.

(4)     However, if the non‑citizen has a well‑founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.

(5)     Also, if the non‑citizen has a well‑founded fear that:

(a)     a country will return the non‑citizen to another country; and

(b)    the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;

         subsection (3) does not apply in relation to the first‑mentioned country.

Determining nationality

(6)     For the purposes of subsection (3), the question of whether a non‑citizen is a national of a particular country must be determined solely by reference to the law of that country.

(7)     Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

19                  As recognised by the Tribunal — and as recounted by the Federal Magistrate — it is s 36(3), (4) and (5) which assume particular significance in respect to the now Appellant.

20                  Those provisions emerged before the Tribunal as relevant because the now Appellant is both a citizen of Bangladesh and a person who may permanently reside in Singapore.

21                  He claimed to fear persecution if he returned to Bangladesh by reason of his membership of the Chatra League and the Awami League and his participation in political activities generally in Bangladesh between 1993 and 2005. He claimed he feared returning to Singapore because his Singaporean wife had caused him mental suffering and because his wife’s son by a former marriage had assaulted him.

22                  The Tribunal relevantly found that:

·                    the now Appellant had not taken all possible steps to avail himself of a right to enter and reside in a country other than Australia, namely Singapore, as required by s 36(3);

·                    there was no information before it which supported a claim that Singapore would withhold protection from him in the event that he returned to Singapore; and that

·                    there was no information that the now Appellant would be returned to Bangladesh whilst he remained a permanent resident of Singapore and that Australia did not have protection obligations by reason of s 36(5).

These findings were open to the Tribunal and no error is discernible.

23                  The now Appellant’s ability to enter Singapore was said by the Tribunal to derive from his right to permanent residence in Singapore. His passport thus bore the following endorsement:

A permanent resident requires a Re-entry Permit if he/she wishes to travel out of Singapore. A valid Re-entry Permit enables him/her to return to Singapore as a permanent resident.

It also bore the following additional endorsement:

Re-Entry Permit

This permit is valid for multiple journeys within five years from date hereof provided the travel document is valid. The holder is authorised to re-enter Singapore for permanent residence so long as this permit is valid.

The date of the endorsement is 27 November 2006. It may further be noted that the Tribunal’s reasons further record:

[74] … When questioned on this, the applicant acknowledged that he had a right of return to Singapore as he is a permanent resident there. Based on the above, the Tribunal finds that the applicant has a right of entry and residence in Singapore at this time.

No submissions were advanced in the present appeal that the Appellant’s ability to enter Singapore was not a “right” within the meaning of and for the purposes of s 36(3): cf Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332, 116 FCR 154; SZLAN v Minister for Immigration and Citizenship [2008] FCA 904, 171 FCR 145.

24                  No error in the construction and application of s 36 was identified by the now Appellant during the course of the hearing. Nor is any error otherwise discernible.

A Chance of Persecution

25                  An argument that the Tribunal failed to properly consider the Appellant’s “fear of persecution” is equally without merit.

26                  Counsel on behalf of the First Respondent accepted that it was relevant for the Tribunal to consider the claims being advanced by the Appellant in respect to both:

·                    Bangladesh; and

·                    Singapore.

But he contended that no error could be discerned in the Tribunal’s decision for the simple reason that the Tribunal had made assumptions in favour of the Appellant.

27                  The Tribunal thus “assume[d]” that the Appellant would fear persecution should he return to Bangladesh. The reasons for decision of the Tribunal thus provide in relevant part as follows:

[79] Returning to the applicant’s claims, the independent country information indicates that the applicant’s party, the Awami League, is now in power in Bangladesh. This may raise some doubt as to the risk the applicant claims he will face there. However, the Tribunal is prepared to assume, for the purposes of this decision, that he faces a real chance of persecution should he return to Bangladesh and thus, is satisfied that the applicant meets the definition of refugee as set out in Article 1A(2) of the Refugee Convention and for the purposes of s.36(2) of the Act.

28                  The Tribunal also accepted that the Appellant may face “serious harm” should he return to Singapore. Its reasons for decision thus recount the claims made by the Appellant as against his wife and one of her sons and continue as follows:

[88] The Tribunal accepts the applicant’s evidence that he was harassed by his wife and repeatedly assaulted by his wife’s son. Even though the Tribunal has no other evidence of the degree of harm suffered by the applicant before it, and hence has its doubts as to the seriousness of the harm, it is prepared to accept for the sake of argument that such assaults amounted to serious harm.

But the claim for refugee status was rejected, as the “serious harm” confronting the Appellant should he return to Singapore was not harm attributable to a Convention reason. The Tribunal thus concluded as follows:

[89] The Tribunal then considered whether the domestic violence the applicant fears in Singapore is motivated by a Convention reason. A number of cases have come before the courts involving claims of domestic violence. In these cases, the primary issue will often be whether the motivation of the aggressor can be attributed to a Convention reason.

[90] Based on the evidence before it, as noted above in paragraphs 80-85, the Tribunal finds that the motivation of the aggressors, being the applicant’s wife and sons, is personal and not attributable to a Convention reason.

29                  Given the favourable assumptions made in favour of the Appellant, any argument that the Tribunal may have erred in applying “the correct test” is devoid of any factual support.

The Dangers to Which He Would Be Exposed

30                  During the course of the hearing of the appeal the Appellant explained that the grounds of the Application before the Federal Magistrate and the Grounds of Appeal to this Court were both drafted by a “friend”. Why the “friend” used the terms he did was a matter on which the Appellant could shed no light. Nor was the “friend” apparently present in Court to explain the manner in which the Grounds of Appeal had been drafted.

31                  The argument the Appellant sought to advance before the Federal Magistrate and this Court, he explained, was intended to be the same: namely, an argument that the Tribunal had not fully appreciated or addressed the danger to which he would be exposed if he returned to Singapore. Whether such an argument could constitute jurisdictional error may for present purposes be left to one side. The argument, it would appear, was much the same as the second basis upon which the Application was unsuccessfully advanced before the Federal Magistrate.

32                  As explained, the argument the Appellant sought to advance was that “[i]f I go back to Singapore I will again be in danger”.

33                  Given that the Appellant is unrepresented, it is considered appropriate to attempt to give as much content as possible to the argument he seeks to advance.

34                  This present argument is, however, without substance, again because the reasons for decision of the Tribunal accept or assume the “danger” asserted by the now Appellant. The Tribunal thus accepted that he would face “serious harm” on his return to Singapore. The difficulty the Appellant cannot overcome, however, is that that danger is not attributable to a Convention reason.

35                  These were conclusions open to the Tribunal. Even if leave were granted to re-cast the appeal in the manner articulated by the Appellant during the course of the appeal, the Ground as re-cast is without merit and would have been rejected.

Conclusions

36                  It is not considered to be “expedient in the interests of justice” to now allow the Appellant to raise the Grounds of Appeal as set forth in his Notice of Appeal.

37                  It is thus not considered that the Appellant should now be permitted to raise arguments on appeal which were not raised before the Federal Magistrate. In the present case, that would be to permit the Appellant to abandon the case he advanced for resolution before the Federal Magistrate and to run a completely new and different case on appeal. No explanation was advanced by the Appellant as to why such a course should be permitted.

38                  Although the various ways in which the Appellant may have sought to advance his case have not been examined in as much detail as they would have been had the new arguments on appeal been permitted, it is not a case which appears to have any evident merit.

39                  Nor does the argument articulated by the Appellant during the course of the appeal have any merit.

40                  There is no reason why the Appellant should not be ordered to pay the costs of the First Respondent. The First Respondent seeks an order pursuant to O 62 r 4(2)(c) of the Federal Court Rules that costs be paid in a “gross sum” of $3,679. An Affidavit has been filed in support of such an order. There is no reason why such an order should not be made.

ORDERS

41                  The Orders of the Court are:

1.                  Appeal dismissed.

2.                  The Appellant is to pay the costs of the First Respondent fixed in the sum of $3,679.

Associate:

Dated:         22 December 2009