FEDERAL COURT OF AUSTRALIA

SZRCF v Minister for Immigration and Citizenship [2012] FCA 813

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from an order of a Federal Magistrate dismissing the appellant’s application for review of a decision of the Refugee Review Tribunal (RRT) affirming a decision of the Minister for Immigration and Citizenship (the Minister) not to grant the appellant a Protection (Class XA) Visa.

2    The appellant was not represented on the hearing of the appeal. The appellant sought an adjournment of the appeal until the November sittings of the Court.

3    He handed up a letter in support of his application. The ground for the adjournment was that he wished to engage a lawyer to argue the appeal and he would need to obtain funds from his brother in Nigeria before doing so.

4    On 16 June 2012, the appellant wrote to the Court seeking a Court-appointed lawyer to represent him on the appeal. He wrote:

I am writing to officially apply through the Federal court of Australia for a court appointed lawyer to represent me before the full court in my matter number NSD 610 of 2012 on 30 July 2012 at Sydney registry of the court.

I am in Immigration detention, and have been since October 2011. I have exhausted all levels of the process to a lawyer to represent me they are open to me. I do not have any financial means. I have written to both legal and NSW, the bar association of NSW and the law society of NSW. I have also written and faxed letter to individual lawyer to present me but to no avail.

I did however, receive two telephone calls from two lawyers who do not want their Identity disclosed but informed me if the court should intervene and appoint a lawyer then they will be willing to represent me.

I am therefore, respectfully requesting that you and the court appoint or approve a court appoint lawyer to represent me in the case on 30 July 2012 as i (sic) do not understand the complexities of the migration law and any any (sic) law for that matter

5    On 18 June 2012, my associate, at my direction, issued a Referral Certificate pursuant to rule 4.12 of the Federal Court Rules 2011 identifying the nature of legal assistance for which the referral was made, being:

To obtain advice in relation to the appeal and, if the assisting pro bono lawyer is of the opinion that it would be in the best interests of the Appellant, the representation of the Appellant on the appeal.

6    That certificate was provided to the District Registrar of New South Wales and the ACT on the same day.

7    On 4 July 2012, a barrister, Mr Ben Zipser, advised the Registrar that he would accept the referral and enquired of the Court whether there was any aspect of the RRT’s decision that gave rise to the Referral Certificate.

8    On 5 July 2012, my associate wrote to Mr Zipser stating:

In response to that inquiry, Justice Lander states that His Honour wanted to ensure that the Applicant had the benefit of a lawyer’s opinion as to whether there is any argument to be made in relation to the issue of jurisdictional error. Justice Lander makes no further comments on the grant of the Referral Certificate.

9    Mr Zipser was aware of the date upon which the appeal was to be heard. On 12 July 2012, Mr Zipser advised the Court:

Earlier this week and today I have spoken with the appellant over the telephone for the purpose of providing him with advice in relation to this appeal. We spoke in English. It appeared to me that his English is reasonably good and he understood what we spoke about.

I do not intend to appear for the appellant at the hearing of the appeal.

I have the Court’s original copy of the Court Book. Can Jimmy [Legal Case Manager in the employ of the Federal Court of Australia] tell me whether he wants to collect the Court Book from my chambers or alternatively whether I should send it to him through the DX?

10    At the hearing, the appellant accepted that he had received advice from Mr Zipser and that he had been told by Mr Zipser that Mr Zipser would not attend on the hearing.

11    I did not, of course, enquire as to what advice the appellant had received, or the reason why Mr Zipser said he would not attend.

12    However, having regard to the Referral Certificate, it would be not inappropriate to infer that Mr Zipser was of the opinion that the grounds of the appeal were not arguable.

13    I refused the application because the appellant has had legal advice from counsel. Counsel advised him that he would not attend on the hearing of the appeal.

14    When I refused the appellant’s application for an adjournment, I asked Mr Hughes, counsel for the Minister, for an assurance that he had considered the reasons for decision of the RRT and the reasons for judgment of the Federal Magistrate, and that he could not see any argument that could be put in support of the appeal. I received that assurance, which I readily accept.

15    The appellant is a citizen of Nigeria. In October 2011, the appellant arrived in Australia and was immediately placed in detention because the Temporary Business Visa on which he had travelled to Australia had been cancelled en route.

16    On 19 October 2011, the appellant applied for a Protection (Class XA) Visa. In his application the appellant claimed that he feared persecution for three separate Convention reasons, namely membership of a social group, political opinion and religion.

17    The appellant is an ethnic Igbo and claimed to be a member of the Biafra Masob Group (MASSOB). He claimed that he had been continually targeted and harassed by the Nigerian Government by reason of his membership of MASSOB and the political opinions which he held, and he claimed that he feared that if he returned to Nigeria he would be arrested, imprisoned and eventually killed.

18    He also claimed that the Chairman of the local government had had an affair with his girlfriend and when the appellant confronted the Chairman, the Chairman reported the appellant to authorities.

19    The appellant was a Christian but had renounced that faith. He claimed that he would be subject to discrimination and harassment because, he said, the “failure to believe in a religion … is not widely accepted” in Nigeria.

20    On 21 November 2011, a delegate of the first respondent refused to grant the appellant a Protection (Class XA) Visa finding that the appellant did not have a genuine fear of harm and that there was no real chance of persecution occurring.

21    The appellant applied to the RRT for a review of the delegate’s decision. On 9 December 2011, the RRT conducted a hearing at which the appellant was represented by both a solicitor and a migration agent. At that hearing the appellant provided the RRT with a number of documents and made submissions through the appellant’s agents.

22    At the conclusion of the hearing the RRT provided the appellant with an opportunity to provide further written submissions to address certain matters that the RRT had raised during the hearing.

23    On 19 January 2012, the appellant’s solicitors provided the RRT with detailed written submissions in response to the matters raised by the RRT and in support of the appellant’s case.

24    On 23 January 2012, the RRT published its reasons for deciding to affirm the delegate’s decision. The RRT found that the appellant was not a witness of truth. It found that the appellant was never a member or supporter of MASSOB and therefore could not have a well-founded fear of persecution in respect to his claims of membership of that particular social group or for his political opinions.

25    The reasons for the finding that he was never a member of MASSOB were that the appellant did not appear to know a great deal about the activities of MASSOB despite claiming that he had been a member since 2004, and despite claiming that he had held a leadership position in MASSOB.

26    The RRT did not accept that the appellant had been arrested as he claimed in 2009 or 2010 with 60 other members of MASSOB, because there were no independent reports of such a mass arrest, which the RRT would have expected if such an event had occurred. Moreover, the RRT found that the appellant gave conflicting evidence about the identity of the persons who were said to have been arrested.

27    The RRT did not accept the appellant’s claim that following the arrest he was not charged with any offence but was simply released after two days on his signing a document undertaking not to be involved in MASSOB activities in the future. Such a claim, the RRT found, was inconsistent with country information to the effect that when MASSOB members are arrested they are charged with serious offences and are not released on bail, until a period of time after those charges are laid.

28    The RRT did not accept the appellant’s claim that his girlfriend had an affair with the local government Chairman, because, the RRT found, it was unlikely that the appellant’s girlfriend would have ever met the local government Chairman and because the appellant had given several inconsistent accounts of how his girlfriend and the local government Chairman had met.

29    The RRT said that it was difficult to reconcile the appellant’s claim that he feared persecution in eastern Nigeria with the appellant returning to his brother’s house in eastern Nigeria where the appellant had previously lived rather than feeing the country. Moreover, the return to his brother’s house was inconsistent with the appellant’s claim that he was not able to return to a previous address because he feared the local government Chairman.

30    The RRT accepted that the appellant had been a Christian and had renounced his faith. However, the RRT found that there was no real chance that the appellant would be persecuted for reasons of religion if he were to return to Nigeria.

31    The RRT also considered whether or not the appellant might be subject to persecution for reason of his ethnicity but found, on the basis of country information, that the appellant would not face discrimination amounting to persecution for reasons of his ethnicity or race as an Igbo if he were to return to his home in the south-eastern part of Nigeria where Igbos are predominant.

32    On 27 January 2012, the appellant applied in the Federal Magistrates Court for the judicial review of the RRT’s decision relying upon seven separate grounds:

1.    The decision of the Refugee Review Tribunal is vitiated by jurisdictional error.

2.    The decision was made in denial of proceedural (sic) fairness to me the applicant.

3.    The Tribunal denied me natural justice.

4.    The Tribunal ignored relevant materials and relevant considerations.

5.    The Tribunal constructively failed to exercise jurisdiction.

6.    The Tribunal failed to make enquiry into critical facts the existence of which was easily ascertained under section 424(1)(A) of the Migration Act.

7.    The Tribunal made erroneous findings and reached mistaken conclusions.

33    On 17 April 2012, Raphael FM dismissed the application and ordered the appellant to pay the first respondent’s costs assessed in the sum of $3,325.

34    The Federal Magistrate observed that the grounds of the review did not contain any particulars and the appellant did not “enlarge upon the grounds of application”.

35    The appellant argued before the Federal Magistrate that the RRT did not understand his evidence and was wrong to not accept it as true.

36    The Federal Magistrate considered that argument to have been considered by the RRT and that the argument did not indicate any error on the RRT’s part which would give rise to review by the Court.

37    The Federal Magistrate noted that the appellant told the Court that he had a friend who was pregnant by him and that the appellant wanted to remain in Australia to take care of the lady and the child.

38    The Federal Magistrate observed that that was not a matter of which the RRT was aware.

39    The appellant filed a notice of appeal to this Court identifying five separate grounds:

1.    The Federal Magistrate erred in law when he failed to find that the decision of the Refugee Review Tribunal is vitiated by jurisdictional error.

2.    The Federal Magistrate erred in law for failing to find and rule that the Refugee Review Tribunal’s decision and the Tribunal denied me procedural fairness and natural justice.

3.    The Federal Magistrate erred in law for failing to find and rule that the Tribunal ignored very relevant critical materials and information which I provided the Tribunal with in the information concerning failed asylum seekers returned to Nigeria sourced from Human Rights Word Report 2011-Nigeria, January 2011, Home Office, UK Border Agency Country of Origin Information Report-Nigeria, 9 July 2010, Refugee Review Tribunal, Country Advice (NGA 37358), 7 October 2010.

4.    The Federal Magistrate erred in law for failing to find that given such ignoring of relevant materials by the Tribunal, the Tribunal ignored and failed to take into account relevant materials and considerations.

5.    The Federal Magistrate erred in law for dismissing the case given that the Tribunal had made erroneous findings and reached mistaken conclusions and has committed jurisdictional error.

Grounds 1, 2 and 5

40    Grounds 1, 2 and 5, like grounds of review 1, 2, 3 and 7 in the Federal Magistrates Court, are not particularised. On the hearing of the appeal the appellant did not add anything to those grounds.

41    It follows that the appellant has not identified any jurisdictional error. Nor has he identified any want of procedural fairness or natural justice as claimed in ground 2. Lastly, he has not identified any erroneous findings and mistaken conclusions that would lead to jurisdictional error as claimed in ground 5.

42    The appellant’s claim for refugee status failed because the RRT did not accept that the appellant was a witness of truth. That finding was made for rational reasons explained in the RRT’s reasons for decision. Essentially, the RRT did not accept that the appellant was ever a member of MASSOB so his claim for membership of that social group had to fail. So also, because of that finding, did his claim that he feared persecution for his political opinions have to fail.

43    The RRT also did not accept that there was any real chance that the appellant would be persecuted for reasons of religion because he has stopped being a Christian, if he were to return to Nigeria either now or in the foreseeable future. That finding was fatal to his claim for persecution on that ground.

44    There is nothing to suggest that there was anything irrational about the findings made by the RRT and in those circumstances grounds 1, 2 and 5 cannot be upheld.

Grounds 3 and 4

45    Grounds 3 and 4 claim that the Federal Magistrate erred by failing to find that the RRT had ignored “very relevant critical materials and information which I provided the Tribunal with”. This was not a ground of review before the Federal Magistrate. It was neither argued that the appellant was a member of a particular social group of failed asylum seekers who would be persecuted on a return to Nigeria, nor was there any evidence adduced before the Federal Magistrate to that effect.

46    The Minister did not argue that there could not be a particular social group that would consist of failed applicants for a Protection Visa who could hold a well-founded fear of persecution if they were to be returned to their country of origin. The Minister accepted for the purpose of the argument that there could be such a group. The Minister, however, argued that the appellant never suggested before the RRT or before the Federal Magistrate that he was a member of such a social group and thus entitled to protection for that reason.

47    A person who arrives in Australia and applies for a Protection Visa cannot be, at that stage, a member of a particular social group made up of failed asylum seekers, because at that stage that person has not failed in that person’s application for a Protection Visa.

48    If, however, the Minister’s delegate refuses to grant the applicant a Protection Visa, then that applicant could contend before the RRT on review that the applicant has become a member of the particular social group, by reason of the refusal of the Minister’s delegate to grant the applicant a Protection Visa.

49    The applicant could argue before the RRT that the Minister’s delegate’s action meant that the applicant became a member of the particular social group, and that membership of that group could give rise to a well-founded fear of persecution, in the event that the person were to be returned to their country of origin. The Minister’s counsel, Mr Hughes, accepted for the purpose of the argument that, logically, the claim for a Protection Visa for membership of that particular social group could arise in the circumstances postulated.

50    The result is paradoxical, because it would mean that a person could become entitled to a Protection Visa because the applicant was not, at the time that the applicant first made an application for a Protection Visa, entitled to a Protection Visa. In other words, the applicant could become entitled to a Protection Visa by applying for a Protection Visa for which the applicant is not entitled. However, there are cases where the particular social group has been accepted: W124 v Minister for Immigration & Multicultural Affairs [2001] FCA 1387; SZQVO v Minister for Immigration & Anor (No 2) [2012] FMCA 512.

51    I will proceed upon the basis that the applicant was entitled to contend before the RRT that he was a member of a particular social group, namely failed asylum seekers, as a result of which he had a well-founded fear of persecution if he were to be returned to his country of nationality, Nigeria.

52    The difficulty for the appellant, however, is that this contention was never put to the RRT and, as I have said, it was not a ground of review before the Federal Magistrates Court. The appellant, in my opinion, is not entitled to rely upon this new ground: Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447.

53    In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499, I said at [21] and following:

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.

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.

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.

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.

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.

54    The issue was not a live issue in the RRT, which was entitled to consider the appellant’s application on its merits, and the issue was not sought to be raised as a ground of review before the Federal Magistrates Court.

55    In ground 3 of the grounds of appeal, the appellant claims that “very relevant critical materials and information” were provided to the RRT but were ignored.

56    The information referred to in the third ground of appeal was not provided to the delegate of the Minister or to the RRT. It was not sought to be adduced by way of evidence before the Federal Magistrate. The appellant accepted at the hearing of the appeal that the information had never been provided to the delegate, or to the RRT, or the Federal Magistrates Court.

57    The appellant cannot, on the hearing of an appeal against a dismissal of an application for judicial review, raise for the first time before a Court that is not entitled to pass an opinion upon the contention, a claim for refugee status based on a Convention reason that was never relied upon before the delegate of the Minister or the RRT.

58    Grounds 3 and 4 must also be dismissed.

59    It follows therefore that the appellant’s appeal must be dismissed. The appellant must pay the Minister’s costs.

Associate:

Dated:    3 August 2012