W5 0f 2001 v Minister for Immigration & Multicultural Affairs FCA [2001] 743

FEDERAL COURT OF AUSTRALIA

W5 0f 2001 v Minister for Immigration & Multicultural Affairs FCA [2001] 743 MIGRATION – application for protection visa – appeal from decision of RRT – 11 grounds of appeal raised before judge of Federal Court – appeal to full court – further 2 grounds raised at hearing before full court – whether leave should be granted to amend notice of appeal and original application before RRT – where no reason given for failure to raise additional grounds at first instance – where counsel appearing pro bono – where change of counsel – whether in interests of justice and expediency to allow amendments

Migration Act 1958 (Cth) s 476(1)(a) and (e) Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 followed Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 referred to

W5 of 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 5 of 2001 HILL, TAMBERLIN & EMMETT JJ 28 MAY 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIADISTRICT REGISTRY W5 OF 2001

BETWEEN: W5 of 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: HILL, TAMBERLIN & EMMETT JJ

DATE OF ORDER: 28 MAY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Leave to amend the grounds of appeal and consequent leave to amend the application be refused. 2. The appeal be dismissed. 3. The appellant pay the respondent's costs of the appeal.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIADISTRICT REGISTRY W5 OF 2001

BETWEEN: W5 of 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: HILL, TAMBERLIN & EMMETT JJ

DATE: 28 MAY 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT HILL J:

1 I should first like to commence by noting that senior counsel for the appellant appeared following appointment pursuant to Order 80 of the Federal Court Rules, and to express my thanks for the assistance that he has given to the Court and, indeed, to observe the assistance that is given to the Court by all people who accept the task of providing assistance in these cases where applicants are not otherwise legally represented. 2 Senior counsel for the appellant accepted that in seeking leave to amend the grounds of appeal it was incumbent on him to show that it was expedient and in the interests of justice to allow the amended grounds of appeal to be argued - see Iyer v Minister For Immigration & Multicultural Affairs [2000] FCA 1788. 3 In the context of the present case, it was submitted that it was in the interests of justice to allow the two grounds, to which Emmett J referred, to be argued because, on the facts found or agreed, the Tribunal could have reached no other conclusion but that the appellant had a well-founded fear of persecution entitling him to fall within the definition of refugee in the Convention Relating to the Status of Refugees as amended; that being a criterion for the grant of the visa to him. 4 That principle does not, however, mean that matters which are claimed to be facts where the Tribunal has not wholly rejected that claim are within the category of facts which have been found or are agreed. As Emmett J has pointed out, a number of what was said to be "unchallenged facts" found or accepted by the Refugee Review Tribunal ("the Tribunal") and listed in the appellant's written submissions were not indeed facts found or accepted by the Tribunal at all. Emmett J has dealt with all of them and relieves me of the necessity to go through them once more. 5 The matter can be illustrated, perhaps, by the matter of surveillance. The Tribunal did no more than reject that surveillance continued, if at all, for a period of 16 years, as the appellant suggested before it. It does not follow from that finding that the Tribunal positively found that there was surveillance or that the surveillance continued for any particular period of time, in a way that would assist the appellant's case. Ultimately, one is left really with the only relevant facts being that the appellant had been arrested and detained in 1983 as a suspected member of the Muslim Brotherhood, had been beaten and had been the subject of conduct which amounted to persecution at that time, but had ultimately been released. 6 He may or may not have thereafter been the subject of surveillance; certainly nothing happened to him thereafter. His father was arrested and was still missing. That was in the context of a war that then existed between Syria and Iraq, and appeared to have nothing to do with the appellant as far as is known. Finally, the appellant had been in a motor vehicle collision where he had been a passenger. It may or may not have been the case (it has not necessarily been found as a fact, nor was it necessarily not found as a fact) that a Syrian Intelligence officer may have been in the other car. On those facts it is abundantly clear, no matter how one states the test, that it would be open to the Tribunal to find, as it did, that the appellant did not have a well-founded fear of persecution. 7 I agree with the reasons delivered by Emmett J. 8 The second ground sought to be argued does not ultimately assist the appellant even were leave to be granted. In the circumstances, in my view, leave should be refused and the appellant pay the respondent's costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.