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. Associate: Dated: 26 June 2001 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 TAMBERLIN J: 9 On this application for leave to amend, the test is whether the grounds of appeal and of the application for review have any reasonable prospect of success. In relation to the first ground, there is a suggestion that the Tribunal may have applied an incorrect interpretation of the applicable law. I would like to add to the judgments of my fellow judges that there is no indication in the judgment that there has been any misunderstanding of the relevant applicable law. The principles set out in relation to a real chance appear early in the decision of the Tribunal, and the conclusion of the Tribunal expressly refers to the basis on which it is found that there is no real chance that the applicant will be persecuted if returned to Syria. 10 I agree with the analysis made by Emmett J in the judgment he delivered, and I endorse the remarks made by Hill J in supplementing those reasons. I am satisfied, on a reasonable reading of the findings and reasons of the Tribunal, particularly as set out in the paragraph of the reasons appearing before the heading "Conclusion", that the Tribunal has properly addressed the question and has given sufficient basis for reaching its conclusion. Accordingly I join in agreeing with the reasons of my fellow judges and with the orders which have been proposed. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 26 June 2001 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 EMMETT J: 11 The appellant, who is a citizen of Syria, arrived in Australia on 14 May 2000. On 17 June 2000 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs. On 18 August 2000 a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), refused to grant a protection visa. On 21 August 2000 the appellant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 9 October 2000 the Tribunal affirmed the decision not to grant a protection visa. The appellant then applied to this Court for an order of review of the decision of the Tribunal. Following a hearing on 12 December 2000, a judge of this Court dismissed the application with costs on 15 December 2000. From those orders the appellant now appeals to the Full Court. 12 Before the primary judge, the appellant relied on some eleven grounds set out in a minute of proposed amended grounds of application. Each of those grounds was dealt with by the primary judge. The notice of appeal to the Full Court disclosed no meaningful grounds. However, when the matter was called on for hearing, senior counsel for the appellant sought leave to amend the notice of appeal by adding two grounds. He indicated that they were the only grounds upon which reliance would be placed. Senior counsel also foreshadowed an application, if leave to amend were granted, to amend the original application to the Court to include similar grounds of review of the decision of the Tribunal. 13 The application for leave to amend was opposed by the Minister. There was no reason advanced as to why the grounds sought to be relied upon in the appeal were not advanced at first instance. There has been a change of counsel since the hearing at first instance. The observation should be made that counsel who appeared for the appellant before the primary judge as well as counsel who appeared on the appeal both appeared pro bono. 14 Leave to appeal on a ground not argued below and which involves no issue of disputed fact will, in accordance with what has been said by a Full Court of this Court in Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 ("Iyer"), only be given where: "it is expedient and in the interests of justice to entertain the point". Reference may be made also to the decision of the New South Wales Court of Appeal in Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645, quoted with approval by the Full Court in Iyer. It will not be in the interests of justice, nor expedient, to grant leave where the ground of proposed appeal is such that it could not succeed. 15 It is therefore necessary to give some consideration, at least in outline, to the grounds of appeal, as those grounds would need to be applicable had they been included in the application as grounds of review of the decision of the Tribunal. In order to consider the grounds of appeal, it is convenient first to consider the Tribunal's decision. 16 After reciting briefly the background to the application and the legislative framework, together with the claims and evidence before the Tribunal, the Tribunal set out its findings and reasons in some three pages. The findings and reasons begin with the observation that the Tribunal had difficulty with the appellant's credibility. It referred to major discrepancies in the appellant's written and oral accounts of his claims. 17 The Tribunal had before it the following: · the Department's file, which included a record of initial interview for unauthorised arrivals; · the appellant's protection visa application; · written submissions in support of the application; · a record of interview with an officer of the Department; · written submissions in support of the application for review, and · the oral evidence given by the appellant by video transmission to the Tribunal on 3 October 2000. 18 There were three significant matters in respect of which the Tribunal did not accept the appellant's evidence. In both his initial interview and his protection visa application the appellant claimed that he had obtained a Syrian passport legally. In his account at the Tribunal hearing he said that he obtained his passport by paying a bribe to an army officer, and that that officer also arranged for an Indonesian visa. 19 The appellant also made no mention at his initial interview of a motor car collision in September 1999. However, in his protection visa application, he mentioned a collision involving a car in which he claimed to be travelling, but did not say, as he said at the Tribunal hearing, that the car which collided with the one in which he was travelling contained Syrian intelligence officers and that one of them was killed. At the Tribunal hearing the appellant gave the death of the intelligence officer in the collision as a reason for fearing harm from Syrian authorities. On the other hand in his initial interview he said that he did not want to return to Syria because "it is very hard to live there" and it is expensive to marry and settle down. 20 The Tribunal found that the appellant's story about his passport being obtained for him by a Syrian army officer was fanciful and did not accept it. Indeed, the Tribunal found that that the fact that the appellant did have in his possession a legal passport supported a conclusion, namely, that he was not of interest to the Syrian authorities when he left the country, apparently without hindrance. 21 At the hearing before the Tribunal, the appellant described the collision in September 1999 as an accident. He claimed that an intelligence officer was in the car that collided with his, and as a result of the collision, the officer was killed. He and the driver of his car fled the scene. The appellant claimed to have heard nothing further about that accident, as he characterised it, despite the fact that, according to his own account, he was involved in a collision in which an intelligence officer was killed, and he and the driver abandoned their car at the scene. 22 The Tribunal did not accept the applicant's account of the car collision either as having been being deliberately caused by the occupants of the other car, as he initially claimed, or as resulting in the death of a Syrian intelligence officer, as he claimed at the Tribunal hearing. Rather the Tribunal considered that the account of the collision had been subsequently embellished by the appellant to provide a reason for his fear of being investigated and fear of being executed upon his return to Syria. 23 The appellant also made a number of claims concerning personal surveillance, which the Tribunal characterised as "vague". For example, the appellant said that, since his alleged detention in 1983, he felt that he was always under surveillance. He said he could see security people watching him from the street. He said that while he was never directly approached, he felt psychological pressure all the time. He claimed that, after his release from detention, he did not want to go anywhere because he was being watched and was followed in the market. When he applied for a passport, he was worried that he would not get a passport because the authorities were watching him. 24 When asked how he knew that he was under surveillance, the appellant said that when he was out, he would see someone following him, and the person had an electronic device. The Tribunal said that it did not accept the claim of intelligence surveillance "of a person with no political connections at all for such a long period of time". There was no finding by the Tribunal that there was in fact any intelligence surveillance. The most that could be said is that the Tribunal did not reject completely a claim that there was intelligence surveillance. However, there was, on the material to which I have just referred, no basis for the Tribunal to make any finding as to the period of any surveillance or the time at which it occurred. 25 The one claim that the Tribunal did accept was a claim that the appellant had been arrested and detained in 1993, as a suspected member of the Muslim Brotherhood. That was at a time of great violence in Syria, as the governing regime had set out to crush the Muslim Brotherhood and many arrests were made. The appellant also stated that his father was arrested in 1990, although he gave no reason for that arrest, beyond stating that his father was very religious. The Tribunal observed that, given that the family appeared to have Iraqi ancestry and that Syria was opposed to Iraq in this conflict in 1990-1991, there may have been some reason relating to ethnicity for the appellant's father's arrest. The appellant claimed that his father had been missing since the arrest ten years ago. 26 The Tribunal considered that it was highly implausible that the appellant's father would have been kept in detention for nearly ten years in circumstances where he had no political involvement of any kind, as the appellant said. The Tribunal accepted that it may be the fact that the appellant's father did not return to his home after his detention. However, the Tribunal did not accept that the appellant's father continued to be detained by Syrian authorities. The Tribunal considered that it was significant that the appellant did not claim to have been questioned himself at the time of his father's arrest. Accordingly, the Tribunal concluded that there did not appear to have been any relevant connection between the appellant's father's arrest and the appellant himself. 27 The Tribunal's ultimate conclusion was that the appellant had been detained for a period in 1983 for a Convention reason and that his treatment, while in detention, was sufficiently harmful to amount to persecution in a Convention sense. However, there had not been any confrontation with the Syrian authorities since 1983, despite the fact that the Syrian regime is known for its arbitrary arrests and suppression of any manifestation of political dissent. The appellant asserted that he did not have any political involvement in Syria. Further, the Tribunal found that the appellant left Syria legally and that there was no evidence to suggest that he would suffer any penalty on his return. The Tribunal found, therefore, that any fear of persecution was not well founded. 28 The amended grounds raise two questions. The first involves the ground contained in s 476(1)(e) of the Migration Act 1958 (Cth) ("the Act") and the second concerns the ground contained in s 476(1)(a) of the Act. I shall deal with the s 476(1)(e) argument first. 29 Section 476(1)(e) provides for review on the basis that the decision to be reviewed involved an error of law. The argument advanced in support of the appellant's case on appeal was that, having accepted that the appellant had been arrested and detained for a two month period in 1983 and that the treatment received in detention amounted to persecution, the Tribunal failed to apply the correct legal test in going about an assessment as to whether or not there was a real chance that the appellant may be persecuted if he were forcibly returned to Syria. 30 Reliance was placed on what were said to be uncontroverted facts giving rise to a real and substantial basis for a well founded fear. The so-called uncontroverted facts said to have been found and accepted were as follows: (a) the Syrian regime is known for its arbitrary arrests and suppression of any manifestation of political dissent; (b) it was and remains the law of Syria that membership of the Muslim Brotherhood is punishable by the death penalty; (c) the appellant was arrested and detained in 1983 and his treatment amounted to persecution in a Convention sense; (d) following his release, the appellant had been the subject of a degree of surveillance for an unspecified period at an unspecified time; (e) the appellant has never at any stage been a member of the Muslim Brotherhood and has no political connections at all; (f) the appellant's father was arrested and detained and is still missing; (g) the appellant's father had no political involvement of any kind, but had been a very religious man; (h) in September 1999 the appellant was involved in a motor car collision with a vehicle in which Syrian intelligence officers may have been travelling and the appellant fled the scene of the collision. 31 However, those matters are not capable of being treated as facts found by the Tribunal in their entirety. The Tribunal did not find that there had been any surveillance. Rather, the Tribunal rejected the claims that had been made by the appellant. To say that the Tribunal did not accept the vague claims of intelligence surveillance for 16 years of a person with no political connections at all is not a finding that there was some intelligence surveillance for an unspecified period at an unspecified time. A fair reading of the Tribunal's reasons suggests that it was simply rejecting the claim made by the appellant that he was the subject of surveillance at all. The first statement made by the Tribunal in its findings was its difficulty with the appellant's credibility. 32 There was no express finding by the Tribunal that the appellant's father is still missing. The Tribunal was prepared to consider the claim on the basis that the appellant's father had not returned to his home after detention. That is not necessarily an acceptance of the appellant's assertion that his father was missing. In any event, as I have said, there was no evidence of any connection between any arrest of the appellant's father, on the one hand, and the appellant himself, on the other hand. 33 The Tribunal did not find that the appellant fled the scene after the motor car collision. It simply recorded the fact that the appellant had made that assertion. The Tribunal made no express finding about a collision. Rather, it made the express finding that it did not accept certain parts of the appellant's account of the car accident. There was no finding by the Tribunal that the collision was anything that could give rise to any well-founded fear. There was no suggestion that the mere fact that an intelligence officer might have been a passenger in the car, or that the driver of the appellant's car had fled, would give rise to any interest on the part of the authorities. 34 I do not consider that the matters relied on by the appellant as giving rise to the ground contained in section 476(1)(e) make out that ground. I am certainly not persuaded on the basis of the submissions advanced on behalf of the appellant that, if leave were granted, that ground would be made out. 35 The second ground is an alleged failure to comply with s 430(1)(c). Section 430(1)(c) provides that the Tribunal must prepare a written statement that sets out its findings on material questions of fact. It was submitted that the Tribunal's inadequate findings concerning the surveillance to which the appellant was subjected following his release and the car collision in September 1999 were of such vital significance that, until proper findings have been made, there was no basis upon which to apply the correct legal tests in ascertaining the existence of a well-founded fear of persecution. 36 I have, in effect, dealt with this ground in the course of setting out the extent to which the Tribunal made findings. The Tribunal made plain its views concerning the surveillance of the appellant as alleged and the significance of the collision. The Tribunal said expressly that it did not accept the claims made by the appellant in relation to both matters. That was said in a context where the Tribunal had difficulty with the appellant's credibility. I do not consider that the Tribunal's treatment of those matters suggests in any way that the Tribunal failed to comply with the requirements of s 430(1)(c) in so far as it made no findings of fact. The Tribunal gave reasons for its findings. In my view, this ground would also be highly unlikely to be made out if leave were granted. Accordingly, in my view leave should be refused. There being no other grounds of appeal, the appeal should be dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 26 June 2001 Counsel for the Applicant: Mr K Martin QC appeared pro bono Counsel for the Respondent: Mr A Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 28 May 2001 Date of Judgment: 28 May 2001