MZOAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1268

FEDERAL COURT OF AUSTRALIA

MZOAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1268 MIGRATION – visa – protection visa – whether appellant should be granted leave to raise on appeal argument not put at first instance – whether tribunal failed to deal with a substantial aspect of the appellant's claim – whether appellant claimed to fear persecution from his own ethnic group

Federal Court of Australia Act 1976 (Cth) s 27

MZOAU v Minister for Immigration [2004] FMCA 19 affirmed MZOAU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 136 of 2004 GRAY J 15 SEPTEMBER 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 136 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZOAU

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE OF ORDER: 15 SEPTEMBER 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. Leave to argue a further ground of appeal be refused. 2. The appeal be dismissed. 3. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 136 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZOAU

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE: 15 SEPTEMBER 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The question that arises in this appeal is whether the appellant should be given leave to rely on a ground not argued before the court below. The appeal is from a judgment of the Federal Magistrates Court, styled as MZOAU v Minister for Immigration [2004] FMCA 19. The Chief Federal Magistrate dismissed an application to set aside a decision of the Refugee Review Tribunal ('the Tribunal') made on 29 November 2002. The Tribunal in turn dismissed an application for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), the respondent to this appeal, refusing to grant to the applicant a protection visa. 2 The appellant is a citizen of the nation officially known in Australia as the Former Yugoslav Republic of Macedonia. He came to Australia in 1985 as a visitor. He met a woman whom he subsequently married, and returned to Australia in December 1996 to visit her. They were married in March 1997. The appellant then applied for a spouse visa, which was refused on 9 September 1999, on the basis that the marriage was not genuine. In the meantime, the appellant returned to Macedonia for three months in 1999. On 1 July 2002, the appellant was detained as an unlawful non-citizen. On that day, he applied for a protection visa. On 31 July 2002, the Minister's delegate made a decision refusing that application. 3 The appellant then applied to the Tribunal. The Tribunal conducted a hearing on 20 November 2002, at which the appellant and another witness both gave evidence. In the exercise of my discretion under s 27 of the Federal Court of Australia Act 1976 (Cth), I have received into evidence in the appeal the transcript of proceedings before the Tribunal. In the course of the hearing, the Tribunal made it clear to the appellant that it had in its possession, and had looked at, the relevant file from the Department of Immigration and Multicultural and Indigenous Affairs. The Tribunal confirmed in its reasons for decision that it had regard to that file, and specifically to the appellant's protection visa application and the delegate's decision record. 4 The Tribunal dealt with the case on the basis that the appellant claimed that he had a well-founded fear of persecution if he should return to Macedonia by reason of his race; namely, that he was of Albanian ethnic origin. His case, as the Tribunal saw it, was that he would suffer persecution from the majority ethnic Macedonian element of the population. The Tribunal rejected that case comprehensively. 5 In his application to the Federal Magistrates Court, the appellant was not represented. He raised three grounds of challenge to the decision of the Tribunal. It is unnecessary to go to those grounds in detail, because they were not pursued on the appeal. Two of them the Chief Federal Magistrate saw as attempts to invite the Federal Magistrates' Court to redetermine the merits of the case. The other ground alleged an unspecified error of law. The Chief Federal Magistrate was unable to identify any error of law, and particularly not any jurisdictional error. Accordingly, the Chief Federal Magistrate dismissed the application. 6 On appeal, the appellant prepared his own notice of appeal, which simply stated as grounds of appeal his belief that the Chief Federal Magistrate had made an error. Subsequently, he obtained the benefit of legal representation. 7 Counsel who appeared for the appellant previously sought and obtained an adjournment for the purpose of enabling her to obtain the transcript of the Tribunal's hearing, to see if it would bear out the proposition she wished to put. That proposition was that the Tribunal had failed to deal with a substantial aspect of the appellant's claim, because it had failed to deal with his claim that he feared persecution from ethnic Albanians if he should return to Macedonia. It is that ground for which counsel for the appellant seeks leave to argue. 8 A number of considerations are relevant to the question whether such leave should be granted. One of them, obviously, is that the appellant did not have the benefit of legal representation at first instance. Of primary relevance, however, is the question of the strength of the argument that the appellant wishes to raise, and it is that to which I propose to turn. 9 The argument that the appellant raised a distinct claim of fear of persecution from ethnic Albanians rests on two sentences appearing in the record of decision of the Minister's delegate. In that record of decision, the delegate referred to an interview conducted on 30 July 2002 with the appellant. The delegate said: 'The applicant summed up the interview by stating that if he returned to the Former Yugoslav Republic of Macedonia he would have to remain loyal to the ethnic Albanians because, if he did not, he would be considered a traitor and could be harmed, possibly even killed, by them. He added that, if he did this, the ethnic Macedonians would persecute him and some of his friends have been jailed because of their ethnicity.' 10 The first thing to be said about this passage is that it is far from obvious that it contains a distinct claim to fear persecution from ethnic Albanians. Given that the appellant's primary claim was undoubtedly that, as an ethnic Albanian, he feared persecution from ethnic Macedonians, it is plain that he was suggesting that he could not avoid persecution by ethnic Macedonians by collaborating with them, because that would render him liable to harm at the hands of ethnic Albanians. It is clear that the appellant was not expressing an intention to be disloyal to ethnic Albanians if he returned to Macedonia. He was only saying that it was necessary for him to remain loyal to ethnic Albanians. He could not escape persecution by ethnic Macedonians by switching his loyalties. On that basis, certainly no distinct claim was raised. 11 Even if it could be said that the appellant was endeavouring to articulate a double claim that he feared persecution either by Macedonians or by Albanians, he faces the difficulty that the Tribunal comprehensively demolished one limb of that fear, and such demolition is now beyond challenge. It is by no means clear to me that there would be any occasion for the appellant to demonstrate any disloyalty to ethnic Albanians if it were unnecessary for him to do so in order to evade persecution at the hands of Macedonians. The demolition of one part of the double claim seems to me to involve the demolition of the other. 12 Even more may be said, however, because it is apparent that at no stage subsequently did the appellant ever articulate a claim to fear persecution from ethnic Albanians. Counsel for the appellant was unable to refer to any matter in the material submitted to the Tribunal on behalf of the appellant, or by him. References to the transcript of the hearing certainly do not indicate that the appellant said anything that could be construed as articulating such a claim. Counsel for the appellant was reduced to pointing to the evidence of the other witness who gave evidence to the Tribunal. There are two passages in that evidence to which specific reference was made. They are, at the very best, from the point of view of the argument, ambiguous. They certainly do not involve a clear articulation of the proposition that the appellant had anything to fear from ethnic Albanians if he should return to Macedonia. 13 In the circumstances, it is extremely difficult for the appellant to suggest that the Tribunal should have given consideration to some alternative claim. At the most, the claim had been mentioned in the interview with the delegate. It was never mentioned thereafter. The delegate had not construed the passage in the interview as an articulation of a separate claim. The Tribunal did not so construe it. The Chief Federal Magistrate did not so construe it. At no stage did the appellant take any step to make it clear that this was his claim, if indeed he made such a claim. 14 In my view, therefore, the appellant has no prospect of succeeding on the proposed ground of appeal. It is impossible to argue that the Tribunal should have construed what the delegate said as involving the articulation of a separate claim to fear persecution from ethnic Albanians. It is extremely difficult to argue that, even if it had adopted that construction of the relevant passage, the Tribunal was obliged to prompt the appellant to expand upon the claim that was made. The Tribunal at several points in the hearing invited the appellant to say anything else that he wished to say in support of his case. The appellant remained absolutely silent about any alternative claim.