SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 773
•14 JUNE 2005
FEDERAL COURT OF AUSTRALIA
SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773
MIGRATION – appeal from judgment of Federal Magistrates Court – where Refugee Review Tribunal considered country information containing an error of fact – where error alleged to have contributed to adverse credibility finding – whether Federal Magistrate made an error in failing to find that Tribunal decision affected by jurisdictional error
MIGRATION – Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) – transitional provisions – where decision of Refugee Review Tribunal decided prior to commencement of amendments – where judicial review application lodged prior to commencement of amendments but spent – where present application for judicial review lodged after commencement of amendments – grounds of review available
JURISDICTION OF COURTS – Federal Magistrates Court – jurisdiction of Federal Magistrates Court to review decision of Refugee Review Tribunal handed down prior to creation of Federal Magistrates Court
Acts Interpretation Act 1901 (Cth) s 8(c)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth) s 39B
Jurisdiction of TheFederal Magistrates Service Legislation Amendment Act 2001 Schedule 3
Migration Act 1958 (Cth) s 474, s 483A, Part 8
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)Esber v Commonwealth of Australia (1992) 174 CLR 430 cited
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 applied
Repatriation Commission v Keeley (2000) 60 ALD 401 cited
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 cited
SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416 followed
Victrawl Pty Ltd v Telstra Corporation Limited (1995) 183 CLR 595 cited
W360/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 211 distinguishedSZDLR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1742 of 2004
BRANSON J
14 JUNE 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1742 of 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZDLR
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
BRANSON J
DATE OF ORDER:
14 JUNE 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1742 of 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZDLR
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
BRANSON J
DATE:
14 JUNE 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
By an amended notice of appeal the appellant appeals from the whole of a judgment of the Federal Magistrates Court delivered on 3 November 2004. By that judgment the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 15 July 1998 was dismissed. The Tribunal, by its decision of 15 July 1998, had affirmed a decision of a delegate of the respondent not to grant the appellant a protection visa.
BACKGROUND FACTS
The appellant, a citizen of Nepal, arrived in Australia on 15 October 1995. On 12 January 1996 he lodged an application for a protection visa. On 3 March 1997 a delegate of the respondent refused to grant the appellant a protection visa. On 7 April 1997 the appellant sought review of that decision by the Tribunal.
The reasons that the appellant gave on his protection visa application for leaving Nepal were:
‘I have been an active worker of the Nepali Congress Party since my student life. This party as well as any other political parties in Nepal were considered by then ruling party less political system called “Panchayat” as illegal and thus these parties were suppressed and hated by the ruling Government. In 1989 the Panchayat system was removed by a democratic revolution and a multi party system was established. Under this new political environment mutual hatred between different parties occurred which resulted in killing of active workers of the parties including the Nepali Congress Party. To date there have been more then [sic] 100 party activists of the party I belong to, killed mostly by the left‑wing communists since the time of the democrative [sic] revolution in 1989. I as an active worker of the Nepali Congress Party, have been experiencing threats from the communists. I believe I will eventually be killed if continue to leave [sic] in Nepal. This is the reason why I am seeking protection in Australia.’
Before the Tribunal the appellant said that he had not been a member of the Nepali Congress Party (‘NCP’) although he claimed to have been a covert worker for the party, spying on Communists and passing on information to the NCP. When asked by the Tribunal member if he had ever joined any of the parties on which he was spying the appellant responded that he had once joined the ‘Mandal’.
The appellant told the Tribunal that he learned in August 1995 that his cover had been blown by the Communists and he decided to leave Nepal. He left Nepal in October 1995 having remained at his previous address during the period August‑October 1995. He told the Tribunal that he had enlisted police protection for this two month period.
REASONS FOR DECISION OF THE TRIBUNAL
In the section of its written reasons for decision in which the Tribunal reviewed the appellant’s claims and evidence the Tribunal noted the appellant’s assertion that he had once joined the Mandal. The Tribunal’s reasons for decision then record the following:
‘The Tribunal asked the Applicant if he ever joined any of the parties on which he was spying. In reply, he said he once joined the “Mandal” (Rastravadi Swatantra Vidyarthi Mandal), which has been described by Amnesty International, in its June 1992 report, Nepal: A Summary of Human Rights Concerns (London; A1 index: ASA 31/02/92, p.9), and other sources as an anti‑leftist vigilante group (see also IRBDC Report NPL11256 dated 21 July 1992) that gained a reputation for using violent and threatening means in order to assert pro‑panchayat, anti‑leftist views. …
It is clear from the foregoing information that by joining the “Mandal” the [appellant] did not join a leftist party. …
In any event, the “Mandal” operated only before 1989.’
The section of the Tribunal’s written reasons for decision headed ‘FINDINGS AND REASONS’ contains no reference to the Mandal. In this section of its reasons for decision the Tribunal refers to the appellant’s claims as being vague and unconvincing. It notes that his claim regarding membership of the NCP had been reduced to a claim about back‑room support but his claim concerning active party support had been amplified to a claim of espionage.
The Tribunal also noted that the appellant’s evidence concerning the long‑planned attack on him was ‘incongruous’ with evidence about the impulsive nature of inter‑party violence in Nepal which peaks during election campaigns.
The Tribunal concluded that the appellant had negligible familiarity with up‑to‑date developments in Nepalese politics. It also concluded that the appellant had not resolved the apparent incongruity between his claimed impulse to flee Nepal upon hearing of the threat to his life and his remaining at the same address for a further two months. Further the Tribunal found that his evidence about police protection during this period gave ‘the strong impression of having been merely a hastily improvised answer to an adverse position’.
The Tribunal concluded that the appellant’s evidence was unreliable and it was therefore not satisfied that he, or any member of his family, faces a real chance of Convention-related persecution in Nepal.
APPLICATION FOR JUDICIAL REVIEW
The appellant applied to the Federal Magistrates Court on 4 May 2004 for judicial review of the decision of the Tribunal, seeking the issue of writs of certiorari, mandamus and prohibition. The application bears the endorsement ‘This application is made under section 39B of the Judiciary Act (and see [section] 475A of the Migration Act 1958)’. I interpolate that section 475A of the Migration Act 1958 (Cth) (‘the Act’) does not confer jurisdiction on the Federal Magistrates Court, but rather qualifies the operation of s 476 of the Act.
Section 39B(1) of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) relevantly provides that:
‘… the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition … is sought against an officer or officers of the Commonwealth’.
It can be seen that s 39B of the Judiciary Act does not itself vest any jurisdiction in the Federal Magistrates Court. However, s 483A of the Act provides:
‘Subject to this Act and despite any other law, the Federal Magistrates Court has the same jurisdiction as the Federal Court in relation to a matter arising under this Act.’
In the circumstances the jurisdiction of the Federal Magistrates Court invoked by the appellant’s application to that court was its jurisdiction under s 483A of the Act. That jurisdiction includes the same jurisdiction as is vested in this Court by s 39B(1) of the Judiciary Act (see [12] above).
It is appropriate to note that the recent decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 has made it clear that, having invoked a jurisdiction identical to that vested in this Court by s 39B of the Judiciary Act, the appellant ought to have named the Tribunal as a respondent to his application.
Only one ground of review was relied upon by the appellant before the Federal Magistrates Court. That ground was expressed as follows:
‘On the grounds that the Tribunal in failing to understand the applicant’s claim that at the relevant time he was engaged in covert spying on the Communist movement (which posed a growing threat to the stability of Nepal) on behalf of the NC political party (the major centrist party of Nepal) and in doing such under cover work was not able to join the NC party for the reason that such membership, if discovered by the Communists, would have jeopardised his safety, the failure causing the Tribunal to treat such non‑membership as a reason to impugn the applicant’s credibility.
B. PARTICULARS
“His claim about engaging police protection for that period is also unconvincing. He would have to have convinced them that he was a serious target, but he claims he was not even a member of the NC.”’
The appellant was represented before the Federal Magistrate by the same firm of solicitors that represented him before this Court.
REASONS OF FEDERAL MAGISTRATE
Notwithstanding the limited nature of the ground of review on which the appellant’s application for judicial review was based, the learned Federal Magistrate, apparently without objection from the respondent, accepted submissions on behalf of the appellant that canvassed a range of issues. One of those issues was the Tribunal’s description of the Mandal as an anti‑leftist vigilante group that ceased to operate in 1989. The Federal Magistrate refused to receive in evidence a newspaper cutting from a Nepalese newspaper of 26 June 2003 said to demonstrate that the Tribunal’s description of the Mandal was erroneous. The basis of this refusal was that the cutting came from a newspaper published some years after the decision of the Tribunal.
The Federal Magistrate accepted that there was no evidence or other material before the Tribunal that supported the finding of the Tribunal that the Mandal operated only before 1989. His Honour also accepted that the Amnesty International publication upon which the Tribunal placed reliance had not described the Mandal as an anti‑leftist vigilante group. Nonetheless, his Honour noted the content of the Canadian publication to which the Tribunal referred (‘the Canadian Report’). The Canadian Report contained the assertion that:
‘In its June 1992 report, Amnesty International describes the Mandale as a vigilantes group attempting to restrict communist anti‑monarchist activities in Nepal ….’ (emphasis in original).
Neither the transcript of the hearing before the Tribunal nor any affidavit from the appellant touching on the material shown to him by the Tribunal was placed before the Federal Magistrate. In these circumstances his Honour was not willing to conclude that the appellant had not been accorded procedural fairness by the Tribunal.
Nor was the Federal Magistrate willing to conclude that the possible error by the Tribunal concerning the time during which the Mandal operated so tainted the Tribunal’s view of the credibility of the appellant that it failed to give proper consideration to the appellant’s evidence.
NOTICE OF APPEAL
The grounds of appeal set out in the appellant’s amended notice of appeal are as follows:
‘His Honour erred in law:
(i)by refusing or otherwise failing to apply the caution in W360/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 211 per Lee, Finkelstein JJ at [3]. “if properly instructed on the matters it misunderstood and found to be implausible, the Tribunal may have found those matters to be true, or that it could not say they were not true, and that may have caused the Tribunal to reach a different conclusion on other matters, in particular, on the substance of the applicant’s claim that his fear of persecution was based on a real risk, that persecution may occur.” The Tribunal, the appellant asserts, failed to distinguish between the pejorative term “mandale” and the Mandal Party, a legitimate political party active in Nepal, such error causing the Tribunal to mistakenly disbelieve critical claims made by him.
(ii)by refusing to allow the tender of a newspaper cutting which illustrated the error‑viz Nepali Times of 20‑26 June 2003.
(iii)by adopting a forgiving approach to errors of the Tribunal likely to have been the source of the Tribunal’s refusal to believe the appellant.’
APPLICABLE LAW
At my request the parties filed supplementary written submissions on two issues: the source of the jurisdiction of the Federal Magistrates Court to review a decision of the Tribunal made on 15 July 1998 and the available grounds of review of that decision on an application dated 4 May 2004. Consideration of those two issues seemed to me to be of importance in the context of this appeal because, as at the date of the decision of the Tribunal, the Federal Magistrates Court did not exist.
Immediately before the commencement on 2 October 2001 of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (‘the Amending Act’) Part 8 of the Act conferred jurisdiction on this Court with respect to judicially‑reviewable decisions, which included decisions of the Tribunal. The jurisdiction conferred on the Court by Part 8 was at that time the only source of jurisdiction in this Court to review decisions of the Tribunal except for matters remitted to the Court by the High Court under s 44 of the Judiciary Act. Moreover, the jurisdiction of this Court to review decisions of the Tribunal was at that time exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under s 75 of the Constitution.
The Amending Act repealed Part 8 of the Act as in force immediately before its commencement and replaced it with a new Part 8. Central to the operation of the new Part 8 was the privative clause contained in s 474. Section 474 of the Act relevantly provides:
‘(1) A privative clause decision:
(a) is final and conclusive; and(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
….’
In Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 the High Court held that a decision purportedly made under the Act but which was affected by jurisdictional error fell outside the terms of the privative clause contained in s 474. The new Part 8 does not contain an express conferral of jurisdiction on any court to review decisions made or purportedly made under the Act. However, the interpretation placed on s 474 by the High Court means that the new Part 8 does not exclude this Court’s general jurisdiction under s 39B(1) of the Judiciary Act to review decisions purportedly made under the Act (ie decisions affected by jurisdictional error).
Nor does the new Part 8 exclude this Court’s jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’). This was recognised by Item 1 of Schedule 1 of the Amending Act, which amended Schedule 1 of the ADJR Act. Schedule 1 of the ADJR Act sets out classes of decisions to which the ADJR Act does not apply. The Schedule now includes reference to ‘a privative clause decision within the meaning of subsection 474(2) of the Migration Act 1958’.
It was at the time of the commencement of the Amending Act that the Federal Magistrates Court first gained jurisdiction to hear and determine applications for judicial review of decisions of the Tribunal. Schedule 3 of the Jurisdiction of TheFederal Magistrates Service Legislation Amendment Act 2001, which also commenced on 2 October 2001, inserted s 483A into the Act. Section 483A of the Act vests in the Federal Magistrates Court the same jurisdiction as this Court in matters arising under the Act. The parties did not submit, and I see no reason to conclude, that the jurisdiction so vested was intended to have any temporal limitation. Section 483A does not affect substantive rights or liabilities and thus is not within the application of the presumption that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to affect rights or liabilities which the law had defined by reference to the past events (Maxwell v Murphy (1957) 96 CLR 261 per Dixon J at 267). For this reason I conclude that, after s 483A was inserted into the Act, whatever jurisdiction could be invoked in this Court to review a decision of the Tribunal, whenever made, could also be invoked in the Federal Magistrates Court.
It is thus necessary to determine what jurisdiction this Court had at the time of the hearing in the Federal Magistrates Court in respect of a decision of the Tribunal made on 15 July 1998. Item 8 of Schedule 1 of the Amending Act relevantly provides as follows:
‘(1)If an application for judicial review of a decision under the Migration Act 1958 is lodged before the commencement of this Schedule, the Migration Act 1958, the Administrative Appeals Tribunal Act 1975 and the Administrative Decisions (Judicial Review) Act 1977, as in force immediately before that commencement, apply in respect of the application, and in respect of the review, as if this Schedule had not been enacted.
(2)The Migration Act 1958 and the Administrative Decisions (Judicial Review) Act 1977, as amended by this Schedule, apply in respect of judicial review of a decision under the Migration Act 1958 if:
(a)the decision was made on or after the commencement of this Schedule; or
(b)the decision:
(i)was made before the commencement of this Schedule; and
(ii)as at that commencement, an application for judicial review of the decision had not been lodged.
(3)A reference in subitem (1) or (2) to an application for judicial review of a decision is a reference to:
(a)an application for review of the decision under:
(i)section 44 of the Administrative Appeals Tribunal Act 1975; or
(ii)Part 8 of the Migration Act 1958; or
(iii)the Administrative Decisions (Judicial Review ) Act 1977; or
(b)an application for a writ of mandamus, prohibition or certiorari or an injunction or a declaration in respect of the decision under:
(i)section 75 of the Constitution; or
(ii)section 39B or 67C of the Judiciary Act 1903.
…’
As mentioned above, the appellant’s application to the Federal Magistrates Court for judicial review of the decision of the Tribunal was lodged on 4 May 2004. Item 8(1) of Schedule 1 of the Amending Act thus had no operation in respect of the application as the application was not lodged before the commencement of the Schedule.
Item 8(2)(a) of Schedule 1 of the Amending Act had no operation in respect of the judicial review of the decision of the Tribunal conducted by the Federal Magistrates Court as the decision was not made on or after the commencement of the Schedule.
It is not beyond argument that item 8(2)(b) applied to the judicial review of the decision of the Tribunal conducted by the Federal Magistrates Court. Item 8(2)(b) would have applied if the phrase ‘an application for judicial review of the decision’ contained in the item properly construed means the application for judicial review pursuant to which the judicial review was conducted by the Federal Magistrates Court. However, if the phrase is construed literally to mean any application for judicial review of the decision as defined by item 8(3), item 8(2) would not have applied. The appellant had lodged an application, or possibly applications, for judicial review of the decision of the Tribunal as defined by item 8(3) before the commencement of Schedule 1 of the Amending Act. That application, or those applications, have, it seems, been discontinued or dismissed.
In SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416 at [12] Stone J gave consideration to whether the reference in item 8(2)(b)(ii) to the lodging of ‘an application for judicial review of the decision’ is a reference to the application under consideration and rejected that interpretation. Not only am I not satisfied that her Honour was wrong to do so, I consider that the interpretation adopted by her Honour was the preferable interpretation. I therefore conclude that item 8 of Schedule 1 of the Amending Act has the effect that the Act as amended by the Amending Act had no application in respect of the appellant’s application to the Federal Magistrates Court.
It is therefore necessary to give consideration to the significance, in respect of the appellant’s application to the Federal Magistrates Court, of the repeal by the Amending Act of Part 8 of the Act as in force immediately before the commencement of the Amending Act. Part 8 of the Act as then in force provided by s 476 that an application could be made to the Federal Court for review of a decision of the Tribunal on any one or more of seven specified grounds. The specified grounds were grounds of a general administrative law character with the consequence that an applicant could obtain relief without necessarily demonstrating that the Tribunal had made a jurisdictional error.
Section 8(c) of the Acts Interpretation Act 1901 (Cth) (‘Acts Interpretation Act’) provides that where an Act repeals in the whole or in part a former Act then, unless the contrary intention appears, the repeal shall not affect, amongst other things, any right acquired under the Act so repealed. I incline to the view that s 476 of the Act as in force immediately before the commencement of the Amending Act gave an applicant to the Tribunal a right to apply to the Federal Court for review of the Tribunal’s decision on any one or more of the grounds set out in the section (see Victrawl Pty Ltd v Telstra Corporation Limited (1995) 183 CLR 595; Esber v Commonwealth of Australia (1992) 174 CLR 430; Repatriation Commission v Keeley (2000) 60 ALD 401). It may be, however, that the right given by s 476 was a right that lapsed twenty‑eight days after the applicant was notified of the decision. Section 478 of the Act as then in force required an application under s 476 to be lodged with the Federal Court within twenty‑eight days of the applicant being notified of the decision. The Court had no power to extend the twenty‑eight day period.
However, I am relieved of the necessity in this case of reaching a concluded view on the relevance of s 8(c) of the Acts Interpretation Act to the appellant’s application to the Federal Magistrates Court. Neither party referred expressly to s 8(c) of the Acts Interpretation Act or suggested that the appellant had any present rights referable to s 476 of the Act as in force immediately before the commencement of the Amending Act. The respondent contended that in the present case:
(a)the Federal Magistrates Court had jurisdiction to review the decision of the Tribunal;
(b)the jurisdiction of the Federal Magistrates Court was the same as that exercised by this Court under s 39B of the Judiciary Act 1903 (Cth); and
(c)accordingly the Federal Magistrate was correct to proceed on the basis that the appellant needed to demonstrate jurisdictional error to succeed.
By his supplementary submissions the appellant accepted the validity of both the above contentions of the respondent and the analysis upon which those contentions were based.
For the reasons set out above I agree that the appellant was entitled to invoke the jurisdiction vested in the Federal Magistrates Court by s 483A of the Act. Section 483A of the Act, by vesting in the Federal Magistrates Court the same jurisdiction as is vested in this Court in respect of matters arising under the Act, vested in the Federal Magistrates Court jurisdiction in any ‘matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth’ (s 39B(1) of the Judiciary Act). By his application to the Federal Magistrates Court the appellant sought the issue of writs of mandamus and prohibition directed to the Tribunal. The Tribunal comes within the meaning of the expression ‘an officer or officers of the Commonwealth’ within the meaning of s 39B (SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24).
I therefore conclude that the appellant validly invoked the jurisdiction vested in the Federal Magistrates Court by s 483A of the Act, albeit that he ought to have joined the Tribunal as a respondent to his application. The grounds of review available to him are the same grounds as are available when an application is brought in this Court under s 39B of the Judiciary Act.
CONSIDERATION
The case of the appellant on appeal from the judgment of the Federal Magistrates Court relied substantially on the Tribunal’s acceptance of the accuracy of the assertion in the Canadian Report that Amnesty International had described the Mandal as an anti‑leftist vigilante group. I am satisfied that it is more likely than not that Amnesty International did not so describe the Mandal. It seems likely that confusion arose between the political party known as ‘Mandal’ and certain vigilantes described as ‘mandales’.
The principal issue for determination on this appeal is therefore whether the Federal Magistrate erred in not concluding that by accepting the accuracy of the Canadian Report the Tribunal made an error going to its jurisdiction to determine the appellant’s application for review of the decision of the delegate of the respondent. Although the Tribunal placed no express reliance on the appellant’s evidence concerning the Mandal in reaching its decision, the appellant contended that its confusion concerning the Mandal may have contributed to the adverse view that the Tribunal took of his credibility.
The appellant placed reliance on W360/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 211 (‘W360/01A’) and in particular on the passage from the joint reasons for judgment of Lee and Finkelstein JJ set out in his amended notice of appeal. The circumstances considered by the Full Court in W360/01A are readily distinguishable from those that I am required to consider on this appeal. In W360/01A the Full Court unanimously concluded that the Tribunal had denied the appellant in that case procedural fairness. The unfairness identified in that case was the failure of the Tribunal to take evidence from a proffered witness who, it had been told, would confirm the truthfulness of part of the story told by the appellant. All members of the Full Court concluded that it was not open to the Tribunal to reject the story told by the appellant because of the adverse view that it had taken of the appellant’s credibility without giving consideration to relevant evidence having the capacity to corroborate the appellant’s claims in a material respect.
In this case, the Federal Magistrate concluded that it could not be demonstrated that the Tribunal had failed to afford the appellant procedural fairness. The notice of appeal, appropriately in my view, does not challenge this conclusion. The Tribunal did not decline to hear from a witness proffered by the appellant. There was no evidence one way or the other before the Federal Magistrate as to what material, if any, the Tribunal gave the appellant an opportunity to comment on or as to what the appellant would have done had he been given an opportunity to comment on any particular material.
It cannot, in my view, sensibly be suggested that the Tribunal made a jurisdictional error by referring to the Canadian Report or by accepting the accuracy of its content without critically examining the sources upon which its author had relied in compiling the report. I therefore accept the submission of the respondent that any error that may be reflected in the reasons for decision of the Tribunal that derives from the Tribunal’s acceptance of the accuracy of the Canadian Report is an error within the Tribunal’s jurisdiction.
The above conclusion compels the further conclusion that the Federal Magistrate would not have been assisted in determining whether the decision of the Tribunal was affected by jurisdictional error by the newspaper cutting that his Honour refused to receive into evidence. The ground of appeal that complains of his Honour’s rejection of the tendered newspaper cutting must therefore fail.
The third ground of appeal, which complains about the Federal Magistrate adopting a ‘forgiving approach’ to certain alleged errors of the Tribunal, is incapable, in my view, of constituting by itself a ground of appeal from the judgment of the Federal Magistrates Court. It seems to me that the third ground of appeal is merely an aspect of the first ground of appeal. It therefore fails together with the first ground of appeal.
The written submissions of the appellant made two complaints concerning the reasons for decision of the Tribunal that fall completely outside the grounds contained in the amended notice of appeal. The appellant did not seek leave to further amend the notice of appeal to add grounds of appeal that alleged that the Federal Magistrate erred in his consideration of these aspects of the decision of the Tribunal.
The first of the complaints that fall outside the amended notice of appeal concerns a paragraph from the reasons for decision of the Tribunal in which it concluded that, if the appellant and his wife were NCP supporters and this were known by local Communists, any violence that they might suffer would fall within a general pattern of civil unrest in Nepal and could not be characterised as Convention-related persecution. In my view, on a proper reading of the decision of the Tribunal this was an alternative basis upon which the Tribunal concluded that the decision of the delegate should be affirmed. The primary basis for the decision of the Tribunal was its view that the appellant was not a reliable witness. It is therefore not necessary to determine whether this conclusion of the Tribunal discloses an error of analysis.
The second of these complaints concerns certain criticisms allegedly made by the Tribunal of the appellant’s evidence about why he did not leave Nepal for two months after allegedly learning that his cover was blown with the Communists. This complaint involves, in my view, reading the reasons for decision of the Tribunal with an eye too keenly attuned to error. The passage from the reasons for decision of the Tribunal upon which the complaint is based constitutes a recital of the evidence before the Tribunal. The reasoning of the Tribunal based on that evidence is found later in the Tribunal’s reasons for decision and, in my view, provides no support for any allegation that the decision of the Tribunal was affected by jurisdictional error.
As I am not satisfied that either of the complaints not raised by the amended notice of appeal has merit I consider that no injustice will be suffered by the appellant if I take the formal position that they fall outside the scope of this appeal. I decline to allow the appellant to rely on grounds of appeal not identified in the amended notice of appeal.
CONCLUSION
The appeal will be dismissed with costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate:
Dated: 14 June 2005
Counsel for the Appellant: M Newman Solicitor for the Appellant: Newman & Associates Counsel for the Respondent: G Kennett Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 April 2005 Date of Final Submissions: 20 April 2005 Date of notification by Parties that further hearing not required 27 May 2005 Date of Judgment: 14 June 2005
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