Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: referred to
In relation to the case that the Tribunal's obligation to consider the appellant husband's claim was not limited to what he put forward in his application, counsel for the appellants referred his Honour to NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1 (Black CJ, French and Selway JJ) at [55]-[63]. However, Lloyd-Jones FM distinguished NABE [2004] FCAFC 263 ; 144 FCR 1, observing that ' the present case does not fall into that category... [f] or this argument to succeed, the Tribunal would have to be satisfied that the actions of the "gang" was [sic] motivated by political opinion and were not criminally based '. In his Honour's view the Tribunal did not find that the unidentified gang members involved in the assault had ' political motivation nor that their activities were not entirely criminal in nature '. His Honour was satisfied that the Tribunal dealt with the material correctly. 14 On the basis of those findings which I have sought to summarise, the Federal Magistrate dismissed the appellants' application for curial review of the Tribunal's decision. I have difficulty with the proposition that the appellant husband's fear of persecution could not have arisen in the evidentiary context he postulated, notwithstanding the confinement of his political exposure to that of a media advisor to a politician, but seemingly that measure of concern on my part is not strictly necessary or essential to my decision-making. 15 On 25 May 2006 the appellants filed a notice of appeal to the Federal Court which framed three grounds of asserted error on the part of the Federal Magistrate, the same being supported by particulars. During the hearing of the appeal to this Court on 9 November 2006, the appellants sought to rely on an amended notice of appeal. That comprehensively amended notice of appeal contained the following grounds and particulars thereto: '1. His Honour committed an error of law in dismissing the appeal from a decision of the Second Respondent in circumstances where the Second Respondent failed to comply with section 430(1)(c) of the Migration Act 1958 , thereby committing jurisdictional error by not having regard to probative material. Particulars: (a) The Tribunal found "there is no credible evidence to support the Applicant's claim that either the assault on him in 1997, or the assault and theft in 1999, or the alleged assault in March 2004, was politically (rather than criminally) motivated". (b) The Second Respondent had regard to the "Department's file..., which includes the protection visa application and... other material, including that supplied by the Applicant". (c) The Applicant supplied "various media reports" including a newspaper article in The Island entitled "Stage director assaulted by gang", in which it was reported that the Appellant "had been mercilessly assaulted by an armed gang alleged to be supporters of an organiser of the people's alliance" who allegedly said to the Appellant "... what was done to Laxshr (sic) would be done to you". (d) In making a finding that there is no credible evidence to support the allegation of "politically motivated" attack on the Appellant the Tribunal either failed to have regard to such information and/or, if it did, it did not give reasons why that particular piece [of] critical corroborative evidence was not credible (cf section 430(1)(c) of the Act). 2. His Honour further erred in upholding the Second Respondent's decision in circumstances where the Second Respondent constructively failed to exercise jurisdiction and act judicially when making a critical finding as to the nature of persecution faced by the Appellant. Particulars: (a) The Appellant repeats particulars to Ground 1. (b) By its failure to take into account relevant material corroborating the Appellant's claim of a politically motivated attack on him in 1999 the Second Respondent constructively failed to consider the Appellant's claim. (c) The Second Respondent also failed to act judicially by interpreting the proper test of what amounts to persecution too narrowly by limiting its assessment of the nature of the 1999 assault on the Appellant by reference to the Appellant's political opinion as opposed to whether the attack on the Appellant was politically motivated. 3. His Honour further erred in upholding the Second Respondent's decision in circumstances where the Second Respondent failed to consider an integer of the appellants' claim.' Particulars: (a) At the hearing before the Tribunal the appellant said that "the real death threats took place after the former Foreign Minister changed political parties. The Applicant said that he was seen on television on 1 May 2004, and from that moment he received "real threats". (b) The Tribunal then reminded the Appellant that "the only matter raised by him in the complaints he had lodged with the police, related to the threats arising from the 1999 videotaping incident... and that his claimed fear of persecution arising from his political opinion was difficult to accept". (c) However, in his Statutory Declaration dated 27 January 2005 sent to the Tribunal after the hearing, the appellant referred to his evidence at the hearing and reiterated that the alleged death threat he received was "not a criminal act, because I received threats since I [changed] my parties and political opinion". (d) In the preceding circumstances it was incumbent on the Tribunal to consider the claim that arose from the evidence, whether or not explicitly pleaded. (e) It appears the Tribunal considered the claim as articulated in the police complaints report in relation to the 1999 videotaping incident. (f) The Tribunal therefore constructively failed to consider an integer of the appellant's claim.' 16 In the context of the grounds the subject of that amended notice of appeal, counsel for the Minister submitted that the 'Minister does not consent to the appellant lodging an amended notice of appeal but accepts that the prejudice [the Minister] has suffered could be remedied by a costs order'. The Minister therefore requested that leave to amend be subject to an order that the appellants pay the Minister's costs thrown away. Counsel for the Minister further submitted that s 430 of the Migration Act 1958 (Cth) ('the Act') was now being relied upon in substitution for the s 424A ground contained in the original notice of appeal, and 'that being so, all I'm asking for...is that having put in their submission late we did the reasonable thing to make our submission to be prepared on time; they changed the case and we should get costs thrown away'. That submission is correct in principle, but whether or not any significant amount of legal costs were in effect 'thrown away' may well be in reality debateable, and would be a matter for the Court's assessment officer who undertakes the taxation process. In the somewhat complex circumstances of this case, the submission would not be a necessary 'given'. 17 Counsel for the Minister emphasised further complaint in particular in relation to the third ground the subject of the amended notice of appeal, which the Minister contended to be a new ground, and submitted that leave should be refused as it 'was not run below' and was a 'weak ground'. However both parties addressed the Court on the merits or lack of merit thereof. In any event the view I have reached is not anchored to that third ground. 18 In relation to the first ground of appeal, the appellants submitted that the Tribunal did not pay 'realistic regard' to the relevant newspaper article, 'in that [the Tribunal failed to] give reasons why it did not find material contained in that article to be of probative value to the appellant's claim'. The newspaper article, which appeared in the Sri Lankan newspaper The Island , is reproduced, in part, below: 'Stage director assault by gang A prominent stage play producer and director...had been mercilessly assaulted by an armed gang alleged to be supporters of an organiser of the Peoples Alliance at Galle Road close to Waldya road junction in Dehiwela at about 11.55 pm, when the play director was engaged in pasting posters with two of his assistants of the stage play "Prana appakaruwa". ... Speaking to "The Island" [he] said that the gang had with them firearms: "The persons who assaulted me shouted out loudly saying what was done to Laxshr would be done to you". Dehiwela police sources, in this connection, said investigations were being pursued to take suspects into custody.'