ABT17 v Minister for Immigration
[2018] FCCA 658
•23 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABT17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 658 |
| Catchwords: PRACTICE & PROCEDURE – Application to amend application and seek to rely on an additional ground – late application without any evidence to explain failure to comply with Court orders – leave to amend application refused. |
| Legislation: Migration Act 1958 (Cth), ss.47, 473DD |
| Cases cited: BYM16 v Minister for Immigration & Border Protection [2017] FCCA 2445 DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2 |
| Applicant: | ABT17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 35 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 6 March 2018 |
| Date of Last Submission: | 6 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 March 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Stephen Hodges, Hodges Legal |
| Counsel for the First Respondent: | Mr C Lenehan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Leave to amend the application be refused.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 35 of 2017
| ABT17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 16 December 2016. The Authority affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa.
At the hearing of the matter the applicant effectively abandoned all of the grounds in his application and sought leave to raise a new argument. No explanation was given as to why the argument had not been raised before or why the order to file an amended application had not been complied with. The application was opposed.
In BYM16 v Minister for Immigration & Border Protection [2017] FCCA 2445, I considered and rejected a late application for an amendment made in similar circumstances. I said, relevantly:
6.There appears to be an attitude amongst legal practitioners who act for applicants in migration proceedings that neither the rules of Court nor Court orders, even those made by consent, apply to them. Perhaps that attitude has been encouraged by years of judicial lassitude, combined with the cost-consciousness of practitioners appearing for the Minister, or their adherence to the perceived breadth of the obligations of the model litigant. Whatever be the cause of this attitude, it must change.
7.The power of the Court to grant an amendment is to be exercised for the purpose of enabling the just, efficient and economical resolution of the proceedings. No doubt, the merits of any grounds sought to be raised by an amendment are ordinarily relevant to the exercise of that power. However, in circumstances where an opportunity to amend has already been given, but eschewed, and there is no explanation for a very late and prejudicial application for amendment, the merits are not necessarily decisive.
8.There is no excuse for the delay in this case. The same solicitors have acted throughout these proceedings. They were involved in the review process conducted by the IAA[1]. They knew of the orders allowing an amendment 2½ months after the orders and 7 months before the hearing. They had all of the relevant material by early October 2016, if not far earlier. They knew of the timetable for submissions. In those circumstances, the solicitors’ conduct of this case is unforgiveable and cannot be condoned by the grant of leave to amend.
9.For those reasons, I refuse leave to amend the application. That said, I have also considered the merits of the proposed grounds and, although I would arrive at the same decision concerning leave if my view of the merits were different, the application to amend gains no strength from the proposed grounds.
[1] Immigration Assessment Authority.
The same reasoning applies here and leave to amend will be refused. The applicant has been represented by the same firm of solicitors throughout the proceedings which were commenced on 5 January 2017; on 16 May 2017 orders were made by consent for directions including that any amended application was to be filed by the applicant by 13 July 2017; on 5 September 2017 the Court ordered, again by consent that the matter be set down for hearing on 6 March 2018; and submissions were filed by the applicant addressing three of the grounds in the application (and abandoning the other two) on 23 February 2018.
The court lists in this Court have deteriorated significantly since my decision in BYM16 with the influx of decisions from the Authority, as well as other matters, adding to the pressure on the Court to deal with matters as and when they are listed unless there is good reason not to do so.
I will, for the sake of completeness, set out my consideration of the merits of the proposed new ground later in these reasons. However, the circumstances which I have outlined mean that I would not have granted leave to amend even if there were greater merit in the proposed ground.
I note in addition that the applicant sought an adjournment in order to obtain and rely upon a transcript of the interview conducted by the delegate of the Minister. That application was refused having regard to the circumstances above, as well as the fact that the applicant’s solicitor frankly admitted that he had not listened to the recording of the delegate’s interview, and so could not reasonably argue that there would be any utility in the adjournment.
In order to explain my reasons for dismissing the balance of the proceedings and the lack of merit in the proposed ground it is necessary to first set out a brief background to the matter.
Background
The applicant is a citizen of Sri Lanka who arrived in Australia by boat without a visa at an excised offshore place on 27 August 2012. It was not in dispute that, in the circumstances, the applicant fell within the definition of an unauthorised maritime arrival in the Migration Act1958 (Cth) and that, eventually, the Authority had the power and duty to review the decision of the delegate to refuse to grant the applicant a protection visa.
On 5 August 2013, the applicant lodged a protection visa application which was invalid because he was an unauthorised maritime arrival. However, on 13 October 2015, the applicant lodged a further protection visa application which was valid. The claims in the valid application were almost identical to those made in the invalid application.
Those claims were relevantly summarised by the applicant at [9] of his written submissions to the Court as follows:
9.1.In May 2009, on the way to an internally displaced person (IDP)’s camp, the Sri Lankan Army (SLA) took and detained [the applicant’s] brother, L on suspicion of being an LTTE[2] member.
9.2.Shortly after the family’s release from the DIP [sic] camp, the SLA officers attended the applicant’s home to question him about his travel history from birth and about the LTTE. A day later he received a letter requesting his attendance at [the army camp] where SLA officers interrogated him, and severely beat him when he denied involvement with the LTTE. He was released later that day.
9.3.Subsequently, and over a period of many years, the SLA detained [the applicant] and accused him of being an LTTE member. They also beat him on these occasions.
9.4.In around May 2011, a man attended the applicant’s home to request the applicant’s attendance at the [army camp]. The applicant was asleep. His sister indicated to the man that the applicant was not at home. The man assaulted his sister. The applicant physically defended her. The following morning a group of men detained the applicant for six days during which time he was again beaten. The group of men indicated to the applicant that this was revenge for his defence of his sister. The applicant’s brother achieved the applicant’s release by paying a bribe.
9.5.The applicant was called again to attend at the [army camp] in April 2012. He tried to escape but was recaptured and beaten severely.
9.6.Shortly after his arrival in Australia, members of the SLA attended the applicant’s home in Sri Lanka to inquire about his whereabouts from his family.
[2] Liberation Tigers of Tamil Eelam.
Delegate’s decision
On 21 September 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate found that the applicant’s evidence at the interview conducted by the delegate was plausible and broadly consistent with country information; however, on the basis of country information concerning the improvement in circumstances relating to Tamils in Sri Lanka, the delegate was not satisfied that there was a real chance that the applicant faced serious or significant harm upon return to Sri Lanka.
The delegate referred her decision to the Authority for review.
Authority’s decision
The applicant’s agent sent submissions to the Authority and included some information that was not before the delegate. The Authority did not consider that new information for the purposes of the review because it was not satisfied of the matters set out in s.473DD(b) of the Act. No complaint is by made by the applicant in respect of the Authority’s reasoning in that respect.
The Authority accepted some but not all of the applicant’s claims. It considered that some of his claims were exaggerated and had been embellished in order to enhance the applicant’s profile and his claims for protection: [10].
It accepted that the applicant had “experienced regular, low-level harassment from members of the SLA on a day-to-day basis” and that, as a young male returnee from an IDP camp, he may have been viewed with a certain amount of suspicion by the SLA. However, it did not accept that he was questioned and beaten as claimed in late 2009 or that he was targeted and beaten every 3 to 4 months by the SLA with a view to him confessing that he was in the LTTE. While the Authority accepted that the applicant’s brother had been detained for over two years on suspicion of being with the LTTE, the Authority could not find it plausible that the applicant was not questioned about his brother during that time when he was himself detained.
The Authority was not satisfied that the applicant was detained and sexually tortured in May 2011 before being released upon payment of a bribe, first because, unlike on other occasions, the applicant’s family did not take immediate steps to have him released, and secondly, because of the manner in which the applicant gave evidence at the delegate’s interview about the claim of sexual torture.
The Authority also rejected the claim that the applicant was detained and beaten and asked to sign a document admitting his LTTE involvement in April 2012. This was because the applicant’s evidence about that claim changed over the course of his application.
Overall the Authority was not satisfied that the applicant had a profile that would be of interest to the SLA or the Sri Lankan authorities, or that he would be at risk of harm on the basis of his ethnicity or imputed support for the LTTE, his origin from the North of Sri Lanka, or his brother’s detention on suspicion of LTTE involvement if he were to return to Sri Lanka in the reasonable foreseeable future.
The Authority also made findings concerning the risk of harm that might arise on the basis of the applicant being an illegal departee and failed asylum seeker; however, no issue was taken with those findings and so it is unnecessary to set them out.
On the basis of its findings of fact, the Authority was not satisfied that the applicant satisfied the criteria for the grant of a protection visa and so affirmed the decision of the delegate.
Consideration
In his written submissions, the applicant abandoned the second and fourth grounds in his application. At the hearing the applicant also abandoned the particulars to the fifth ground and sought leave to replace them with an entirely new ground.
Ground 1: “The IAA failed to consider that the applicant could be exposed to “treatment which may give rise to a need for protection” due to his brother’s “perceived links with the LTTE”.”
This ground is difficult to understand in light of the Authority’s finding that the applicant’s brother was detained “for two years at the end of the war on suspicion of LTTE involvement”: [31]. Indeed, at the hearing the applicant’s solicitor admitted that he could not understand the ground and made no submissions in support of it.
The applicant’s written submissions suggest that the alleged error is that the Authority ought to have assessed whether the applicant’s brother was both “suspected” of being an LTTE member and “perceived” to have been an LTTE member. There may be, at one level, a difference in the level of conviction between a person suspecting and a person perceiving something; however, for the purposes of determining the risk that might face the applicant upon return to Sri Lanka there is no real difference between those terms. That is because the question is whether or not there is a “well founded” fear of persecution or “real risk” of significant harm. The probability of the risk in each case is not sufficiently high as to require the degree of certainty at which any difference between a suspicion and perception might be decisive.
In any event, the applicant himself did not make any argument in support of his protection visa application for review by the Authority relying upon the difference between suspicion and perception.
For both of those reasons there was no error in the Authority’s failure to deal with any “perception” held in connection with the applicant’s brother during the period of his detention. The first ground is rejected.
Ground 3: “The IAA committed jurisdictional error at [10] as it took into consideration an application made by the applicant that has been considered by the department as an invalid application.”
At [10] of its reasons, the Authority states that it had “considered the applicant’s written claims (statements in 2013 and 2015) and the evidence he gave in his arrival and TPV interviews…”. The reference to the 2013 statement was a reference to a statutory declaration made by the applicant in support of the protection visa application lodged on 5 August 2013. As I have noted above, that application was an invalid application for reasons that are unnecessary to explain.
In this ground, the applicant relies upon the provisions of s.47(3) of the Act which prohibits the Minister from considering an application that is not a valid application. However, when the Authority said that it had considered the 2013 statement it did not mean that it had “considered” the invalid application. There is a difference, in this context, between considering an application for a visa and considering evidence and claims made by an applicant in support of that application.
There is no prohibition upon considering information contained in the application regardless of whether it is valid or invalid. In any event, the 2013 statement was, with very minor exceptions, identical to the 2015 statement. In light of that, this ground is not only misguided but no more than exercising extreme pedantry. For that reason the ground is rejected. I note in passing that the applicant’s solicitor made no attempt at the hearing to address this ground or to otherwise support it. He ought to have abandoned it.
Ground 5: “The IAA’s decision is irrational, illogical, or so unreasonable that no reasonable decision maker could make it…”
As already noted, the applicant abandoned the particulars referred to in this ground and sought instead to argue that the Authority’s decision was unreasonable for another reason.
The argument focused on [10] of the Authority’s reasons for decision where it stated:
In summary, the applicant’s claims of past harm relate to his being questioned, detained and harmed on multiple occasions at the SLA camp close to his home in [place]. I found the applicant’s evidence in his TPV interview with the delegate to be generally lacking in detail; the applicant appeared unable to expand in any detail on a number of his written claims and at times sounded vague and hesitant. I also found his evidence in relation to some incidents he claims occurred following his and his family’s return to their home after they were released from an IDP camp to be exaggerated. Having considered the applicant’s written claims (statements in 2013 and 2015) and the evidence he gave in his arrival and TPV interviews, I have some concerns about his truthfulness. The applicant claims he was targeted by the SLA for harm on a number of occasions over a lengthy period of time with a view to him confessing he was LTTE. As will become apparent, while I accept some of his claims, I am of the view he has exaggerated and embellished some of the incidents he relies on in order to enhance his profile and claims for protection.
The applicant argued that the conclusion in this paragraph that the applicant had embellished his claims was unreasonable. He developed this argument by drawing the Court’s attention to various claims made by the applicant that he had been tortured in the past, the delegate’s decision that the applicant’s evidence at the protection visa interview (referred to by the Authority as the TPV interview) was plausible, and the fact that the delegate was not only in control of that interview but also had available to her information not available to the Authority (namely, that she was shown scarring on the applicant’s back which could not have been visible to the Authority who never saw the applicant).
It became apparent during the course of argument that the applicant was not saying that the logic of the Authority in [10] was flawed. In other words, he accepted that it was open for the Authority to reason from the existence of a lack of detail, inability to expand on written claims and vague and hesitant evidence to a conclusion of exaggeration. Indeed, any argument to the contrary would need to address the fact that the Authority explained elsewhere in its reasons that there are other bases for its conclusions about the applicant’s claims: see for example [21]-[24].
Rather, the argument was that the Authority could not reasonably have concluded that the applicant’s evidence in the TPV interview was lacking in detail, and that he appeared unable to expand in any detail a number of his claims, and at times sounded vague and hesitant in light of the fact that the delegate, who was at that hearing, found his evidence plausible. However, the applicant accepted that, in order to make out that argument, he would have to have evidence of the delegate’s interview and there was none before the Court. The applicant’s application for an adjournment in order to obtain such evidence was refused for reasons that I have summarised above.
In light of the narrow scope of this ground, and the accepted difficulties with it, it is unnecessary to examine the principles of unreasonableness as they apply at this level of decision making. They are summarised in DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2 at [30]. The ground has little prospect of success because the applicant is unable to establish that there was no basis upon which the Authority could reasonably have made its findings about the manner in which the applicant gave evidence at the interview before the delegate and upon which it based, to some extent, its conclusions about the extent of the truthfulness of his claims. For that reason, I would refuse leave to the applicant to raise the ground, particularly in the circumstances referred to above.
Conclusion
There is no jurisdictional error in the Authority’s decision. The application must be dismissed with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 23 March 2018
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