AGD15 v Minister for Home Affairs
[2018] FCCA 3725
•18 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGD15 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3725 |
| Catchwords: MIGRATION – Protection visa – show cause hearing – application for judicial review of decision made by Tribunal– applicable principles – applicant afforded procedural fairness – no failure to apply the correct legal test – grounds of review have no reasonable prospect of success – application dismissed. |
| Legislation: Federal Circuit Court Riles 2001 (Cth), r.44.12 Migration Act 1958 (Cth), ss.65, 424A, 424AA, 425, 476 |
| Cases cited: Minister for Immigration and Border Protection v DDK15 [2017] FCAFC 188 Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 Morad v El-Ashey [2017] FCA 1136 |
| Applicant: | AGD15 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 574 of 2015 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 7 December 2018 |
| Date of Last Submission: | 7 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 18 December 2018 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor for the First Respondent: | Mr van der Westhuizen |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
Pursuant to r 7.01(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the title of the first respondent be amended to Minister for Home Affairs.
The application filed on 17 March 2015 be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001.
The applicant pay the costs of the first respondent fixed at $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 574 of 2015
| AGD15 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 17 March 2015, judicial review is sought of a decision of the Refugee Review Tribunal (Tribunal) made on 18 February 2015 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa pursuant to s 65(1)(a) of the Migration Act 1958 (Cth) (Act).
Background
The applicant, a Sri Lankan national aged 37 years, first arrived in Australia on 19 July 2012 as an unauthorised maritime arrival.
On 20 November 2012, the applicant, with the assistance of his migration lawyers, applied for a Protection (Class XA) visa. In his application, the applicant listed his ethnicity as Singhalese and his religion as Buddhist.
By his statutory declaration dated 14 November 2012, the applicant set out the basis of his claims for protection. He claimed to fear harm in Sri Lanka from supporters of the Sri Lankan Freedom Party (SLFP) by reason of his stated involvement with the United National Party (UNP). The applicant claimed to have been harassed and assaulted on three occasions by supporters of the SLFP. The applicant also claimed that he could not safely relocate in Sri Lanka and that he feared harm from the Sri Lankan authorities as a failed asylum seeker.
On 18 September 2013, a delegate of the first respondent made a decision refusing the application, finding that the applicant was not a person to whom Australia owed protection obligations. The delegate provided a decisional record for their decision.
On 3 October 2013, the applicant lodged an application with the Tribunal for a review of the delegate’s decision. The applicant was assisted by the same migration lawyers in his application and provided a copy of the delegate’s decisional record in doing so.
By letter dated 10 November 2014, the applicant was invited to appear before the Tribunal on 18 December 2014 to give evidence and present arguments relating to the decision under review.
On 13 November 2014, the applicant’s migration lawyers provided written submissions in support of the application.
The applicant attended the hearing before the Tribunal and was assisted by his representative and a Sinhalese interpreter.
On 19 February 2015, the Tribunal affirmed the decision of the delegate not to grant the applicant a Protection visa.
Tribunal decision
The Tribunal identified the nature of and background to the review at [1]-[4] and set out the statement of the criteria governing the consideration of an application for a Protection visa: [5]. The Tribunal proceeded to consider the applicable principles respecting the grant of a Protection visa on the basis that a person satisfied the definition of a refugee under the Convention Relating to the Status of Refugees, as amended [6]-[15], and those relating to the grant of a Protection visa on the basis that the person was one to whom Australia owed complementary protection: [16]-[18]. It identified the applicable Ministerial Direction No 499: [19].
As the applicant’s sole ground of review was that the Tribunal had committed an error of law, at the outset I make plain that I consider the matters addressed by the Reasons at [5]-[19] demonstrate no failure by the Tribunal to identify the applicable legal principles.
In its consideration of the applicant’s claims and evidence, the Tribunal’s analysis was arranged as follows:
a)the applicant’s background and history was considered [20]-[21];
b)the applicant’s claimed political involvement was examined [22]-[34] as was his claim to fear harm as a failed asylum seeker [35];
c)political involvement: the Tribunal accepted that the applicant was a member of the UNP but considered him to be a low level supporter [26], [37]. The Tribunal also accepted that an incident in which the applicant had been involved in 2004 when caught pulling down opposition political party posters had resulted in his being attacked and accepted that this had resulted in him suffering serious harm: [38]. It did not regard a second incident, which had occurred seven years later, and in which the applicant had been the subject of insults, as constituting serious harm: [39]. Nor did it regard the injuries which the applicant had received several months later as constituting significant harm in circumstances where the applicant had treated his wounds himself and had required no other treatment: [40];
d)assessment of risk: the Tribunal proceeded to consider whether the applicant faced a real chance of serious harm on account of his membership of the UNP, noting country information and acknowledging that there had been some reports of attacks on UNP members. It found that the attacks had been on candidates and activists but not low level supporters. The Tribunal concluded that there was no chance that the applicant would be seriously harmed and that the applicant did not have a well-founded fear of persecution: [41]-[48];
e)returned asylum seeker: the Tribunal accepted that the applicant would be assumed to be a returned asylum seeker who would be considered by the authorities on that basis. It had regard to country information and found that the applicant did not fall within the class of persons who might be at a relevant risk: [49]-[56]. It also found that the applicant would likely be fined and granted bail relatively quickly and that the country information did not support a conclusion that he would be treated any more harshly. It did not accept that a short period of remand gave rise to a real risk of significant harm in the form of torture or cruel or inhuman treatment: [57]-[71];
f)intentional infliction of harm: the Tribunal also considered that under Australian law, cruel or inhuman treatment or punishment must be inflicted intentionally and that degrading treatment or punishment must be intended to cause extreme humiliation. It had regard to applicable jurisprudence in doing so and concluded that there were no substantial grounds for believing that the applicant would be significantly harmed as a result of his illegal departure: [72]-[75];
g)cumulative assessment: the Tribunal also addressed the applicant’s claims based upon a cumulative assessment of his circumstances, and was not satisfied that the refugee or complementary protection criteria were made out: [76]-[81];
h)the Tribunal affirmed the delegate’s decision: [83].
In making its decision, the Tribunal considered the matters advanced by the applicant both individually and cumulatively: Minister for Immigration and Border Protection v DDK15.[1]
[1] [2017] FCAFC 188, [32]-[34] (Gilmour, Markovic and O’Callaghan JJ).
Procedural history
On 17 March 2015, the applicant filed an application for judicial review of the Tribunal’s decision.
The applicant made an affidavit on 17 March 2015 in which he deposed that the Tribunal had erred in applying the wrong legal test. Annexed to the affidavit was a copy of the Tribunal’s decision record.
By a Response filed on 14 April 2015, the Minister opposed the orders sought by the application on the basis that no arguable case for the relief sought is raised.
On 24 June 2015, orders were made, by consent, fixing the matter for show cause hearing. By those orders, the applicant was afforded the opportunity to file and serve any amended application including additional grounds of review with complete particulars of each grounds and any written submissions in support of the application. The applicant did not take the opportunity to do so.
On 13 February 2017, orders were made in chambers adjourning the proceeding pending the decision by the High Court in SZTAL v Minister for Immigration and Border Protection.[2]
[2] [2016] FCAFC 69.
Applicable principles
Being a privative clause decision[3], the Tribunal’s decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[4] Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[5]
[3] Section 474(2).
[4]Sections 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[5] Sub-s 476(2).
Rule 44.12(1) of the Federal Circuit Court Rules 2001 (Cth) confers power on the court at the hearing of an application to show cause, to grant relief by way of dismissal of the proceeding, or to adjourn the proceeding for a final hearing, or otherwise to make final orders in relation to the claims for relief.
The course which the court may adopt on a show cause hearing will depend upon whether or not it has been satisfied that the applicant has raised an arguable case for relief: r 44.12(1)(a)-(c). An order under r 44.12(1) is an interlocutory order: r 44.12(2). The power conferred by r 44.12 has been described, aptly, as a form of summary dismissal: MZAJQ v Minister for Immigration;[6] SZUTB v Minister for Immigration & Border Protection.[7]
[6] [2015] FCCA 593, [13] (Whelan J).
[7] (2015) 298 FLR 6, [10] (Smith J).
As the power conferred by r 44.12 is akin to a form of summary dismissal, it is convenient to address briefly the principles relating to summary judgment. Those principles are well settled: see Spencer v The Commonwealth.[8]
[8] (2010) 241 CLR 118.
Caution must be exercised when considering whether to grant summary judgment. Such caution is equally appropriate upon the determination of a show cause hearing.
The power to grant summary judgment is expressed in permissive terms; the court may give judgment and may order that it be dismissed generally or in relation to any claim. Critically, in the case of summary judgment, the power is not engaged unless the court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding. So too, the power to dismiss an application on a show cause hearing is engaged only where the applicant has not satisfied the court that an arguable case for relief has been raised.
In Upaid Systems Ltd v Telstra Corporation Limited,[9] Perram, Jagot and Beach JJ considered the principles applicable to summary judgment not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer, supra, stated a series of further propositions, including the following:
a)first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success;
b)secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification;
c)thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved;
d)fourthly, the familiar intensifying epithets such as ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power to grant summary judgment;
see at [46]-[49]. The propositions stated in Upaid Systems were endorsed by the Full Court in Nichol v Discovery Africa Limited [2016] FCAFC 182 at [133]-[142] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey [2017] FCA 1136, [15] (Kenny J).
[9] [2016] FCAFC 158, 122 IPR 190.
In SZUTB, Smith J held that the power conferred by r 44.12(1) had two components: (1) lack of satisfaction that the applicant had raised an arguable case; and (2) a residual discretion whether or not to dismiss the application: (2015) 298 FLR 6, [12]-[16] citing Siddique v Minister for Immigration and Border Protection [2014] FCA 1352, [19]-[21] (Gilmour J); SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [20] (Beach J). As Gilmour J explained in Siddique, it would be “wrong for the court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed the application should necessarily be dismissed.” That is, the residual discretion remains to be considered.
I apply those principles in determining this show cause application.
Consideration
As stated above, the Tribunal’s decision is not amenable to relief unless it is vitiated by jurisdictional error: s 476.
The applicant advanced two grounds of review.
Ground 1 reads:
The Refugee Review Tribunal did not afford me procedural fairness
The Tribunal was obliged to afford the applicant natural justice. This meant that the applicant was entitled to a fair process and hearing.
Procedural fairness was afforded to the applicant. Division 4 of Part 7 contains an exhaustive statement of the natural justice hearing rule in relation to the matters with which it deals.
The applicant was invited to a hearing and afforded an opportunity to give evidence and make arguments on the issues arising upon the decision of the delegate the subject of the review: s 425.
The applicant was on notice from the delegate’s decisional record of the issues that were likely to arise in the merits review of that decision. The applicant’s migration lawyers had provided a copy of that decision with the application for merits review by the Tribunal.
The Tribunal did not decide the application on a basis that was different from that which had informed the delegate in the decision to refuse the application. Accordingly, no obligation was engaged to inform the applicant of some new and additional issue which would be the reason or a part of the reason for affirming the decision under review: cf SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.[10] It is also clear that the issues arising on the decision under review had been discussed with the applicant at the hearing.
[10] (2006) 228 CLR 152, [42]-[44], (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
In the circumstances of the case, there was no obligation to put adverse information to the applicant and insofar as the Tribunal had resort to country information, the content of that material was exempt from the operation of ss 424A, 424AA as it was not specifically about the applicant: s 424A(3)(a). Nor was it information of a kind which entailed a direct rejection or undermining of his claim: SZBYR v Minister for Immigration and Citizenship.[11]
[11](2007) 81 ALJR 1190, [17], (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), [86] Kirby J).
In all the circumstances, the applicant was afforded a meaningful opportunity to give evidence and present arguments to the Tribunal.
In my opinion the Tribunal engaged in an active intellectual consideration of the application for review and for that further reason, no want of procedural fairness was shown: Minister for Immigration and Citizenship v Khadgi.[12]
[12] (2010) 190 FCR 248.
Before me, the applicant submitted that although the Tribunal had looked into the country information, it had not considered the issues that he had raised. I disagree. It is clear that the Tribunal did so. In addition to the incidents which had occurred in 2004 and 2011, the applicant said that he had been attacked in Melbourne and reported that to police and said that those reports had been transmitted to Sri Lanka. The applicant said that the stabbing attack upon him had taken place in 2017 in Australia. He added that there had also been attacks on his family in Sri Lanka which had occurred in 2017. The matters raised by the applicant before me were matters which had occurred some years after the Tribunal conducted a merits review of the delegate’s decision.
Ground 1 is rejected.
Ground 2 reads
The Refugee Review Tribunal applied the wrong legal test
The second ground of review was wholly unparticularised and for that reason was liable to be rejected. As the applicant was self-represented I had re-examined the materials comprising the Court Book and the Reasons of the Tribunal and I do not identify any failure to apply the correct legal test to the facts of this merits review: see at [11] above.
Ground 2 is rejected.
Conclusion
As appears from the procedural history outlined above, this application was adjourned pending the result of an appeal from the decision in SZTAL v Minister for Immigration and Border Protection.[13] The High Court dismissed that appeal,[14] the plurality holding,[15] that the reference in the Act to ‘intentionally inflicting’ and ‘intentionally causing’ was “to the natural and ordinary meaning of the word ‘intends’ and therefore to actual, subjective, intent.” In light of the approach taken in relation to that issue by Tribunal, it is unnecessary to consider this issue further.
[13] [2016] FCAFC 69.
[14] SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405.
[15](2017) 347 ALR 405, [26] (Kiefel CJ, Nettle and Gordon JJ); cf Gageler J at [58]; Edelman J at [68], [110].
As the applicant has not satisfied the court that an arguable case for relief is demonstrated respecting the existence of jurisdictional error, I cannot conclude that the applicant’s grounds of review would have a reasonable chance of success. Nor am I persuaded that discretionary considerations militate in favour of a conclusion that the show cause application should otherwise be adjourned for a final hearing: r 44.12(1)(b).
It follows that the application should be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 18 December 2018
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