APL16 v Minister for Immigration and Border Protection
[2016] FCA 1341
•11 November 2016
FEDERAL COURT OF AUSTRALIA
APL16 v Minister for Immigration and Border Protection [2016] FCA 1341
Appeal from: Application for leave to appeal: APL16 v Minister for Immigration & Anor [2016] FCCA 1806 File number: NSD 1188 of 2016 Judge: BARKER J Date of judgment: 11 November 2016 Catchwords: MIGRATION – application for protection (class XA) visa – application for judicial review in Federal Circuit Court of Australia dismissed at show cause hearing – application for leave to appeal – whether primary judge’s decision attended by sufficient doubt – whether substantial injustice caused if leave to appeal refused Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A)
Migration Act 1958 (Cth) ss 5(1), 36(2), 36(2)(a), 36(2)(aa), 36(2A), 92R(1)(c)
Federal Circuit Court Rules 2001 (Cth) rr 44.12, 44.12(1), 44.12(1)(a), 44.12(2)
Cases cited: Décor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397
House v R (1936) 55 CLR 499; [1936] HCA 40
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Date of hearing: 11 November 2016 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 67 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr R White Solicitor for the First Respondent: Mills Oakley ORDERS
NSD 1188 of 2016 BETWEEN: APL16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BARKER J
DATE OF ORDER:
11 NOVEMBER 2016
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the first respondent’s costs of the application, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BARKER J:
The applicant, a male citizen of Sri Lanka of Tamil ethnicity, applies for leave to appeal from orders of the Federal Circuit Court of Australia summarily dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal refusing to grant him a protection (class XA) visa under the Migration Act 1958 (Cth).
The applicant applied for a protection visa on 30 September 2013 after arriving in Australia at Christmas Island on 15 July 2012 without a visa.
In his application, the applicant claimed that he was born in the Puttalam District in Sri Lanka where he was raised, educated and employed until June 2012, and where he lived with his wife, child, parents and three brothers. He said his family were supporters of the United National Party (UNP) and that the IUNP built a house for the family in 2008.
The applicant claimed that on 5 November 2008, a group of six Sinhalese supporters of the rival Sri Lanka Freedom Party (SLFP) came to the house and asked the family to support the SLFP and, when this request was refused, proceeded to attack the applicant’s family, leaving his mother and three brothers hospitalised. The applicant said that after his mother reported the attack, the six men were arrested and imprisoned for a period of seven days prior to the case being heard in court. The applicant said that his family appeared in court to give evidence against the six men, causing the men to threaten his family.
The applicant claimed that this in turn caused him to go to Udappu five or six days later because he feared the men would attack him. He said the men came to his mother’s house asking for his whereabouts four or five months later and assaulted his two youngest brothers when they were unable to find him.
The applicant also claimed he was required to give evidence against the men on two further occasions, the latter of which was in April 2012, when the men again threatened his family members.
He said that, on 1 May 2012, the case was finalised and the men served seven days in prison despite having been sentenced to 14 days.
The applicant claimed that he then fled the country due to fear that they would carry through with their threats, and, in July 2013, the men went to his mother’s house to ask where the applicant was and broke a window, before going to his wife’s house two days later.
In his interview with the delegate, the applicant made an additional claim that the men also assaulted him once when he was travelling to work.
Finally, the applicant claimed to fear persecution due to his Tamil ethnicity and status as a failed asylum seeker, which would cast suspicion on him as a person with pro-Liberation Tigers of Tamil Eelam (LTTE) beliefs.
The applicant’s application for a protection visa was refused by a delegate of the Minister for Immigration and Border Protection on 29 October 2014.
On 10 March 2016, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application.
The applicant then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. However, on 15 July 2016, the Court dismissed the application under R 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). See APL16 v Minister for Immigration & Anor [2016] FCCA 1806.
As R 44.12(2) of the Federal Circuit Court Rules 2001 (Cth) provides that a dismissal under R 44.12(1)(a) is interlocutory in nature, the applicant requires leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
Accordingly, the applicant now applies for leave to appeal from the Federal Circuit Court’s decision by an application for leave to appeal filed 25 July 2016, alleging the primary judge erred: (1) by failing to take the applicant’s application “at its highest” for the purposes of summary dismissal; (2) by denying the applicant procedural fairness in not granting an adjournment of the hearing to allow the applicant to obtain legal representation; and (3) by summarily dismissing the proceeding in circumstances where a reasonable cause of action was disclosed.
DELEGATE’S DECISION
It appears, as recorded at [4] of the reasons of the primary judge, that at the interview with the delegate the applicant made a new claim, that the men also assaulted him once when he was travelling to work. He claimed to fear persecution on the basis of his Tamil ethnicity and his status as a failed asylum seeker, which would cast on him suspicion as being a person holding a pro-LTTE political opinion. The delegate expressed serious doubts about the applicant’s credibility, and found that his stated fear of persecution was not well-founded. The delegate was not satisfied that there were substantial grounds for believing it was a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country that there was a real risk that he would be subject to significant harm.
TRIBUNAL’S DECISION
The applicant, together with an interpreter, attended a Tribunal hearing on 23 February 2016.
At the hearing, the Tribunal expressed strong doubts as to the credibility of the applicant’s account of SLFP supporters attacking his family’s home in 2008 due partly to significant discrepancies in the applicant’s account. The Tribunal also considered that the applicant’s apparent ignorance about the UNP was difficult to reconcile with his claim to have supported and helped campaign for the UNP in elections; it was highly improbable that if the six men genuinely intended to harm the applicant, they would have been unable to do more than assault him on two occasions over a period of four years; and it was implausible that the men would have failed to inflict further harm on the applicant’s brothers if they similarly gave evidence in court against the men and continued to live with their mother.
In the circumstances, the Tribunal was not satisfied that the applicant’s assertion in this regard was correct, or that the alleged assault was the reason that he went to live with his wife’s family in Udappu and later left Sri Lanka. Consequently, the Tribunal was not satisfied that the applicant was at any risk of harm from such men if he returned to Sri Lanka.
In its submission to the Tribunal, the applicant further claimed to fear harm on the basis of his Tamil ethnicity and because of his membership of the particular social group of “failed asylum seekers”, which would be exacerbated by his Tamil ethnicity.
In this regard, the Tribunal first considered whether the applicant’s Tamil ethnicity and his status as a failed asylum seeker would cause authorities or anyone else in Sri Lanka to be suspicious that he held political opinions in support of the LTTE. On the country information before it, the Tribunal was not satisfied that Sri Lankan authorities presently consider all Tamils to be members of the LTTE, nor was it satisfied that simply because the applicant was Tamil, or a young Tamil male, that he would be suspected for that reason to hold pro-LTTE political opinions.
Having considered country information regarding the treatment of returnees to Sri Lanka that was cited in the delegate’s decision, in the applicant’s submissions and in reports by the Department of Foreign Affairs and Trade (DFAT), the Tribunal was also not satisfied that returning Tamils were suspected of having links with the LTTE simply because they had sought asylum in Australia or were living here for some time. Consequently, the Tribunal was not satisfied that the applicant would be imputed with pro-LTTE political opinions for this reason.
The Tribunal then considered whether the treatment of Tamils in Sri Lanka constituted serious or significant harm for the purposes of the Act. In doing so, it considered country information from DFAT, the United Nations’ High Commissioner on Refugees, the United States’ State Department, the United Kingdom Border Agency, the Immigration and Refugee Board of Canada, Amnesty International, Freedom from Torture, and Human Rights Watch. On the basis of this information, the Tribunal accepted that prior to the end of the civil war in May 2009, Sri Lankan citizens who were Tamils were at an appreciable risk of persecutory harm at the hands of the authorities simply because of their Tamil ethnicity. However, it considered that nearly seven years after the defeat of the LTTE and the end of the civil war, the security situation in Sri Lanka had stabilised and the risks posed to Sri Lankan citizens on the basis only of their Tamil ethnicity were substantially reduced, although it was necessary to assess the individual circumstances of each case.
In the circumstances, the Tribunal was not satisfied that there was a real chance the applicant would suffer serious harm because of his ethnicity, nor that the chance would be exacerbated by him being a young male. It doing so, it noted that his geographic origins were not in areas formerly under LTTE control, but in the Puttalam District, which was far from the fighting during the civil war period and was never under LTTE control.
While the Tribunal accepted that Tamils continued to face a degree of societal discrimination, it was not satisfied this could reasonably be seen as rising to the level of serious or significant harm. Nor was it satisfied that Tamils were subject to serious or significant harm through the denial of political, economic, religious or other rights, noting that the applicant himself had received a reasonable level of education and was then continuously employed.
The Tribunal then considered whether the applicant would be at risk because of his membership of the particular social group of returned failed asylum seekers, despite the applicant denying this claim at the Tribunal hearing. Citing various sources of country information, the Tribunal noted that while some returnees to Sri Lanka from the United Kingdom and elsewhere in Europe claimed to have experienced torture and other abuses at the hands of the authorities, these cases overwhelmingly involved persons who either had some form of connection with the LTTE or were strongly suspected of such links. It was not satisfied that these incidents demonstrated that simply applying for asylum in another country exposed returnees to harm.
The Tribunal went on to accept that the applicant would be subjected to standard interview processes upon return, and may be visited by the Criminal Investigation Department or police upon his return home as well as placed under some degree of monitoring. It was not, however, satisfied that this would involve the applicant being singled out or targeted in a discriminatory fashion because of his Tamil ethnicity or for any other reason, noting that the applicant did not claim he had ever been suspected of having links with the LTTE. The Tribunal was also not satisfied that such interviews, visits or monitoring in themselves could be described as harm.
Consequently, the Tribunal was not satisfied the applicant would face a real chance of serious harm at the hands of the authorities upon his return to Sri Lanka for the reason that he had sought asylum in Australia.
With regard to the applicant’s related claim, that he faced harm as a person returning from Australia, a country whose government or media had levelled criticisms at the Sri Lankan government over its human rights record or encouraged accountability and reform, the Tribunal noted that the applicant was unable to point to any reporting to substantiate these claims. It further noted that while the information cited by the applicant’s representative indicated that those who have publically criticised the Sri Lankan government are at risk of harm, it did not report that such a risk arose for returnees simply because they had been living in a country where such criticisms had been voiced. As such, the Tribunal rejected this aspect of the applicant’s claim
The Tribunal then considered whether the applicant’s illegal departure from Sri Lanka could be said to place him at risk of serious harm, despite the applicant denying this claim at the Tribunal hearing.
In doing so, the Tribunal again had regard to country information from multiple sources. It concluded that Sri Lankan departure laws were ones of general application, and were appropriate and adapted to meet a legitimate national interest in ensuring the security of the country’s borders. It further concluded that these laws were not selectively enforced.
Consequently, the Tribunal was not satisfied there was a real chance that on return to Sri Lanka the applicant would face more than extended questioning at the airport, arrest and detention for a relatively brief period in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing, or being subsequently fined an amount that could be paid by instalments. The Tribunal was not satisfied that this treatment would reflect anything other than the non-discriminatory enforcement of a law of general application or that it would amount to serious harm.
In the result, the Tribunal was not satisfied that the applicant would be at risk of serious harm or systematic and discriminatory conduct as required under s 91R(1)(c) of the Act. Consequently, it was not satisfied the applicant had a well-founded fear of persecution for a Convention reason if he returned to Sri Lanka then or in the reasonably foreseeable future, nor that he was a refugee.
For the same reasons, the Tribunal was not satisfied that the applicant would be at risk of significant harm within the meaning of s 36(2A) and s 5(1) of the Act. It was therefore not satisfied that there were substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk he would suffer significant harm pursuant to s 36(2)(aa).
The applicant therefore did not satisfy the criteria for a protection visa under s 36(2), and the Tribunal affirmed the delegate’s decision.
The applicant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court.
JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT
In his application for judicial review filed 21 March 2016, the applicant raised the following grounds:
1.The Tribunal fail to consider for complementary protection when I am sent back the period of detention in Sri Lanka for leaving Sri Lanka illegally would amount to ‘significant harm’ or ‘serious harm’ of the Migration Act and thereby committed jurisdictional error and failed to consider complementary protection.
2.Tribunal fail to consider my claim fairly.
3.Tribunal did not consider my case properly according to the Migration law in Australia.
4.I will suffer harm if I go back to my country. I can’t take the beating from the police in Sri Lanka.
On 28 April 2016, a Registrar of the Federal Circuit Court fixed the matter for a show cause hearing on 15 July 2016. The applicant did not avail himself of an opportunity to file an amended application, affidavit evidence or submissions.
The primary judge’s reasons for decision indicate that, at the commencement of the hearing, the primary judge explained to the applicant that the matter had been fixed for a show cause hearing under R 44.12, and so the hearing was to determine whether the applicant had an arguable case. The primary judge explained that an arguable case required a reasonable argument that the Tribunal’s decision was affected by a relevant legal error, namely, an excess of statutory power or a denial of procedural fairness. (In this regard, I note that the transcript of the show cause hearing is not currently in evidence before the Court.)
The primary judge’s reasons indicate that the applicant confirmed that he understood this explanation. The applicant then said he could not go back to his country and that, if he did, he would be sent to jail and be subjected to torture. He further said he would face a problem due to a language barrier.
The primary judge held that, on the face of the Tribunal’s reasons, the Tribunal engaged in an orthodox assessment of the applicant’s claims and evidence and complied with its statutory duty. His Honour was satisfied that the Tribunal complied with its statutory obligations, and there was nothing before the Court to persuade it that the Tribunal failed to comply with the dictates of procedural fairness under the statutory regime.
With regard to ground 1, the primary judge accepted the Minister’s submission that the ground failed to disclose any arguable jurisdictional error as the Tribunal correctly identified the relevant law in respect of complementary protection and made findings that were open to it in that regard.
With regard to grounds 2 and 3, the primary judge again accepted the Minister’s submission that the grounds failed to identify any arguable case of jurisdictional error given that they were unparticularised allegations that the Tribunal’s decision was not made fairly or properly.
Finally, the primary judge accepted the Minister’s submission that ground 4 failed to identify any arguable jurisdictional error and was, in substance, an impermissible invitation for the primary judge to engage in the merits of the matter.
In the result, the primary judge was satisfied that the application failed to disclose any arguable jurisdictional error, noting the principles and caution expressed by the High Court in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]; [2010] HCA 28. His Honour was satisfied that it was an appropriate matter in which to exercise the Court’s powers under R 44.12, and so summarily dismissed the application for judicial review.
The applicant now applies for leave to appeal from the primary judge’s decision, as required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
APPLICATION IN THIS COURT
In his application for leave to appeal filed 25 July 2016, the applicant raises the following grounds:
1.His Honour Judge Street erred by not acting in accordance with rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) by not taking the Applicant's application at its highest for the purposes of summarily dismissing the proceedings.
2.I was unrepresented in the proceedings below and adjournment should have been was granted for me to seek legal advice.
3.For this reasons the decision of the Federal Circuit Court Judge Street is attended with sufficient error as to warrant the opportunity to postpone the hearing. The Federal Circuit Court Judge should have adjourned the hearing of the application for the applicant to obtain legal representation is a denial of procedural fairness by the Court below and is unsafe. Further, the true nature of the decision from which appeal is sought finally disposes of the matter being a matter of the utmost importance to the applicant.
4.Judge Street failed to have regard to the short nature of any adjournment that would be necessary given to the appellant that he had made arrangements to get a lawyers opinion and to represent him on the matter.
5.His Honour Judge Street erred by summarily dismissing the proceedings in circumstances where a reasonable cause of action had been disclosed.
The draft notice of appeal contains identical proposed grounds of appeal.
The applicant did not file written submissions but appeared, as a self‑represented party, at the hearing and made oral submissions.
The applicant orally submitted that he came to Australia to protect his life and that if he were to return to his country, he would be attacked or killed.
These submissions were not responsive to the issue of whether or not the primary judge, and the Tribunal, had committed any legal error which would justify the grant of leave to appeal in this case. The question of the merits of the applicant’s claims were dealt with in the Tribunal and are not able to be re‑agitated in this Court.
Counsel for the Minister filed written submissions and made oral submissions at the hearing.
With regard to the principles governing an application for leave to appeal, the Minister says it must be shown that there is sufficient doubt as to the correctness of the first instance decision and that, if the first instance decision is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. See Décor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 at 398.
The Minister says that, applying the principles to this case, the applicant must demonstrate sufficient doubt that, in failing to be satisfied that the application had raised an arguable case for relief, the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, did not take into account some material consideration, or reached a result that was plainly unreasonable or unjust. See House v R (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.
The Minister submits that the applicant has failed to identify any such error and none is apparent; that the approach and judgment of the primary judge in considering whether the application raised an arguable case under R 44.12 reveals no error.
Broadly speaking, I accept the Minister’s submissions.
With regard to ground 1 of the application for leave to appeal, I accept the Minister’s submission that this ground lacks any meaningful particulars. The primary judge’s reasons demonstrate that his Honour heard oral submissions from both parties, considered whether any of the applicant’s four grounds identified any arguable case of jurisdictional error, and was mindful of relevant principles in exercising his Honour’s discretion to summarily dismiss the proceedings. Ground 1 therefore fails.
With regard to grounds 2 and 3, these grounds lack a proper factual basis and any prospects of success. There is no evidence that the applicant ever sought an adjournment of the hearing before the primary judge. To the contrary, his Honour’s reasons demonstrate that the Court explained to the applicant what would be determined at the show cause hearing, the applicant confirmed that he understood the process, and he then availed himself of the opportunity to make oral submissions. The applicant was not entitled to an adjournment simply because he was not legally represented.
It may also be observed, as the Minister notes, that, before attending the show cause hearing on 15 July 2016, the applicant already had the benefit of almost four months since he filed his judicial review application in the Federal Circuit Court on 21 March 2016, and almost three months since he first attended court on 28 April 2016. It is not apparent what steps he took (if any) to seek and obtain legal representation or assistance.
Grounds 2 and 3 therefore fail.
With regard to ground 4, this ground can also not succeed in the absence of evidence that the applicant ever sought an adjournment. As just noted, the applicant had over three and a half months from the lodging of his claim in the Federal Circuit Court to obtain legal advice and representation, and had 11 weeks’ notice of the show cause hearing. There is no evidence that the applicant ever sought an adjournment of that hearing to obtain legal advice or representation or for any other reason.
As a result, ground 4 fails.
Finally, ground 5 fails as the primary judge’s reasons demonstrate that his Honour was clearly satisfied that the grounds of the application failed to disclose any arguable jurisdictional error in the Tribunal’s decision, and no error has been identified in his Honour’s exercise of discretion under R 44.12.
In the result, the grounds of the application for leave to appeal and the proposed grounds of appeal fail to identify any arguable case of jurisdictional error in the Tribunal’s decision, or an arguable case of error in the approach or judgment of the primary judge. There is nothing to suggest that the order of the primary judge dismissing the applicant’s application for review is attended by any doubt, let alone sufficient doubt to justify the grant of a leave to appeal.
I should finally record that the applicant’s affidavit affirmed on 25 July 2016 and filed in support of his application for leave to appeal, deposes that he represented himself in the Federal Circuit Court proceedings as he was “unable to have any legal practitioner”, and asserts that the primary judge should have adjourned the show cause hearing so he could obtain legal representation, and says he would have sought proper advice about the carriage of the matter. However, for the reasons stated above, there is no right to an adjournment simply because an applicant is self-represented.
For these reasons, the application for leave to appeal should be dismissed with costs.
ORDERS
The Court orders:
(1)The application for leave to appeal be dismissed.
(2)The applicant pay the first respondent’s costs of the application, to be taxed if not agreed.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 11 November 2016
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