ATN15 v Minister for Immigration

[2017] FCCA 1521

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATN15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1521

Catchwords:
MIGRATION – Application in a Case to reinstate proceedings pursuant to r.16.05(2) of the Federal Circuit Court Rules 2001 (Cth) – Applicant’s application for judicial review had been dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) for non-appearance – held that Applicant’s explanation for non-attendance at Court not acceptable and that the Applicant’s application for judicial review did not have a reasonable prospect of success if it had proceeded to final hearing – Application in a Case dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05

Migration Act 1958 (Cth), ss.36, 91R

Cases cited:

Minister for Immigration and Border Protection v WZAPN [2015] HCA 22

Applicant: ATN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1096 of 2015

Judgment of: Judge Jones

Hearing date: 16 May 2017

Date of Last Submission: 16 May 2017

Delivered at: Melbourne

Delivered on: 16 May 2017

REPRESENTATION

Solicitors for the Applicant: Self-represented

Counsel for the Respondents: Ms Helsdon

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Applicant’s Application in a Case filed on 31 March 2017 be dismissed. 

2. The Applicant pay the First Respondent’s costs in a fixed amount of $1,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1096 of 2015

ATN15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. This is an Application in a Case filed by the Applicant that an Order made on 9 March 2017 be set aside, and that his substantive application for judicial review be reinstated and heard according to law. This Application in a Case was filed on 31 March 2017 and was supported by an affidavit affirmed by the Applicant on 31 March 2017.

2. The affidavit deals with the reasons why the Applicant failed to attend Court on 9 March 2017. This is because the Orders made on 9 March 2017 dismissed the Applicant’s application for judicial review pursuant r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), as he failed to appear in Court at the listed time for the final hearing of this application.

3. I should note that on 2 March 2017, the Applicant was granted an adjournment of the final hearing to 9 March 2017, to enable the Applicant to have the Tribunal decision interpreted for him. The Applicant represents himself and is assisted by an interpreter in the Tamil and English languages.

4. The relevant rule of the Court in this case is r.16.05(2)(a) of the Rules. This rule provides that the Court may set aside an Order made in the absence of a party. The discretion for the Court to do so is a broad discretion, and the Court may consider various matters. Ultimately, the question is whether the interests of justice require the Court to do so.

5. The matters the Court will generally consider are whether the Applicant has provided a satisfactory explanation for his or her failure to attend Court, and whether, on the material before the Court, the Applicant has a reasonable prospect of success. There is also the question of prejudice to the parties, including to the Minister.

6. The Minister opposes the Application in a Case, submitting that the explanation that the Applicant has given for his failure to attend Court is not adequate. That is, that there was no reasonable excuse for the Applicant’s absence. Further, the Minister argues that the Applicant does not have a reasonable prospect of success, having regard to his grounds for judicial review.

7. The Minister concedes, however, that there is no prejudice to the Minister. There is, of course, a prejudice to the Applicant if this case is not heard on a final basis, but this is only in circumstances where there is a reasonable prospect that, at a final hearing, he would succeed in his application. This is why the Court examines whether there are material arguments which might lead to a different Order to the one already made by the Court.

Consideration

1. Turning first to the explanation provided by the Applicant for his failure to attend Court. This explanation is set out in his affidavit filed on 31 March 2017. Essentially, the Applicant says that at the hearing on 2 March 2017, he was told by the interpreter to attend the same courtroom when he attends Court on 9 March 2017. He said that he went to the same courtroom on 9 March 2017 and waited there at 10.30am, but the court room did not open.

2. I find this explanation unsatisfactory. The first point to note is that at the first hearing on 2 March 2017, even though the Applicant would not have been advised of the particular courtroom, he was able to locate the correct courtroom and appear. I do not accept his explanation that the fault is with the interpreter from the hearing on 2 March 2017.

3. In my view, although the Applicant cannot speak English, he is responsible for ensuring that he attends at the correct courtroom for a listed Court event. This can be done by way of looking at the noticeboard which is at the entrance to the Court or, as he said he did on 9 March 2017, obtaining the assistance of the registry staff of this Court. I note that he was able to locate the courtroom today, which demonstrates that he has the capacity to take necessary steps to ensure that he knows where the hearing is going to be held.

4. I turn now to consider the second matter that I have regard to, which is whether, on the material before me, if the matter were to proceed to final hearing, a different Order might be made. In other words whether, on the material before the Court, the Applicant has a reasonable prospect of success. If the Applicant does not, then it would not be in the interests of the administration of justice to grant his application and proceed to final hearing.

Applicant’s substantive application

1. I turn now to the background of this matter. The Applicant is seeking judicial review of a decision of the then Refugee Review Tribunal (“the Tribunal”) dated 22 April 2015, affirming a decision of a delegate of the Minister not to grant a Protection (Class XA) visa (“the visa”).

2. The Applicant, who is a national of Sri Lanka, arrived in Australia as an irregular maritime arrival and participated in an entry interview on 1 August 2012 (CB 8 to 20). On 7 November 2012, he made an application for the visa (CB 25 to 96). The Applicant’s claims were set out in a statutory declaration accompanying his visa application (CB 91 to 94), in a letter dated 5 August 2013 (CB 108 to 109) and in a submission provided by his legal representatives on 16 March 2015 (CB 156 to 217).

3. In summary, the Applicant’s claims are that he is a Tamil fisherman from Udappu and that he feared harm from the Sri Lankan authorities because of his Tamil race, his imputed political opinion and support of the LTTE, his illegal departure from Sri Lanka and because he was a member of a particular social group, that being failed asylum seekers.

4. The Tribunal decided that the Applicant did not satisfy sub‑s.362(a) of the Migration Act 1958 (Cth) (“the Act”), nor sub‑s.36(2)(aa) of the Act.

5. On 15 May 2015, the Applicant filed his application in this Court, in which he specified four grounds of review.  I will now consider those grounds of review and whether they demonstrate that the Applicant has a reasonable prospect of establishing jurisdictional error.

6. During today’s hearing, the Applicant was asked what he meant by each of those grounds and I have had regard to his oral submissions. 

Ground one

1. The first ground is as follows:

   The Tribunal has erred and fell into jurisdictional error by not assessing the applicant’s integer claims cumulatively being of a Fisherman of Tamil ethnicity and of Hindu faith and perceived to have been associated with the LTTE.

2. In his oral submissions, the Applicant said that, combined together, all of these factors means that he will be arrested and harmed if returned to Sri Lanka. I am satisfied, having regard to the decision record of the Tribunal, that the Tribunal considered the Applicant’s claim to have faced harm as a result of being a fisherman (CB 247 to 248 at [12]-[16]). I am also satisfied that the Tribunal made findings in relation to that claim, which were open on the material before it (CB 250 to 251 at [26]-[28]).

3. The decision record also shows that the Tribunal considered the Applicant’s claims on the basis of his Tamil ethnicity and political opinion, and made findings that he would not suffer serious harm for these reasons (CB 248 to 250 at [17]-[25]). Relevantly, the Tribunal then had regard to all of the Applicant’s circumstances and claims, and found that the Applicant did not face a real chance of serious harm, separately or cumulatively, for any reason, including for reason of his Tamil ethnicity, his actual or imputed political opinion, or his profile as a Tamil fisherman (CB 255 to 256 at [47]-[48]).

4. The Tribunal also considered the Applicant’s claims against sub‑s.36(2)(aa) of the Act, and found that there was no real risk of significant harm to the Applicant for any reason (CB 255 at [49]-[53]). I find that, contrary to the Applicant’s first ground, the Tribunal considered the Applicant’s claims singularly and cumulatively, and made findings in relation to those claims that were open to it on the material before it.

5. In ground one, the Applicant asserts that he made a claim in respect to his Hindu faith. I have had regard to the material before the Court, his statutory declaration, the correspondence made on his behalf and the submissions made on his behalf by his legal representative, and I am satisfied that a claim based on his religion was not made by the Applicant, either expressly or arising squarely on the material before the Tribunal. I, therefore, find that in relation to ground one, there is no substantial prospect that the Applicant would satisfy this Court that the Tribunal engaged in jurisdictional error.

Ground two

1. I now turn to ground two.  The ground two is as follows:

   The Tribunal found that being a Tamil he needed a Navy pass as recent as year 2014 (even after he sought protection in Australia) for fishing and it failed to grasp that his subsistence was compromised which brings him under section 91 R of the Migration Act.

2. In oral submissions, when asked what he meant by this ground, the Applicant reiterated his evidence before the Tribunal, regarding the impact of the restrictions on his livelihood. He said that his livelihood is as a fisherman, and there is a navy camp 500 metres from his village.  In order to fish he has to surrender his ID card and get a permit. The authorities take their time, so by the time they provide a permit, it is too late for him to go fishing. 

3. The Tribunal decision record reveals that the Tribunal considered the Applicant’s claim in relation to being a Tamil fisherman, and accepted that the Applicant had been subjected to harassment and discriminatory treatment by the navy in the past, on account of his work as a fisherman (CB 247 to 248 at [12]-[16] and CB 250 at [26]).

4. The Tribunal also gave weight to country information, which it is entitled to do, and found it was not satisfied that the Applicant would face mistreatment in the future as a fisherman, or that the restrictions on fishing amounted to serious harm (CB 250 to 251 at [28]). It was not satisfied that the Applicant would face a real risk of significant harm for this reason on return to Sri Lanka. Indeed, the Tribunal found that the Applicant’s family had been in the past, and would be in the future, granted the necessary permission to fish (CB 256 at [52]).

5. It seems to the Court that the Applicant’s oral submissions, in effect, ask this Court to engage in impermissible merits review. That is, to review the evidence and make findings. As I am satisfied that the Tribunal’s findings were open to it on the material before it, the invitation by the Applicant to review the evidence is refused. Consequently, I am satisfied that ground two of the application for judicial review is not one that has a substantial prospect of the Court finding that the Tribunal engaged in jurisdictional error. 

Ground three

1. Turning to ground three. Ground three is as follows:

   The March 2012 near death incident (Paragraph 15 of the Decision Record) was misinterpreted by the Tribunal and it did not take into account that the incident was caused due to the restriction placed on him by the Navy for being a Tamil.

2. The Tribunal described the event referred to by the Applicant (CB 247 at [15]), but decided that the event in question was caused by inclement weather and difficult conditions. The Tribunal also refers to the Applicant’s evidence that he and his brother were fishing and approached by a big Navy gunboat, causing waves to come over the bow of their fishing boat. However, the Tribunal did not accept that the Applicant and his brother were targeted because they were Tamils, or that it was an intentional attempt to harass the Applicant and his brother.

3. Again, the Applicant’s oral submissions seek to engage the Court to engage in impermissible merits review. His oral submissions were, in effect, evidence he was giving to the Court about one or both of those incidents. He said to the Court that he went fishing with his brother, and that a Navy boat approached in a threatening manner, that he and his brother fell in the water and had to cling to the boat, and that their life was threatened by this action. 

4. This is really the Applicant seeking impermissible merits review by this Court, of the evidence he gave to the Tribunal, and asking the Court to make different findings to the Tribunal. I am satisfied that the Tribunal’s findings were open to it, on the evidence, which it described at [15] to [16] of the Tribunal decision record. Consequently, I am satisfied that there are no substantial prospects that ground three would give rise to jurisdictional error. 

Ground four

1. The final ground, ground four, is as follows: 

   The Tribunal finding that the applicant will be granted bail is not supported by evidence. On the contrary, the applicant will face remand or incarceration which amounts to serious harm under 91 R of the Migration Act, pursuant to recent Federal Court finding in WZAPN-V-MIBP {2014} 947

2. As the Minister has pointed out in his written submissions filed in the Court, the decision relied on by the Applicant was overturned by the High Court. In the decision Minister for Immigration and Border Protection v WZAPN [2015] HCA 22, the High Court found that the likelihood of a period of temporary detention of a person for a reason mentioned in the Refugees Convention, is not, of itself, and without more, a threat to liberty within the meaning of sub-s.91R(2)(a) of the Act.

3. The Minister points out that, in any event, the Tribunal found that the prosecution of the Applicant, if any, would occur under a law of general application, referring to the Immigration and Emigration Act of Sri Lanka, and consequently did not amount to persecution under the Refugee Convention (CB 254 to 255 at [46]). However, of course, the question of a reasonable prospect of significant harm in detention is relevant to consideration under sub-s.36(2)(aa) of the Act.

4. The Applicant said in his oral submissions that the Tribunal found that he would be granted bail, but that he is not certain this would occur because of the fact that he illegally left Sri Lanka. He said that, in any event, he could be detained and arrested again in six months. This latter submission about being arrested again in six months is mere speculation and is not relevant to ground four.

5. There are two findings of the Tribunal that are relevant in relation to ground four. The first is the Tribunal’s finding that, if the Applicant was convicted of charges under the Sri Lankan Immigration and Emigration Act, he would likely face a fine of between 5,000 and 50,000 rupees (CB 254 at [45]). The Tribunal noted that the Applicant had not suggested that he would not be able to pay such a fine, and the Tribunal found that he would. This finding was made when the Tribunal was considering the Applicant’s claims under sub-s.36(2)(a) of the Act.

6. Second, when the Tribunal turned to consider the complementary protection provisions, the Tribunal said that the Applicant would be questioned on return to Sri Lanka at the airport, that he would likely be charged with departing Sri Lanka illegally and that he could be held on remand for a brief period, between 24 hours and possibly up to several days, while awaiting a bail hearing. However, it was not satisfied that the Applicant would face torture, as the Applicant claimed, either during his questioning at the airport or during any period he spent in remand (CB 255 to 256 at [51]).

7. As noted above, the Tribunal found that the Applicant would be granted bail on his own recognisance and, if convicted under the Immigration and Emigration Act, he would likely face a fine between 5,000 and 50,000 rupees. The Tribunal found that it did not accept the Applicant would be unable to pay such a fine.

8. The Tribunal referred to country information cited in the Applicant’s representative’s submissions, and accepted that prison conditions are poor and overcrowded. But it found that it did not accept, on the evidence before it, that there was a real risk that the Applicant would be subject to treatment constituting significant harm as defined in sub‑s.36(2)(a) of the Act, either during his questioning at the airport, or during a short period he would spend on remand awaiting a bail hearing.

9. It is evident from the decision record that the Tribunal considered the Applicant’s claims, as well as country information provided on his behalf, but that it gave weight to other country information, including country information from the Department of Foreign Affairs and Trade. Again, the Tribunal is entitled to determine what weight it should give to evidence. Consequently, I am satisfied that the Applicant’s ground that he would not be granted bail is not supported by evidence. It is wrong and it does not have a reasonable prospect of satisfying the Court at final hearing that there is jurisdictional error on this ground. 

Conclusion

1. Accordingly, I am not satisfied that it is in the interests of justice or the administration of justice that an Order be made setting aside the Orders I made on 9 March 2017. I have found the Applicant’s explanation for his non-attendance unsatisfactory. However, most significantly, I am not satisfied that there exists before me, material arguments that might reasonably lead to a different result. This is because I am not satisfied that the Applicant’s application for review has a reasonable prospect of success. 

2. I will, therefore, make Orders dismissing the Applicant’s Application in a Case filed on 31 March 2017. 

3. I will also make an Order that the Applicant pay the First Respondent’s costs in a fixed amount of $1,000.00.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date:     5 July 2017