Bci16 v Minister for Immigration
[2017] FCCA 2783
•16 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BCI16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2783 |
| Catchwords: PRACTICE AND PROCEDURE – Referral for pro bono assistance – factors for consideration – where request made late – effect of an adjournment – delay – whether entitled to legal representation – whether prior opportunity to engage a lawyer – whether substantive application has merit. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), Part 12, r.12.03 Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: AQH16 v Minister for Immigration & Anor [2017] FCCA 1657 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Minister for Immigration, Multicultural Affairs & Citizenship v SZRHU & Anor [2013] FCAFC 91; (2013) 215 FCR 35; (2013) 136 ALD 508 Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 75 ALJR 52; (2000) 176 ALR 219; (2000) 62 ALD 285 |
| Applicant: | BCI16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 206 of 2016 |
| Judgment of: | Judge Lucev |
| Hearing date: | 13 November 2017 |
| Date of Last Submission: | 13 November 2017 |
| Delivered at: | Perth |
| Delivered on: | 16 November 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Ms A Ladhams |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
The applicant pay the first respondents costs in the sum of $7328.00 by 16 December 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 206 of 2016
| BCI16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 12 May 2016 the applicant filed an application (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) to review a decision of the Administrative Appeals Tribunal (“AAT Decision” and “AAT” respectively), made on 19 April 2016. The AAT Decision affirmed the decision of a delegate dated 9 December 2014 (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”), to not grant the applicant a Protection (Class XA) visa (“Protection Visa”). The AAT Decision is at Court Book (“CB”) 421-440.
Background to the Judicial Review Application
The background to the Judicial Review Application is that:
a)the applicant is a citizen of India, and of Brahman caste. He initially arrived in Australia on a subclass 573 student visa (“Student Visa”) on 4 February 2008: CB 292;
b)on 14 January 2014, the applicant applied for a Protection Visa: CB 16, stating that his main reasons for seeking protection are “fear of … torture, cruel, inhuman treatment, punishment and degrading treatment” from his ex-brother-in law, relatives and village: CB 34, because:
i)he married outside of his “religion and caste” and subsequently sought a divorce while in Australia, causing dishonour to their families: CB 35;
ii)he fears attack from “Village Panchayats,” known for violent acts in North India and supported within his predominant Jatt-Sikh community, because of his marriage: CB 37;
iii)his family and friends have been threatened and harmed, and as a result of these actions have withdrawn support to the applicant rendering him “to be of my own if I returned to India”: CB 34; and
iv)the central and state government are corrupt and will provide no protection unless the applicant cedes to their extortion demands: CB 38.
c)the applicant was invited to attend a Protection Visa interview which took place on 2 December 2014: CB 229;
d)on 9 December 2014, the Delegate’s Decision was not to grant a Protection Visa: CB 239 and CB 248;
e)on 24 December 2014, the applicant lodged an Application for Review of the Delegate’s Decision with the then Refugee Review Tribunal: CB 285, which later became the AAT. A hearing was held before the AAT on 14 April 2016: CB 321. The applicant submitted a further statement in response to the reasons given for the Delegate’s Decision: CB 332-342;
f)following the AAT hearing, the applicant provided further documents in support of his submissions regarding “honour killings” in India: CB 343-410; and
g)on 19 April 2016, the AAT affirmed the Delegate’s Decision not to grant a Protection Visa: CB 434 at [60].
The applicant made further claims in the AAT hearing on 14 April 2016. Specifically, he claimed to have suffered beatings on two occasions when he returned to India in 2012 and claimed inconsistencies in his Protection Visa application were due to the migration agent who assisted with the Protection Visa application writing the application for the applicant incompetently: CB 425 at [20] and CB 334-335.
AAT Decision
In the AAT Decision, the AAT:
a)expressed reservations about the veracity of the applicant’s claims, but gave him the benefit of the doubt on the basis of country information which indicated significant pressure for individuals to marry within their own caste or religion, and that honour killings were prevalent in villages and towns: CB 425 at [21];
b)accepted the applicant had a well-founded fear of persecution in his home area in the Punjab region at the hands of his ex-brother-in law and other community members on the basis of his religion and caste: CB 425 at [22];
c)did not believe the applicant could avail himself of State protection should he return to the Punjab region in India. The AAT noted country information which suggested high levels of corruption and extortion among State authorities, and a lack of intervention and protection by State authorities in circumstances where a marriage had occurred outside conservative views: CB 426 at [27]; and
d)considered that the individual circumstances of the applicant would not make it unreasonable or impracticable for him to relocate within India, but did not consider it necessary to make a finding in this regard as it concluded that the applicant had a right to enter and reside in Nepal: CB 427 at [30].
In reaching the finding that the applicant should be denied a Protection Visa, the AAT found that:
a)the applicant, as a citizen of India and for the purposes of s.36(3) of the Migration Act, had a presently existing right to enter and reside in Nepal pursuant to the Indo-Nepal Treaty of Peace and Friendship (“Treaty”): CB 429 at [39]
b)it was reasonable to expect the applicant to avail himself of the right to enter Nepal by taking steps to obtain the required identity documents: CB 430 at [42];
c)while the applicant might face hardship and difficulty relocating to Nepal, s.36(3) of the Migration Act did not require the AAT to consider the reasonableness of relocation. The AAT only had to consider whether the applicant had taken all necessary steps to avail himself of the right to enter and reside in Nepal: CB 432 at [52];
d)the applicant’s claim that he would be found in Nepal by his ex-brother-in-law or any other relatives or associates was far-fetched. The AAT considered that there was “less than a real chance or real risk of harm” by his ex-brother-in-law in Nepal: CB 433 at [53]; and
e)the applicant was not at risk of persecution or significant harm as a result of refoulement by the Nepalese authorities: CB 433 at [55]-[56].
Judicial Review Application
In the Judicial Review Application filed on 12 May 2016 the applicant sets out the following as his grounds of review:
1.I need Australia's protection as my life will be in danger if I relocate in India which is the country of my origin.
2.If I relocate in a third country like, Nepal my life will still be in danger as I pointed out in my Affidavit attached to this application.
3.I will be safe in Australia as I have been living in this country for close to 10 years and I have resettled here securely and safely and am in close connection with the local community.
4.The Tribunal's position that I could relocate in Nepal constitutes a legal error as my life will continue to be in danger and hence Australia does have an obligation to protect me even from a third country like Nepal where I can be tracked down.
(Copied from the Judicial Review Application without amendment).
Together with the Judicial Review Application the applicant filed an affidavit sworn 12 May 2016 (“Applicant’s Affidavit”) which:
a)sets out the history of the grant of various student visas from 2007 to 2012 (including the refusal of a visa for which review was sought before the Migration Review Tribunal) and the grant of various bridging visas during the remainder of 2012: Applicant’s Affidavit at [1];
b)sets out his application for the Protection Visa, and the fact that it was refused by the Delegate, and the grounds on which he sought protection: Applicant’s Affidavit at [2];
c)sets out his assertion that Australia has protection obligations toward him and some commentary on the Delegate’s Decision: Applicant’s Affidavit at [3];
d)noted that the AAT found that he would not be afforded State protection in India, and asserted that it was impracticable for him to relocate within India: Applicant’s Affidavit at [4];
e)notes that the Tribunal found that he had a well-founded fear of persecution at the hands of his brother-in-law and others in the community on the basis of his religion and caste, and contrasted that with the findings of the Delegate in the Delegate’s Decision, and reiterated his view that Australia has protection obligations toward him: Applicant’s Affidavit at [5]; and
f)noted that the AAT found that he could re-locate to a third country, namely Nepal, but asserted that the AAT had erred because his life would still be in danger in Nepal, and repeated in summary submissions that he made to the AAT: Applicant’s Affidavit at [6].
In summary, the Applicant’s Affidavit summarises both the Delegate’s Decision and the AAT Decision, puts some of the submissions made by the applicant to both the Delegate and the AAT, and makes certain assertions concerning the merits of his application for a Protection Visa. Importantly, the Applicant’s Affidavit does not assert any jurisdictional error by the AAT.
Proceedings in this Court
On 8 June 2016 a Registrar of the Court ordered that the applicant file and serve:
a)any amended application including any particulars of the grounds;
b)any further affidavits; and
c)the outline of submissions.
(“Registrar’s Orders”).
The applicant did not comply with the Registrar’s Orders and has not filed any amended Judicial Review Application, further affidavits or submissions.
In accordance with the Registrar’s Orders, the Minister filed an outline of submissions with the Court on 27 June 2017. The Minister submitted:
a)the Applicant’s Affidavit filed by the applicant suggests he is seeking merits view of the AAT Decision, and the Court has no jurisdiction to engage in merits review;
b)the AAT Decision is a privative clause decision and is only reviewable if affected by jurisdictional error; and
c)the applicant has not identified or particularised any grounds of jurisdictional error.
Notwithstanding the failure of the applicant to file any written submissions the applicant was afforded the opportunity at hearing to make oral submissions. In those oral submissions the applicant asserted that:
a)his life would be in danger if he re-located to Nepal;
b)because citizens of India could go in and out of Nepal he was in as much danger in Nepal as he was in India (the AAT having accepted that the applicant had a well-founded fear of persecution in India);
c)no special security was available to the applicant if he re-located to Nepal (which was effectively a submission that Nepal would not be able to afford him State protection); and
d)Nepal was, for practical purposes, just like a State of India, and that his life was therefore in as much danger if he re-located to Nepal as it was if he returned to India, and in this regard said that the AAT had made a legal error.
Consideration
Jurisdictional error required
The AAT Decision is only liable to be set aside upon judicial review if it involves jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the AAT, will only constitute jurisdictional error if the AAT:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the AAT’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
The grounds of the Judicial Review Application do not assert any jurisdictional error in the AAT Decision. Nor did the applicant assert jurisdictional error by the AAT in his oral submissions. As such, the grounds of the Judicial Review Application do not on their face establish any jurisdictional error in the AAT Decision, cannot succeed and must be dismissed for that reason alone. The Court has nevertheless considered each of the grounds as set out below.
Ground 1
Section 36(3) and (4) of the Migration Act relevantly provides that:
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
Section 36(3) of the Migration Act is not confined to a legally enforceable right under domestic law, but refers to a liberty, permission or privilege lawfully given: Minister for Immigration, Multicultural Affairs & Citizenship v SZRHU & Anor [2013] FCAFC 91; (2013) 215 FCR 35; (2013) 136 ALD 508 at [56] and [89] per Buchanan J (with whom Tracey J at [70], Flick J at [93], Robertson J at [130] and Griffiths J at [131] agreed) (“SZRHU”).
In this case the AAT had regard to the country information which indicated that there were not any practical barriers for Indian citizens being able to travel and enter Nepal, and set out the basic forms of photographic and other identification required to allow Indian citizens to enter Nepal, a privilege which the AAT found was in practice, rarely denied, and enjoyed by many Indian and Nepali citizens: CB 427-429 at [32]-[39]. The AAT also considered the terms of the Treaty and the legal and administrative arrangements for entry: CB 428-429 at [36]-[37] having regard to what was found by the Full Court of the Federal Court in SZRHU. Those arrangements for entry, when read in light of the terms of the relevant Treaty, amount to an entitlement to enter and reside in Nepal consistent with that described in SZRHU: CB 429 at [39]; and see SZTQO v Minister for Immigration & Anor [2014] FCCA 2636; SZTPK v Minister for Immigration & Anor [2014] FCCA 2259 at [24] per Judge Driver; SZRUT v Minister for Immigration & Anor [2015] FCCA 263 at [30] per Judge Street; AYZ16 v Minister for Immigration & Anor [2017] FCCA 1444 at [5] per Judge Lucev.
The AAT found that the applicant, on the information and evidence before the AAT, had a right to enter and reside, whether temporarily or permanently, in Nepal, that being a right presently existing by reason of the applicant being an Indian citizen, and that the Treaty and arrangements entered into administratively between India and Nepal established a liberty, permission or privilege in favour of Nepali and Indian citizens consistent with that articulated, and satisfying the test endorsed in SZRHU, which meant that the applicant had a right to enter and reside in Nepal for the purposes of s.36(3) of the Migration Act, which right the applicant had not availed himself of: CB 429 at [39] and CB 430 at [42], and further found that he had taken no steps to avail himself of that right: CB 430 at [43].
To the extent that ground 1 asserts that the applicant would be in danger if he re-located within India that was a matter which was not determined by the AAT, because the AAT did not need to determine whether the applicant met the criteria for protection under s.36(2)(a) or (aa) of the Migration Act, in relation to his country of nationality, India, because it was not required to do so by reason of s.36(3) and (4) of the Migration Act. It follows that ground 1 does not establish jurisdictional error because it deals with a matter that the AAT was not required to consider given its findings as to the right of the applicant to reside in Nepal.
Grounds 2 and 4
The AAT considered whether, as a matter of fact, the applicant had a well-founded fear of persecution or whether there was a real risk of significant harm in Nepal for the purposes of s.36(4) of the Migration Act: CB 430-433 at [44]-[54], and “[h]aving carefully assessed all the available evidence” found that there was not a well-founded fear of persecution or a real risk of significant harm to the applicant if he re-located to Nepal: CB 433 at [54]. To the extent that grounds 2 and 4 of the Judicial Review Application seek to challenge the finding of the AAT as to the applicant’s claims of fears of persecution or harm in Nepal, and where the evaluation of the evidence before the AAT, including country information, was a matter for the AAT, and the findings of fact made, and the AAT’s ultimate inability to be satisfied as to the applicant’s claims, were findings open on the evidence before the AAT: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”), grounds 2 and 4 constitute no more than an impermissible request for merits review of the AAT Decision: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; CLR at 35-36 per Brennan J; AQH16 v Minister for Immigration & Anor [2017] FCCA 1657 at [21] per Judge Lucev.
To the extent that the applicant in ground 4 alleges “legal error”, it is pertinent to note that mere legal error does not constitute jurisdictional error: Wu Shan Liang CLR at 266-267 per Brennan CJ, Toohey, McHugh and Gummow JJ; Craig v The State of South Australia (1995) 184 CLR 163; (1995) 82 A Crim R 359; (1995) 69 ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193; CLR at 178-180 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 75 ALJR 52; (2000) 176 ALR 219; (2000) 62 ALD 285 at [163] per Hayne J, but in any event what is actually alleged is not a legal error but a factual error as to whether or not the applicant can be “tracked down” in Nepal, and therefore whether his life would “continue to be in danger”, which were matters considered and rejected by the AAT on the factual material before it. In the circumstances what is sought is therefore impermissible merits review contrary to the principles flowing from Wu Shan Liang and the other cases referred to at [20] above.
Ground 3
Ground 3 does not assert any jurisdictional error in the AAT Decision, or any error at all in the AAT Decision, and does no more than set out a statement as to the applicant’s perception of his present circumstances in Australia. Such a perception cannot found jurisdictional error in the AAT Decision.
Generally
The applicant did not allege any jurisdictional error in the AAT Decision in relation to the AAT’s findings and conclusions concerning s.36(3) and (4) of the Migration Act concerning the applicant’s right to enter and reside in Nepal. Further, no jurisdictional error is disclosed in the AAT Decision in its finding and conclusions on this issue, which are set out in some detail above: see [4]-[5] above. This is a case in which in all of the circumstances it is evident that the AAT:
a)correctly identified the relevant issues;
b)asked itself the correct questions; and
c)had regard to all of the relevant material in dealing with the issues and questions before it, and did not have regard to any irrelevant material,
and in doing so arrived at factual conclusions which were open to it. The AAT engaged in a legitimate and proper exercise in administrative decision-making, and there is no jurisdictional error in the AAT Decision.
Request for pro bono assistance made at hearing
In addition to the submissions made orally by the applicant at hearing as set out above: see [12] above, the applicant initially suggested that the Court might “find” him a pro bono lawyer. The Court took this to be a request for a Court referral for legal assistance pursuant to Part 12 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”).
The Court refused that request because:
a)the request was made too late in the proceedings, the Judicial Review Application having been made in May 2016;
b)the necessity to adjourn to seek further legal assistance may result in significant delays, of up to as much as 12 to 18 months, before the matter might be re-listed;
c)the applicant had no entitlement to a Court-appointed lawyer: SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs[2006] FCA 702 at [4] per Gyles J (“SZHTI”); SZQRU v Minister for Immigration & Citizenship[2012] FCA 1234 at [24] per Katzmann J (“SZQRU”); WZANN v Minister for Immigration & Anor[2009] FMCA 643 at [3] and [9] per Lucev FM; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev (“MZZZL”), and in that regard the Court observes as follows:
i)in SZHTI the Federal Court observed as follows at [3]-[4] per Gyles J:
3 The first paragraph of the affidavit in support of the application is:
‘I was not given access to free legal advice which is commonly available to applicants through the NSW Legal Advice Scheme. I was denied natural justice at the Federal Magistrates Court.’
4 That contention was put to the learned Federal Magistrate and, in my opinion there is no doubt about the correctness of the view he expressed that there is no right to free legal advice and that the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.
ii)in SZQRU at [24] per Katzmann J the Federal Court observed that:
Finally, the applicant mentioned his lack of a solicitor. This was a matter raised before the federal magistrate but nothing the federal magistrate said about it reveals appealable error. There is no right to legal representation. Doubtless, the applicant might have had a better chance if he had been legally represented, but in a civil case procedural fairness does not require it: New South Wales v Canellis [1994] HCA 51;(1994) 181 CLR 309 at 329–331; Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20 at [24]; Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17] per Perram J. Cf. SZNVW [2010] FCAFC 41; 183 FCR 575 at [30].
iii)in MZZZL at [11] per Judge Lucev this Court, having considered the authorities, observed that:
… there is no right to legal representation in migration proceedings in this Court. …
d)the applicant had had an opportunity to arrange a lawyer (pro bono or otherwise) privately, but despite attempts to do so, told the Court he had not been able to do so;
e)many others, and probably a majority of applicants for judicial review of migration decisions in this Court, are not legally represented, and the applicant is in no worse a position in that regard to a significant number of applicants for judicial review of migration decisions in this Court;
f)even if a pro bono referral was made, there is a not insubstantial risk that no lawyer may be found to deal with the matter;
g)on a preliminary assessment of the merit of the Judicial Review Application by the Court the Judicial Review Application had no, or no reasonable, prospect of success, because it did not appear to establish any jurisdictional error in the AAT Decision;
h)the applicant does not have a right to apply for a referral: FCC Rules, r.12.03, although that does not prevent a party from raising the question as the means of initiating the Court’s consideration of the exercise of its discretion: Fuller v Toms [2012] FCA 27; (2012) 247 FCR 440 at [94] per Barker J (“Fuller”) (Fuller was unsuccessfully appealed, but the appeal did not go to the issue of the pro bono referral: Fuller v Toms [2012] FCAFC 155). The issue of a pro bono referral certificate is, therefore, an administrative function in aid of the jurisdiction of the Court: Schokker v Commissioner of Taxation (No 2) [2000] FCA 1734, (2000) 106 FCR 134; (2000) 181 ALR 597, and an exercise of a discretion of the broadest type by the Court: Fuller at [96] per Barker J; and
i)the above matters do not warrant a referral for pro bono assistance at such a late stage of proceedings where the Judicial Review Application lacked merit.
Conclusion and orders
The Court has concluded that:
a)there would not be a referral by the Court for the applicant to receive legal assistance pursuant to Part 12 of the FCC Rules; and
b)grounds 1 to 4 of the Judicial Review Application do not disclose jurisdictional error, and, otherwise, no jurisdictional error is apparent to the Court in the AAT Decision, and there will be an order that the Judicial Review Application be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 16 November 2017
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