BNV15 v Minister for Immigration & Anor
[2016] FCCA 740
•7 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BNV15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 740 |
| Catchwords: MIGRATION – Judicial review – International Treaties Obligations Assessment – whether want of procedural fairness – whether error of law on the face of the record – whether ultra vires in relation to alleged review of delegated legislation – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 36(2), 36(2A), 198, 256, 474, 476 |
| Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Myers v Myers [1969] WAR 19 NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 SZSSJ v Minister for Immigration & Border Protection [2014] FCAFC 143; (2014) 231 FCR 285 |
| Applicant: | BNV15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | PEG 351 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 23 March 2016 |
| Date of Last Submission: | 23 March 2016 |
| Delivered at: | Perth (and by video-link to Darwin) |
| Delivered on: | 7 April 2016 |
REPRESENTATION
| For the Applicant: | In person (by video-link from Darwin, with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr PJ Corbould |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitor for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 351 of 2015
| BNV15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) of an International Treaties Obligations Assessment (“ITOA”) made by an officer of the Department of Immigration and Border Protection (“the Assessor” and “the Department” respectively) on 15 June 2015. The ITOA is at pages 242 to 267 of the Court Book (“CB”).
The Assessor found that Australia does not have non-refoulement obligations to the applicant under the Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“the Refugees Convention”), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (“the Torture Convention”) and the International Covenant on Civil and Political Rights 1966 and its Second Optional Protocol (“the ICCPR”).
Application for adjournment
At hearing, and without any form of notice to either the Court or the Minister, the applicant sought an adjournment. The sole basis for the adjournment was that the applicant did not have a lawyer to represent him and had not been able to organise a lawyer to represent him since he had gone into detention.
No evidence was put in support of the adjournment application by the applicant.
The Minister opposed the adjournment application saying that:
a)the adjournment application came late;
b)there was no guarantee that the grant of an adjournment would result in the applicant having representation at any adjourned hearing;
c)as the applicant was in immigration detention there would therefore be prejudice both to the Minister and the applicant in delaying proceedings; and
d)there was no merit in the Judicial Review Application and no jurisdictional error in the ITOA.
Whether an adjournment is granted is a matter involving the exercise of a wide discretion by the Court: Myers v Myers [1969] WAR 19 at 21 per Jackson J; Lejmanoski v The University of Western Australia (No. 3) [2016] FCCA 154 at [32]-[33] per Judge Lucev, and must take into account the relevant statutory, factual and case management context: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
There is no right to legal representation in migration proceedings in this Court. In particular, there is no right to free legal advice and the denial of an adjournment on the basis of a lack of access to free legal advice has been held not to be a denial of procedural fairness: SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J; SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev (“MZZZL”). In addition, in relation to this matter, the Court observes, it would be unfair to grant an adjournment on the basis that:
a)the application was made late, without notice, and without any evidence in support;
b)there would be prejudice both to the applicant and the Minister caused by the delay. The listings in the Perth Registry of this Court are such that it is highly likely that the application would not be re-listed for hearing for another 12 months, and the applicant would have had to spend that 12 months in immigration detention. Further, the Minister will be prejudiced by reason of the fact that the applicant would be a cost burden whilst having to remain in immigration detention pending any adjourned hearing;
c)there is no evidence, and no necessary reason to suppose, that an adjournment of the hearing of the application would make any difference to the applicant’s representation at any adjourned hearing. It may be that legal representation would still be not available to the applicant for any adjourned hearing, and that fact may be influenced in part by the further reason that the Judicial Review Application has no merit, for reasons otherwise set out in detail hereunder: see [18]-[23] below;
d)apart from a general assertion that legal assistance was sought from Legal Aid WA, there is no indication of what other steps the applicant took to obtain legal assistance or to himself prepare for the hearing on 23 March 2016;
e)there has been sufficient time, the application having been filed on 8 July 2015, and the hearing date of 23 March 2016 being fixed on 14 October 2015, to ensure that the applicant, as a self-represented person, was able to prepare and argue his case: Singh v Minister for Immigration & Border Protection [2014] FCA 563 at [15] per Perry J; MZZZL at [13] per Judge Lucev; and
f)there has been no endeavour at all by the applicant to comply with the Court’s orders with respect to the filing of an amended application, further affidavits or an outline of submissions, and the fact that the applicant is in detention does not affect his ability to endeavour to comply with the Court’s orders, and there is certainly no evidence which indicates that the applicant was not afforded reasonable facilities to undertake the necessary activities in relation to these proceedings: see Migration Act, s.256.
It was for the above reasons that the Court declined to exercise its discretion to grant the application for an adjournment made at the hearing on 23 March 2016.
Factual and procedural background
The factual and procedural background to this Judicial Review Application is as follows:
a)the applicant is a citizen of Sri Lanka who was born at Avisavala, Colombo on 3 December 1980. In 1990 his family left Sri Lanka for India where he resided until he travelled to Australia in 2010. The applicant arrived in Australia at Christmas Island as an unauthorised boat arrival on a vessel codenamed ‘Gunn’ on 11 May 2010: CB 27, 102, 242 and 252;
b)on 30 July 2010 the applicant made a request for a refugee status assessment (“RSA”), and was interviewed by an officer of the Department (then the Department of Immigration and Citizenship) on 2 August 2010: CB 27-43, 87 and 104;
c)on 6 January 2011 an officer of the Department found that the applicant did not meet the definition of a refugee as set out in Article 1A of the Refugees Convention: CB 102-111;
d)on 21 February 2011 the applicant applied for an Independent Merits Review (“IMR) of the RSA, and was interviewed by an IMR reviewer on 8 June 2011: CB 116-119 and 139;
e)on 8 February 2012 the IMR reviewer found that the applicant did not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958 (Cth) (“Migration Act”) and recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention (“the IMR Recommendation”): CB 132;
f)on 27 February 2012 the applicant applied to the Federal Magistrates Court of Australia for judicial review of the IMR Recommendation: CB 161;
g)on 14 May 2012 an officer of the Department conducted a Post Review Protection Claims Assessment (“PRPC Assessment”) of the applicant’s case. The officer carrying out the PRPC Assessment was not satisfied that the applicant’s case met the Ministerial guidelines then in place for the consideration of post review protection claims and the applicant’s case was not referred to the former Minister for Immigration and Citizenship (now the Minister for Immigration and Border Protection (“Minister”) for consideration of whether it was in the public interest to allow the applicant to apply for a visa: CB 174 and 175;
h)on 13 November 2012 the Federal Magistrates Court of Australia dismissed the applicant’s application for review of the IMR recommendation: CB 182, and see SZREW v Minister for Immigration & Anor [2012] FMCA 1098 (“SZREW”). The applicant’s application to the Federal Court of Australia for an extension of time to appeal from SZREW was dismissed by the Federal Court of Australia on 4 April 2013: CB 185, and see SZREW v Minister for Immigration & Citizenship [2013] FCA 289;
i)on 1 July 2013 the applicant applied to this Court for declarations and injunctions in relation to the PRPC Assessment of 14 May 2012: CB 188. On 16 October 2013 this Court made a declaration by consent that the PRPC Assessment was not made according to law: CB 193;
j)by letter dated 23 December 2014 the Department advised the applicant that it would undertake a re-assessment of his protection claims as part of a new ITOA to determine whether Australia had any non-refoulement obligations to the applicant under the Refugees Convention, the Torture Convention and the ICCPR: CB 196-198;
k)the applicant was represented in the ITOA process by lawyers who made lengthy written submissions to the Department dated 19 February 2015: CB 216-236, and the applicant was interviewed by an officer of the Department on 23 February 2015: CB 216 and 248;
l)the ITOA was finalised on 15 June 2015: CB 242-267 with a finding that Australia’s non-refoulement obligations were not engaged: CB 264, and the applicant was advised of that outcome by letter from the Department the same day: CB 266. The content of and findings from the ITOA are set out in more detail below: see [10]-[12] below;
m)on 8 July 2015 the applicant lodged the Judicial Review Application;
n)on 14 October 2015 the Judicial Review Application was listed for hearing on 23 March 2016 and it was ordered, among other things, that the applicant file and serve:
i)any amended application and further affidavits by 23 December 2015; and
ii)an outline of submissions not less than 42 days before the hearing; and
o)the applicant has not filed any amended application, further affidavits or an outline of submissions.
ITOA
In the ITOA the Assessor:
a)found that the applicant claimed (see CB 217 and 253) to fear harm if returned to Sri Lanka for reasons of:
i)his Tamil race and Hindu religion;
ii)his actual and imputed political opinion, including being perceived as a sympathiser or supporter of the Liberation Tamil Tigers of Eelam (“LTTE”) due to his father’s involvement with the LTTE and his long term absence from Sri Lanka; and
iii)his membership of particular social groups, namely failed asylum seekers involuntarily returned to Sri Lanka and young male Tamils who originate from the Northern Province of Sri Lanka;
b)set out the applicant’s migration history: CB 243, summarised the applicant’s claims and the findings in the RSA: CB 243-244, IMR: CB 244-245 and PRPC Assessment processes: CB 245;
c)noted that the claims to be assessed in the ITOA included previous complementary claims and information that were assessed as part of the previous RSA and IMR decision records and the previous PRPC Assessment: CB 246;
d)noted a new claim by the applicant in the submission dated 19 February 2015 from his lawyers in which the applicant alleged that in approximately February 2014 the army came to his family’s former house in Sri Lanka as a consequence of the discovery of what looked like a bomb buried in the ground, and in relation to which the army questioned the applicant’s aunty regarding the whereabouts of all other family members, whose names, including the name of the applicant, the army sought to have the aunty supply. Consequently, the applicant was concerned that his name is known to the authorities and he would be regarded as an LTTE supporter due to his father’s involvement with the LTTE and long-term absence from Sri Lanka: CB 246;
e)set out the material which was before the Assessor, namely:
i)the Departmental files relating to the applicant;
ii)the United Nations High Commissioner for Refugees Handbook and Procedures and Criteria for Determining Refugee Status;
iii)relevant Australian case law; and
iv)relevant country information cited in the ITOA;
f)at the interview of 23 February 2015 gave the applicant the opportunity to comment upon:
i)any previous adverse findings; and
ii)any adverse country information including the Department of Foreign Affairs and Trade (“DFAT”) Country Report on Sri Lanka dated 16 February 2015 which referred to the improved security situation in Sri Lanka and the manner in which Sri Lankan returnees from Australia are dealt with upon their return to Sri Lanka: CB 248-249;
g)made the following key findings in assessing the applicant’s claims and credibility:
i)the applicant was generally a credible witness, although some aspects of his claims had been embellished and were implausible: CB 251;
ii)the applicant and his father were never involved or associated with the LTTE. Neither the applicant, nor his family members, were ever involved with any political group or organisations or protests against the Sri Lankan government: CB 250, 252, 256;
iii)did not accept that the applicant’s father was friends with a man who was involved with the LTTE and did not accept that the applicant’s name or his father’s name was known to the Sri Lankan authorities: CB 251-252;
iv)someone may have found a bomb in the garden of the property where the applicant once lived in Sri Lanka and the Sri Lankan army may have come to remove the bomb from the property, but did not accept that the Sri Lankan army would suspect that the applicant’s father would be involved with the LTTE and found that this claim was implausible and was fabricated by the applicant to strengthen his claims: CB 251;
v)the applicant’s father moved the family to India primarily for economic reasons and not because the Sri Lankan army suspected that his father was associated with the LTTE: CB 252;
vi)the applicant had not suffered any mistreatment as a Tamil Hindu in Sri Lanka, and was not satisfied that there was a real chance that the applicant would suffer serious harm because of his race or religion if returned to Sri Lanka: CB 255-260;
vii)there was no evidence to suggest that the applicant would be perceived to be a LTTE supporter or a person perceived to hold views in opposition to the current Sri Lankan government due to his long term absence from Sri Lanka: CB 257; and
viii)the applicant left Sri Lanka illegally in 1990. Although he may face questioning and possible detention from the authorities on his return to Sri Lanka by reason of his illegal departure, any detention would be due to the enforcement of a non-discriminatory law of general application: CB 257-258;
h)found that the applicant did not have a real chance of being persecuted for a Refugees Convention reason and therefore the applicant’s alleged fear of persecution, as defined under the Refugees Convention, was not well-founded: CB 258;
i)considered whether there were substantial grounds for believing that the applicant faced a real risk of significant harm if returned to Sri Lanka, being the test under s.36(2)(a) of the Migration Act, and having regard to the same evidence upon which it had based its finding with respect to there being no well-founded fear of persecution, found that there were not substantial grounds to suggest that there is a real risk that the applicant will suffer significant harm if returned to Sri Lanka: CB 262-263; and
j)in light of his findings the Assessor concluded that the applicant was not:
i)a refugee within the meaning of Article 1A of the Refugees Convention: CB 259; and
ii)a person to whom Australia had non-refoulement obligations under the Torture Convention and ICCPR: CB 263.
In making the ITOA the Assessor set out the relevant law relating to the assessment of non-refoulement obligations arising under the Migration Act, and through it arising under the Refugees Convention, the Torture Convention and the ICCPR. The relevant provisions of each of the international instruments referred to above were set out in relation to Australia’s non-refoulement obligations: CB 247. In relation to the Refugees Convention assessment the ITOA sets out the definition of a “refugee” under Article 1A of the Refugees Convention, deals with whether harm is feared for a Convention reason by reference to the UNHCR Guidelines on International Protection, and relevant High Court authority in relation to the determination of whether a group falls within the definition of a particular social group for the purposes of the definition of “refugee” in the Refugees Convention: CB 253-254. The ITOA also deals with the question of whether harm feared amounts to persecution: CB 254, and whether the fear of persecution is well-founded: CB 254-258.
The ITOA also deals with Australia’s non-refoulement obligations under the Torture Convention and ICCPR having regard to the legislative provisions in ss.36(2)(aa) and 36(2A) of the Migration Act, reflecting Australia’s legislative interpretation of those non-refoulement obligations. In making the assessment as to whether the harm amounted to significant harm the ITOA set out relevant definitions, in particular s.5(1) of the Migration Act with respect to torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. In determining whether there was a real risk of significant harm the ITOA had regard to relevant authority, namely, Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525; (2013) 132 ALD 269.
In all of the above circumstances, there was no reference to incorrect legal principles, or the incorrect application of legal principles to the facts in arriving at the findings made by the ITOA.
Judicial Review Application
The Judicial Review Application contains the following three grounds:
1. Not following the rules of natural justice.
2. Error of law on the face of the record.
3. Review of delegated legislation on grounds of ultra-virus.
(Transcribed from the Judicial Review Application without amendment).
Jurisdiction
On the basis of the judgment of the Full Court of the Federal Court of Australia in SZSSJ v Minister for Immigration & Border Protection [2014] FCAFC 143; (2014) 231 FCR 285 at [39]-[40] per Perram, Jagot and Griffiths JJ the Minister accepts that the ITOA was conduct preparatory to the making of a future decision as to whether the applicant was to be removed from Australia under s.198 of the Migration Act: see s.474(2) and (3)(h) of the Migration Act; and that this Court has jurisdiction in relation to the application under s.476 of the Migration Act.
Applicant’s Submissions
The applicant did not file an outline of submissions. Nevertheless, the applicant was invited to make oral submissions at hearing, and did so. The applicant’s submissions all, essentially, went to matters of fact, which were matters in issue before the Assessor, or which could have been put before the Assessor and which were not: for example, the new claim that his mother had been beaten whilst in Sri Lanka. The applicant also mentioned the notorious case of data breach by the Department in relation to persons in immigration detention, not on the basis that he was the subject of a data breach, but rather as an example of the type of error which might be made by the Minister or the Minister’s delegates.
Minister’s Submissions
In relation to the grounds of the Judicial Review Application the Minister submitted that:
a)the applicant was not denied procedural fairness (or natural justice) by the Assessor;
b)the Assessor identified and applied the correct legal principles; and
c)there was no application of any delegated legislation by the Assessor,
and therefore the Assessor did not commit any error of law, including any jurisdictional error.
Consideration
Oral submissions by the applicant
Essentially, all that the applicant did was to repeat the substance of claims originally advanced and dealt with by the Assessor, or which should have been advanced before the Assessor in the case of the new claim. In respect of the former, the applicant did no more than assert factual error by the Tribunal, which does not and cannot of itself constitute jurisdictional error or error of law, and again in regard to the former, which simply invites the Court to reassess the merits of the ITOA, which is not the Court’s function: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (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”). Likewise, the weight to be given to an applicant’s claim and evidence is a matter for the Assessor to assess as part of the fact-finding function: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ. In the absence of any finding by the Court of jurisdictional or legal error by the Assessor the applicant’s data breach analogy does not assist the applicant’s case. The applicant’s oral submissions therefore do not raise any arguable ground of appeal.
No particulars
There are no particulars in support of the applicant’s grounds. The failure to particularise a ground of review is itself sufficient to warrant dismissal of that ground: SZELX v Minister for Immigration & Anor [2007] FMCA 209 at [17]-[21] per Emmett FM; WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60] per Judge Lucev, from which an appeal by the applicant was dismissed: see WZATH v Minister for Immigration & Border Protection [2014] FCA 969; AQN15 v Minister for Immigration & Anor [2016] FCCA 58 at [33]-[35] per Judge Howard.
Ground 1
In relation to the ITOA carried out by the Assessor, the applicant:
a)was advised of the commencement of the ITOA by letter dated 23 December 2014;
b)advised of, and given, the opportunity to provide any further information for the ITOA;
c)was represented by lawyers who made extensive written submissions dated 19 February 2015 to the Department;
d)attended an interview with the Assessor on 23 February 2015;
e)was given the opportunity to comment on previous adverse findings: CB 248;
f)was also invited to comment on adverse country information: CB 248; and
g)was given 28 days after the interview to submit further information from his father, and although not provided until 15 May 2015, the further information was taken into account by the Assessor: CB 237-241 and 251.
The applicant was entitled to be afforded a reasonable opportunity to make his claims (including by being able to deal with adverse material), and have those claims addressed and considered before the final making of any decision by the Assessor: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 per Northrop, Miles and French JJ, approved in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) at [32] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. It is clear from the process set out above: see [10]-[13] above that the requirements for procedural fairness were met by the Assessor in dealing with the applicant’s claims. Further, given the opportunity to tell the Court what the alleged lack of procedural fairness was, the applicant was not able to identify the alleged lack of procedural fairness. In relation to ground 1, the applicant was therefore not denied procedural fairness, and this ground is not made out.
Ground 2
In relation to ground 2, the legal principles applied and relevant statutory provisions considered are summarised at [11]-[12] above. In the Court’s view the Assessor identified and applied the correct legal principles and statutory provisions. The Assessor’s consideration of the applicant’s claims and evidence was thorough, and does not disclose any error of law, on the face of the record, or otherwise. In any event, no error of law is alleged or particularised, either in the grounds of the Judicial Review Application, or in the oral submissions made by the applicant at hearing before this Court. At hearing the applicant was not able to identify any error of law upon which he relied. Ground 2 is, therefore, not made out.
Ground 3
The Assessor did not purport to apply any “delegated legislation”. At hearing the applicant was not able to identify the delegated legislation referred to in ground 3. Ground 3 is therefore baseless, and is not made out.
Conclusions and orders
The applicant has failed to make out any of the grounds for the Judicial Review Application. It follows that the Assessor in conducting the ITOA committed no jurisdictional or legal error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 7 April 2016
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