FEDERAL COURT OF AUSTRALIA
BWA15 v Minister for Immigration and Border Protection [2017] FCA 1359
Appeal from: BWA15 v Minister for Immigration and Border Protection [2017] FCCA 1145 File number: VID 555 of 2017 Judge: TRACEY J Date of judgment: 13 November 2017 Date of publication of reasons: 20 November 2017 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court – where the Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal – where the Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection to not grant a Protection (Class XA) visa – whether appealable error established Legislation: Migration Act 1958 (Cth) Cases cited: BWA15 v Minister for Immigration and Border Protection [2017] FCCA 1145 Date of hearing: 13 November 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 27 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr A Cunynghame of Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
VID 555 of 2017 BETWEEN: BWA15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
13 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
TRACEY J:
This is an appeal from a decision of the Federal Circuit Court (“the FCC”) which dismissed an application by the appellant (“BWA15”) for judicial review of a decision of the former Refugee Review Tribunal — now the Administrative Appeals Tribunal (“the Tribunal”): see BWA15 v Minister for Immigration and Border Protection [2017] FCCA 1145.
The appellant arrived in Australia on 9 August 2012. He did so as an unauthorised maritime arrival. He is a citizen of Sri Lanka.
On 18 January 2013 he applied for a Protection (Class XA) visa under the Migration Act 1958 (Cth). In doing so he had the assistance of a migration agent. He is of Tamil ethnicity. He had left Sri Lanka lawfully on 26 April 2007 and travelled to Malaysia on a tourist visa. After the expiry of that visa, he remained there unlawfully until he commenced his ongoing journey to Australia.
The appellant based his claim to refugee status on his ethnicity and his actual or imputed political opinion in support of the Liberation Tigers of Tamil Eelam (“the LTTE”).
A delegate of the Minister considered the application and rejected it.
The appellant then applied to the Tribunal for review of the decision. He was represented, before the Tribunal, by a lawyer.
The Tribunal considered all of the appellant’s claims. Having done so, it determined to affirm the delegate’s decision. It found that the appellant was not at any serious risk of persecution for any of the reasons which he had advanced in support of his visa application.
THE FCC’S DECISION
The appellant sought judicial review of the Tribunal’s decision in the FCC. He relied on two grounds. They were that the Tribunal’s decision was affected by an error of law and that the Tribunal had denied him procedural fairness.
The grounds were not particularised.
The appellant appeared in person before the FCC. At the outset of the hearing the appellant made an application for an adjournment. It was rejected.
The circumstances in which the adjournment application came to be made and the FCC’s reasons for rejecting it appear in the trial judge’s reasons at [27]-[29]:
27.At the commencement of the hearing, the applicant raised an application to adjourn the matter in order that he might obtain legal assistance. The application was refused on the grounds that he has been aware of the Tribunal’s decision since August 2015. On 21 September 2015, he was advised of a range of legal services who he could consult by a letter from the Minister’s legal representatives dated 21 September 2015. The applicant stated that, upon receipt of that letter, he had consulted with Victoria Legal Aid.
28.The applicant was represented by legal aid when he appeared at a directions hearing before Registrar Luxton on 17 February 2016 at which time orders were made for the applicant to file and serve any amended application and affidavits by 3 March 2017 and he was advised that the matter would be listed on 9 May 2017.
29.In the circumstances where the applicant has had the opportunity to consult with lawyers since at least August 2015, in my view, it was not in the interests of justice to further adjourn the matter.
The appellant did not advance any grounds which might have amounted to jurisdictional error, save for the bald allegation that he had been denied procedural fairness by the Tribunal. This was said to have occurred because adverse evidence had been before the Tribunal but he had not been provided with an opportunity to respond to it.
In oral argument before the FCC, the appellant submitted that the Tribunal had failed to have regard to various matters which he had raised in support of his claim. He also claimed that the evidence that he had given to the Tribunal was not fully understood.
The FCC rejected these submissions. It found that the Tribunal had considered all of the arguments which had been advanced to it on behalf of the appellant. In substance the appellant was doing no more than inviting the Court to engage in merits review.
The FCC found that all adverse material had been put to the appellant by the Tribunal and that he had had an opportunity to respond to it either personally or through his legal representative.
The application for judicial review was dismissed.
THE APPEAL TO THIS COURT
The appellant has appealed to this Court from the FCC’s decision.
The appellant relies on two grounds. As stated in his notice of appeal they are:
1.I attended a When [sic] the trial happened I was not interviewed as my counsel was absent and when i asked for a postponement of review, my petition was dismissed without careful consideration of actual facts of claims on refugee status in Australia.
2.I sought help from Victorian Legal Aid for legal assistance. I misunderstood they would represent me. On the day of hearing, I did not have a lawyer. I requested the court to give me time to come back with legal help. My request was refused. Honourable Judge MCNAB ordered the application filed 10 September 2015 be dismissed. A fair trial was not conducted.
(Errors in original.)
As appears from these grounds the principal basis for the appeal to this Court would seem to be that the FCC had denied the appellant procedural fairness when it refused his adjournment application.
The appellant appeared in person this morning. He had the assistance of an interpreter.
The appellant had not filed any written submissions. I invited him to make any oral submissions which he may wish to make in support of his appeal.
His principal complaint was that he “had a lawyer” but that lawyer had not attended at the hearing before the FCC. This submission was somewhat misleading. The appellant said that no lawyer had given him a commitment to attend at the hearing. Rather, he had assumed that a lawyer would be present. The assumption was based on the fact that he had received a letter from the Minister’s solicitors which dealt with details such as the time and place of the hearing. There was nothing in the letter that said anything about representation for him at the hearing. When the lawyer was not present he had decided to make the application for an adjournment.
The appellant further submitted that the Tribunal had failed to take into account some life-threatening events which had occurred in Sri Lanka which supported his claim for refugee status.
CONSIDERATION
The appellant has failed to identify any legal error on the part of the FCC which would warrant the intervention of this Court.
The FCC refused the adjournment for the reasons which it gave. There is nothing in those reasons that suggests that its discretion miscarried in any way. The Tribunal had made its decision in August 2015. The hearing took place in May 2017. Although the appellant had received the benefit of some legal representation in the intervening period he was unable to demonstrate to the FCC that he had any reasonable prospect of obtaining representation at the hearing or in the foreseeable future. He remained unrepresented in this Court.
The appellant’s other arguments, advanced in Court this morning, did not amount to any more than merits arguments and certainly did not support any claim that the FCC had made any appealable error.
DISPOSITION
The appeal must be dismissed with costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 20 November 2017
- AGLC
- Bwa15 v Minister for Immigration and Border Protection [2017] FCA 1359
- Case
- [2017] FCA 1359
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the FCC had committed any error warranting appellate intervention and if Bwa15 had demonstrated any appealable error in the Tribunal's decision. Specifically, Bwa15 claimed that the FCC erred by not granting an adjournment to obtain legal representation and by dismissing his argument that the Tribunal had failed to consider certain events supporting his refugee claim. The court needed to determine if these claims amounted to an error of law or a denial of procedural fairness that could justify the appeal.
The court found that the FCC had properly exercised its discretion in denying the adjournment as Bwa15 had not demonstrated a reasonable prospect of obtaining legal representation. The court noted that Bwa15 had been aware of the Tribunal’s decision since August 2015 and had the opportunity to seek legal advice since then. Additionally, the court held that the appellant's arguments amounted to a call for merits review rather than pointing to any legal error. The FCC had correctly found that the Tribunal had considered all arguments and provided Bwa15 with an opportunity to respond to all adverse evidence. Therefore, the court concluded that the FCC had not erred in dismissing the application for judicial review.
The appeal was dismissed with costs awarded to the Minister. This conclusion was based on the lack of any demonstrated error by the FCC that warranted appellate intervention. The court also found that the arguments presented did not establish any procedural unfairness or legal error in the Tribunal's decision. The final orders of the court were that the appeal be dismissed and that the appellant pay the costs of the appeal.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The appellant further submitted that the Tribunal had failed to take into account some life-threatening events which had occurred in Sri Lanka which supported his claim for refugee status.CONSIDERATION The appellant has failed to identify any legal error on the part of the FCC which would warrant the intervention of this Court. The FCC refused the adjournment for the reasons which it gave. There is nothing in those reasons that suggests that its discretion miscarried in any way. The Tribunal had made its decision in August 2015. The hearing took place in May 2017. Although the appellant had received the benefit of some legal representation in the intervening period he was unable to demonstrate to the FCC that he had any reasonable prospect of obtaining representation at the hearing or in the foreseeable future. He remained unrepresented in this Court. The appellant’s other arguments, advanced in Court this morning, did not amount to any more than merits arguments and certainly did not support any claim that the FCC had made any appealable error.DISPOSITION The appeal must be dismissed with costs.