BYM16 v Minister for Immigration & Anor
[2017] FCCA 2445
•20 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYM16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2445 |
| Catchwords: PRACTICE & PROCEDURE – Application to amend application and seek to rely on additional grounds – late application without any evidence to explain failure to comply with Court orders - leave to amend application refused. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473DD |
| Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 SZTAL v Minister for Immigration & Border Protection (2016) 243 FCR 556; [2016] FCAFC 69 |
| Applicant: | BYM16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1959 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 5 June 2017 |
| Date of Last Submission: | 5 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Tambimuttu, Hodges Legal |
| Solicitors for the Respondents: | Ms N Blake, Clayton Utz |
ORDERS
Leave to amend the application is refused.
The application otherwise be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1959 of 2016
| BYM16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority (IAA) made on 24 June 2016. The IAA affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
This application was filed on 23 July 2016. The application was prepared and lodged for the applicant by a firm of solicitors, the same firm who had acted for the applicant before the IAA. On 14 September 2016, the Court made orders by consent that gave leave to the applicant to file an amended application by 3 November 2016. The applicant was also ordered to file and serve written submissions 14 days before the final hearing. The Minister was ordered to file and serve his submissions 7 days before the hearing.
On 21 February 2017, the matter was set down for hearing on 5 June 2017, again by consent. That meant that the applicant had to file his written submissions by 19 May 2017. The Minister’s submissions were due on 26 May 2017.
The applicant filed his written submissions on 26 May 2017 and also filed a document purporting to be an amended application. This “amended application” amended the two grounds in the original application and inserted four completely new grounds. No application in a case was filed and no explanation was given, by affidavit or otherwise, for the failure to comply with the Court’s orders.
The Minister filed his submissions on 29 May 2017. In those submissions, the Minister attempted to deal with the grounds raised for the first time in the applicant’s written submissions on the previous working day. He submitted that leave to amend the application should be refused. I agree.
There appears to be an attitude amongst legal practitioners who act for applicants in migration proceedings that neither the rules of Court nor Court orders, even those made by consent, apply to them. Perhaps that attitude has been encouraged by years of judicial lassitude, combined with the cost-consciousness of practitioners appearing for the Minister, or their adherence to the perceived breadth of the obligations of the model litigant. Whatever be the cause of this attitude, it must change.
The power of the Court to grant an amendment is to be exercised for the purpose of enabling the just, efficient and economical resolution of the proceedings. No doubt, the merits of any grounds sought to be raised by an amendment are ordinarily relevant to the exercise of that power. However, in circumstances where an opportunity to amend has already been given, but eschewed, and there is no explanation for a very late and prejudicial application for amendment, the merits are not necessarily decisive.
There is no excuse for the delay in this case. The same solicitors have acted throughout these proceedings. They were involved in the review process conducted by the IAA. They knew of the orders allowing an amendment 2½ months after the orders and 7 months before the hearing. They had all of the relevant material by early October 2016, if not far earlier. They knew of the timetable for submissions. In those circumstances, the solicitors’ conduct of this case is unforgiveable and cannot be condoned by the grant of leave to amend.
For those reasons, I refuse leave to amend the application. That said, I have also considered the merits of the proposed grounds and, although I would arrive at the same decision concerning leave if my view of the merits were different, the application to amend gains no strength from the proposed grounds.
The only ground of the original application that remains is ground 2. I will set out my consideration of that ground along with the proposed grounds.
Background
The applicant is a citizen of Sri Lanka who arrived in Australia by boat and without a visa on 27 August 2012. On 22 September 2015, he applied for a protection visa.
The applicant’s claims in support of his visa application were:
a)the applicant’s brother was abducted by the Liberation Tigers of Tamil Eelam (LTTE) in 2008 and has been missing since;
b)the applicant was involved in Tamil media and broadcast as a cable TV technician and a TV cameraman for Dan TV. Prior to that, he was employed at Thai TV, which broadcast news inside the Mannar District;
c)while employed at Thai TV, the applicant was asked to cover an incident on the outskirts of Mannar by his boss. This incident involved flooding to Tamil areas following the Sri Lankan government’s decision to open up a dam;
d)the next day, several Central Investigation Department (CID) officers and the Superintendent of Police came to the applicant’s work place. Several employees, including the applicant were taken to the police station where the Superintendent assaulted one of the applicant’s colleagues. The applicant was interrogated by the Police before being transferred to the CID office in Mannar Town. He was finally released due to influence from his boss;
e)Mr Rishad Badurdeen, an influential MP from the Sri Lankan Muslim Congress was allegedly behind the arrest;
f)The applicant’s boss was made to pay Minister Rishad 70% of the profit from the TV station. As a result, the applicant’s boss transferred the Thai TV business, along with some staff including the applicant, to Dan TV;
g)Following a protest in the Mannar District Court on 18 July 2012, for which the applicant was present as a cameraman but was asked not to cover, the applicant was interrogated by CID officers. At this time, they were made aware of the applicant’s previous employment at Thai TV and his involvement with the 2011 dam incident;
h)Since the applicant came to Australia, he has been told that CID officers have been searching for him;
i)The applicant was contacted by a former editor of Thai TV in 2014, who now resides in the United Kingdom (UK).
The applicant claimed to fear harm from the CID if he were to return to Sri Lanka because of:
a)his history of involvement with “Thaainews.com and former Thaai TV and Dan TV staff” who have sought asylum in the UK;
b)his correspondence and history with Kesavan, who was a former member of the LTTE;
c)his presence as a cameraman at the Mannar District Court incident which has led the CID to believe he has footage;
d)his application for asylum in Australia; and
e)his illegal departure from Sri Lanka.
On 9 May 2016, a delegate of the Minister decided to refuse to grant the applicant a visa. There was no issue that the applicant was a “fast track applicant” and that the reasons for the delegate’s decision meant that the decision was a “fast track review decision”. For that reason, the delegate’s decision was referred to the IAA for review.
IAA’s decision
The IAA accepted that the applicant’s brother was kidnapped and forcibly conscripted by the LTTE in 2008 and has been missing since. It also accepted that no other members of the applicant’s family had been involved in the LTTE. The IAA found that the applicant’s connection to his brother did not give rise to a real chance of serious harm because he had travelled to India on his own valid passport in 2011 and was not harassed when he returned.
The IAA accepted that the applicant was detained for approximately two days by the police and CID and questioned in respect of Thai TV’s telecast of the release of excess water from a dam, and that he subsequently stopped working for Thai TV after it was shut down. It also accepted that an influential MP was involved in the decision to arrest Thai TV staff; however, it found that the applicant did not face a real chance of serious harm because of this incident. That was because the applicant had not suffered harm either at the time of questioning, or after he left his employment, and was able to travel to India on a valid passport and return without incident.
The IAA accepted that the applicant may have been questioned by the CID as part of their investigation into the attack on the Court; however, it did not accept that this was at the instigation of the influential MP because that MP was subsequently charged in connection with the attack.
The IAA accepted that the applicant had uploaded certain news items to a website in early 2015 and to Facebook in October 2015. It did not accept that this gave rise to a real chance of serious harm because there was no public information to connect him with the posts.
The IAA accepted that the applicant may engage in similar camera work if he were to return to Sri Lanka and that, under the former government, media professionals and journalists were targeted. However, it accepted information that, since the change of government, attacks on journalists were isolated, and so the applicant would not face a real chance of serious harm if he were to return to his former career.
The IAA next considered the possible consequences of the applicant’s connection to his friend who may have been connected to the LTTE. It found that there was no real chance that the applicant’s friend would be identified by the authorities as a former LTTE member because he now resides permanently in the UK. For that reason, the IAA found that there was no real chance of the applicant being harmed because of his friend. It also found that there was no real chance of harm that might arise from the applicant’s connection to people who had obtained asylum in the UK.
The IAA found that the applicant had departed Sri Lanka illegally and would be identified by the authorities on return as having done so and as having applied for asylum. It accepted that the applicant would be questioned and charged with an offence for departing illegally and, if he pleaded guilty, would be fined and released. The IAA found that he may be detained for up to 24 hours but would not be seriously harmed. It took into account the prison conditions in Sri Lanka but found that detention for a brief period would not amount to serious harm within the meaning of s.5J(5) of the Migration Act 1958 (Cth) (Act) and that the whole process would not amount to persecution.
The IAA concluded that the applicant did not meet the definition of refugee in s.5H(1) of the Act and so did not satisfy the criterion for the grant of a protection visa in sub-s.36(2)(a).
The IAA applied its findings of fact to its assessment of whether the applicant satisfied the criterion in sub-s.36(2)(aa) of the Act. In addition, it found that the potential, brief stay in a Sri Lankan prison, would not amount to significant harm because the element of intention was lacking. The IAA concluded that the applicant did not satisfy sub-s.36(2)(aa) of the Act and so affirmed the delegate’s decision.
Consideration
It is convenient to deal briefly with the grounds which the applicant sought leave to raise at the hearing, before dealing with the only ground that remained in the application.
First proposed ground: Failure to apply the “complementary protection criteria” pursuant to s.36(2A) of the Act
The particulars to this ground set out a number of the IAA’s findings in which it accepted the applicant’s claims and then state:
…
(d)Despite accepting that the applicant was previously questioned and detained and that he had suffered harm on several occasions in the past, the IAA considered that the applicant did not face a real chance of harm upon return.
(e)It is submitted, that the frequency of events in which the applicant suffered harm in the past should be considered when determining whether or not the applicant faces a real chance of harm.
(f)The assessor [sic] failed to consider the bearing of past events, which were accepted, when concluding that the applicant did not face a real chance of a risk and therefore committed jurisdictional error.
The applicant’s written submissions added nothing to the particulars.
Although the ground refers to s.36(2A) of the Act, it appears that what is intended is an allegation that the IAA failed to apply the correct test in determining whether there was a “real risk” of harm.
The IAA noted, at [74] of its reasons, referring to Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33, that “real chance equals real risk”. It considered all of the applicant’s claims that were said to give rise to such a risk and appreciated in doing so, that past events were relevant to the assessment of what might occur in the future. In particular, the IAA noted that the applicant had not been harmed in the past and that:
i)neither the authorities nor the MP was now targeting staff members of the media companies for which the applicant had worked;
ii)the authorities would not be able to identify the applicant as a contributor to the websites;
iii)the change in government meant that the applicant was not at real risk of harm as a journalist or cameraman;
iv)the applicant’s profile would not otherwise give rise to a real risk of harm; and
v)the applicant had not been harmed because of his connection to his friend in the UK.
There was nothing flawed in this approach. This proposed ground is no more than an attempt to argue that the IAA ought to have come to a different conclusion. There is insufficient merit in it to overcome the unexplained delay in raising it.
Proposed ground 3: The IAA’s findings at [81] of its reasons were consistent with the legal errors alleged by the applicants in SZTAL
The “SZTAL” referred to in this proposed ground is the decision of the Full Court of the Federal Court in SZTAL v Minister for Immigration & Border Protection (2016) 243 FCR 556; [2016] FCAFC 69. In that case, the Tribunal found that knowledge of the possible consequences of imprisonment in Sri Lanka was not sufficient to meet the definition of “serious harm” in s.36(2A) of the Act. The Court held that there was no error in the Tribunal’s decision. Kenny and Nicholas JJ held at [59], that the Tribunal was correct because the natural and ordinary meaning of “intentional infliction is actual subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct.”
The applicant in this case argued, in essence, that this was wrong. The matter however, has been determined by the High Court which dismissed an appeal from the decision of the Full Court by majority: SZTAL v Minister for Immigration & Border Protection [2017] HCA 34. In light of that, this ground has no prospects of success.
Proposed ground 4: The IAA exercised its discretionary power to not consider new information that was tendered by the applicant in an unreasonable and unfair manner
This ground focuses on [8] of the IAA’s reasons for decision in which the IAA refers to a submission from the applicant received by the IAA on 29 May 2016:
The submission refers to instructions from the applicant to forward “21 photographic images”. I note that only nine photographic images were attached to the email. Five of the photos purport to show the ‘Thai TV’ logo in a number of locations and contexts and its association with Sun Sonic Cable Television in Mannar district. Also attached were four photos of the applicant holding a Panasonic video camera including in front of the Sun Sonic poster and whilst filming at an event. I accept that this is “new information” for the purpose of s.473DC as it was not before the delegate. It is clear that the images of the applicant were taken a number of years ago. It is unclear when the images of the Thai TV logo were taken. Nonetheless, the applicant has provided no reason why this evidence could not have been provided to the Minister before the decision was made. The photos of the applicant may be considered credible personal information but, given the images were taken during the applicant’s time in Sri Lanka and he has provided no reason why he could not have provided this to the Minister prior to the decision, I am not satisfied there are exceptional circumstances for considering it. In the circumstances, I am not satisfied s.473DD is met and I have not considered this new information.
The applicant’s submissions in support of this proposed ground were that the IAA ought to have alerted the applicant that only 9 photographs were sent and not the 21 photographs referred to in the submission.
Even though the solicitor acting for the applicant in these proceedings was the person who sent the photographs to the IAA, there was no evidence adduced as to what was said to have been shown in the missing photographs. Indeed, apart from the reference in the submission to 21 photographs, the evidence is that only 9 photographs were intended to be sent: the email from the applicant’s solicitor clearly shows that there were only 10 attachments, 9 being .jpg files (i.e. pictures) and one a .pdf file described as “SUBMISSIONS”. Without knowing whether the reference in the submissions to “21 photos” was an error, or what was in the photos said to be missing, it is difficult to conclude that the IAA was unreasonable in failing to point out the supposed error.
Further, the submissions state that the photographs supported the “applicant’s claims which was [sic] not accepted by the delegate.” Those two claims appear (from later in the submissions) to be that the applicant worked at Thai TV and as a cameraman. Both of those claims were accepted by the IAA. On that basis, pointing out the error (and then taking the photographs into account) would have made no difference.
In addition to those practical matters, the applicant’s submissions did not address the fact that, the IAA did not take into account the 9 photographs because the applicant had not satisfied it that they could not have been provided to the Minister, before the delegate had made the decision to refuse to grant the applicant a visa or, in the alternative, was not previously known: s.473DD(b) of the Act. The most likely inference to be drawn from the substance of the submissions was that, if there were any missing photographs, they were of the same nature as those actually sent. For that reason, it was very unlikely that the IAA would have come to a different view about whether it could consider them for the purposes of the review.
All of those matters undermine the strength of this ground and lead me to conclude that there is insufficient merit in it to overcome the unexplained delay in raising it.
Proposed ground 5: The IAA’s decision to not consider new information that was tendered by the applicant was affected by jurisdictional error
This, and the next proposed ground concern a letter dated 30 May 2016 and received by the IAA on 1 June 2016.
The applicant makes two inconsistent complaints in this ground:
a)first, the IAA considered a document even though it was “new information” and it was not satisfied of the matters in s.473DD of the Act; and
b)secondly, it did not consider the contents of the document which provided a reason for which the information was not provided to the delegate (cf. sub-s.473DD(b)(i) of the Act).
The prohibition in the chapeau of s.473DD of the Act is against considering any new information “for the purposes of making a decision in relation to a fast track reviewable decision”. In order for the applicant’s first argument to succeed, the reference to “decision” in that part of s.473DD of the Act must include a determination under ss.473DD(a) or (b). However, s.473DD(b) of the Act requires the IAA to consider the “new information” because, otherwise, it would not be able to determine whether that information “was not, and could not have been, provided to the Minister” or whether it was “credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.”
In light of that, “decision” in the chapeau does not refer to any determination by the IAA whether it is satisfied of any of the matters in ss.473DD(a) or (b) of the Act. For that reason, the IAA is entitled, if not obliged, to consider any “new information” for the purposes of determining whether s.473DD of the Act prevents it from considering that information.
The second aspect of the ground is equally flawed. The IAA set out its consideration of the relevant information at [9] of its reasons. Essentially, the IAA was influenced by the fact that the applicant had been able to contact, and obtain relevant evidence from his friend in the UK prior to the delegate’s decision. Nothing in this ground undermines the cogency of the IAA’s reasons in that respect.
This proposed ground has insufficient merit to warrant leave to amend.
Proposed ground 6: The letter dated 30 May 2016 was not “new information”
This argument is that the letterhead and signature block of the letter dated 30 May 2016 was not “new information” because it was the same as the letterhead and signature block as a letter dated 18 September 2015 given to the delegate. In light of that, the applicant argues, the IAA erred by not considering it.
The IAA did consider that information. It referred to it at [39] of its reasons, where it said:
In his application for protection, the applicant attached a letter on Thaai Media Pty Ltd letterhead dated 18 September 2015 written by the “Co/Director” of the company “B.Partheepan”. …
This ground has no merit.
It remains to consider the only ground remaining in the application.
Ground 2: Considering an irrelevant consideration
This ground is as follows. The IAA found at [35] of its reasons, that “there is no evidence to suggest that the police were colluding with Minister Rishad in this instance …”; however, not only did the applicant claim that the way in which he was “interrogated was a bit different because they knew he had been working in Thai and their tone was threatening” but also, the IAA had accepted, at [25], that “Minister Rishad was involved in the decision to arrest the Thai TV staff”. Thus, the IAA took into account an irrelevant consideration, namely, that “there is no evidence …” (emphasis in original).
Leaving to one side the apparent misunderstanding of what it meant by an irrelevant consideration (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; [1986] HCA 40), this ground must fail because it ignores what the IAA actually found but instead takes only a part of its finding. The IAA relevantly said, at [35] of its reasons:
Even though I have accepted the applicant’s claim the [sic] Minister Rishad was involved in his arrest and that of other Thai TV staff in 2011, apart from the applicant’s assertions, there is no evidence to suggest that the police were colluding with Minister Rishad in this instance in order to find and destroy the evidence of the court protests. It is clear from the country information that the purpose of the investigation was to determine who was involved. …
(Emphasis added)
When read as a whole (and without cutting out the parts that do not suit the applicant’s argument) this passage makes it clear that the fact that the IAA found there was no evidence of (apart from the applicant’s own assertions) any collusion between the politician and police to destroy evidence. The applicant has not pointed to anything to establish that that statement was not correct. For that reason, even if making an incorrect statement about the state of the evidence could constitute the type of error alleged, this ground must fail.
Conclusion
There is no jurisdictional error in the IAA’s decision. The application must be dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 20 October 2017
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