BZAGD v Minister for Immigration and Border Protection
[2015] FCCA 3471
•24 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZAGD v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3471 |
| Catchwords: MIGRATION – Protection (Class XA) visa – application to set aside notice of discontinuance – whether filing was procured by fraud or as an abuse of process – whether necessary to ensure that the Court’s process does not cause an injustice – whether filed pursuant to an agreement that is void or voidable – prospects of proposed application. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa) |
| Applicant A26 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1050 |
| Applicant: | BZAGD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Numbers: | BRG 1176 of 2013 and BRG 986 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 9 February 2015 |
| Date of Last Submission: | 9 February 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 24 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Colditz |
| Solicitors for the Applicant: | Holding Redlich |
| Counsel for the Respondents: | Mr Richardson |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
In BRG 1176 of 2013:
The name of the second respondent be changed to “Administrative Appeals Tribunal”.
The application in a case filed on 12 December, 2014 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,416.00.
In BRG 986 of 2014:
The name of the second respondent be changed to “Administrative Appeals Tribunal”.
The application filed on 11 November, 2014 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $1,367.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1176 of 2013 and BRG 986 of 2014
| BZAGD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 18 December, 2013 the applicant commenced an application for an extension of time within which to commence a judicial review application in respect of a decision of the second respondent. The effect of the second respondent’s decision was to deny him a Protection (Class XA) visa (proceedings numbered BRG 1176 of 2013).
On 24 September, 2014 the applicant discontinued BRG 1176 of 2013 by filing a notice of discontinuance in those proceedings.
On 11 November, 2014 the applicant commenced another application (proceedings numbered BRG 986 of 2014) for an extension of time within which to commence proceedings for judicial review of the same decision of the second respondent that was the subject of proceedings numbered BRG 1176 of 2013.
The latter application came before me on 8 December, 2014 on its first court date. The applicant was represented by counsel. It was argued by the first respondent and seemingly accepted by the applicant that the application was, in substance, an application by him for leave to withdraw the notice of discontinuance filed in the former proceedings. Accordingly, I made directions for the filing of an application for leave to withdraw the notice of discontinuance in those proceedings.
In accordance with the directions made on 8 December, 2014 on 23 December, 2014 the applicant filed an application in a case in BRG 1176 of 2013 seeking that he have leave to withdraw his notice of discontinuance. That application was listed for hearing and was heard by me on 9 February, 2015. These reasons relate to that application.
The first respondent opposes the application. The second respondent enters a submitting appearance.
Power to set aside the discontinuance
The parties agree that there is no express power in the Federal Circuit Court Rules 2001 to set aside a notice of discontinuance. The parties’ agreement accords with authority. In SZFOZ v Minister for Immigration [2007] FCA 1137, Ryan J said:
15. … However, in my view, the orders of the learned Federal Magistrate can be supported on the narrower ground of an absence of power to set aside a discontinuance which has been regularly effected. Rule 13.01 of the Federal Magistrates Court Rules provides a mechanism for discontinuance by stipulating:
‘A party may discontinue an application or response by filing a notice of discontinuance in accordance with the notice set out in Part 1 of Schedule 2.’
16. Rule 13.02, in turn, allows another party, in the event of a discontinuance, to apply for costs, usually within 28 days after the filing of the notice. Rule 13.02.3 deals with the situation where a further proceeding on the same, or substantially the same, matter is brought. That sub-rule provides;
‘If an order for costs is made against a party and the party brings against the party to whom the costs are payable a further proceeding on the same or substantially the same matter, the Court may stay the further proceeding until the costs are paid.’
17. There is nothing in the relevant provisions of the Federal Magistrates Court Rules which empowers the Court to set aside a notice of discontinuance or to reinstate proceedings which have been regularly discontinued in accordance with Rule 13.01. That accords with the traditional understanding of the effect of discontinuance which has been exemplified by Neill LJ in ROFA Sport Management AG v VHL International (UK) Ltd [1989] 2 All ER 743 where his Lordship said, at 747;
‘It was also not in dispute that if the action had been discontinued by an order made under Ord 21 r 3 and the order had been drawn up the action would have been at an end and no order could be made thereafter under Ord 15 r 6(2). Order 21, though with amendments, can be traced through Order 20 of the Rules of 1962 to Order 26 of the Rules of 1883. It provides a complete code relating to the discontinuance of an action. It also deals with cases where a party wishes to withdraw part of a claim or counterclaim. In the present case, however, the order did not provide for discontinuance under Ord 21, r 3 and the application for the rectification of the order of 14 August 1985 has been dismissed.’ (emphasis added)
However, they also agree that the Court has an inherent power to set aside a notice of discontinuance in exceptional circumstances in order to prevent injustice or abuse of its process. The circumstances in which such a power arises were described by Ryan J in SZFOZ at [18] and [19]. Where the discontinuance might involve an abuse of process or was procured by fraud, the Court may, on application by a party affected by the offending conduct, set the discontinuance aside.
There are many other cases at first instance in this Court to the same effect. In Maddison v Qualtime Association Inc [2010] FMCA 25, after an extensive review of authority, Wilson FM concluded:
30. Following on from a consideration of these cases, I conclude that where a Notice of Discontinuance has been filed in proceedings that were otherwise within the jurisdiction of this Court, the Court has the jurisdiction and the power to set aside the Notice of Discontinuance in circumstances where:
a) Its filing was procured by fraud or as an abuse of process;
b) It is necessary to ensure that the Court’s process does not cause an injustice; and
c) It was filed pursuant to an agreement that is void or voidable.
As the first respondent points out, Wilson FM emphasised at [33] that “[t]he Court’s assistance ought not be given where a party merely considers that he or she has made a bad bargain and seeks to pursue an action otherwise compromised”.
In SZSML v Minister for Immigration [2013] FCCA 1253 at [18] Judge Driver opined that the “weight of authority supports the proposition that the Court has an inherent power to set aside a Notice of Discontinuance in exceptional circumstances to prevent injustice or abuse of its process”.
In MZZIO v Minister for Immigration & Anor [2014] FCCA 618 at [14], Judge Whelan, in considering the above authorities, set out the questions to which a Court might turn its mind when considering whether there are exceptional circumstances that might justify setting aside a regularly filed notice of discontinuance, namely:
·Did the applicant knowingly and voluntarily file the notice of discontinuance?
·Was the filing of the notice of discontinuance procured by fraud or duress?
·Was it filed pursuant to a void, or voidable, agreement?
·Did the filing of the notice of discontinuance otherwise involve an abuse of process?
·Is the setting aside of the notice of discontinuance necessary to ensure that the Court’s process does not cause an injustice? And
·If the notice of discontinuance was set aside, does the application for review have no reasonable prospects of success?
Some background and the circumstances leading to the filing of the notice of discontinuance
The applicant is a citizen of Sri Lanka. It is said that he is a 19 year old male with poor English. He was 17 years of age when he came to Australia. He has no particular personal support in Australia beyond those friends that he has made amongst those who have recently arrived from Sri Lanka and the community organisations with which he has had contact.
On 9 September, 2013 he was notified of the second respondent’s decision to affirm a decision of a delegate of the first respondent to refuse him a protection visa. By the time he filed his first application for review, the applicant was well beyond the 35 day time limit within which to commence his judicial review proceedings.
In support of the present application, the applicant has filed an affidavit in which he swears that:
a)he was in telephone contact with a community legal centre in Melbourne, the Refugee and Immigration Legal Centre, from time to time. That organisation has provided him with legal advice but has not acted in any of his proceeding or assisted him to prepare court documents. However, the Legal Centre managed to arrange legal representation for him in the week before 8 December, 2014 (that is, the first return date of his second application);
b)as to the first application for judicial review that he filed:
i)he prepared his own application for judicial review and presented it to the Brisbane registry of the Federal Circuit Court. The registry declined to file the application because of a formal defect in the application;
ii)he returned and presented his application for judicial review to the registry ‘two or three times’ in total. The registry declined to file the application more than once because of formal defects that the applicant needed to rectify;
iii)on 18 December, 2013 the registry filed the application;
iv)underneath the question ‘does the applicant apply for an order that the time for making the application be extended under s.477 of the Migration Act 1958’ a cross appears in the ‘no’ box;
v)however, in the section of the application headed ‘grounds of application for extension of time’ he inserted: ‘I am not assisted by a lawyer at present and my English proficiency is poor, hence I had difficulties with getting assistance to file this case. I hope to send this before the 35 day deadline. Please accept my application, which may arrive late by a few days due to these logistical reasons.’
c)he had been told by his friends that without legal representation at the hearing of his first application scheduled for 13 October, 2014, he would have great difficulty explaining his application to the Court and that his case would fail;
d)on 24 September, 2014 he believed that he would not have legal representation for the hearing of his application;
e)at that time he believed that the Court would “fine” him if his application failed. He says that he also believed that “if the court fined me money I would be unable to pay the fine and the court would imprison me or that at least I would be returned from community detention to immigration detention.”; He did not disclose the source of his beliefs in this regard;
f)on 24 September, 2014 the applicant discussed his “concerns” with a volunteer at a community centre in Brisbane (not a community legal centre). He asked her: “What do you reckon I should do?”. The community centre worker recommended to him that he withdraw his application. The Centre already had forms for the applicant to use to discontinue his application. The worker completed the forms and the applicant signed them. The worker faxed a copy of the notice of discontinuance to the Registry and gave the applicant a copy.
g)later on 24 September, 2014 he telephoned the Refugee and Immigration Legal Centre in Victoria. He learned from advice that he was given, that the Court would not fine him and that he could not be imprisoned if his application was not successful. The difference between a fine and an order for costs was explained to him.
h)he realised that he had made a terrible mistake by withdrawing his application.
i)he attempted to apply to the Court to correct his mistake. Between 25 September, 2014 and 10 November, 2014 he attended the Brisbane registry and attempted to file an application, but the registry declined to file the application because of defects in the documents;
j)on 11 November, 2014 the applicant met with the same community centre worker in Brisbane that he had met on 24 September, 2013. She who wrote a fresh application for the applicant stating that ‘I am young, language barriers, don’t understand the legal system. Previously I lodged an application, was confused about legal options and withdraw that application without understanding the implications.[sic]’ The purpose of this application was to seek leave to withdraw the notice of discontinuance.
Consideration
The applicant’s argument in favour of setting aside the notice of discontinuance is based in the words of Wilson FM in Madison (above) where his Honour suggested that a notice of discontinuance might be set aside where it was filed pursuant to an agreement that is void or voidable. Drawing upon his Honour’s comments concerning consent orders made pursuant to an agreement between the parties to the subject litigation and a notice of discontinuance (necessarily the act of only the applicant to the proceedings) filed pursuant to such an agreement, the applicant argues that if there is some operative fact or circumstance that would lead a court to conclude that, had there been an agreement between the parties pursuant to which the notice of discontinuance was filed, that agreement would be void or voidable, the existence of such a fact or circumstance must also lead to the setting aside of a notice of discontinuance, notwithstanding that there was no agreement between the parties that such a notice should be filed.
In his written submissions, counsel for the applicant submitted:
If the applicant had entered a consent order with the respondents ending the proceeding, the agreement to enter the consent order would be vitiated by his unilateral mistake of fact, specifically that declining to enter the agreement and continuing the proceeding would expose him to criminal penalties. It is submitted that it would be so paradoxical as to amount to an injustice to hold the applicant to his notice of discontinuance when, had the same outcome of ending the proceeding followed from the agreement of the parties embodied in a consent order, his unilateral mistake would be a compelling ground for setting aside the consent order. There is no basis in principle for applying a distinction between proceedings that happen to have been ended by agreement and proceedings that happen to have been ended by an applicant or plaintiff acting alone when assessing the injustice of holding to a particular step in a proceeding a party who was fundamentally mistaken about the consequences of a that step.
It seems, the applicant argues that had there been an agreement between the parties that the applicant would file a notice of discontinuance of the proceedings, and that agreement was entered into based upon the applicant’s unilateral mistake (as to him being liable to a fine if he lost), the agreement would be void or voidable. The applicant argues that, notwithstanding that there was no agreement between the parties, his mistaken view about him receiving a fine if he failed in his proceedings is sufficient to lead the Court to conclude that the notice of discontinuance should be set aside because:
a)he filed acting on his mistaken view;
b)if there was a contract between the parties, the contract would be void or voidable because of his mistake; and
c)because he filed it pursuant to a mistake about being fined, he has established the relevant exceptional circumstances necessary to set aside the notice of discontinuance.
But, in my view, the applicant’s arguments cannot succeed for the following reasons.
First, there is no fraud or abuse of process in connection with the filing of the notice of discontinuance that is identified in the evidence. The filing of the notice was not induced by anything for which the first respondent or the second respondent might be considered responsible. The applicant chose to file the notice. It cannot be said that it was filed without his knowledge, consent or instructions.
Second, setting aside the notice of discontinuance is not necessary to ensure that the Court’s process does not cause an injustice. The filing of the notice was a voluntary act undertaken by the applicant. There is no injustice caused by the Court’s processes.
Third, the notice of discontinuance was not filed pursuant to any agreement between the applicant and the first respondent. The principles relating to unilateral mistake have no application. In any event, even if they did apply, they would not avail the applicant in this case. The clearest statement of the relevant principle is to be found in Taylor v Johnson (1983) 151 CLR 422 at 432:
It is that a party who has entered into a written contract under a serious mistake about its contents in relation to a fundamental term will be entitled in equity to an order rescinding the contact if the other party is aware that circumstances exist which indicate that the first party is entering the contract under some serious mistake or misapprehension about either the content or subject matter of that term and deliberately sets out to ensure that the first party does not become aware of the existence of his mistake or misapprehension.
Leaving aside the imperfect application of contractual principles to the present situation where the filing of the notice of discontinuance was the unilateral act of the applicant without reference to the first respondent:
a)there was no mistake by the applicant about the effect of the filing of the notice of discontinuance;
b)the mistake under which he laboured was not known to the first respondent, and could not reasonably have been known; and
c)the mistake was not a mistake of fact, but rather a mistake of law.
Further, the first respondent argues that it would be futile to set aside the notice of discontinuance because the applicant’s primary application has no prospect of success in any event. As the applicant submits, different approaches have been taken to the weight to be attached to the prospects of success that an applicant might enjoy in the discontinued proceedings. In Applicant A26 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1050 Mansfield J held that in the circumstances of that case:
the injustice to the applicant of being deprived of the opportunity of pursuing his claims, even if there is little prospect of success, is clear
In that case the injustice to the applicant came about because his former solicitor filed a notice of discontinuance without instructions to do so.
In MZZIO (above) the Court was satisfied that the application in which a notice of discontinuance had been filed had no prospect of success. Despite evidence that the applicant was suffering anxiety, depression, and financial difficulty when the notice of discontinuance was filed, those factors alone did not suggest that some grave injustice would occur if having re-assessed his situation, he was not permitted to reinstate the application.
In SZSML v Minister for Immigration [2013] FCCA 1254 the application in which the notice of discontinuance was filed sought impermissible merits review and involved unarguable grounds. Leave to withdraw the notice of discontinuance was refused.
The applicant submits that whilst the gravity of an injustice in refusing leave to withdraw a notice of discontinuance need not be linked to the general prospects of the application, where the prospect of success can be shown to be poor or non-existent, the gravity of the injustice diminishes or disappears. Further, he argues that it is a necessary corollary that the better the prospects of the discontinued application, the greater the injustice of refusing leave to withdraw a notice of discontinuance.
Here the applicant argues that his primary application has good prospects that “weigh in favour of the grant of leave to withdraw the notice of discontinuance”.
Prospects of success on the extension of time application
The applicant’s substantive application was filed out of time however this Court may, by order, extend the period of time for filing the application as it considers appropriate if an application for that purposes has been made and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The applicant’s substantive application was filed on 18 December, 2013. The time limited for the filing of the application for review, however expired on 25 October, 2013. The application was almost 2 months late.
The applicant’s evidence about the filing of his application is set out in his affidavit filed on 23 December, 2014. In that affidavit, he says:
11. I was notified of the decision of the RRT to refuse to grant me a Protection (Class XA) visa by letter dated 9 September 2013. A few days before 25 October 2013 I received a telephone call from Ms Adamjee, who warned me that the time limit for applying for judicial review was about to pass. Before 25 October 2013, I attempted to complete an application for judicial review and file it in the Court Registry. The Court Registry declined to accept the affidavit accompanying my application because it was not witnessed correctly.
12. I attempted to file my application without the Court Registry accepting it two or three times. On another attempt, I was unaware that three copies of the application were required and I had only one copy and did not have money that day to make any copies. I had to go to a library on another day to make the photocopies.
Despite a cross appearing in the ‘no’ box in answer to the question “Does the applicant apply for an order that the time for making the application be extended under s477 of the Migration Act 1958?” in the application filed on 18 December, 2014 I am satisfied that by that application, the applicant has sought a relevant extension of time.
In SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 Barker J summarised the factors a court should consider when determining whether an extension of time should be granted. Those factors are:
a)applications for an extension of time are not to be granted unless it is proper to do so; the legislative time limits are not to be ignored. The prima facie rule is that proceedings commenced outside of the time period will not be entertained;
b)there must be some acceptable explanation for the delay;
c)any prejudice to the respondent in defending the proceedings, caused by the delay, is a material factor militating against the grant of an extension;
d)the mere absence of prejudice to the respondent is not enough to justify the grant of an extension;
e)the merits of the substantial application are to be taken into account in considering whether an extension is to be granted.
The applicant argues that the extent of his delay of around two months “is not of such an ‘order of magnitude’ (SZMNO [2009] FCA 797, paragraph [19]) as to deter the granting of an extension of time”. The applicant suggests that the explanation for the delay may be summarised “as the applicant’s impaired ability to present the application to the registry in a form that would be accepted for filing, after several failed attempts to file the application that the applicant took time to remedy.” Further, he argues: “By necessary inference, the present applicant intended to file within time but his ability to do so by preparing an application in form that the registry would accept was impaired by his poor English, his youth, and his lack of money even to make necessary photocopies while in the court registry on a particular day.”
However, in my view, whilst the applicant’s evidence establishes why he did not file the application within the prescribed time, it does not explain the two month delay between the expiry of the time limit and when the application was filed. There is no explanation as to why he took at nearly two months to remedy the defects that prevented the filing of his application in the first place.
The first respondent concedes that it is not prejudiced by the delay, but notes that the mere absence of such prejudice is not enough to justify the grant of an extension: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; SZMNO (above) at [17].
I turn to the merits of the substantive review application that the applicant wishes to pursue.
The application filed on 18 December, 2013 contained 2 broad unparticularised grounds of review in the following terms:
1. That the decision of the second respondent, the Refugee review Tribunal member, was affected by legal error.
2. The refugee Review Tribunal did not afford me procedural fairness.
The second application for review filed by the applicant on 11 November, 2014 restates the first ground set out above, but not the second.
The grounds of the applicant’s application are unparticularised. However, notwithstanding that, according to his counsel’s submissions, jurisdictional error is evident in the tribunal’s decision.
Specifically, he argues that the tribunal did not address all of the claims made by the applicant, or the integers of those claims. In particular, he submits that: “…in addressing the claim for complimentary protection under s.36(2)(aa) the RRT did not consider the material before it about the applicant’s personal characteristics and how he would be affected by even a short period of detention or incarceration on remand. Consequently, the decision of the RRT is affected by jurisdictional error”.
The applicant argues that before the tribunal, he claimed that his “youth, innocence, impressionability, immaturity, lack of worldly experience together with his appearance and slight physical stature” meant that he would have been exposed to inhuman or degrading treatment for any period of imprisonment in Sri Lanka, including imprisonment for a period of days on remand, should he be returned to Sri Lanka. However, it is not at all clear that he put his case on that basis at all.
It is true that the applicant’s submissions referred to his personal characteristics. In particular, in the written submissions made by his representative on 19 June, 2013 it is said:
1. The applicant's vulnerability
The applicant has very recently turned 18 years of age. He arrived in Australia in 2012 as an unaccompanied minor, and bas suffered trauma in Sri Lanka. We submit that as a young person, he should be considered to be a vulnerable witness. The nature of his refugee claims are also impacted by his young age. As a young applicant, his knowledge and ability to make detailed refugee claims cannot be expected to be articulated with the same level of sophistication as an adult, and the independent country information regarding people with a similar profile to the applicant’s must be given considerable weight, in addition to his subjectively voiced fears.
As well as his young age, the applicant experiences other factors that impact on his ability to give evidence, such as his long detention in Australia, living away from his family in Australia, and the trauma he has experienced. In his home country, including forced labour, physical assault, and psychological harm in relation to his fears for his own safety and that of his family if he were to deny the demands made of him by the SLA.
It will appreciated that those matters were raised in the context of the applicant’s ability to properly recount his claims and give evidence of the matters necessary to establish his visa entitlement. The context demonstrates that they were not put forward as an independent ground upon which the applicant claimed to base his claim to the relevant visa. They were not put forward as one of the integers of his claim. So much is confirmed earlier in the applicant’s representative’s written submission:
b) The applicant fears that, if he is returned to Sri Lanka, he will suffer persecution and/or substantial discrimination amounting to a gross violation of human rights in the form of forced labour/recruitment, psychological harm, abduction or arbitrary arrest and detention, imprisonment, extortion, physical assault and torture, and possible death, at the hands of the Sri Lankan authorities, or pro-government military or paramilitary groups on account of, considered separately or cumulatively:
(i) His Tamil ethnicity;
(ii) His identity as a young person of Tamil ethnicity from the North West Province of Sri Lanka;
(iii) His membership of the particular social groups 'young Tamil males' and/or 'young Tamil males from Northern West Province' and/or 'young Tamil males from Udappu/Puttalam';
(iv) His actual and/or imputed political opinion in support of the LTTE, and against the activities of the Sri Lankan authorities and the systematically brutal treatment of ethnic Tamils resulting from;
• His Tamil ethnicity;
• His profile as a young Tamil male from the North-West of Sri Lanka;
• His illegal departure by boat from Sri Lanka, and his asylum claim and residence in Australia.
(v) His membership of the particular social group 'Tamil asylum seekers/returnees who have fled Sri Lanka unlawfully'. We submit that he will face discriminatory treatment beyond the normal punishment for this crime amounting to persecution on account of his profile outlined in (i) - (iv) above if he is forced to return to Sri Lanka.
In later written submissions delivered by the applicant’s representatives (1 July, 2013) they also said:
We refer to previous submissions including reports confirming that prison conditions in Sri Lanka did not meet international standards and amount to degrading treatment or punishment under the European Convention on Human Rights. In our submission, the real risk that the applicant will be held in remand for any period at all gives rise to protection obligations on the basis that those conditions of imprisonment amount to degrading treatment or punishment under subsection 36(2)(aa) of the Migration Act 1958. We note particularly that there is no requirement that humiliating and debasing treatment be ongoing for any arbitrary period of time before it will amount to degrading treatment in law. We submit that any exposure to such treatment must amount to degrading treatment for the purposes of the Migration Act.
In this regard, we refer to a recent decision of the Tribunal in relation to an applicant with similar characteristics to [the applicant], which we enclose in full for your reference. The Tribunal found that, having accepted that there is a real risk that an 18 year old Tamil boy from Uddapu who departed the country illegally will spend up to four days on remand in Negombo prison, there were substantial grounds for believing that he will face degrading treatment or punishment.
64. On the evidence before me, the applicant exhibits certain personal characteristics which render him so vulnerable that the conduct, punishment or treatment he faces while on remand, even for a short period would rise to the level of degrading treatment. These characteristics are his youth, innocence, impressionability, immaturity, lack of worldly experience together with his appearance and slight physical stature. In simple terms, while he may now have turned 18, he is still effectively a child in terms of my assessment of his particular vulnerability.
65. ln my assessment in facing such treatment or punishment while on remand and there is a real risk that he will, based upon the country information about prison conditions in Sri Lanka, experience humiliation or debasement, a diminution of his dignity or fear or anguish so significant such that it could be regarded as capable of breaking his physical or moral resistance. I am satisfied that he will experience extreme humiliation which is unreasonable for the purpose of s.5(1) of the Act. I find the treatment or punishment the applicant faces on remand for a short period ought be regarded as degrading treatment or punishment taking his particular characteristics and attributes into account.
In any event, in our submission, the Tribunal does not have sufficient information to find the risk of a Magistrate imposing a custodial sentence to be farfetched or fanciful with reference to the Tribunal's characterisation of the available evidence in relation to the sentencing of returnees, we submit that not all the advice points to a sentence of a fine.
Of that argument, the tribunal recorded:
54. The representative provided a post-hearing submission dated 1 July 2013. In summary it is submitted that, in the absence of monitoring of returnees from Australia, the fact that there are no reports of harm coming to returnees is meaningless. Findings of risk should not be based on a statistical analysis of the number of returnees and a lack of information as to their treatment. In light of available country information there is a substantial basis for the applicant’s fear on return. His ethnicity, young age and other personal factors referred to in previous submission amount to a real chance of harm. Human Rights Watch Report refers to violence, including sexual violence, perpetrated against returnees accused of links with the LTTE. The applicant’s extended time in Australia, a country with a significant Tamil diaspora, will exacerbate the risk that the applicant will be imputed with an LTTE connection. The UNHCR Guidelines identifies persons perceived as having had links to the Sri Lankan diaspora that provided funding and support to the LTTE are at risk on return to Sri Lanka. Sri Lankan newspapers report that many Sri Lankan asylum seekers in Australia have LTTE links and are involved in fund-raising for the LTTE. The applicant will therefore come under suspicion and risks being harmed for a Convention reason on return.
55. The representative also submitted that the applicant will suffer significant harm on return to Sri Lanka while held in remand pending bail on charges relating to his illegal departure from Sri Lanka. A custodial sentence for the alleged crime of illegal departure is mandated in Sri Lankan law and there is a real and substantial basis for finding that the applicant will suffer degrading treatment or punishment given the prison conditions in Sri Lanka.
The tribunal’s reasons reveal that it had regard to the applicant’s young age. It did so in the context of the matters for consideration under both ss.36(2)(a) and 36(2)(aa) of the Act. Specifically, for the purposes of s.36(2)(aa) of the Act, the tribunal found:
The Tribunal does not accept the process, penalty, and remand conditions this applicant faces amounts to torture, cruel or inhuman treatment or punishment, or degrading treatment and punishment, and therefore does not amount to significant harm.
The applicant argues that in reaching its conclusion in respect of this applicant, the tribunal did not turn its mind to the applicant’s particular vulnerabilities and whether those particular vulnerabilities presented a real risk of suffering significant harm while subject to a short period of detention, remand, or imprisonment in the conditions prevailing in Sri Lanka as had occurred in the other case to which the tribunal had been referred.
The difficulty for the applicant’s argument is that apart from the evidence about the applicant’s age and what might be inferred from it, there was nothing else that would have informed the tribunal of the applicant’s “particular vulnerabilities”. He claimed that he looked younger than his age, but that was all. There was no direct evidence about his innocence, impressionability, immaturity, lack of worldly experience. In the case to which the applicant had referred the tribunal, an assessment of those matters had been made by the tribunal. That is sufficient to distinguish this case from that relied upon by the applicant’s representatives in their written submissions. In any event, each matter needs to be decided by the tribunal on its own facts.
The applicant reminds me that the tribunal is required to consider all claims and integers of his claims that appear expressly on the face of the material before it, even if the claim or integer is not articulated in terms that expressly invoke the tribunal’s task of review under s.414 of the Act. Whilst that is plainly so, the tribunal’s reasons reveal that it has considered the applicant’s claims and the integers of those claims in the way in which the applicant chose to put them to the tribunal.
In relation to the procedural fairness ground, it is clear that the tribunal invited the applicant to appear before it to present claims and evidence in accordance with s.425 of the Act. The applicant did in fact appear and presented his case on 25 June, 2013. He had the assistance of his representatives.
To the extent that the applicant seeks to cavil with the tribunal’s finding that the applicant’s claims were exaggerated and his evidence should be rejected, he is, in my view, attempting to have this Court engage with the merits of the tribunal’s decision, rather than to identify any jurisdictional error.
In my view, the applicant’s proposed application for review has no real prospects of success.
Conclusion
In my view, the applicant has not demonstrated a basis upon which the notice of discontinuance filed by him in BRG 1176 of 2013. His proceedings should not be reinstated. Apart from anything else, he has no prospects of obtaining an extension of time within which to commence his judicial review application. Leaving aside the unsatisfactory nature of the explanation for his delay, the application for review that he wishes to pursue does not demonstrate any prospects of success so as to warrant and extension of time within which to commence it.
The application to set aside the notice of discontinuance must be dismissed with costs as claimed by the first respondent as set out in his written submissions.
It those circumstances it is also appropriate that proceedings BRG 986 of 2014 should also be dismissed. The first respondent seeks costs in those proceedings according to Schedule 1, Part 3, Division 1, item 1 of the Federal Circuit Court Rules2001. That amount, $1,367.00 is appropriate.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 24 December, 2015.
Associate:
Date: 24 December 2015
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