CFN15 v Minister for Immigration

[2017] FCCA 75

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFN15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 75

Catchwords:
MIGRATION – Judicial review – out of time application – protection visa – position of the Minister.

Legislation:

Migration Act 1958 (Cth), ss.5J, 420, 424AA, 425, 477(2)

Cases cited:

SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69

STPB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 818
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZTAL v Minister for Immigration and Anor [2015] FCCA 64
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

Applicant: CFN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2403 of 2015

Judgment of: Judge Harland

Hearing date: 14 December 2016

Date of Last Submission: 10 January 2017

Delivered at: Melbourne

Delivered on: 19 January 2017

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr Leerdam

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application for an extension of time pursuant to section 477(2) of the Migration Act 1958 is granted.

2. The application for judicial review filed on 27 October 2015 is dismissed.

3. The applicant is to pay the first respondents costs fixed in the sum of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2403 of 2015

CFN15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant filed an application for judicial review on 27 October 2015. The applicant seeks an extension of time to apply for relief from the decision of the Tribunal dated 31 March 2014.

2. It is important to note that the order 7 of the orders made by the Registrar on 1 April 2016 listed the application for the extension of time “for hearing and if granted a final hearing” before me on 14 December 2016.

3. At the outset it is necessary to express my dissatisfaction with the way the solicitor for the Minster conducted this case. I address this later in these reasons.

Background and the Tribunal’s decision

1. The applicant is a Sri Lankan citizen. He is a Tamil. He has a wife and daughter. He worked as a fisherman before leaving Sri Lanka. The applicant signed a witness statement which accompanied his protection visa application to 5 August 2012. It appears at pages 53 to 54 of the Court Book.

2. The applicant had the assistance of a migration agent who prepared written submissions dated 25 August 2012 in support of his application. The delegate issued her decision refusing the applicant’s visa application of 12 October 2012. The delegate found that the applicant was a credible witness but was not satisfied that the harm he feared amounting to persecution.

3. The applicant applied for review and was invited to attend a hearing before the Tribunal and did so. He also had the assistance of his migration agent at the Tribunal hearing.

4. On 31 January 2013 the Tribunal hearing was adjourned because the interpreter was unfamiliar with certain terms which were necessary to be interpreted in order for the applicant to have a fair hearing. The applicant’s migration agent prepared written submissions dated 22 February 2013. The submissions primarily focus on country information. The second hearing took place on 25 February 2013.

5. The Tribunal member acknowledged that delay in finalising his decision and said he had regard to the audio recordings of the hearing because of that. The Tribunal member was satisfied that the standard of interpreting at the second hearing was reasonable.

6. The Tribunal member referred to the submissions received on behalf of the applicant on 30 January 2013 and 22 February 2013.

7. The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

Out of time application

1. The application is 17 months out of time. the applicant says is that he was not informed by his migration agent until 19 October 2015 that the Tribunal had dismissed his application.

2. The applicant and participated in the hearing before the Tribunal on 31 January 2013 and 25 February 2013. The decision was not published for over a year. He says he had not heard from his migration agent for some time and called to find out the progress and it was only then that he was told that it had been dismissed. He says in his affidavit that when he called them he was told that they received letter dated 2 April 2014 telling them that his application had been refused. He annexes an email from his migration agent dated 20 October 2015 attaching the decision which provides Victoria Legal Aid’s phone number and advises him to call them as soon as possible. The email does not make any reference to this being the first time that the agent had sent the decision to him. He did not provide any other details does not provide any other supporting material. He did not give any indication that he asked his migration agent to provide an email confirming that the fault was theirs.  The applicant did file his application a week later. This is consistent with his evidence. He was not cross-examined.

3. The Minister filed a response on 9 November 2015 which put the applicant on notice that he opposed the application for extension of time on the basis that the explanation was inadequate and that the substantive application lacked reasonable prospects of success as it makes bare assertions of jurisdictional error which cannot be made out without particulars.

Grounds for Review

1. The grounds for review in the application make bare assertions without particulars follows:

   1.The decision of the Refugee Review Tribunal (“RRT”) is affected by jurisdictional error.

   2.The RRT took into account irrelevant matters, facts and evidence and failed to take into account relevant facts, matters and evidence.

   3.The RRT did not conduct the hearing in a fair and just  manner and/or according to law.

   4.The RRT hearing and decision is unreasonable in all the circumstances of the case.

   5.The RRT erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give proper consideration to and weight to the evidence presented by me.

   6.The RRT erred in law and/or in fact, and thereby fell into jurisdictional error, when it summarily dismissed and discounted the evidence presented by me.

   7.The RRT erred in law and/or in fact, and thereby fell into jurisdictional error, when  it misapplied the law, regulations, policy and guidelines in deciding and determining whether  I was a genuine refugee and that l had a genuine fear of persecution.

2. The applicant made limited oral submissions which is not unusual when litigants are unrepresented in migration matters.  The applicant was unable to expand on the grounds for judicial review. He said that someone helped him with those and said he was going to represent him but did not.

3. Mr Leerdam spoke to his written submissions. He said that the grounds can be divided into two groups, being that the decision was not fair and just and that the decision was unreasonable. That is affair description.

4. Ground one does not identify how the Tribunal made an error.  Without particularisation it is meaningless. It does not need to be discussed further.

5. Ground two complains that the Tribunal took into account irrelevant matters and ignored relevant ones but gives no indication of what these were. It is for the applicant to make his case. The applicant was not able to expand on this in his oral submissions.

6. The Minster submits that ground three could be read as being a complaint that s.425 of the Migration Act 1958 (Cth) (“Migration Act”) was breached.

7. At [24] the Tribunal member records that he told the applicant that his credibility was in issue. At [25] the Tribunal member says using the procedure in s.424AA of the Migration Act he put the inconsistencies in the applicant’s evidence to him and invited the applicant to respond including advising him that he could seek additional time to do so. The Tribunal member sets out the inconsistencies.

8. The Tribunal acknowledged that the applicant gave evidence through an interpreter and was also mindful of his education level but found that these did not explain the “numerous and material inconsistencies in the applicant’s evidence”.

9. The Tribunal set out other concerns about the inconsistent evidence and new claims made by the applicant during the course of hearing.

10. The applicant made post hearing written submissions.  In responding to the Minister’s supplementary submissions with respect to the application of SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. On 30 November 2016 the appellant’s in that case have been granted special leave to appeal to the High Court of Australia (“High Court”). The applicant raises issues beyond that issue. As the applicant was unrepresented at the hearing and did not make oral submissions at the hearing I propose to address those additional submissions. It is clear that the applicant had some understanding. In those submission he complains that the Tribunal breached s.420 of the Migration Act in the way it conducted the hearing. This is in reference to the fact that the hearing was conducted by way of videolink.  The fact that the hearing occurred by way of videolink, without more, does not amount to unfairness.  

11. The Tribunal was mindful of issues with interpretation and adjourned the first hearing because of difficulties with the first interpreter.  At [13] the Tribunal member recorded that the applicant’s migration agent was an accredited English and Tamil interpreter. He recorded checking with the applicant and his migration agent about the standard of interpretation and offered an adjournment so the migration agent could identify concerns about the interpretation of the applicant’ evidence. The Tribunal member recorded that he clarified that applicant’s evidence in each instance where the migration agent addressed a concern.

12. The Tribunal concluded that it was satisfied that the standard of interpreting at the second hearing was reasonable and that the applicant understood the proceedings and was able to meaningfully participate.  There is nothing in the decision record which indicates the applicant’s migration agent sought an adjournment to address issues with respect to the standard of interpreting.  There is no transcript of the proceedings before the Tribunal. A transcript is necessary to“… disclose such inadequacy or incompetence in the interpretation that the applicant can be said to have been prevented effectively from giving his evidence.”: STPB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 818 at [1].

13. I also note the comments of Kenny J in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [26]:

    Perfect interpretation may, moreover, be impossible… “[v]ery rarely is there an exact lexical correspondence between the two languages being used”… Nonetheless, some interpretations will be better than others, and a particular interpretation may well be less than perfect yet acceptable for the Tribunal’s purposes.

    And at [29]:

    Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.

    And at [41]:

    What are the factors that might lead a reviewing court to conclude that the transcript of a Tribunal hearing discloses such incompetence in the interpretation that, in consequence, the applicant for refugee status can be said to have been effectively prevented from giving his evidence? In my opinion, those factors include, amongst others, the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter.

14. I am satisfied that the applicant received a fair hearing.

15. Ground four complains that the decision reached was unreasonable. In his written submissions the applicant complains that [59] of the decision “was so illogical as to be unreasonable”. He refers to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 but does not expand on this. In [59] the Tribunal concludes that after assessing the evidence it was satisfied that there was no real chance that the applicant would be imputed with a pro-Liberation Tigers of Tamil Eelam (“LTTE”) decision.

16. Reading the Tribunal decision as a whole I am satisfied that the Tribunal carried out its statutory obligations for review. The Tribunal dealt with the applicant’s claims to fear persecution based on him being a Tamil from the North, being a fisherman and being a failed asylum seeker. The Tribunal was satisfied that the applicant would not have a profile where he would be suspected of having links with the LTTE. I am satisfied that the Tribunal complied with its obligations under s.425 and s.424AA of the Migration Act.  The Tribunal sets out the basis for the conclusions it reached.  It cannot be said that the decision lacks “an evident and intelligible justification”: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76].

17. Ground five complains about the weight the Tribunal gave to the applicant’s evidence. This really seeks an impermissible merits review. The issue of what weight is to be given to the applicant’s claims is also a matter for the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291-2.

18. Ground six complains that the Tribunal summarily dismissed the applicant’s evidence. This ground cannot be supported as it is clear from the decision that the Tribunal considered the applicant’ s evidence and gave reasons for rejecting parts of the evidence.

19. Ground seven complains that the Tribunal misapplied the law. The Minister submits that without more this is simply disagreeing with the decision.  There is no substance to this ground.

Supplementary written submissions

1. Late during the course of the hearing Mr Leerdam, the solicitor appearing for the Minister, made oral submissions with respect to the decision of SZTAL v Minister for Immigration and Anor [2015] FCCA 64 and the decision of the Full Court of the Federal Court of Australia (“Federal Court”) in SZTAL v Minister for Immigration and Anor [2016] FCAFC 69 (“SZTAL”). As his oral submissions were difficult to follow, and certainly impossible for an unrepresented litigant to follow, he offered to make supplementary written submissions. The applicant sought an opportunity to reply to those submissions. After the out of time issue was explored at the hearing Mr Leerdam also submitted that the Minister would no longer oppose leave being granted for the applicant to proceed out of time so that he would have the right of appeal. Mr Leerdam’s firm regularly appears for the Minister in migration matters. The High Court granted special leave with respect to SZTAL on 30 November 2016. The Minister filed written submissions on 7 December 2016. The hearing took place on 14 December 2016. It is unsatisfactory for Mr Leerdam to raise this matter towards the end of the hearing. He could have filed further submissions prior to the hearing or at the very least should have mentioned this issue for the hearing began.

2. It also is highly unsatisfactory for Mr Leerdam to concede the extension of time issue only in circumstances of having raised the issue of this case late and surely so that the applicant would have the right to appeal is rather than having to seek leave to appeal.

3. The position Mr Leerdam takes at [3] of his supplementary written submissions is inconsistent with his oral submissions at the hearing.  At the hearing Mr Leerdam clearly abandoned the Minister’s opposition to the applicant being granted leave out of time.  In his written submissions he seeks to maintain the Minister’s opposition (which he had in fact withdrawn at the hearing) to the applicant being granted leave to proceed out of time but asks that this Court reserve its decision until the High Court proceedings are determined if the Court does not accept his submissions about SZTAL. This is contradictory to his oral submissions, which was to invite the Court to determine this case in accordance with the law as it stands with respect to SZTAL. The inconsistency in the Minister’s position has added to the difficulty in determining this case.

4. It is one thing to seek to adjourn the hearing pending a decision of a higher court decision which may affect the outcome of the case. That is fairly common place and is sensible as it may result in consent in some matters. It is quite a different thing to ask a Court to reserve its decision after hearing the evidence pending a higher court decision which could be many months away. If the applicant exercises his right of appeal then it is open for him to seek that the hearing of his appeal not take place until after the High Court has made its decision.

5. Of further concern is the inconsistency in Mr Leerdam’s written submissions with his position in his oral submissions at [3] where he says that if the Court disagrees with his submission that this case is not affected by SZTAL. “the Minister maintains his opposition to the extension of time but submits that the judgment of this Court should be reserved pending the resolution of the proceedings in the High Court.” This is concerning in two respects. Firstly, Mr Leerdam did not maintain his opposition to the out of time application secondly at no stage during the hearing did he suggest the Court reserve its decision pending the outcome of the High Court decision. This approach in this case has been unhelpful and has muddied the waters rather than clarifying matters.

6. SZTAL concerns the construction of the phrase “intentionally inflicted” in the context of significant harm as defined in s.5J. This arose in the case of SZTAL when considering prison conditions in Sri Lanka during any period of remand.

7. In his written submission the applicant says that the Tribunal “may have” fallen into jurisdiction error in its construction of the phrase “intentionally inflicted.”

8. It is necessary to consider the Tribunal findings in this case with respect to time spent in prison and fines. The Tribunal found at [66] and [67]:

   The Tribunal notes the country information that bail is routinely given on the accused's own recognisance although a family member is also required to provide surety. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison and may remain there for some days until a bail hearing is available. The Tribunal accepts that conditions in Sri Lanka's prisons are generally poor. Conditions on remand have been described in media reports as being overcrowded. The Tribunal has considered the available country information in relation to the circumstances of individuals who are held in prison in Sri Lanka and notes the reports of torture and assault. However it considers it is prisoners who otherwise have a profile of being opposed to the current Sri Lankan government profile (such as persons affiliated to the LTTE) who are targeted in this way. There have not been reports that returnees held awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment. The Tribunal is not satisfied that the short-term nature of the imprisonment on remand is serious harm and the Tribunal finds that the applicant would not face a real chance of serious harm if he was held on remand for a short time.

   (footnote omitted)

   There is also the consideration of the applicant facing a jail term for his illegal departure. … There is no information before the Tribunal that indicates returnees who illegally departed Sri Lanka are having jail terms imposed against them. The Tribunal considers based on the available country information there is only a remote and therefore not a real chance the applicant will be sentenced to a term of imprisonment for his offences under the lEA. … The evidence before the Tribunal does not suggest the applicant will be unable to pay or that fine or that payment of the fine will cause him hardship, nor is he without any relative able to provide surety, so he will be able to receive a suspended sentence. Therefore the Tribunal considers there is no real chance the applicant will face an extended period of imprisonment arising from his illegal departure from Sri Lanka.

1. Judge Driver said the following at [50]:

   The Minister makes a further point, which I accept.  Having found that any discomfort to which the applicant might be exposed would not be intentionally inflicted (bearing in mind that it was likely that he would only be detained for a very short period of time and would not be targeted in the penal system it was not open to the Tribunal to conclude that applicant might suffer “significant harm” as that term is defined.  It matters not that the Tribunal may have noted that there is some evidence of mistreatment of prisoners in Sri Lankan gaols.  The role of the Tribunal, which it performed in the present case, was to undertake an “individual and fact-specific inquiry” so as to determine “how this applicant may be treated if he or she returns to the country of nationality”.  The Tribunal’s finding was that this applicant would not suffer significant harm. 

   (Footnotes omitted)

2. The Full Court of the Federal Court dismissed the appeal against Judge Driver’s decision: see SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. The High Court granted special leave to the applicants to appeal this decision: see SZTAL v Minister for Immigration and Border Protection [2016] HCATrans 276. Unless the High Court overturns the decision of the Full Court of the Federal Court I remain bound by it.

3. In this case the Tribunal made a specific finding based on country information that prisoners who do not have a pro-LTTE profile (such as the applicant)  do not suffer torture and assault in prison and that being on remand for a short period does not amount to serious harm. I accept the Minister’s submissions that the issue in SZTAL with respect to intentional inflection of harm does not arise in this case as the Tribunal did not reach its conclusion on that basis.

Conclusion

1. It would be most unfair to the applicant to allow the first respondent to change his position post hearing with respect to the out of time application. For the abundance of caution I make the following comments. Whilst the applicant provided little evidence in support of his explanation for delay, his evidence was not challenged. He filed his application for judicial review a week after receiving the email from his agent. I am also of the view that the fact that the impact of the decision of SZTAL required further submissions which both parties made is sufficient for me to find that that the applicant has a reasonably arguable case and should be granted leave to proceed out of time. I grant that leave.

2. I am mindful of the discussions about the application considerations with respect to out of time applications as discussed recently in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110.

3. For the reasons I have given above I find that the Tribunal did not make a jurisdictional error. Therefore the application for judicial review must be dismissed.

4. The Minister sought costs in the sum of $4,600 after taking into account the need for supplementary written submissions. This is well below the amount allowed for in the Federal Circuit Court scale of costs. Nonetheless I do not think the Minister is entitled to costs arising out of the written submissions as that should have been unnecessary. I will order costs in the sum of $4,000.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 19 January 2017