DKH17 v Minister for Immigration

[2018] FCCA 3811

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKH17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3811

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – grounds of review abandoned at hearing – application dismissed.

PRACTICE & PROCEDURE – Application for leave to amend application – substantial delay with no reasonable explanation – prejudice to Minister – insufficient merit in proposed grounds – application for leave refused.

Legislation:

Migration Act 1958 (Cth), s.5J

Cases cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Other materials:
Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A

Applicant: DKH17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2408 of 2017

Judgment of: Judge Smith

Hearing date: 30 November 2018

Date of Last Submission: 30 November 2018

Delivered at: Sydney

Delivered on: 30 November 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Counsel for the First Respondent: Ms R Graycar

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2408 of 2017

DKH17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant sought to amend his application and abandon the balance of the grounds in the application as it stands. It is relevant to such an application to take into account the delay of the application itself, the prejudice to the other parties and to the Court, and the prospects of the grounds proposed to be raised succeeding if leave were granted.

2. The applicant seeks judicial review of a decision of the Immigration Assessment Authority made on 9 July 2017. His application was filed on 31 July 2017.

3. On 5 October 2017, some two months after the filing of the application, orders were made by a Registrar of the Court concerning the preparation of this matter for hearing, including leave to file any amended application by 21 December 2017. No such amended application was filed.

4. The applicant seeks to explain his failure to do so in an affidavit affirmed by him on 26 November 2018. He says some time after he filed his application he asked a lawyer to help him with the matter. He could not remember the name of the lawyer but he said he could not afford to pay the lawyer the amount proposed to be charged, namely $4,500. The applicant said that he has permission to work in Australia but since April 2018 he has been unable to work because of a problem with his eye. He explained that last month, which I take to be a reference to October 2018, his family in Sri Lanka sent him some money and that he was now in a position to pay for a lawyer.

5. The applicant stated that a month ago he “gave my Court Book[1] to a person in the Tamil community in Sydney to help me find a lawyer to help me with the hearing”. That person could not do so until the previous week when the person said that he would arrange for the applicant to meet with a barrister, Mr Zipser, on 26 November 2018. I infer, first, that the meeting took place, and secondly, that as a result of the meeting the affidavit was prepared and filed.

   [1] Exhibit A.

6. The applicant does not give any satisfactory evidence of his actual finances. He does not say what he was earning up until April 2018 which, I note, was some six months after the order allowing him to amend his application. He does not give any evidence of his expenses. The applicant does not give any evidence about any efforts he had made at all to obtain legal representation other than indicating an unnamed lawyer assisted him in the month prior to the hearing, nor did he say that he sought pro bono assistance or approach the NSW Bar Association or Law Society for advice. It appears from his own evidence that he did very little.

7. I do not accept the evidence as a reasonable excuse for the failure to comply with the Court’s orders, and that reason is sufficient alone, given the lateness of the application and the fact that the matter has been set down for hearing since March 2018, to refuse the amendment: see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

8. However, I will also take into account the proposed grounds of the amendment. There are two grounds proposed to be raised. The first is that the Authority failed to consider whether it was wrong: namely, it failed to engage in the speculation required by the real chance test propounded by s.5J of the Migration Act 1958 (Cth) as it now is and as it arose under Article 1A(2) of the Refugees Convention[2]. The applicant relies upon the well-known passage in the judgment of Sackville J in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [60], [62]-[63] and [67].

   [2] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967).

9. The applicant relies in particular on [29] of the Authority’s reasons, and the following sentence:

   …Having regard to the applicant’s limited profile as a TMVP[3] candidate, that he encountered no threats or harassment during the election campaign, and that he did not win a seat, I have considerable doubt that he was contacted and threatened in relation to his candidacy for the TMVP from unidentified people. I am not satisfied that the applicant was threatened as he has claimed. While I accept that he continued to travel between Colombo and Ampara, I consider this was due to his earlier pattern of work and home visitation rather than being in order to avoid detection by the authorities or people opposed to his candidacy for the TMVP.

   [3] Tamil Makkal Viduthalai Pulikal.

   (Footnote added)

10. The applicant relies upon two words: first, “doubt”; and second, “satisfied”, to argue that the Court should infer that the Authority had some doubt about its finding and that it made a finding on the balance of probabilities.

11. I do not think that that passage gives rise at all to the inferences suggested. It is beyond any real doubt on a proper reading of the Authority’s reasons as a whole, and [29] in particular, and not taking a nitpicking approach to them, that the Authority engaged in a proper analysis of whether there was a real chance of serious harm or significant harm. The expression “considerable doubt” in [29] was in respect of the applicant’s claims not its findings and the lack of satisfaction is not consistent with an inference that there was a balance of probabilities but merely another way of saying that the Authority rejected the claim because it had considerable doubt about it.

12. On a plain reading, the principle explained by Sackville J in Rajalingam does not arguably arise in this case and I consider that the first ground sought to be raised has no prospects of success.

13. The second ground is that the Authority failed to consider a claim made by the applicant that he feared harm due to his Tamil ethnicity. I note initially that this claim, if it be called that, was not in fact made in the applicant’s protection visa application but as a general assertion in his entry interview. Given that the claim as such was not repeated by the applicant in any of his statements or in his evidence given at an interview before the delegate as far as the evidence establishes, I would infer that the claim was abandoned. For that reason it was not a matter that the Authority had to consider.

14. In any event, it is clear from [34]-[37] that the Authority dealt with the claim as made. It said at [34] that “recent reports before the delegate do not support a conclusion that Tamils, including Tamil men from the Eastern Province, are being systematically targeted and subjected to serious harm because of their race and/or area of origin”. That covers any claim raised that relies upon the applicant’s ethnicity. It expressly refers to such and the reference to the report not supporting a conclusion, in my view, can only be read as the Authority accepting what is stated in the report. 

15. I note that in the first sentence at [35] the Authority expressly noted the apparent claim made by the applicant to “fear harm from Sinhalese people generally, due to his Tamil ethnicity”. It would be odd having expressly noted it for the Court to infer that it had overlooked the claim and thereby failed to deal with it: see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593.

16. Nevertheless, the applicant submitted that the way in which the Authority purported to deal with the claim was simply by finding that the applicant did not have a profile which would attract serious harm, and he argues that that finding did not deal sufficiently with the claim of harm from Sinhalese people in general. He notes that some of the information before the Authority supported the conclusion that there was societal discrimination against Tamils. Societal discrimination against Tamils is one thing; persecution is potentially quite another, and persecution was dealt with in [34].

17. In light of that, I find that there are no reasonable prospects of the second ground succeeding and that this is another reason for refusing to grant leave.

18. I note, in addition, that the application to amend is made very late; indeed, only several days before the hearing and well after the Minister had, in accordance with the orders of the Court, filed written submissions concerning the grounds in the application as it then stood. Thus the lateness of the application has caused prejudice to the Minister who has had to expend further time, effort, and no doubt money, meeting an entirely new claim.

19. Lastly, the fact that the Court orders which are made to enable for the orderly disposition of cases such as this one according to their merit and their relative need for urgency, compared to other matters, and lateness of applications to amend that do arise from time to time on proper bases, put the Court at some disadvantage as well as all of the other applicants who are waiting for their turn to have their matters heard.

20. In all of those circumstances I am not satisfied that an amendment ought to be granted and the application to amend is refused.

21. There remains an application for judicial review of a decision of the Immigration Assessment Authority made on 9 July 2017. The Authority affirmed a decision of the delegate of the Minister made on 27 March 2017 to refuse to grant the applicant a protection visa.  The applicant’s claims for a protection visa are set out in [4] of the first respondent’s written submissions and the Authority’s reasons are summarised at [14]-[21].

22. The original grounds in the application for review have been abandoned and the application to amend to include two further grounds has been refused.

Conclusion

1. In those circumstances the applicant accepts, and I agree, that the only remaining course is for the substantive proceedings also to be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 19 December 2018