DLC17 v Minister for Immigration
[2018] FCCA 791
•19 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DLC17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 791 |
| Catchwords: MIGRATION – Show cause hearing – safe haven enterprise visa (class XE) (subclass 790) – applicant claimed to fear harm because of Tamil ethnicity, perceived links with the Liberation Tigers of Tamil Eelam and imputed political opinions – applicant failed to give particulars of grounds – applicant failed to establish how the Immigration Assessment Authority fell into jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958, ss.36(2)(a), Part 7AA Federal Circuit Court Rules 2001, r.44.12 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 AQN15 v Minister for Immigration and Border Protection [2016] FCA 571 Spencer v Commonwealth of Australia (2010) 241 CLR 118 SZTTW v Minister for Immigration and Border Protection [2014] FCA 837 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| Applicant: | DLC17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 415 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 19 March 2018 |
| Date of Last Submission: | 19 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 19 March 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
This application is dismissed
The applicant pay the respondent’s costs fixed at $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PEG 415 of 2017
| DLC17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
On 8 February 2018 while sitting in Perth I made orders requiring this case to go forward under the show cause procedure set out in r.44.12 of the Federal Circuit Court Rules. On that day and in accordance with an instruction given by the Chief Judge of the Federal Circuit Court, the Honourable Mr Justice Alstergren, I called over an array of cases that had been fixed for final hearing in March 2021, more than three years from now. With a view to exploring each and every available option to reduce the impact on litigants claiming refugee status whose cases are forced to wait for up to three years for their cases to be heard, I conducted a directions hearing in this case on 8 February 2018. The applicant was present with an interpreter. Ms Anicic, solicitor, appeared for the minister. On that occasion I said the following –
This case is presently fixed for hearing on 30 March 2021, three years from now. I have read the papers in this case and there are issues about whether an arguable case has been raised by you. In those circumstances it seems to me to be best not to wait for three years but to bring this case on for a show cause hearing next month.
A little later in the exchange the following took place –
THE INTERPRETER: OK. So, are you telling me, my lord, that that next month you are going to fix a hearing for me?
HIS HONOUR Next month I am going to hear this case.
THE INTERPRETER: Yes. I agree.
I told the applicant that he should ask for legal help if he had any concerns. The exchange went as follows –
HIS HONOUR: Thank you. If you have any concerns, you should ask for legal help.
THE INTERPRETER: Okay. Understand.
HIS HONOUR: Have you followed everything so far?
THE INTERPRETER: Yes, I understand. That means you’re telling next month you will have the hearing, and I will prepare myself.
HIS HONOUR: Excellent. Thank you.
As a result, on 8 February 2018 I made orders vacating the hearing that had been fixed before another judge to be held on 30 March 2021. I made orders for both parties to file written submissions seven days from the date appointed for the show cause hearing. On 6 March 2018 the parties were notified that the show cause hearing was to take place before me today, 19 March 2018 at 10am Australian Western Standard Time.
The minister filed written submissions in accordance with my orders on 8 February 2018. The applicant did not file submissions whether in accordance with the 8 February 2018 orders or at all. The applicant failed to file an amended application by 11 October 2017 as ordered by Registrar Stanley of this court by orders made on 23 August 2017.
Before going to the detail, it is enough to record at this stage that the applicant arrived in Australia on 26 August 2012 as an unauthorised maritime arrival, having been born in Sri Lanka on 16 December 1987. He applied for a safe haven enterprise visa on 28 September 2016. On 7 March 2017 the minister’s delegate decided not to grant the applicant the safe haven visa for which the applicant applied. The case was then referred to the Immigration Assessment Authority (“IAA”) in accordance with Part 7AA of the Migration Act (“Act”). On 12 July 2017 the IAA affirmed the delegate’s decision not to grant the safe haven visa the applicant sought. On 31 July 2017 the applicant applied to this court for judicial review of the IAA’s decision.
In his application to this court the applicant relied on three grounds. Recorded exactly, they were as follows –
(1)Jurisdicational error.
(2)Bias based on conscious or unconscious prejudice by ignoring relevant material.
(3)Identifying a wrong issue on a wrong question.
(errors in original)
No details of any of those assertions were given. It was impossible to tell by reading them on what matters of fact or law the applicant relied to support any one of the three grounds of application that he said grounded his contention that the IAA fell into jurisdictional error.
Synopsis
Lengthy as that introduction has been, it puts the current application in context. For the reasons that follow, for the purposes of r.44.12 of the Federal Circuit Court Rules, I am not persuaded that the applicant has shown he has an arguable case (or even a reasonably arguable case) that he is entitled to the relief he seeks in this case for the issue of constitutional writs on the basis that the IAA fell into jurisdictional error. Further, in the exercise of the residual discretion that I possess, canvassed in such cases as Siddique v Minister for Immigration and Border Protection[1] and in SZTTW v Minister for Immigration and Border Protection,[2] I am not persuaded that the applicant has advanced contentions such that I should not dismiss this case.
[1] (2014) 144 ALD 328
[2] [2014] FCA 837
Relevant factual setting
The applicant completed an application and he made a statutory declaration in support of his claim for a safe haven enterprise visa. The IAA paraphrased the applicant’s claims in paragraph 7 of its reasons. Relevantly distilled, they were as follows –
a)in 1999 the applicant relocated to Moonampiti by reason of conflict in Mannar District;
b)the applicant and his family lived in areas controlled by the Liberation Tigers of Tamil Eelam (“LTTE”) as a result of which the applicant and his family were suspected of having an involvement with the LTTE;
c)the applicant’s uncle was detained in 2010 for two years;
d)in 2011 the applicant was asked by a naval person whether he was an LTTE Tiger;
e)in April 2012 while at a soccer ground five officers from the Criminal Investigation Department (“CID”) accosted the applicant and physically struck the applicant;
f)the applicant did not report episodes of his father’s drunken violence to police as he did not want to involve police in the lives of his family, especially as they were Tamil; and
g)the applicant feared persecution from the CID on the basis of being a Tamil and imputed with an LTTE connection on the basis of his illegal departure and from his father.
At the entry interview, the IAA said the applicant gave evidence consistent with the claims recorded above.
The IAA did not accept a number of matters advanced by the applicant. Specifically, the IAA did not accept that –
a)the applicant had been the subject of domestic violence at the hands of his father;
b)the applicant was assaulted by a naval person or that the applicant had a profile with the navy;
c)the applicant’s remote and minor links with the LTTE would cause the applicant to be a person of interest to Sri Lankan authorities or that he would be imputed with pro-LTTE or anti-government political opinion;
d)the applicant would be subjected to discrimination or economic hardship;
e)any penalty the applicant might face on his return to Sri Lanka on account of his illegal departure would constitute persecution;
f)the applicant satisfied the criteria for being a refugee;
g)the applicant satisfied the complementary protection criterion;
h)the applicant would suffer consequences on account of his illegal departure that would constitute significant harm for the purposes of s.36(2)(a) of the Act; and
i)there was a level of societal discrimination against Tamils in Sri Lanka such as to constitute significant harm under s.36(2)(a) of the Act.
The IAA rejected his claims.
In this court
In the passages above, I have already identified the three stated “grounds” on which the applicant relied. Several things must be said of them.
First, the applicant did not provide particulars of any of the three grounds. It was not possible to identify what the applicant meant in relation to any one of them, especially the first and the third. Where an applicant relies on unparticularised grounds of application, a strong line of authority has held that a judge in my shoes is entitled to dismiss the proceeding for that reason alone. Among those cases are AQN15 v Minister for Immigration and Border Protection[3] and WZAVW v Minister for Immigration and Border Protection.[4] There are others, including WZATH v Minister for Immigration and Border Protection.[5]
[3] [2016] FCA 571
[4] [2016] FCA 760
[5] [2014] FCA 969
Next, when an applicant applies to this court for judicial review, an applicant ordinarily argues that the Tribunal fell into jurisdictional error of the sort identified in the case of Craig v State of South Australia[6] because the inferior tribunal –
a)asked itself a wrong question; or
b)took into account irrelevant matters; or
c)failed to take into account relevant matters.
[6] (1995) 184 CLR 163
As the High Court held in Kirk v Industrial Relations Commission (NSW)[7] the above test is not some rigid taxonomy and the metes and bounds of jurisdictional error are not closed.
[7] (2010) 239 CLR 531
Here, the applicant did not say what the IAA did wrong. I asked him to tell me in his own words what he said the IAA did wrong. He was unable to say. He said he really did not know what the IAA did wrong. He said there are problems in his country and because of that he cannot go back. I asked him a third time, and he said the IAA did not accept what he said.
Ground 1 was not a proper ground of review. It did no more than identify the very issue the applicant was required to show. He failed to do so.
Ground 2 was a baseless allegation of bias. No evidence existed that the IAA exhibited actual or apprehended bias. Far from there being any evidence of bias in this case, it struck me that the IAA properly and diligently considered all claims the applicant raised before it. So far as country information was concerned, it was a matter for the IAA on what country information it chose to rely, as was held by the Full Court of the Federal Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[8] and in VWFW v Minister for Immigration and Multicultural and Indigenous Affairs.[9] At all events, the manner in which the IAA undertakes its task is significantly circumscribed by the terms of Part 7AA of the Act. It seemed to me that the IAA discharged its statutory obligations perfectly properly. I reject ground 2.
[8] [2004] FCAFC 10
[9] [2006] FCAFC 29
Ground 3 failed to identify the alleged error. So far as I could see, there was no error nor did the IAA ask itself a wrong question.
In my view, none of the grounds relied on made out a case remotely close to the existence of jurisdictional error. It follows that the applicant failed to make out that he had advanced a reasonably arguable case (or even an arguable case) that he was entitled to the relief he sought in this case for orders for the issue of constitutional writs.
But as has already been mentioned, according to the cases of Siddique and SZTTW, I must additionally consider whether circumstances exist in which, in the exercise of my discretion, I should refuse to conclude that no arguable case has been put forward. In the exercise of my discretion, this case should be dismissed.
Of course, if I were to make an order dismissing this proceeding under r.44.12 of the Federal Circuit Court Rules, the effect of that order would be to summarily terminate this case. Cases in the High Court and in the Full Court of the Federal Court have held that the power of summary dismissal should not be exercised lightly. Those cases include Spencer v Commonwealth of Australia[10] as well as AMF15 v Minister for Immigration and Border Protection.[11] I have proceeded with that cautionary statement uppermost in mind.
[10] (2010) 241 CLR 118
[11] (2016) 241 FCR 30
Having examined the merits of the applicant’s case, it seemed to me that this case should be summarily dismissed. I say that for several reasons including the following –
a)at no stage has the applicant put forward any details of his assertion in this case about what the IAA did wrong;
b)that was the situation despite orders of the court made on 23 August 2017 that required him to provide a properly particularised amended application, written submissions under those orders and written submissions under my orders of 8 February 2018; and
c)that he was unable to sensibly articulate jurisdictional error or anything approximating it today.
In my view the applicant has been given an abundance of opportunity to state the basis of his case and he has failed to do so. The show cause procedure is intended for this precise case.
Conclusion
I dismiss this proceeding and order the applicant to pay the minister’s costs in the fixed sum of $3,667.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of His Honour Judge Wilson
Associate:
Date: 3 April 2018
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