DOR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 1579
•20 September 2019
FEDERAL COURT OF AUSTRALIA
DOR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1579
Appeal from: DOR17 v Minister for Immigration & Anor [2018] FCCA 3933 File number: NSD 9 of 2019 Judge: KATZMANN J Date of judgment: 20 September 2019 Legislation: Migration Act 1958 (Cth), ss 5J, 35A(3B), 36, 36(2)(aa), 36(2A), 36(2B), 65 Cases cited: Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Date of hearing: 20 September 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 38 Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: HWL Ebsworth Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 9 of 2019 BETWEEN: DOR17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
20 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)
The appellant is a citizen of Sri Lanka and an ethnic Tamil. He lived in an area controlled by the Sri Lankan Army. At the age of 21, he fled by boat claiming to fear for his life in Sri Lanka. The boat landed in the Cocos (Keeling) Islands, a remote Australian territory, on 28 October 2012. Since he had no Australian visa, he was taken into immigration detention where he remained for nearly seven months. As he entered Australia as an “offshore entry person” or an “unauthorised maritime arrival” within the meaning of the Migration Act 1958 (Cth) and, it seems, he held a bridging visa, he was prevented by s 46A of the Act from lodging a valid application for any visa while he remained in Australia. In December 2015, twelve months after the enactment of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), and more than three years after his arrival in this country, the appellant was invited by the Minister to lodge an application for either a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (SHEV).
On 25 November 2016, the appellant applied for a SHEV. The purpose of the SHEV is twofold: to provide protection from the risk of persecution in the country of the applicant’s nationality and “to encourage enterprise through earning and learning while strengthening regional Australia”: Migration Act, s 35A(3B).
In a statutory declaration made in support of his application, the appellant claimed, in effect, that he feared persecution because he was a Tamil and because he may have been perceived by the authorities to have links to the militant Tamil organisation known as the Liberation Tigers of Tamil Eelam (LTTE).
On 12 May 2017 a delegate of the Minister refused to grant him a visa. On 17 May 2017 his application was referred for review to the Immigration Assessment Authority. On 17 July 2017 the Authority purported to make a decision on the review (July decision). But the July decision that was published related to someone else. Consequently, the Authority made another decision, published on 21 August 2017, which affirmed the decision of the delegate (August decision).
The appellant then applied to the Federal Circuit Court for an order that both decisions of the Authority or the Minister be quashed and a writ of mandamus be issued directing it or him to determine the application according to law. The primary judge held that the July decision was infected by jurisdictional error. His Honour ordered that a writ of certiorari be issued quashing that decision and ordered that the Minister pay the appellant’s costs, which he fixed in a lump sum. But his Honour held that the August decision was not infected by jurisdictional error and dismissed that application, ordering the appellant to pay the Minister’s costs, which he also fixed in a lump sum. This is an appeal from that decision.
Section 65 of the Migration Act imposes a duty on the Minister to grant a visa to an applicant whose application is valid if the Minister is satisfied that the criteria prescribed for the visa have been met and a duty to refuse to do so if he is not so satisfied. Part 7AA of the Act establishes a mechanism for automatic review by the Immigration Assessment Authority of a decision of the kind made in this case. There is no right of appeal. The only recourse open to an aggrieved applicant is to seek judicial review.
The principal criteria for the grant of any type of protection visa are set out in s 36 of the Act. For present purposes it is sufficient to refer to two of them.
The first, described in para 36(2)(a), is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations because the person is a refugee. “Refugee” is relevantly defined in s 5H(1)(a) as a person who is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country. A person has a well-founded fear of persecution if the person fears being persecuted for any one of the reasons listed in s 5J(1)(a); there is a real chance that, if the person returned to the receiving country, he or she would be persecuted for one or more of those reasons; and the real chance of persecution relates to all areas of the receiving country: Migration Act, s 5J(1). The reasons listed in s 5J(1)(a) are race, religion, nationality, membership of a particular social group and political opinion.
The second criterion, described in para 36(2)(aa), is commonly referred to as the complementary protection criterion. To satisfy this criterion an applicant must be a non-citizen in Australia who does not satisfy the refugee criterion but “in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.” “Significant harm” is defined by s 36(2A) and (2B).
The Immigration Assessment Authority, in its August decision, considered whether the appellant was at risk at harm on the basis of his Tamil background, his illegal departure from Sri Lanka, his imputed political opinion and, if he returned to Sri Lanka, his status as a failed asylum seeker. In short, the Authority was not satisfied that the appellant was owed protection obligations because he was a refugee or because he satisfied the complementary protection criterion. Although the Authority accepted most of the appellant’s account of his experiences with the Sri Lankan Army when he was younger, and other aspects of the claims upon which he based his application for protection, the Authority was not satisfied that he was at risk of serious harm or significant harm, should he return to Sri Lanka. The Authority took into account not only the material furnished by the appellant, but also country information. In particular, the Authority drew attention to country reports indicating that the overall situation for Tamils had improved since the end of the civil conflict in 2009, and the absence of evidence of official laws or policies in Sri Lanka discriminating on the basis of ethnicity or language.
The proceeding in the court below
Two applications were filed in the Federal Circuit Court. One sought review of the July decision. The other sought review of the August decision (the second application). On 16 November 2017 a Registrar of the Court ordered, amongst other things, that the final hearing of the second application be listed “consecutively” with the first application. Although the proceedings had not been consolidated, the primary judge treated them as if they had been. His Honour considered both applications under the one matter number (that which related to the challenge to the July decision), delivered one judgment, and made one set of orders.
The application for review of the July decision was upheld. The primary judge was satisfied that the July decision was infected by jurisdictional error, since it had nothing to do with the appellant, and held that it constituted “no decision at all” (see Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597). His Honour was therefore satisfied that the Authority had the power to make the August decision. He then proceeded to consider the grounds of the second application.
The second application contained four grounds, each of which was said to be a jurisdictional error:
(1)The respondents failed to give “a valid consideration to relevant claims” in that they did not take into account, or did not take into account the seriousness of, the brutal attacks on three of his friends “who faced similar harassment” or, alternatively, failed to give this matter any weight.
(2)The respondents exceeded their authority by failing to consider that the disappearance of the appellant’s neighbour and the neighbour’s severe injuries could have been “retribution against the Tamils” or to the appellant’s fear of the authorities.
(3)The respondents “misconstrued and misinterpreted” the appellant’s claims concerning his uncle’s involvement in the LTTE.
(4)The respondents erred in its approach to complementary protection because they wrongly characterised him as an asylum seeker who had had fled Sri Lanka as an economic migrant, rather than as a suspected member of the LTTE who had been repeatedly harassed, intimidated and questioned by the Sri Lankan authorities, which was the true reason he fled.
The primary judge rejected all four grounds.
With respect to the first ground, his Honour observed that the Authority accepted most of the appellant’s claims and had expressly referred to, and dealt with, the claim about the three friends and neighbours. He pointed out that past facts can be a guide to what might happen in the future but are not determinative. He noted that the Authority was required to determine what might happen in the future. He said that it had done so by reference to country information concerning the then current circumstances in Sri Lanka. He noted that the appellant had submitted to him that circumstances had changed since then but held that the Authority was only able to act on the credible information in its possession at the time.
His Honour considered that the second ground amounted to no more than a statement that there were other reasons why the Authority should have accepted that he had a well-founded fear of persecution. His Honour observed that a wrong finding of fact does not necessarily amount to a jurisdictional error and “the courts cannot enter into the merits of a decision-maker’s decision”.
As for the third ground, the primary judge held that the Authority had dealt with this claim and had reached its conclusion on the basis of the appellant’s own evidence.
Finally, his Honour held that, on its proper construction, the fourth ground merely took issue with the merits of the Authority’s consideration of the appellant’s claim to fear harm as a failed asylum seeker. His Honour observed that the Authority had dealt with that claim and there was no error in the way the Authority proceeded.
His Honour did not advert to the Minister’s reasons. Since the Authority’s decision followed a merits review of the Minister’s decision, however, there was no reason for him to do so.
The appeal
The notice of appeal contains one ground. It reads:
The Federal Circuit Court erred in finding there was no jurisdictional error in the IAA decision and also Judge erred in dismissing my Federal Circuit Court Application. I will file the Particulars of the grounds in my Amended Draft Notice of Appeal/Court Submissions upon receiving a copy of the Transcript of SHEV interview CDs/FCC reasoning.
I need a copy of the SHEV interview CDs/Transcript, Transcript of the FCC hearing and Court Book in order to seek further legal advice.
The hearing before the primary judge took place on 13 December 2018. The published reasons were available on 18 January 2019, a little over two weeks after the notice of appeal was filed. The appeal book was filed on 20 March 2019.
But no amended draft notice of appeal was provided to the Court and the appellant filed no submissions.
Directions were made by a Registrar of the Court on 4 February 2019 and on 8 April 2019 the appeal was listed for hearing before Lee J on 15 May 2019. On 16 April 2019, through no fault of the appellant the hearing date was vacated. On 15 May 2019, after the matter had been transferred to my docket, I listed the appeal for hearing before me on 17 July 2019. On that occasion, without previous notice either to the Minister or the Court, the appellant applied for an adjournment. He said that he had been unemployed for some time and was therefore unable to find a lawyer to prepare an amended notice of appeal or a submission and needed time to find a lawyer. He later claimed that he had been in full-time employment for a month but that the lawyers were asking for money ($3,000) which he could not afford to pay.
The Minister opposed the application.
I asked the appellant what prospect there was that we would be in any different position several weeks’ hence if I were to grant his application. He replied:
I have already committed a mistake by not taking any steps up to date because I was under the impression that I can bring this difficulty to your Honour’s notice on this day of hearing. Now that I understand – so if your Honour grants me some time I promise that I will not make the same mistake again. I will take all the steps necessary.
In these circumstances, I decided to accede to the appellant’s application and made orders, amongst other things, adjourning the matter for hearing today, which would give the appellant a further two months to prepare for hearing, and providing for any amended notice of appeal and further submissions to be filed. In foreshadowing those orders I said this to the appellant:
DOR17, I’m not happy we’re in the position we are today. You should have approached the court much earlier than today to apply for an adjournment, and before that, you should have told the Minister that you were not in a position to proceed today. But, having heard your account, I am going to give you the opportunity that you seek. But it will require you to make immediate arrangements to see the lawyer and for you to file and serve on the Minister any notice – any amended notice of appeal together with submissions in support by 14 August. So that means you have to see the solicitor. The solicitor will have to agree to act for you and then hear what you have to say, look at the material, prepare the amended notice of appeal and the submissions all within a month.
I’m going to set the matter down for hearing on 20 September. I will make an allowance for your lawyer to approach the court if, for good reason, he can’t – he or she can’t meet the time set by the orders. But otherwise you should proceed on the assumption that your case will go ahead on 20 September. If you haven’t filed an amended notice of appeal and you haven’t lodged any submissions, then the case will proceed on the basis of what’s before me today. And if the lawyer you’ve approached is not prepared to act for you, you’re going to have to make some inquiries to see whether someone else is prepared to act on your behalf. But you’re going to have to do it swiftly because the court can’t conduct its business – in fairness to other litigants and, indeed, to the Minister – at the leisure of the appellants. Do you understand that?
The appellant replied that he understood. I told him he should make arrangements to see his lawyer that day. He indicated he would do so.
No amended notice of appeal and no further submissions were filed. No application for liberty to apply was made.
When the appeal was called on for hearing today, the appellant made another request for an adjournment on the basis that he did not have sufficient funds to pay for a lawyer. The Minister opposed a further adjournment and this time I rejected the application. I did so for the following reasons.
First, the notice of appeal was filed more than nine months ago, on 3 January 2019.
Second, in spite of the assurances he had given the Court in July, that he would not make the same mistake again, he did not contact the Minister or the Court before the hearing date to advise of his position or to foreshadow the application.
Third, he informed the Court that, since the July hearing, he had not seen a lawyer or made any attempts to obtain legal representation.
Fourth, there is no reason to believe, let alone probative evidence to indicate, that if the Court were to grant a further adjournment, the appellant would be in any different position at any forthcoming hearing. In these circumstances I was not satisfied that there would be any utility in granting the adjournment.
After I informed the appellant that I had rejected his adjournment application I invited him to speak to his appeal but he declined to take up the invitation, indicating he had nothing to say.
In all the circumstances, I have no alternative but to dismiss the appeal.
The question raised by the notice of appeal is whether the primary judge was wrong to conclude that the August decision was not affected by jurisdictional error. As is apparent, the notice of appeal does not identify a particular error and, despite the time that has passed since his Honour’s published reasons became available, no particulars have been provided.
The appellant has not established that the primary judge erred in reaching any of his conclusions. Moreover, for the reasons his Honour gave, I am unable to discern any jurisdictional error on the part of the Authority.
Accordingly, the appeal must be dismissed and the appellant should pay the Minister’s costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate:
Dated: 20 September 2019
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