DUQ16 v Minister for Immigration

[2018] FCCA 1983

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUQ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1983

Catchwords:
PRACTICE AND PROCEDURE – Application to set aside orders made in the absence of the applicant – whether applicant has given adequate explanation for non-appearance – whether application would have merits if the orders were set aside – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)

Migration Act 1958 (Cth), ss.5, 5H, 36(2)(aa), 36(2A)

Cases cited:

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

Applicant: DUQ16

First Respondent: MINISTER FOR IMMIGRAITON AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3509 of 2016

Judgment of: Judge Manousaridis

Hearing date: 18 July 2018

Date of Last Submission: 18 July 2018

Delivered at: Sydney

Delivered on: 27 July 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent: Ms C Saunders of DLA Piper Australia

ORDERS

1. The application in a case filed by the applicant on 7 June 2018 to set aside the orders made on 21 May 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3509 of 2016

DUQ16

Applicant

And

MINISTER FOR IMMIGRAITON AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a national of Sri Lanka, applies for an order under r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that I set aside the orders I made on 21 May 2018. By those orders I dismissed an application for judicial review of a decision of the second respondent (IAA) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Safe Haven Enterprise visa (SHEV).

Principles

1. The principles that govern the exercise of the power to set aside orders dismissing an application made in the absence of an applicant were stated by Ryan J in MZYEZ v Minister for Immigration and Citizenship, where his Honour said:[1] 

   In circumstances where . . .  a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the Court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement.  Those factors are:

   (a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

   (b)the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

   (c)whether the applicant has a reasonably arguable prospect of success on the substantive application.

   [1] [2010] FCA 530, [7]

Reason for non-appearance

1. Before I consider the applicant’s explanation for not appearing at the hearing of 21 May 2018 it will be necessary to set out some background.

2. The applicant filed his application for judicial review on 12 December 2016, and the matter was listed for a first court date on 16 March 2017 before a Registrar of this Court. On that day directions were made, and the matter was set down for hearing before me at 10.15 am on 20 April 2018. At 8.14 am on 20 April 2018 the applicant sent an email to Ms Saunders, the lawyer for the Minister, stating he had a “serious accident which has affected” his brain and that he was “seriously unwell and unable to attend today’s hearing”. The email asked “would his Honour consider adjourning my scheduled hearing”. The email stated there was attached to it “medical evidence in support of my medical condition”. At 9.05 am on 20 April 2018 Ms Saunders forwarded the applicant’s email to my associate’s email address stating that the Minister neither opposed nor consented to the adjournment request.

3. At my request, my associate sent an email at 9.16 am to the email addresses of Ms Saunders and of the applicant stating that I was minded to adjourn the hearing to 10.15 am on 21 May 2018, and requested whether the Minister was content for me to make orders in chambers to that effect. After Ms Saunders sent an email consenting to my making orders in chambers, I made orders adjourning the hearing to 10.15 am on 21 May 2018, and at 9.52 am on 20 April 2018 my associate sent an email to Ms Saunders’ and the applicant’s email addresses stating that I had made an order in chambers adjourning the hearing to 10.15 am on 21 May 2018, and attaching a sealed copy of the orders I made. On the same day the Minister’s solicitors sent to the applicant a letter and an email noting that the matter had been listed for hearing at 10.15 am on 21 May 2018.[2] As I have already noted, the applicant did not appear at the hearing of 21 May 2018. There is no question that the power conferred by r.13.03C(1)(c) of the FCC Rules was available to be exercised by me when the applicant failed to appear at the hearing of 21 May 2018.

   [2] Affidavit of E Guy

4. At the hearing before me on 18 July 2018 the applicant, who is not legally represented, relied on an affidavit in which he relevantly deposed as follows:

   1.In April 2018 while I was working at the working site in Hurstville I was injured when a nail pierced into my helmet and entered my skull and penetrated into my brain.

   2.I was hospitalised as a result of this work related injury.

   3.I was in pain and could not remember many things at the time.

   4.I continue to suffer from pain and require ongoing medical treatment.

   5.I was not aware that my hearing in the Federal Circuit Court was adjourned to 21 May 2018.

   6.The documents notifying me of the hearing on 21 May 2018 did not reach me. I later learnt that the documents were sent to my previous address.

5. The applicant was cross-examined. The evidence the applicant gave, however, was not entirely consistent. He accepted that he received the emails sent from my associate and from the Minster’s solicitors. He said, however, the email account had been set up by a friend, and the applicant did not become aware of the emails advising him of the date and time of the adjourned hearing until 27 May 2018. The applicant also said at one point that he had forgotten he had received the emails, and at another point he said that because of his injury he had difficulty remembering things. In response to the submission Ms Saunders made that the applicant’s claims were not supported by medical evidence, the applicant said that he had medical evidence in addition to that which he submitted on 20 April 2018 in support of his request to adjourn the hearing on that day. At the end of the hearing, I made an order permitting the applicant to submit by email all additional medical evidence on which he relied. I made this order with the consent of Ms Saunders on the basis that if the medical evidence the applicant might provide raises an issue adverse to the Minister’s position, I would inform the parties of the issue and invite the parties to make further submissions.

6. The applicant did provide medical evidence. It consists of a report dated 19 July 2018 by what appears to be a general practitioner.[3] The report refers to matters recorded in medical evidence the applicant had provided when he applied for the adjournment of the hearing of 20 April 2018. The report also states that the applicant has been seen at regular intervals by a neurosurgeon, he is booked for another MRI, and is due to see the specialist in October 2018. The report then offers the following opinion:

   Due to the injury/regular specialist follow ups and frequent MRI scan and the stress caused by all this [the applicant] failed to attend his court hearing on 21/05/2018.

   [3] I have marked this letter as Exhibit C. It has not escaped my attention that this report was prepared after the hearing on 18 July 2018. I had understood the applicant to state he had medical evidence that already existed, but that he had left it at his home. Nothing turns on this.

7. I accept the applicant was involved in an accident, he sustained the injuries, and he is subject to the consequences, identified in the medical evidence the applicant has provided. I do not accept, however, the applicant’s evidence that he was unaware the matter had been adjourned to 21 May 2018. The applicant in cross-examination accepted he received the emails to which I have referred. Even if, as the applicant said, the emails requesting the adjournment the hearing of 20 April 2018 were sent by some other person, it is reasonable that this occurred at the request of the applicant. That, in turn, means that at the time of the request – which was made in the morning of the day of the scheduled hearing – the applicant would have been interested to know whether the Court would grant the applicant the adjournment he had requested and that, after my associate sent an email to the applicant’s email address confirming that the hearing had been adjourned to 21 May 2018, the person who had sent the email in the name of the applicant requesting the adjournment would have communicated to the applicant the fact that the hearing had been adjourned.

8. In my opinion, the more likely explanation for the applicant’s not attending the hearing on 21 May 2018 is that he had forgotten; and it may be that the injury the applicant suffered, and the consequences of that injury, as set out in the medical evidence the applicant provided to the Court, contributed and perhaps contributed significantly to his forgetting to attend the hearing of 21 May 2018. Even so, I am not satisfied that the applicant has given an adequate explanation for not appearing at the hearing of 21 May 2018. That finding, however, would carry no weight if I were to find that the grounds on which the applicant relies in support of the relief he claims in the application he filed were reasonably arguable. It is to that question I now turn.

Merits

1. As I have already noted, the application that I dismissed on 21 May 2018 related to a decision of the IAA affirming the decision of a delegate of the Minister not to grant to the applicant a SHEV. The first step in assessing the merits of the grounds stated in that application is to identify the claims for protection stated in the applicant’s SHEV application.

Claims for protection

1. The applicant’s claims for protection are contained in an unsigned statutory declaration dated 8 August 2013.[4] The unsigned statutory declaration appears to be identical to the signed statutory declaration which the applicant included in a purported application for a subclass 866 Permanent Protection visa which the applicant had previously made but which was rejected on the ground it was not a valid application.[5] The claims made in the statutory declaration may be summarised as follows:

   [4] CB297-303

   [5] CB51-57

   a)The applicant is a Tamil and Christian from Jaffna.

   b)The applicant has always been targeted by “the occupying Sri Lankan forces” who have controlled the Jaffna district because he is a young Tamil male. He was harassed, physically assaulted on two occasions, and interrogated because he was a young Tamil male residing in Jaffna. That occurred because, although the LTTE (being the “Liberation Tigers of Tamil Eelam”) did not control Jaffna, many LTTE cadres “infiltrated” the area and carried out several attacks against the Sri Lankan forces. That, in turn, caused the Sri Lankan forces to conduct frequent round ups, “house to house checking”, and to detain innocent Tamils whom they suspected had links to the LTTE.

   c)The applicant was “targeted” fifteen to twenty times on grounds of suspicion that he had links to the LTTE.

   d)Since 2009 the Sri Lankan army and “other authorities” have increased their presence in the North of Sri Lanka, where the applicant lives.

   e)Sometime in June 2011 two Sinhala army officers came to the applicant’s home in search for him. The applicant was taken to a nearby army camp where he was interrogated, threatened at gun point, and accused of being an LTTE cadre. The applicant was released after eight hours, and he was told that he needed to “report when required”.

   f)After that day the applicant was asked to “report at the camp on at least four occasions”, and on each occasion the applicant was subjected to forced labour and “treated like a slave”.

   g)Sometime in April or May 2012 the applicant was informed by one of his friends that CID officers in civilian clothing came to the market and inquired after the applicant.[6]

   h)Sometime in June 2012 an elderly shop owner informed the applicant that two CID officers came to his shop in search of the applicant and a former LTTE member (Mr SR). The applicant learned the following day that Mr SR was abducted in a white van and he remains missing to this day.

   i)Sometime in July 2012 another former LTTE member was shot dead by unknown persons.

   j)The applicant feared the CID would also target him even though he was not a former LTTE cadre but because mere suspicion is enough for the authorities to harm and kill a Tamil person.

   [6] “CID” is a reference to “Criminal Investigation Department”.

2. The applicant attended an interview with the delegate for the Minister on 10 December 2015 (SHEV interview). During the SHEV interview the applicant stated the following:

   a)The applicant worked in Mannar and travelled from Jaffna to get to Mannar for work. As Jaffna was controlled by the Sri Lankan army the applicant needed to cross through army checkpoints and he needed to register himself each time he crossed. The Sri Lankan army suspected the applicant was getting information for the LTTE and so they asked him many questions, paid more attention to him and had the applicant’s name on a list. On a number of occasions the applicant was detained and tortured by the Sri Lankan army.[7]

   b)In June 2011 the applicant witnessed a former LTTE member (Mr S) be shot and killed by the Sri Lankan army. The applicant ran away from seeing the shooting but an officer of the Sri Lankan army saw him there and two days later the same officer turned up at his house and arrested the applicant. The applicant said there were two reasons for his arrest: that he had told people about witnessing the shooting and that he could not leave the area.[8]

   c)The applicant claimed he departed Sri Lanka illegally without the knowledge of the Sri Lankan authorities and that, on his return to Sri Lanka he will be considered a failed asylum seeker. The applicant claimed he would be interrogated, questioned, and imputed with being pro-LTTE because he claimed asylum in Australia.[9]

   [7] CB355-356, [45]-[53]

   [8] CB356-357, [56]

   [9] CB358, [75]

IAA’s decision

1. The IAA was willing to accept the applicant had been subjected to the harassment he claimed,[10] but found other aspects of his claims to be problematic,[11] ultimately concluding that it did not accept the applicant’s claim that he had witnessed any shooting, or that the Sri Lankan army arrested and detained the applicant, or that the CID were looking for the applicant. The IAA relied on two broad matters. The first was what it found to be problematic aspects of the applicant’s claims. Here, the IAA referred to the following:

   a)What the IAA considered to be multiple inconsistencies between what the applicant claimed in his statutory declaration and what he said at the SHEV interview in relation to the shooting of Mr S and his arrest. In his statutory declaration the applicant said he was arrested by two soldiers at his home, taken to an army base and questioned for 8 hours; whereas at the SHEV interview the applicant said he was arrested because he had witnessed the shooting of a former LTTE member. The IAA considered this to be inconsistent because although in his statutory declaration the applicant mentioned the shooting of a former LTTE member in 2011, he did not state he witnessed that shooting, or that that was the reason for his arrest; and at the SHEV interview the applicant said that Mr S was shot in 2012.[12]

   b)What the IAA considered to be the implausibility of the applicant’s claim that the CID searched for the applicant in the market place, and inquired of a shopkeeper about the applicant’s whereabouts, given the applicant had claimed that the Sri Lankan authorities had questioned the applicant many times in the past, and had arrested him at his home. The IAA considered that if the CID were looking for the applicant they could easily have gone to his home to do so [13]

   [10] CB398, [9]

   [11] CB398, [10]

   [12] CB398, [11]

   [13] CB398, [12]

2. The second matter on which the IAA relied is the applicant’s profile combined with the applicant’s evidence that neither he nor any member of his family were members of the LTTE, and the applicant’s evidence that he had been regularly questioned by the Sri Lankan authorities. The IAA was not satisfied the applicant has a profile that would bring him to the attention of the Sri Lankan authorities in the manner the applicant claimed as a suspected member of or spy for the LTTE.[14]

   [14] CB399, [13]

3. The IAA also considered country information concerning Tamils in Sri Lanka after the end of the civil war. The IAA noted country information indicates that the overall situation for Tamils has improved since the end of the civil war; there has been improvements in the security situation in the North and East provinces of Sri Lanka, although military and security forces maintain a presence in those regions; harassment of Tamils has decreased under the new government; the government has taken a more proactive approach to human rights and the issue of reconciliation than the previous government; although there is a moderate level of “societal discrimination” against Tamils, there is no evidence of official laws or policies that discriminate against Tamils; and that Tamils who live in former LTTE areas in the North and East, including Tamils that provided low level support to the LTTE or who had family members who are former members of the LTTE, although subject to monitoring by Sri Lankan authorities, face a low risk of being detained or prosecuted.[15]

   [15] CB399, [14]

4. The IAA, therefore, was not satisfied the applicant faced a real risk of serious harm from Sri Lankan authorities, now or in the reasonably foreseeable future, for an imputed pro-LTTE or anti-Sri Lankan government political opinion because of his age, or his being a Tamil, from the Northern province, or his having travelled within the Northern province for work, or his having lived near an army camp.[16]

   [16] CB399-400, [15]

5. The IAA then considered whether the applicant had a claim to being a refugee based on his being a failed asylum seeker. The IAA referred to the applicant’s claim that because he had gone overseas to apply for asylum he would be questioned on return; and that he had spoken to some people he knew who had returned from Australia as failed asylum seekers who told him that the CID would extort them for money.[17] The IAA concluded it was not satisfied there is a real chance the applicant will be harmed because he had applied for asylum. The IAA relied on country information that showed that thousands of Tamils have returned since the end of the civil war; that, although there have been reported incidents of returnees being harmed, they have been people with substantial links with the LTTE or against whom there were outstanding warrants; and the applicant is not a person with that kind of profile.[18]

   [17] CB400, [16]. I was unable to find any reference in the Court Book where the applicant is recorded as having said this. The inference is available to be drawn that the applicant said this in his interview with the delegate, and the IAA heard the recoding of the interview. It is unnecessary to make any finding about this because nothing turns on it.

   [18] CB400, [17]

1. The IAA also considered whether the applicant had a claim to being a refugee based on his having departed Sri Lanka illegally. The IAA found that it was likely that on his return the applicant would be charged under the Immigrants and Emigrants Act and fined. It also accepted that the applicant might face detention between the time he is charged and the time he first appears before a magistrate. The IAA found, however, that although prison conditions in Sri Lanka are poor due to lack of resources, overcrowding, and poor sanitation, any questioning and detention the applicant might experience would be brief and would not constitute serious harm “as inexhaustibly defined in the Act”.[19]

   [19] CB401, [24]

2. For these reasons, the IAA concluded it was not satisfied the applicant met the requirements of the definition of “refugee” given in s.5H of the Migration Act 1958 (Cth) (Act).[20]

   [20] CB401-402, [27]

3. The IAA then considered whether the applicant met the complementary protection criterion provided for by s.36(2)(aa) of the Act. The IAA specifically considered whether, on his return to Sri Lanka, the applicant’s being held in remand pending his being presented to a magistrate due to his illegal departure would constitute “significant harm” under s.36(2A) of the Act. The IAA found that although prison conditions in Sri Lanka are poor, that is due to lack of resources, overcrowding, and not to any intention to inflict pain or suffering or extreme humiliation; and, for that reason, the poor prison conditions to which the applicant might be exposed when he returns to Sri Lanka, do not by themselves constitute “significant harm”. The IAA was also not satisfied that the societal discrimination faced by Tamils would constitute “significant harm” as defined under s.36(2A) and s.5 of the Act.[21]

   [21] CB403, [33]

4. Given these findings, and the other findings the IAA made when considering whether the applicant was a “refugee” within the meaning of s.5H of the Act, the IAA was not satisfied that the applicant met the complementary protection criterion provided for by s.36(2)(aa) of the Act.

Grounds of application

1. The applicant’s grounds of application are as follows:

   1. Ground 1 -The IAA states at [10] that the IAA gave more weight to a signed statutory declaration which was submitted to the department which was in fact a statutory declaration attached to the PV application that was considered by the department to be "invalid". The IAA committed jurisdictional error as it failed to consider the contents in the unsigned statutory declaration attached to the SHEV application.

Particulars

a. Section 47 (3) of the Migration Act states amongst other things that the Minister is not to consider an application that is not a valid application"

b. The IAA states at [10] that the unsigned statutory declaration and the signed statutory declaration are one and the “same”. It is submitted that it is not open to the IAA to infer that the unsigned statutory declaration and the signed statutory declaration are one and the same without assessing the contents in the “unsigned statutory declaration”.

c. My SHEV application was completed by a legal representative (RACS) provided to me by the department. Therefore if an unsigned statutory declaration was attached to my SHEV application the contents of this application should have been considered, the IAA should not and could not have inferred that both documents (though prima facie may appear to be the same) contain the same claims/contents.

d. The IAA committed jurisdictional error as it chose to disregard them ore [sic] redcent [sic] unsigned statement attached with the SHEV application, therefore it was not open to the IAA to infer that my claims lack credibility due to inconsistencies [11] as the IAA did [sic] was unaware of the contents in the unsigned statutory declaration.

2. Ground 2 – I believe the outcome in SZTAL which would be heard in the High Court would determine if findings made by the IAA at [32] is free of legal error.

1. The applicant, who as I have already noted, is not legally represented, made only one submission to me and that was to the effect that one of his statutory declarations was not considered properly.

2. Ground 1 is directed to the following passage from the IAA’s reasons for decision:

   The applicant provided a signed statutory declaration with his invalid PV (‘the PV statement’) and provided an unsigned version of the same statutory declaration with his SHEV application (“the SHEV statement”). I have given more weight [to the] PV statement, as it is signed.

3. The central claim ground 1 makes is that the IAA failed to consider the contents of the unsigned statutory declaration attached to the SHEV application. This claim is not arguable. The IAA’s referring to the signed and unsigned statutory declarations, and its stating that it gave more weight to the signed statutory declaration, necessarily implies that the IAA considered both the signed and the unsigned versions of the applicant’s statutory declaration. Further, even if the IAA did not consider the contents of the unsigned statutory declaration, but instead only considered the contents of the signed statutory declaration it is not arguable that this would have led the IAA into any jurisdictional error because there is no doubt that the contents of the signed and unsigned statutory declarations are the same. It follows, therefore, the applicant would have no reasonable prospects of succeeding on ground 1 of the application.

4. The second ground is directed to the IAA’s findings in paragraph 32 of its reasons that the poor prison conditions in Sri Lanka could not constitute significant harm for the purposes s.36(2A) of the Act because there was no intention to inflict pain or suffering or extreme humiliation. Ground 2 states that whether or not such findings is based on any legal error would be determined by the time the High Court was to decide in “SZTAL”. That is the pseudonym of the person who was granted special leave to appeal to the High Court, and which is now the subject of judgments of the justices of the High Court in SZTAL v Minister for Immigration and Border Protection.[22]

   [22] [2017] HCA 34

5. In SZTAL the question was whether the notion of intention contained in the expressions “intentionally inflicted” and “intended to cause” that are respectively contained in the definitions given in s.5(1) of the Act of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” was restricted to a person’s acting or failing to act with the desire, aim, or purpose to inflict “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”; or whether the notion of intention also includes acts or omissions undertaken with the knowledge that they would result in “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” even though the person who acted or did not act had no desire, aim, or purpose to inflict such punishment. A majority of the High Court held that the notion of intention was restricted to acting or not acting with the desire, aim, or purpose to inflict “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”.

6. In paragraph 32 of its reasons for decision the IAA found that prison conditions in Sri Lanka are poor; the poor conditions are due to overcrowding, poor sanitation, and lack of resources; that there is no intention to inflict pain or suffering or extreme humiliation; and that, in those circumstances, the “poor prison condition to which the applicant may be subject do not of themselves constitute significant harm as defined under the Act”. These findings are premised on the assumption that intention means a desire, aim, or purpose, to inflict suffering or extreme humiliation. That view is consistent with what the majority in the High Court held in SZTAL. In those circumstances there is no arguable basis for contending that the IAA made any error in concluding that the poor prison conditions to which the applicant may be subject do not by themselves constitute significant harm as defined in the Act.

7. The applicant, therefore, would also have no reasonable prospects of succeeding on ground 2 of the application.

Conclusion and disposition

1. Given my conclusion that the applicant would have no reasonable prospects of succeeding on either of the two grounds stated in the applicant’s application if I were to set aside my orders of 21 May 2018, and the applicant’s not putting anything to me that could reasonably suggest another basis on which it could reasonably be argued the IAA made a jurisdictional error, it follows that I do not propose to order that the orders I made on 21 May 2018 be set aside.

2. I propose, therefore, to order that the application in a case seeking to set aside the orders I made on 21 May 2018 be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 27 July 2018