DXP16 v Minister for Immigration

[2019] FCCA 1606

FEDERAL CIRCUIT COURT OF AUSTRALIA

DXP16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1606

Catchwords:
MIGRATION – Protection visa – second application for an adjournment to obtain legal representation – s.438 certificate – documents having no bearing on Tribunal’s assessment of the matter – applicant seeking merits review – no jurisdictional error.

Legislation:

Migration Act 1958, s.438

Cases cited:

Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection and BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; 93 ALJR 252; 363 ALR 599
Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366; [2016] FCAFC 127

Applicant: DXP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2754 of 2016

Judgment of: Judge Riley

Hearing date: 23 May 2019

Date of Last Submission: 23 May 2019

Delivered at: Melbourne

Delivered on: 23 May 2019

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: No appearance

Counsel for the first respondent: Christopher McDermott

Counsel for the second respondent: No appearance

Solicitors for the respondents:  DLA Piper

ORDERS

1. The oral application for an adjournment of the final hearing be refused.

2. The application filed on 16 December 2016 be dismissed.

3. The applicant pay the first respondent's costs of the proceeding fixed in the sum of $8,915, which sum includes:

   (a)the sum of $1,448 for the costs thrown away on 10 April 2019; and

   (b)the sum of $7,467, being the usual costs on scale for a final hearing in a migration matter.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2754 of 2016

DXP16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)[1]

The adjournment application

[1] Reasons for judgment were given orally on 23 May 2019. The applicant emailed chambers on Thursday 6 June 2019 at 5:56pm and advised that he intended to file a notice of appeal. Chambers ordered a transcript of the reasons for judgment on Friday 7 June 2019 at 9:23am on same day turnaround. Auscript provided the transcript of the reasons for judgment on Friday 7 June 2019 at 5:35pm. Monday 10 June 2019 was a public holiday.  The reasons for judgment were settled and sent to the applicant and the respondents by email and post on Tuesday 11 June 2019 at 12pm.

1. There is before the court an application for an adjournment of a migration matter.  The application was filed on 16 December 2016.  The hearing in this court was adjourned a number of times pending the decision of the Full Court of the Federal Court and then the High Court in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection and BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; 93 ALJR 252; 363 ALR 599.

2. The matter was eventually listed for hearing on 10 April 2019. On that occasion, the applicant appeared without the benefit of legal representation.  He asked for an adjournment to obtain legal assistance.  He said that Victoria Legal Aid had been assisting him until about three weeks previously, but that they had stopped helping him about three weeks prior to the hearing on 10 April 2019.  The court granted the adjournment on the applicant's application until today. 

3. There is, in fact, on the court record, a notice of address for service filed by Victoria Legal Aid on 7 August 2017.  The applicant then filed a notice of address for service saying that he was now acting for himself on 14 March 2019.  The applicant told the court, on 10 April 2019, that he would be able to borrow money from friends to fund his legal assistance.  He said that he had no work rights so he could not fund the legal assistance himself.  When the matter came on today, the applicant was unrepresented.  He, again, sought an adjournment to be able to obtain legal assistance.  He said that he had been to Carina Ford but she asked for $5,000. 

4. He said that, on 10 April 2019, he had expected to only need about $2,000.  He asked for an adjournment of three, four or five months so that he could find the money to pay Carina Ford to represent him. The Minister opposed the application for an adjournment.  I am not persuaded that the court should grant another adjournment in this matter.  It seems to me that there is no realistic prospect that the applicant will be able to fund legal representatives in the reasonably foreseeable future.

The substantive application

1. This is an application for review of a decision of the Administrative Appeals Tribunal.  The applicant is a citizen of Lebanon.  He applied for a protection visa on 17 August 2011.  At that time, the only available basis for obtaining a protection visa was under the Refugee Convention. A delegate of the Minister refused that application and the refusal was affirmed by the Refugee Review Tribunal.  On 2 December 2013, the applicant made another application for a protection visa.  On this occasion, the applied under the complementary protection provisions.  A delegate of the Minister found that application to be invalid but the Minister later determined that it was valid. 

2. A delegate refused the protection visa on the complementary protection grounds on 16 February 2015. A delegate of the Minister also certified on the same day under s.438 of the Migration Act 1958 that the disclosure of certain documents would be contrary to the public interest.  The applicant applied to the Tribunal for review of the delegate's refusal to grant a protection visa on complementary protection grounds.  The Tribunal conducted a hearing which the applicant attended.  The Tribunal affirmed the delegate's decision on the complementary protection point.  The Tribunal only dealt with the complementary protection issues.  That course of action has been approved by the Full Court of the Federal Court in Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366; [2016] FCAFC 127. It is the Tribunal’s consideration of the applicant’s second protection visa application, made in respect of the complementary protection provisions, that is the subject of the present proceeding in this court.

3. The applicant claimed that he had been in the Lebanese army from 2006 to 2007 and had fought against Fatah al-Islam and other groups.  The Tribunal accepted that claim.  The applicant also claimed that his cousin had been kidnapped by ISIS.  The Tribunal accepted that claim.  The applicant claimed that a friend had been executed by ISIS.  The Tribunal also accepted that claim.  The applicant claimed that he was at ongoing risk from Fatah al-Islam or other organisations. The Tribunal did not accept that claim. 

4. The Tribunal noted that the applicant had continued to live in Lebanon for two years after he left the army without coming to harm. The Tribunal considered that there was nothing before it to suggest that former soldiers such as the applicant were at risk of harm from Fatah al-Islam or similar groups. The Tribunal dealt with various subsidiary claims made by the applicant but ultimately concluded that he was not at risk of significant harm for any of those reasons. The Tribunal considered that the s.438 certificate was invalid but did not disclose it to the applicant.

5. The grounds of review in the present proceeding are expressed as follows:

   1.I am the applicant in this proceeding.

   2.I make this applicant (sic) from my own knowledge and belief unless otherwise stated.

   3.I seek review of my decision made by the AAT on 24 November 2016.

   4.A copy of the AAT decision is now produced and exhibited to this affidavit marked at (AH-1).

   5.[T]he AAT member was [name omitted].

   6.[T]the applicant now awaits further direction from the court in relation to the filing of any other document.

6. None of those grounds points to any jurisdictional error on the part of the Tribunal.  In his oral submissions to the court today, the applicant said that he had been in Australia for almost 10 years.  He said that he was at war with Fatah al-Islam.  He claimed that he was threatened, that his cousin had his throat slashed and that the Tribunal showed no understanding of his condition.  These statements seem to be directed towards merits review.  The applicant did not tell the Tribunal that his cousin's throat was slashed.  At that stage, the claim was that the cousin was a prisoner of ISIS.  The cousin’s death occurred after the Tribunal’s decision. In any event, the court’s role is not to assess the merits of the case. 

7. An issue in relation to the s.438 certificate was raised by the Minister as a model litigant. The s.438 certificate and the documents covered by the s.438 certificate were provided to the applicant in the form of attachments to the affidavit affirmed by Chloe Ann Hilary on 17 August 2017. I have looked at the s.438 certificate and the documents covered by it. They are internal communications addressing the applicant's legal proceedings in the Tribunal. They basically consist of an acknowledgment that the complementary protection application was valid. The documents do not deal with the substance of the matter. It does not seem to me that the disclosure of the s.438 certificate and the documents covered by it could have made any difference to the Tribunal's assessment of the matter.

8. The Tribunal has afforded the applicant procedural fairness.  The Tribunal invited the applicant to a hearing and summarised its concerns about the applicant's claims and gave the applicant an opportunity to respond to them.  The Tribunal has assessed all of the applicant's claims and appears to me to have correctly applied the law.  The Tribunal made findings which seem to me to have been open to it.  I am not persuaded that there has been any jurisdictional error in this case. 

9. Consequently, the application must be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  11 June 2019