Plaintiff S176/2018 v Honourable Justice Logan & Ors

[2018] HCATrans 203

[2018] HCATrans 203

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S176 of 2018

B e t w e e n -

PLAINTIFF S176/2018

Plaintiff

and

HONOURABLE JUSTICE LOGAN

First Defendant

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Defendant

IMMIGRATION ASSESSMENT AUTHORITY

Third Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 3 OCTOBER 2018, AT 2.15 PM

Copyright in the High Court of Australia

____________________

MR B.D. KAPLAN:   If the Court pleases, I appear for the second defendant.  (instructed by HWL Ebsworth Lawyers)

HIS HONOUR:   Thank you, Mr Kaplan.  I take it there is no appearance for the plaintiff.  I note there are submitting appearances for the first to third defendants.

MR KAPLAN:   I understand that that is so, your Honour.  The plaintiff is not here.

HIS HONOUR:   Mr Kaplan, is the Registrar or Deputy Registrar in Court?

MR KAPLAN:   Yes, your Honour.

HIS HONOUR:   Could you ask him please to have the matter called outside?

MR KAPLAN:   Certainly.

DEPUTY REGISTRAR:   No appearance, your Honour.

HIS HONOUR:   Thank you, Mr Registrar.  Mr Kaplan.

MR KAPLAN:   Your Honour, in the circumstances I am instructed to seek orders that the application for an order to show cause be dismissed pursuant to rule 25.03.3(a) of the High Court Rules 2004 with costs.

HIS HONOUR:   Despite the fact that this matter has been listed for some time there is no appearance for the plaintiff and I propose therefore to proceed pursuant to rule 25.03.3(a) of the High Court Rules 2004 (Cth).

This is an application inter alia for order to show cause why certiorari should not go to quash orders made by Justice Logan of the Federal Court of Australia on 16 May 2018 dismissing an appeal from orders of the Federal Circuit Court of Australia, Judge Street, rejecting an application for judicial review of the decision of the Immigration Assessment Authority to affirm the decision of a delegate of the Minister for Immigration and Border Protection not to grant the plaintiff a Safe Haven Enterprise visa (Subclass 790).

The grounds of the application are as follows:

“1.The first ground is the Federal Court Justice Logan ought to have granted an adjournment for the hearing as orally made by the [plaintiff] on 17 May 2018.

2.The second ground is the Federal Court Justice Logan made a jurisdictional error in refusing to grant leave to the [plaintiff] to raise and argue Ground 4 and 5 in the Notice of Appeal filed on 16 November 2017.

3.The third ground is the Honourable Justice [Logan] failed to hold that the Federal Circuit Court Judge Street ought to have found that the Immigration Assessment Authority (IAA) made a jurisdictional error in applying the ‘real chance’ test.

4.The fourth ground is the Honourable Justice Logan failed to ensure that the hearing is fair.  The duty requires that a litigant does not suffer a disadvantage from exercising his or her right to be self‑represented (NSWCA in Hamod v New South Wales [2011] NSWCA 375).

5.The Honourable Justice Logan also failed to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court [SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445].

6.The Honourable Justice Logan failed to consider that it is a requirement in Shrestha v Migration Review Tribunal (2015) 229 FCR 301 that the Court must explain in plain terms to unrepresented applicants that they must identify why the Tribunal’s decision was not made lawfully and by a fair process. It is not enough to merely say that they must demonstrate jurisdictional error.

7.The Honourable Justice Logan made a jurisdictional error in dismissing the application in circumstances where the substantive grounds of appeal [were] meritorious.”

With respect to ground 1, the only evidence offered by the plaintiff in support of the ground appears in paragraphs 10 to 13 of his affidavit in support of the application as follows:

“I was notified by an Email on 11 April 2018 by Julie Phillips of the National Operation Team, Federal Court of Australia that my appeal was listed on 16 May 2018 at 10.15 am before Logan J.

I tried to engage a barrister for me to argue my appeal and was not successful due to the reason that many appeals have been listed during the month of May 2018 and that they do not have any free dates to appear and particularly on my matter listed on 16 May 2018 at 10.15 am.

I was present in the Federal Court on 16 May 2018 [and] requested the Honourable Justice Logan to adjourn the hearing to a suitable date so that I could obtain legal assistance.

My appeal was dismissed by Logan J forthwith despite I made a request for adjournment to get legal assistance to represent and argue my appeal.”

Standing alone, that might be understood to mean that the plaintiff told Justice Logan that the plaintiff wished to be represented by counsel and asked his Honour to adjourn the hearing of the appeal to enable the plaintiff to retain counsel.  But what emerges from the transcript of the hearing is very different.  As there appears, after explaining the nature of the appeal and what it entailed, and having the plaintiff’s five grounds of appeal translated and read out for the benefit of the plaintiff, Justice Logan invited the plaintiff to put his submissions in support of his grounds of appeal.  What then followed was this:

“PLAINTIFF (THROUGH INTERPRETER):  Before coming to this country I have actually suffered a lot.  I was tortured and, because of that, I decided to come here to seek protection and that’s the main reason I don’t want to go back to my country because I will be persecuted and I will be tortured, and that’s the reason I have to file this case and fight for my protection.

HIS HONOUR:  Remember what I said earlier this morning about my not having a role in deciding whether the factual basis for your claim for a visa was established, so while I know that is a basis, the basis for your claim, it’s not up to me to decide whether I believe that.  That was the role of the Minister’s delegate and the Immigration Assessment Authority member, and your grounds of appeal really recognise that by seeking to raise legal error questions, so is there anything you wish to submit to me enlarging on those grounds of appeal as to why one or more of them should be regarded by me as establishing legal error by the Federal Circuit Court judge?

PLAINTIFF (THROUGH INTERPRETER):  I’m unable to put my argument because I am not clear what I can say, so I don’t know.  Maybe if you could give me some more time and think about it, but currently I’m unable to put my submission.

HIS HONOUR:  Well, today really is the day for you to make your submissions, and the notice of appeal was filed as long ago as 16 November 2017, six months ago, so six months is a long time during which to think about the submissions to make.  Is there anything you wish to submit to me about any of those grounds of appeal?

PLAINTIFF (THROUGH INTERPRETER):  I don’t understand what else I can say.  I don’t understand what else I can say.

HIS HONOUR:  Well, the purpose for today is to hear submissions about the merits about why I should allow the appeal, having regard to one or more of those grounds of appeal, and it’s in your interest to add, if you are able, by way of enlarging on those grounds.

PLAINTIFF (THROUGH INTERPRETER):  That’s why I have mentioned grounds that if I go back, the authority says there is no harm to me, but I suffered a lot and there are lots of injuries in my body that actually shows I will get targeted if I go back, and which the authority didn’t consider that properly.  That’s why I have filed this case.

HIS HONOUR:  Is there anything else you wish to submit to me about your appeal grounds?

PLAINTIFF (THROUGH INTERPRETER):  No, your Honour.”

Plainly, the plaintiff did not say anything to Justice Logan to suggest that the plaintiff wished to be represented by counsel or make any application as such for an adjournment.  The highest it went was the plaintiff’s response to the judge’s admonition not to stray into the merits of the case:  “Maybe if you could give me some more time and think about it, but currently I’m unable to put my submission”.  Furthermore, as it appears, the plaintiff was able to put his submission because, when the judge pointed out to the plaintiff that he had already had six months to think about it, the plaintiff did put his submission.

Contrary, too, to the plaintiff’s contentions, there was no obligation on Justice Logan to ensure that the plaintiff was represented by counsel.  The common law of Australia does not recognise the right of an accused to be provided with counsel, still less a right in an applicant for a protection visa to be provided with counsel.  This Court held in Dietrich v The Queen (1992) 177 CLR 292 in relation to criminal proceedings that, where an indigent accused is charged with a serious offence and through no fault of the accused he or she is unable to obtain legal representation, a trial judge’s refusal to accede to the accused’s application for an adjournment or stay of the trial may result in a trial which is unfair and thus necessitate that the accused’s conviction be quashed. But there is no authority for the existence of any similar or analogous rule in relation to an applicant for protection visa: see New South Wales v Canellis (1994) 181 CLR 309 at 328 per Mason CJ, Dawson, Toohey and McHugh JJ. See also Nguyen v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 101 FCR 20; WABZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 271 at 302, paragraph 96 per Hill J. And even if there were, the evidence here as to why the plaintiff appeared unrepresented is exiguous. It does not establish that it was through no fault of his own. Nor was there any application for adjournment in order to retain counsel or even any suggestion of wishing to do so. And, the contention that the plaintiff was unable to obtain a fair hearing of his appeal without counsel is without merit. It is clear from Justice Logan’s reasons that his Honour grasped each of the plaintiff’s grounds of appeal and gave each detailed consideration against the evidence of what had occurred before the Immigration Assessment Authority.

In my view, there is no merit in ground 1 and accordingly I reject it.

As to ground 2, the plaintiff contended in his affidavit in support that:

“I contend that the Honourable Federal Court Justice Logan made a jurisdictional error in refusing to grant leave to me to raise and argue Ground 4 and 5 in the Notice of Appeal filed on 16 November 2017 and erroneously held because Ground 4 is not reasonably arguable, the better course, in my view [scil Logan J’s view], is to refuse leave to raise Ground 4 and refuse leave to argue Ground 5.”

As appears from Justice Logan’s reasons for judgment, his Honour’s reasons for refusing to grant leave for the appellant to argue the proposed grounds 4 and 5 of the plaintiff’s appeal to the Federal Court were these:

“Ground 4 is cast at a level of generality such that it is devoid of meaningful content.  The [plaintiff] did not give any particularity to it in the course of his oral submissions.  Those submissions, both in respect of Ground 4 and other grounds, amounted to nothing more than an assertion that if he went back to Sri Lanka he would be harmed.  Whilst I do not doubt the genuineness of that sentiment, such an assertion seeks, impermissibly, to have the Court embark on an assessment of the factual merits of his visa claim.  It is not within the jurisdiction of the Court to do that.  Because Ground 4 is not reasonably arguable, the better course, in my view, is to refuse leave to raise Ground 4.

Ground 5 does have particularity to it.  It is not, though, a ground which, in my view, is reasonably arguable.  To establish that ground, it would be necessary to demonstrate that the Authority’s decision was unreasonable or that, having regard to the Authority’s reasons, it was illogical or irrational:  see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[132]. To establish unreasonableness, the [plaintiff] would, in effect, have to establish that the conclusions reached by the Authority were not reasonably open on the material before the Authority. But the Authority has, at some length and in considerable detail, explained, by reference to material which supports that explanation, why it is that the Authority was not satisfied in respect of the claimed fear of persecution and, for that matter, why it was that no complementary protection obligation arose. Further, the Authority has done this, when one reads the reasons fairly, as Wu Shan Liang requires, in a logical and rational way.  It is just not arguable that the Authority’s decision is unreasonable, irrational or illogical.  In these circumstances, the appropriate course, in my view, is to refuse leave to argue Ground 5 also.”

There is no error in that.  Justice Logan was correct to refuse leave for the plaintiff to advance grounds 4 and 5 for the reasons which his Honour gave.  I reject ground 2.

As to ground 3, the submission put by the plaintiff in his affidavit in support was as follows:

“The Honourable Federal Court Justice Logan did not find that the Federal Circuit Court Judge Street erred that the Authority committed an error of detention of Tamils from the former LTTE areas of the country with an ‘absence of a real chance of detention and persecution’.

The Honourable Federal Court Justice Logan failed to hold that the Federal Circuit Court Judge did not hold that the [Immigration Assessment Authority] did not consider adequately the meaning of ‘well‑founded fear’ enunciated by Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at Mason J stated at 389 and McHugh J at 429 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572.”

As such, ground 3 appears to be in substance a re‑agitation of the first to third grounds of appeal before Justice Logan. Those grounds in essence argued that the Immigration Assessment Authority had erred in applying the “real chance” test stated in section 5J(1)(b) of the Migration Act 1958 (Cth) because: first, the Authority had impermissibly reasoned that because the situation for Tamils in Sri Lanka had recently eased and improved, the plaintiff’s fear of persecution was not well‑founded; secondly, the Authority had failed to consider the plaintiff’s situation into the foreseeable future if he were returned to Sri Lanka; and thirdly, the Authority had failed to take into account the possibility that it may have been the case, as alleged by the plaintiff, that the Sri Lankan Criminal Investigation Department had visited the plaintiff’s family home following his departure from Sri Lanka to inquire about the plaintiff.

Justice Logan rejected all three grounds.  His Honour considered that the first and second complaints were without foundation.  A proper reading of the Authority’s reasons disclosed that the Authority did not simply rely on the improved situation for Tamils in Sri Lanka but in fact expressly considered the plaintiff’s individual circumstances, and the Authority expressly looked to the foreseeable future as well as the immediate circumstances should the plaintiff be returned to Sri Lanka.  Justice Logan’s reasons for rejecting the third complaint were these:

“Ground 3 also has a deficiency in its foundation.  It may be accepted that, in circumstances where the Authority, or another reviewing body such as the Administrative Appeals Tribunal, or, for that matter, the Minister and his delegates, are left in some doubt as to whether to accept particular claimed factual circumstances, the assessment of a visa application of this kind should be undertaken by taking into account the possibility, even if inclined not to accept an asserted factual position, that that inclination might be wrong.  As to this, reference might be made to Wu Shan Liang [(1996) 185 CLR 259], Guo [(1997) 191 CLR 559] and also Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe (1999) 197 CLR 510.

The Authority member was alive to this need in those instances where she entertained a doubt.  So much is apparent from para 15 of the Authority’s reasons in relation to the Authority’s approach to whether or not the CID in Sri Lanka had an interest in the appellant in the aftermath of the civil war and also in 2012.  Other conclusions on matters of fact by the Authority do not demonstrate this kind of doubt.  They are affirmative findings, which carried with them no requirement additionally to consider the alternative, based on a possibility of error in a primary finding of fact.  For these reasons, there is no substance in Ground 3 in the notice of appeal.”

There is no error in any of Justice Logan’s reasons for rejecting the plaintiff’s complaints regarding the Authority’s application of the “real chance” test.  I reject ground 3.

As to grounds 4 to 6, the submission put by the plaintiff in his affidavit in support simply repeated those grounds.

There is no substance in any of the complaints raised by grounds 4 to 6.  As is apparent from the transcript of the hearing of the appeal, before Justice Logan called on the plaintiff to put his submissions in support of his grounds of appeal, his Honour gave the plaintiff a detailed explanation of the purpose of the hearing and as to the matters to which the plaintiff should direct his submissions.  It was as follows:

“HIS HONOUR:  I will just take a few moments to explain the nature of the proceeding and the procedure that I’m going to follow this morning for the benefit of the appellant.  As you have probably worked out already, the lady sitting next to you has the task of interpreting the proceedings for your benefit, the benefit of the Minister’s representatives, and for my benefit.  You may be assured that she is independent of the Minister, and so am I.  Your task today is to persuade me, having regard to the grounds of appeal in your notice of appeal, that the judgment of the Federal Circuit Court is in error.  If I find that the Federal Circuit Court judgment is in error, what I shall do is to allow your appeal and send your case back to the Immigration Assessment Authority for reconsideration on its factual merits.

It’s very important that you understand that what I have described is my role, which is focused on whether the Federal Circuit Court judgment is in error and in no way concerned with whether or not you should be granted a visa.  That’s because I have no role in making an evaluation of the merits of your protection visa claim, and I have no power to grant you a visa.  Our migration law divides up functions between the Minister, his delegates, and the Immigration Assessment Authority, who do have a role in making evaluations of fact; and judges, whose role it is to decide whether those people have undertaken their duties according to law.

The procedure that I am going to follow today is that I shall first ask you to make oral submissions, then I shall ask the Minister’s barrister for his oral submissions, and then I shall give you a chance to make a reply.  It doesn’t matter that you haven’t, as the Minister did, filed in advance a written submission because the purpose of today is to hear from you and also the Minister about the merits of your appeal.  Now, a court room can be an intimidating place, particularly for someone who’s not used to going to court, and I want you to be as relaxed as possible so that you can take full advantage of the opportunity extended today to make submissions.

So usually submissions are made standing up from the lectern that you see at the centre of the bar table, but because I want you to be as relaxed as possible, I’m going to make an exception for you which is if you feel more relaxed and better able to make your submission sitting down next to the interpreter where you are, please do that.  I shall not regard that as a discourtesy, and it will not count in any way against your case if you choose to do that.  I will leave that decision up to you.  …

…

It’s now time for you to make your oral submission about your appeal using, as the reference point, the grounds in your notice of appeal.  As to those grounds of appeal, and as the Minister has already submitted in writing, the Minister’s submission is that two of those appeal grounds, grounds 4 and 5, were not, or do not relate to issues raised in the Federal Circuit Court and therefore, so the Minister submits, require a grant of leave.  Because whether I grant leave requires me to look at the merits, it’s as well if you make your submission about the merits of each of those five grounds of appeal.  Have you got a copy of your notice of appeal with you?”

There was not and is not any suggestion that the plaintiff did not understand Justice Logan’s explanation.  Accordingly, I reject grounds 4, 5 and 6.

Ground 7 adds nothing to the other grounds of application and thus I reject it.

In the result each of the plaintiff’s grounds of application being without merit or substance, it is appropriate that the application be rejected.  The order of the Court, therefore, is that the application for order to show cause be dismissed with costs.

Is anything further sought.

MR KAPLAN:   No, your Honour.

HIS HONOUR:   Thank you very much.

I shall adjourn now to 9.00 am on Thursday, 11 October in Canberra.

AT 2.31 PM THE MATTER WAS CONCLUDED