AOK17 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of the appeal, to be fixed by a Registrar by way of a lump sum. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MORTIMER J: 1 This is an appeal from orders made by the Federal Circuit Court on 14 May 2019, dismissing the appellant's application for judicial review of a decision of the Immigration Assessment Authority and ordering the appellant to pay the first respondent's costs in the amount of $5,500: see AOK17 v Minister for Immigration & Anor [2019] FCCA 1263. 2 For the reasons set out below, the appeal must be dismissed.

Relevant background 3 The appellant is a citizen of Sri Lanka and is of Tamil ethnicity. The appellant arrived in Australia on 19 October 2012. There is a gap of several years which is unexplained by the evidence. 4 The evidence suggests that the "bar" imposed by s 46A of the Migration Act 1958 (Cth) was lifted and on 7 January 2016 the appellant was invited to apply for a protection visa. The appellant applied for a Safe Haven Enterprise (subclass 790) Visa on 18 April 2016, and was interviewed by a delegate of the Minister on 29 September 2016. The appellant's visa application was rejected in a decision made on 9 December 2016. The Immigration Assessment Authority wrote to the appellant to advise that the refusal of his visa application was referred to the Authority, in accordance with s 473CA of the Migration Act, on 15 December 2016. 5 On 7 February 2017 the Authority affirmed the decision of the delegate of the Minister not to grant the appellant a protection visa. This was after having granted the appellant an extension of time in which to provide a submission to the Authority, although no such submission was received. The appellant applied for judicial review of the Authority's decision on 13 February 2017. Orders were made on 14 May 2019 by the Federal Circuit Court dismissing his judicial review application. The appellant appealed to this Court. His notice of appeal was lodged on 27 May 2019, but not accepted for filing until 10 June 2019, which was still within time. There are some aspects of this chronology to which I refer in more detail below. 6 The appellant was unrepresented throughout the process before the Authority and the Federal Circuit Court. He was also unrepresented before this Court. 7 The hearing of the appeal was conducted from Melbourne by video conference to Perth. Unfortunately, the Court could not arrange for a suitably qualified Tamil interpreter to be present in Perth, as none were available. The Court arranged for a Tamil interpreter to be present in Melbourne. 8 The appellant was asked at the start of the hearing whether this arrangement was one which would enable him to follow, and participate in, the hearing. He informed the Court it was a satisfactory arrangement. He was invited to tell the Court if during the hearing the arrangement was not working well enough for him to participate in the hearing. The appellant participated in the hearing, through the interpreter, in a way I considered as adequate as would have occurred if the interpreter were in Perth. 9 There is a single ground of appeal set out in the notice of appeal: The Primary Judge didn't adequately examine the evident that was placed there by didn't exercise the Courts proper Jurisdiction. 10 The appellant explained to the Court at the hearing that he had some assistance in setting out this ground of appeal. 11 As the appellant was unrepresented, the Court invited counsel for the Minister to make submissions first, and invited the appellant to respond. The appellant confirmed he was content with this process, and the Minister's oral submissions were interpreted as they were made. 12 In substance, and in accordance with his written submissions, the Minister contended that there were no errors attending the way the Federal Circuit Court approached the judicial review, that the Federal Circuit Court admitted the affidavit evidence and the arguments the appellant sought to put before it, and dealt with each argument. The Minister submitted the Federal Circuit Court's reasons disclosed an independent consideration of the Authority's reasoning, in a manner which was appropriate given the appellant was unrepresented before the Federal Circuit Court. 13 In response, and in answer to questions from the Court, the appellant informed the Court that although he could not read English, he had some friends who had helped him to understand what was in the Federal Circuit Court reasons, and they had assisted him with his notice of appeal. I am therefore satisfied the appellant has had at least some opportunity to understand what the Federal Circuit Court decided. Added to this is the fact that the appellant also confirmed that on 14 May 2019, when the Federal Circuit Court's orders were made, the Judge's then oral and contemporaneous reasons for decision were interpreted to the appellant by the interpreter who was in Court with him. 14 At the hearing of the appeal, the appellant sought to hand up a letter he had in Court with him in Perth. He explained to the Court that this was a letter from the Sri Lankan police confirming that they (and perhaps the Sri Lankan CID, it was not entirely clear) had visited the appellant's home in Sri Lanka more than once this year. The appellant later explained the letter stated there had been visits to his home in April and July 2019. I explained to the appellant why that letter could not be received by the Court, and explained the different functions (respectively) of the Authority, the Federal Circuit Court and this Court. 15 It became clear the appellant did not have any substantive arguments to put about what was incorrect in the Federal Circuit Court's approach or reasons, and I therefore directed his attention to the Authority's decision and invited him to tell the Court what was wrong with that decision. 16 The appellant stated that the Authority did not make any mistake, but when the Authority "asked for evidence", he did not have the letter he now has in his possession. He explained that was because initially when the police (and, as I have noted above, perhaps the CID) first came back to his house they did not provide any documents about their visit, and the appellant had asked his wife to request a letter. He explained it was only after this that he received the letter. I infer, from the dates the appellant stated were mentioned in the letter, that in fact he only received the letter some time after July 2019: that is, more than two years after the Authority's decision. 17 I explained to the appellant again how that kind of information was relevant only, and then only possibly, to the Authority's task, and not to that of the Court. I inquired whether the appellant asked for any more time than the two week extension of time the Authority granted to the appellant to file any submissions, referred to in [3] of the Authority's reasons. He said, with commendable frankness, that he did not.