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[2019] FCA 1971
Federal Court of Australia
2019-11-25
Mortimer J
Original judgment source is linked above.
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.
Resolution 18 Given that the appellant was unrepresented before this Court, and was also unrepresented before the Authority and the Federal Circuit Court, I have examined the Authority's reasons for decision, in order to see if any obvious issues about a miscarriage, or constructive failure, of the Authority's jurisdiction are apparent. In my opinion, there are no apparent or potential errors in the Authority's reasoning and approach which could arguably have affected its jurisdiction to determine the review as it did. For example, at [14] of its reasons the Authority stated: The applicant fears as a Tamil the Sri Lankan authorities may impute him with a pro-LTTE, or anti-Sri Lankan government, political opinion. During the civil war the authorities regarded Tamil males, particularly those in the north and east, with suspicions given their proximity to LTTE operations. This resulted in the increased militarization of public life in those areas, including the frequent use of extrajudicial detention and disappearances of Tamil males. DFAT also corroborates that many Tamils, particularly in the north, reported being monitored, harassed, arrested and detained by security forces under the former Rajapaksa government. I have accepted he applicant's claim to have been detained and forced to report to the SLA camp at [redacted] during this period. However I note the cessation of the forced registration of Tamils suggests the monitoring and harassment of Tamils in day-to-day life has significantly eased since the war ended. In 2016 the UK Home Office concluded: "Simply being a Tamil does not of itself give rise to a well-founded fear of persecution or serious harm in Sri Lanka. The onus will be on the person to demonstrate that they will face on return ill-treatment from the current, as opposed to the previous, government." (Footnotes omitted.) 19 The remainder of the Authority's reasons adopted a similar approach. As the Minister submitted, its reasoning was balanced, and did not demonstrate any irrational or legally unreasonable approach: some aspects of the appellant's narrative about past events were accepted and some were not. The current situation in Sri Lanka, revealed by the most up-to-date country information, was considered by the Authority in a way which reveals no legal error, let alone a jurisdictional error. 20 On the appellant's principal claims, based on what had happened to him in the past, the Authority concluded (at [18]): While I accept the applicant was detained during the war and subject to reporting requirements, I have concluded that these had ceased at the time of his departure from Sri Lanka. The applicant has not been in Sri Lanka since the Sirisena government assumed power and is not a person of interest to the Sri Lankan authorities. I am satisfied there is no real chance the applicant will suffer harm on these bases. 21 The Authority then took a similar approach to the appellant's fears of harm arising from his illegal departure and forced return to Sri Lanka. At [24], and not without some sensitivity to the appellant's position, it concluded: I have taken into account the applicant has heard stories of Tamils going missing in Sri Lanka after returning from Australia, and I appreciate he may feel genuine, subjective fear about this. However the applicant has stated the only time he has ever been detained was in 2006, as part of a large group of Tamil men, and he was required to report fortnightly, then monthly to the SLA camp at [redacted]. On the information before me I have found the applicant's reporting requirement ceased prior to his departure from Sri Lanka in September 2012. I have found the applicant is of no interest to the authorities, even in the context of his origins in [redacted] and his brother-in-law's possible support for the LTTE. I do not accept that the applicant's previous residence in [redacted] gives the applicant an elevated profile or increases the likelihood of him facing serious harm, to that of a "real chance". Taking this into account, and the country information, I am not satisfied that there is a real chance that the applicant would face harm on his return as a returned Tamil asylum seeker who departed Sri Lanka illegally, either now or in the reasonably foreseeable future. 22 Insofar as the Federal Circuit Court's approach is concerned, I am satisfied that there is no appealable error attending the orders of the Federal Circuit Court. The reasons of the Federal Circuit Court set out the approach taken by the Authority, and considered the reasons given by the Authority for the dismissal of the appellant's review. The Federal Circuit Court's reasons addressed each of the matters put in argument by the appellant to the Federal Circuit Court, and explained why those matters were not ones which could result in the Authority's decision being set aside. 23 As a separate matter, I did have some concerns about the fairness of the process adopted by the Federal Circuit Court. As a result of evidence before this Court in another matter, heard by the same Federal Circuit Court Judge in Perth, I inquired of the Minister's counsel whether the Federal Circuit Court's reasons which appeared in the Appeal Book were delivered on the date they bear, namely 14 May 2019, being the date of the Federal Circuit Court's orders. 24 Counsel sought instructions and responded, consistently with the account given by the appellant, that the Federal Circuit Court had delivered an oral and contemporaneous decision on 14 May 2019, and made final orders. Counsel submitted, and I accept, that it was apparent from the form of reasons in the Appeal Book that they were not published until 31 May 2019. That date is four days after the appellant's notice of appeal was lodged. The notice of appeal was lodged by the appellant on 27 May 2019 and was accepted by the Court for filing on 10 June 2019. 25 It is unclear whether the provision of the Federal Circuit Court's reasons was only reactive to the filing of the notice of appeal. If that is the case, then the situation would be that a person, such as the appellant, never receives a record of the reasons for the orders of the Federal Circuit Court unless she or he appeals, and only then after the appeal is lodged. I have addressed this issue in AAM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1951. In that case, I found the appellant had not had the Court's oral and contemporaneous reasons interpreted to him. It was in those circumstances, and combined with other factors to which I referred, that I found a denial of procedural fairness to the appellant in AAM17. Here the appellant did have the Court's oral and contemporaneous reasons interpreted, and I do not find there was any denial of procedural fairness affecting the validity of the Court's orders. Nevertheless, the practices in the Federal Circuit Court may require some attention, if it is the case that some litigants are not in fact receiving any written record of the Court's reasons for decision, and litigants who appeal only receive such a record after they have filed their notice of appeal. 26 Those concerns do not affect my conclusions on the appeal. The appeal must be dismissed, with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.
AOK17
Minister for Immigration and Border Protection