BAC15 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-03-09|Before: Griffiths J

The appeal be dismissed.
The appellant pay the first respondent's costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GRIFFITHS J: 1 This is an appeal from a judgment dated 17 November 2016 of the Federal Circuit Court of Australia (FCCA). The judgment is reported as BAC15 v Minister for Immigration and Border Protection [2016] FCCA 2792. 2 For the following reasons, the appeal must be dismissed, with costs.

Summary of background facts 3 The appellant is a Sri Lankan citizen. He arrived in Australia in 2012 as an unauthorised maritime arrival. On 13 November 2012 he applied to the Department for a protection visa. He claimed that he would face serious harm if he were returned to Sri Lanka as he was a young Tamil man, had departed Sri Lanka unlawfully, has a father who spent six months of the year living in an area of Sri Lanka which was known to be a Liberation Tigers of Tamil Eelam (LTTE) stronghold, has spent a substantial amount time abroad, and would be returned as a failed asylum seeker. He also claimed that he would face serious harm because he had spent a period of time in a country perceived by Sri Lankan authorities to "harbour" a pro-LTTE community. 4 The Minister's delegate refused the appellant a protection visa on 10 July 2013. The delegate found the appellant not to be credible, that he had been inconsistent within his claims and had also presented claims which were contrary to independent information. The delegate identified inconsistencies in the appellant's evidence concerning an alleged extortion episode when he was in Colombo studying in early April 2012. The delegate pointed to various inconsistencies in the appellant's accounts of this matter, including the initiation of the extortion and the appellant's location when he alleged that someone called his father and threatened to kidnap the appellant if the father did not pay the demanded money. The delegate identified other concerns in the appellant's evidence relating to his father's wealth, and to his claim about a related incident in which masked men had allegedly attended his home, beat his father, and dragged the appellant past the gate of his house in an attempt to kidnap him for not complying with the extortion demands. 5 The appellant's claims regarding the extortion and masked persons were not accepted by the delegate because the delegate: (a) was not satisfied that the appellant's father (whom the appellant claimed had owned a dried fish business) is wealthy, and thus there was no motivation for extortionists to target him; (b) was not satisfied that the appellant's father was a member of a particular authority which was linked with the Sri Lankan government; (c) was not satisfied that the appellant or his father were being targeted because of the father's association with that authority given that the authority itself was a government initiative and the appellant claimed that the kidnappers were also connected with the government; and (d) found that the appellant had not provided "forthright narrations" of the alleged extortion. 6 The delegate also explained why he did not accept the appellant's claim to fear persecution as a failed asylum seeker, as a Tamil returning from Australia, or because he had departed Sri Lanka illegally. 7 The appellant sought a review of the delegate's decision by the then Refugee Review Tribunal (RRT) (now the Administrative Appeals Tribunal). On 12 May 2015, the delegate's decision was affirmed by the RRT.

The RRT's reasons summarised 8 The RRT considered the appellant's claims that masked men had attempted to kidnap him so as to extort money from his father, a successful businessman. The RRT summarised the appellant's claims concerning the kidnapping and extortion at [23]-[34] of its reasons for decision. Although the RRT acknowledged that there was some evidence to support the appellant's claim that his father was a successful businessman, the RRT found that this evidence was outweighed by other difficulties with the appellant's evidence, particularly the materially different accounts he gave of the claimed kidnapping attempt. The RRT elaborated on those concerns at some length. It concluded at [33] that the appellant had fabricated his claims regarding the kidnapping attempt so as to create "a backstory to enhance his chances for protection in Australia". 9 The RRT found inconsistencies between what the appellant had said at the entry interview about this incident compared with what he told the Tribunal. It found at [31] that the appellant's failure to provide an English translation of a police report about the kidnapping attempt written in Singhalese led to an inference that the police report was unsupportive of his claim, and suggested that the appellant had fabricated his claims regarding the kidnapping attempt. 10 The RRT considered the appellant's claim that he would be harmed because he is a Tamil and that he would be harmed by the Sri Lankan authorities as someone suspected of having links with the LTTE, or as someone opposed to the government. The RRT accepted that the applicant is a Tamil. Although the RRT accepted that Tamils may face discrimination and harassment in Sri Lanka which does give rise to some harm (as indicated in country information it referred to), it was satisfied that the appellant only faced a remote and not a real chance of harm because he is a Tamil. It did not accept that there was a real chance that he would face serious harm now or in the reasonably foreseeable future from the Sri Lankan authorities because of his race as a Tamil, his membership of any particular social group or political opinion related to the LTTE, or any other Convention reason. 11 In addition, based on country information, the RRT did not accept that the appellant, as a failed asylum seeker, would be imputed with an anti-government or pro-LTTE political opinion, or that he would face a real chance of serious harm. 12 The RRT referred to the Full Court's decision in SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 in considering the appellant's claim that he would face serious harm if he returned to Sri Lanka because he had departed illegally. The RRT was not satisfied that the questioning, arrest, poor conditions in remand and the penalty for illegal departure amounted to systematic and discriminatory conduct, nor was it satisfied that the appellant would face a real chance of serious harm while held on remand. 13 The RRT was not satisfied that harm arising from harassment or discrimination, or harm arising from the appellant committing offences under the Sri Lankan Immigration and Emigration Act 2006, would amount to significant harm so as to give rise to complementary protection.

The FCCA proceeding 14 The appellant represented himself in the FCCA. His application for judicial review raised a single ground, namely that the RRT had applied the incorrect test under s 91R(2) of the Migration Act 1958 (Cth) (the Act). This ground was particularised by reference to the "reviewer" having proceeded "to a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant's liberty was sufficiently significant", relying on WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (WZAPN) at [30] and [45] per North J. The primary judge noted that this decision had been overturned on appeal to the High Court: see Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; 254 CLR 610. 15 The primary judge concluded that the High Court's decision was fatal to the appellant's judicial review case, adding at [17] that no other ground had been identified by the appellant.

The appeal 16 The appellant represented himself on the appeal. He raised the following five grounds of appeal in his notice of appeal dated 2 December 2016: Grounds of appeal 1. The applicant was unrepresented in proceedings below and adjournment should have been was granted for me to seek legal advice. 2. For this reasons the decision of the Federal Circuit Court Judge McNab is attended with sufficient error as to warrant the opportunity to postpone the hearing. 3. The Federal Circuit Court Judge should have adjourned the hearing of the application for the applicant to obtain legal representation is a denial of procedural fairness by the Court below and is unsafe. Further, the true nature of the decision from which appeal is sought finally disposes of the matter being a matter of the utmost importance to the applicant. 4. Judge McNab failed to have regard to the short nature of any adjournment that would be necessary given to the appellant that he had made arrangements to get a lawyers opinion and to represent him on the matter. 5. Judge McNab erred by dismissing the proceedings where the appellant was not permitted legal representation by reason of the refusal to grant an adjournment. Had the applicant been legally represented, additional grounds could have been identified which would have clearly indicated that there was a reasonably arguable case of jurisdictional error.

Analysis 17 It is evident from the notice of appeal that the appellant's grounds all relate to the primary judge's failure to adjourn the FCCA hearing to enable the appellant to seek legal advice. 18 There is no reference in the primary judge's reasons for judgment to any request for an adjournment, nor is there any material in the Appeal Book evidencing any such request. 19 The appellant affirmed an affidavit dated 2 December 2016 in which he deposed that he appeared at the FCCA hearing on 18 October 2016 and represented himself. He further deposed as follows (without alteration): 5. Since I am not represented by a legal practitioner to represent my case for the hearing at the Federal Circuit Court the Judge at the FCCA should have adjourned for me to have a legal representatives. 6. Had an adjournment been granted I would seek proper advice the way in which I should be having the carriage of my matter. 20 There is no material to suggest that an adjournment was requested in the FCCA by the appellant and the appellant confirmed from the Bar table that he had made no such request. It appears from the appellant's affidavit that he believed that the FCCA itself should have taken the initiative and granted him an adjournment because he was not legally represented. 21 As the Minister submitted, there is no automatic right to legal representation, or an automatic right to an adjournment to seek legal representation: see SZTYY v Minister for Immigration and Border Protection [2015] FCA 985 at [14] per McKerracher J; SZVLE v Minister for Immigration and Border Protection [2017] FCA 90 at [38]-[40] per Katzmann J. 22 The appellant's appeal must be rejected. There is no basis for finding that he requested an adjournment in the FCCA. It was open to him to have done so. The primary judge was under no legal obligation to adjourn the hearing simply because the appellant was not legally represented. 23 The appellant submitted that he would be persecuted if he returned to Sri Lanka, relying upon what he had put to the FCCA below. As noted above, no other ground of appeal was raised apart from the failure to adjourn the FCCA hearing. Recognising that the appellant is self-represented, I have reviewed the primary judge's reasons for judgment. I can discern no appealable error.

Conclusion 24 For these reasons, the appeal must be dismissed and the appellant ordered to pay the first respondent's costs, as agreed or assessed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

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