CAQ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2021-01-14|Before: Jackson J

The appeal is dismissed.
On or before 4.00 pm on 28 January 2021 the parties must file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent's costs of the appeal.
In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent's costs is referred to a Registrar for determination. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKSON J: 1 This is an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Immigration Assessment Authority. The Authority had affirmed a decision by a delegate of the first respondent (Minister) refusing to grant Safe Haven Enterprise Visas (SHEVs) to the appellants. A SHEV is a form of protection visa. 2 The appellants are a family unit comprised of a father, mother and two children. The first, third and fourth appellants are nationals of Sri Lanka. It appears that the second appellant, who is the youngest child, also has that status because although she was born in Australia she is able to apply for Sri Lankan identity papers. The father, who is the first appellant, claims to fear persecution or harm if he is returned to that country. The other appellants did not make any similar claims, but rather applied for visas by reason of their membership of the first appellant's family. Their claims to SHEVs stand or fall with his. This court has appointed the first appellant as litigation representative for the two children, so that he has acted on their behalf in this proceeding. 3 The appellants had legal representation in the Federal Circuit Court but not in this appeal. The notice of appeal says that the Federal Circuit Court did not properly hear their claims and complains of procedural unfairness. It also alleges that the appellants could not hear their interpreter properly and could not properly engage in the proceedings. None of these assertions were supported by particulars or evidence. For the following reasons, the appeal must be dismissed.

The Immigration Assessment Authority's decision 4 The first appellant was born in the North Western Province of Sri Lanka in 1991. He is a Christian, of Sinhalese ethnicity. However his claims to protection rested on neither his religion nor his ethnicity. They were based on what he said were threats and (possibly) physical violence he had experienced in Sri Lanka because of activities of his father. 5 The first appellant's claims before the delegate and the Authority can be summarised as follows: (1) In 2012 the first, third and fourth appellants went on vacation to Italy, when his father telephoned the first appellant and told him that 'the opposition party was trying to kill him because he had helped the government and the police to catch the local mafia in his village'. (2) His father subsequently fled to Australia. (3) On the first appellant's return to Sri Lanka from Italy, he was threatened by 'the mafia' every day. He could not go to work or social events because he was constantly afraid. He said he received death threats. (4) He was caught by the mafia on one occasion when he left his house. The first appellant's accounts of what happened on that occasion varied between different interviews and will be described further below. (5) The first appellant and his family were very scared after this and decided to go to Australia. (6) The first appellant also fears harm if he returns to Sri Lanka because he departed Sri Lanka illegally and has claimed asylum in Australia. (7) The first appellant also claims to fear repercussions because he says that he is perceived to have been involved in the theft of the boat on which he and his family arrived in Australia. (8) The first appellant fears the Sri Lankan government 'because he has a political opinion against them'. 6 It is difficult to provide a more detailed account of the first appellant's claims because, as summarised by the Authority, they are vague and incoherent. For example, when the delegate asked the first appellant who, he feared, would harm him or his wife and children if he returned to Sri Lanka, the first appellant initially did not answer the question, and then when pressed said that he did not know but said it was the same people who wanted to hurt his father. He said it could be a private gang or a gang from the government. All he could say about them was that they were groups of thugs who would do anything for money. The first appellant did not know what his father had done, 'but he knew he helped a group of people at one time, maybe some politicians or another side'. He could not say whether his father was involved with a political group, although members of Parliament and politicians had come to their place quite often. His father had worked for them but the first appellant did not know who they were. The first appellant did not know which political party his father had worked for. The Authority, summarising the first appellant's interview with the delegate, said: Asked what he meant about the opposition party, the applicant stated that at one particular time his father was working for one party and just after that he would work for a different party, whoever gave him money he would work for. Only his father knew whether it is a political party or person or the opposition. He could not say whether his father was in a gang. 7 When the delegate asked the first appellant whether he had ever experienced bodily harm in Sri Lanka, he said he had not, but he had been threatened by the people who were causing problems for his father. Telling the delegate about what appears to have been the alleged incident when 'the mafia' came to his house, the first appellant said that three people, one of whom had a knife, held him but he said he ran away. The delegate noted that in the first appellant's advanced screening interview he had said that the mafia had hit him in the stomach and made no mention of any weapon. And in his written application for a SHEV, he had said one of them was pointing a gun at him. However, during the SHEV interview (that is, the first appellant's interview with the delegate), when the delegate asked for clarification the first appellant said that he was not actually sure if the mafia people had a gun, but they did have a knife. The delegate also noted that when the first appellant's father was asked why he came to Australia in his arrival interview, his father referred only to a 'small threat a long time ago'. 8 The Authority said it had carefully considered the claims and evidence about these alleged threats. At para 24 it characterised the first appellant's evidence as 'vague and evasive and not at all compelling'. It noted a number of inconsistencies between his SHEV application and the evidence provided in his SHEV interview. It described the vagueness of his varying accounts about what his father had done to attract the adverse attention of the 'mafia' or 'gang'. It referred to the conflict between his evidence and that of his father. It summarised the first appellant's changing and inconsistent accounts of the incident where the mafia attacked him at his home. Taking all that into account, the IAA concluded that the first appellant had fabricated the claim that he had been subject to threats from the mafia and rejected that claim in its entirety. 9 The Authority then turned to consider the first appellant's claim that he would be arrested if he returned to Sri Lanka because it was claimed that he and others stole or hijacked the boat on which he came to Australia. The Authority summarised a number of purported translations of official documents which the first appellant had given the delegate in support of his claim, none of which appeared to name the first appellant. On the basis of the documents the Authority accepted that there were ongoing investigations in Sri Lanka into the ownership of a boat and whether it departed Sri Lanka without the knowledge of the owner, but the Authority was not satisfied that the first appellant was a person of interest in relation to those investigations. One reason the Authority gave for that finding was that because of its considerable concerns about the first appellant's credibility, it was not satisfied that he was a witness of truth. 10 The Authority also considered the first appellant's claim to fear persecution because of his political opinion. That claim was also vague; at his SHEV interview the first appellant had said that he did not know about politics in Sri Lanka. After considering country information, the Authority found that the claim was not convincing, and that the first appellant was not politically inclined, was of Sinhalese ethnicity with no ties to the Liberation Tigers of Tamil Eelam and had no political profile, and so did not face any real chance of harm on account of actual or imputed political opinion if he returned to Sri Lanka. 11 The Authority also rejected the first appellant's claim to fear harm on return to Sri Lanka as an illegal departee and failed asylum seeker. It did so after considering country information about the treatment of returned asylum seekers, and the prospects of the first appellant's youngest child who was born in Australia, the second appellant, obtaining Sri Lankan identity papers. 12 The Authority thus found that the first appellant did not meet the definition of 'refugee' in s 5H(1) of the Migration Act 1958 (Cth). It also rejected his claims to complementary protection, essentially for the same reasons. It accepted that the appellants may face some adverse treatment on return to Sri Lanka as failed asylum seekers, but did not consider that it would rise to the level of death, torture and other treatment which s 36(2A) of the Migration Act defines as the 'significant harm' necessary to establish a claim to complementary protection. The Authority affirmed the delegate's decision to refuse the appellants' applications for SHEVs.

The proceedings in the Federal Circuit Court 13 The appellants applied to the Federal Circuit Court for judicial review of the Authority's decision. By the time of the hearing of the application, there was only one ground of review: that the Authority 'did not consider the arguments, facts and evidence in the case'. By then the appellants were represented by a solicitor. An affidavit of the first appellant was filed six days before the hearing and written submissions were filed the week before the hearing. The solicitor appeared on behalf of the appellants at the hearing. 14 The primary judge delivered ex tempore reasons for decision. His Honour accurately summarised the Authority's decision, observing along the way (at [13]) that 'reading what the IAA had summarised as far as the interview was concerned, it is very difficult to actually ascertain what it is that the Applicant was saying'. 15 According to the primary judge, the submission that the first appellant made was covered in the affidavit which he filed in the Federal Circuit Court. The affidavit purported to annex a statutory declaration from his father as well as to 'clarify certain mistakes made in my previous representations due to disadvantages experienced by me due to language difficulties'. 16 The statutory declaration said that the first appellant's father had been misinterpreted when he had been interviewed, and in fact had told the Department of Immigration that the attacks he was faced with in Sri Lanka were serious. 17 The clarifications included a statement that the first appellant went to Italy in 2011, not 2012 as he had previously said, and that he went by himself, not with his wife or first born daughter. It then described the telephone calls he received from his father when he was in Italy, saying that his father told him that he had 'worked under a member of parliament and for the police' and '[t]hey were not paying him and they owed him money under their agreement'. So 'they' thought that the best way of 'terminating the debt' was to attack the first appellant's father. 18 The affidavit also gave another account of the alleged incident in which three men came to the first appellant's house after he returned to Sri Lanka and asked after his father's whereabouts. The men produced a knife; the first appellant claimed that the earlier statement that it was a gun was the result of the interpreter mistranslating the Sinhalese word for 'weapon'. This time the first appellant said that after this incident, instead of going to Australia, he went once again to Italy. Men contacted his wife while he was away, so the first appellant returned to Sri Lanka and then he and his family left for Australia. 19 There was also evidence in the affidavit concerning the claim that he had been accused by the owner of the boat that took him to Australia of having 'taken the boat by force' and that two people from the boat who returned to Sri Lanka had been jailed. 20 The affidavit also annexed what purported to be a testimonial in favour of the first appellant from a Minister of the Provisional Council of Nattandiya (a town in North Western Province, Sri Lanka). The testimonial referred to the people alleged to have threatened the first appellant and his wife as 'drug dealers'. 21 The primary judge summarised the affidavit accurately and quoted the substantive contents of the father's statutory declaration. His Honour then said (at [51]), 'Of course, none of this material was before the IAA and what the Applicant has tried to do is to give another explanation to try and explain the deficiencies that had been noted by the IAA.' 22 His Honour nevertheless went on to compare the contents of the statutory declaration with a record of the father's entry interview which was in the court book. The interview transcript has the father describing the threat that led to his own departure from Sri Lanka to Australia as 'a small, small threat a long time ago'. Overall, the father indicated quite frankly in the interview that the reason he came to Australia was because he thought life would be better here than in Sri Lanka, and did not claim any fear of returning to Sri Lanka, or any incidents of harm or threatened harm while he was there. 23 The primary judge then reasoned as follows: 57 There is nothing in the statutory declaration that would put any doubt on what was said in that interview being in any way a misrepresentation or a misinterpretation of what was said. It was proper for the IAA to look at what the Delegate had done. 58 The Delegate had put what the father had said to the Applicant and given the Applicant an opportunity to respond to that. The Applicant did respond to that but, as the IAA had said, they were not convinced of the responses. 59 There is nothing in any of that material that has now been given to the Court that would cast any doubt about the manner in which the IAA conducted their review. Firstly, the material was not before the IAA but, secondly, even if it was, it is not such that it could have, in any way, led to a different conclusion, or put any doubt as to there being any different conclusion, given, or made, by the IAA. 60 Similarly, the Applicant's claims as to the boat are not any different to what he had claimed at the interview. The documents that he has now put in this new affidavit do not in any way support anything that he has said about his own circumstances. 61 It seems to me that there is nothing that is said that could put any doubt upon the conclusion that had been reached by the IAA. For those reasons, I decline to accept any of the new evidence. The argument is that the IAA has not considered the arguments, facts and evidence in this case. 62 The submissions that were given to me really were an attempt at an impermissible merits review. The arguments, facts and evidence were considered. It is simply that the Applicant does not like the conclusions that the IAA had come to. 63 Having gone through what the IAA has done, it is quite clear to me that the conclusions that the IAA came to were open on the evidence. That being so, there is no jurisdictional error.

Consideration of this appeal 24 The grounds of appeal are (errors in original):

The Federal Circuit court did not properly consider my claims and had procedural unfairness.
We did not hear the interpreter properly and could not properly engage in the proceedings. 25 There is no merit in the first of these grounds. The primary judge identified the appellants' submission before him as being based on the first appellant's affidavit of 4 March 2020. His Honour described that affidavit in detail in his reasons and considered whether it supported any claim of jurisdictional error by the Authority. He concluded, correctly, that it could not, because it went to the merits of the first appellant's claim for protection and included material which was not before the Authority. His Honour's conclusions about the affidavit are set out above. They demonstrate genuine intellectual engagement with the contents of the affidavit and therefore with the claims the appellants made in the Federal Circuit Court. 26 It is not clear whether his Honour's statement at [61] that he declined to accept any of the new evidence was a decision not to admit the affidavit into evidence. But viewed in the context of the rest of his reasons, which considered the contents of the affidavit in detail, it is best understood as a finding that those contents were not relevant to the question of whether the Authority committed jurisdictional error. That finding was correct and is not the subject of challenge on this appeal. 27 When I asked the first appellant, through the interpreter, at the hearing of the appeal what claims he made to the primary judge which his Honour failed to consider, the first appellant did not identify any. Instead, he sought to advance a different claim. He said in terms (according to the interpreter) that the Federal Circuit Court had not made any mistake; rather the problem was that the appellants' lawyer had not put to the court evidence which the first appellant had instructed him to put. 28 Quite apart from the fact that this was not encompassed by the grounds of appeal, and was unsupported by evidence, the difficulty the appellants would have faced in pursuing this ground is that as a general rule, parties are bound by the manner in which their counsel (or solicitor-advocate) has conducted their case at trial. While there is jurisdiction in the court to set aside criminal verdicts and, probably, civil decisions, because of miscarriage of justice occasioned by the conduct of counsel, it is a jurisdiction which must be exercised cautiously in the former cases (criminal trials where liberty and reputation are at stake) and even more sparingly in the latter (civil trials): see Bajramovic v Calubaquib [2015] NSWCA 139; (2015) 71 MVR 15 at [38] (Emmett JA, Leeming JA and Adamson J agreeing); see also Chouman v Margules (1993) 17 MVR 144 at 149 (Kirby P). 29 The allegations which the first appellant made against his former solicitor had no specificity, and did not begin to rise to the level required to establish a miscarriage of justice in the Federal Circuit Court. They could only have been made out if they had been supported by substantial evidence. There was no explanation given by the first appellant as to why they had not been advanced (on the basis of evidence) sooner than the hearing of this appeal, and there was nothing to suggest that the allegations had such merit that there should be an adjournment of the hearing to permit evidence to be adduced later. It is simply too late for the appellants to rely on their claim that their solicitor failed to provide evidence to the Federal Circuit Court. 30 The first appellant also claimed at the hearing of the appeal that other lawyers acting for him did not present the correct evidence to the Department of Immigration. There is no suggestion of this in the materials before the Authority or the primary judge so, even if it was true, it could not found any appeal to this court. 31 As for the asserted denial of procedural fairness, the appellants filed their application for judicial review in the Federal Circuit Court, were given advance notice of the hearing, were permitted to file written submissions and did so, and were legally represented at the hearing. No transcript or other evidence of the conduct of the hearing was in evidence to suggest that it was not conducted fairly. When asked why the hearing before the primary judge was unfair, the first appellant simply returned to his complaint that his lawyer did not present material to his Honour. That aspect of the first ground of appeal is without merit. 32 There is also no evidence to support the second ground of appeal. But even if there was evidence that the appellants could not hear the interpreter properly at the Federal Circuit Court hearing, that would not establish appealable error. In SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212 at [9], Allsop CJ (Robertson J agreeing) said: The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. 33 At [19]-[20] the Chief Justice approved the following statement of Tamberlin, Mansfield and Emmett JJ in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1 at [28]: the proficiency in English [required] … is the proficiency necessary to enable an applicant to give evidence and present arguments in English in order to communicate the substance or his or her case and to respond to issues raised. It does not require any greater expertise in English. 34 Here, as has been said, the appellants were represented by a solicitor at the Federal Circuit Court hearing. I have already declined to entertain their late claim that the solicitor failed to provide unspecified evidence to that court. This court must therefore proceed on the basis that the appellants had a real opportunity to place any relevant information before the court, that they took that opportunity, in the form of the affidavit of 4 March 2020, and that through their solicitor, they were able to communicate the substance of their case and respond to any issues raised at the hearing. To use the words of the ground of appeal, they were able to 'properly engage in the proceeding' though their solicitor. There is no reason to think that the appellants' solicitor was unable to communicate effectively with them before, during and after the hearing so that they were able to provide instructions as necessary and understand what had happened, let alone any evidence of a failure of communication. When I pointed out to the first appellant that the appellants were represented by a solicitor at the hearing, he returned once again to his complaint that the lawyer had failed to present evidence. 35 At the appeal hearing the first appellant also sought to raise a complaint that a different lawyer who had prepared his protection visa application had been 'removed by the government', that is, suspended. But any suspension of that lawyer, after or even before the preparation of the protection visa application, could not found any claim of jurisdictional error by the Authority. 36 The first appellant sought to make yet another new claim at the appeal hearing, namely that material he had given to the delegate was not provided to the Authority. But even if this could give rise to jurisdictional error, it was not raised with the primary judge in circumstances where, as I have said, the appellants were represented by a solicitor and there is nothing to suggest that they should not be bound by the way that solicitor presented their case. 37 The first appellant also complained of errors in translation in his interviews before the delegate. Once again, these errors were mostly unspecified and the claim was largely unsupported by evidence. The first appellant's affidavit in the Federal Circuit Court does say (errors in original), 'I in my interviews had told a weapon in Sinhalese but the interpreter had said that it was a gun which is wrong. So I want to correct this - it was a knife'. But there is nothing to suggest that this evidence, comprised of an assertion by the first appellant uncorroborated by any interpreter, was before the Authority. 38 Nor is there anything to suggest that the evidence could found a claim of jurisdictional error, even if it had been before the Authority. As the Authority noted, the delegate had asked the first appellant about the apparent inconsistencies in his accounts of the alleged incident where he was threatened or attacked outside his home. The explanation did not suggest any interpretation errors. Rather, the first appellant's explanation was based on difficulty in recollecting details after the lapse of time. The delegate recorded the first appellant as saying it was about six years since he gave the information and he tried to forget things that had happened. According to the delegate, the first appellant 'continued to explain that he was not actually sure if they had a gun and "they may have had a gun" but "yes they had a knife".' This indicates errors of recollection and does not point to any interpretation error capable of vitiating the decision of the delegate. It does not support the unsubstantiated claim of an error of the latter kind which is made in the affidavit in the Federal Circuit Court. And the affidavit does not touch the fact that the first appellant's written visa application also said that he had been threatened at gunpoint. The Authority took the explanation which the first appellant gave to the delegate into account. It was open to both the delegate and the Authority to reject the first appellant's various accounts of the alleged incident. 39 There is no merit in either of the grounds of appeal, so the appeal must be dismissed, with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.

Migration Act 1958(Cth)ss 5H(1), 36(2A)

At a glance

Court

Decision date

Before

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)