DKK16 v Minister for Immigration and Border Protection

1. The appellant pay the respondents' costs of and incidental to today's hearing to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BANKS-SMITH J: 1 These reasons were delivered ex tempore and have been extracted from the transcript, with minor editing. 2 By a notice of appeal filed on 10 January 2018, the appellant seeks to have this Court set aside a decision of the Federal Circuit Court made on 6 December 2017: DKK16 v Minister for Immigration and Border Protection [2017] FCCA 3320. The Federal Circuit Court dismissed an application for judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA had affirmed a decision of a delegate of the Minister to refuse to grant the appellant a Safe Haven Enterprise Visa. 3 A Registrar of this Court made programming orders on 23 January 2018 with respect to the appeal, including as to the filing of submissions. The appellant did not file any submissions. 4 The appeal came on for hearing on 23 May 2018. 5 By letter dated 16 April 2018 from the Minister's solicitors the appellant was told of the hearing date of 23 May 2018 and informed that if he did not appear, the Minister may seek to have the matter dismissed. 6 By letter dated 16 May 2018, the Minister's solicitors again informed the appellant of the hearing date, provided to him the Minister's submissions and told the appellant that if he did not appear the respondent may seek to have the matter dismissed. 7 On 22 May 2018 (the day before the hearing) the appellant emailed the Court stating that he is a disabled person and had surgery on his leg. He also stated that: It was only after I was able to make contact with barrister Peter Singleton…. who is prepared to take up my matter, however he will not be available to appear on 23 May 2018 at 10.15am due to prior commitments. Barrister Peter Singleton said that he can appear in August 2018 o[n] any date except 20 August 2018. 8 The appellant asked that in the circumstances the appeal be adjourned to a date in August 2018 so that he could engage Mr Singleton or any other barrister to appear. 9 By reply email my Associate informed the appellant that if he wished to seek an adjournment on medical grounds, a medical certificate would be required and that if he wished to seek an adjournment in order to secure representation then he would need to explain to the Court the steps that had been taken to date to secure legal representation and whether or not he had received written confirmation that Mr Singleton was willing to act for him. 10 Later that day, my Associate received an email from Mr Singleton to the effect that he does not hold a brief for the appellant and nor has he indicated to anyone that he was prepared to accept a brief in this case. Mr Singleton provided some other background information about similar claims made in other migration appeals which suggested that some appellants in this Court who have contact with a particular migration agent may have an incorrect assumption that Mr Singleton is available generally to accept briefs in their matters. Mr Singleton said he has taken steps to address that misconception with the migration agent. Mr Singleton stated that he was not suggesting that the appellant had acted improperly in his communication to the Court. 11 When the appeal was called on for hearing on 23 May 2018, the appellant did not appear. I adjourned the hearing for a short period. Efforts were made by the Court staff to contact him by email and by telephone and he was formally called by a Court Officer. Those efforts were unsuccessful. 12 Counsel for the Minister moved that the matter be dismissed pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) because of the non-appearance of the appellant. 13 Having taking into account the above matters and the absence of a valid medical certificate or any appearance by the appellant, I made orders that the appeal be dismissed. 14 However, shortly after the hearing and prior to the orders being entered, the appellant provided by email a medical certificate from a Dr Ragavan. The medical certificate provided only that: [The appellant] is receiving medical treatment for the period 21 May 2018 to 24 May 2018 inclusive. He will be unfit to continue his usual work. 15 The certificate was dated 23 May 2018. The appellant said in his covering email to my Associate that he was at the medical centre at the time of the hearing when the Court was attempting to make contact with him. 16 In the circumstances, I did not enter the orders and I agreed to provide the appellant with an opportunity to be heard at a further hearing, such hearing to be facilitated as soon as possible. By email that same day, my Associate informed the appellant that it was open for him to attend the adjourned hearing by telephone or in person. The appellant was asked to confirm the telephone contact details previously provided to the Registry so that he could be contacted by telephone. 17 The hearing was subsequently listed (with the co-operation of counsel for the Minister) for 1 June 2018. 18 On 30 May 2018, the appellant emailed my Associate saying that he has partial hearing loss and therefore he did not believe a hearing should be conducted by telephone or video without assistance from a lawyer. He also took issue with Mr Singleton's claim that he had not been briefed in the matter. The appellant claimed he was looking for another barrister. He did not confirm his telephone contact details. 19 By reply my Associate informed the appellant that if he maintained his application for an adjournment he needed to attend at the hearing of 1 June 2018, either in person or by telephone, and that if he wished to pursue an application he could do so at the commencement of the hearing. 20 On 31 May 2018 the appellant provided by email another medical certificate, this time signed by a Dr Thevendrampillai of the same medical centre as Dr Ragavan, and stating: [The appellant] is receiving medical treatment for the period 31 May 2018 to 1 June 2018 inclusive. He will be unfit to continue his usual work. 21 The appellant also claimed that Mr Singleton has his court book and has not returned it. He asked for the hearing to be adjourned. 22 When the matter came on again on 1 June 2018 the appellant did not appear. He was again formally called and two attempts were made by the Court Officer to contact him by telephone. 23 I do not consider a proper basis for a variation of the orders or further adjournment of the hearing is established. There is no affidavit evidence in support of any application for a vacation of the orders before me. Nor has any application been made under r 39.04 by the appellant for the orders to be vacated or set aside. 24 In short, the appellant has failed to provide any medical evidence that supports or addresses his claim that he is unable to appear in Court for a hearing either in person or by telephone. The statement, repeated in identical terms in the medical certificates, that the appellant is 'unfit for his usual work' does not address his ability to attend Court for a hearing or participate by telephone. The medical certificates do not descend into any details as to the reason why the relevant doctors formed the view that the appellant was unable to attend work and provide no diagnosis. For a medical certificate to be meaningful it must explain how it is that an appellant suffering from a medical condition would be unfit for participation at a court hearing: Singh v Minister for Immigration and Border Protection [2016] FCA 108 [2]. 25 There was no affidavit evidence in support of an adjournment of either hearing. Even taking into account the matters as to legal representation raised in the emails to my Associate, they do not justify a further adjournment. Programming orders were made in January 2018. The date of the hearing was properly communicated to the appellant. Even accepting that the appellant may have had some confusion as to whether Mr Singleton was acting for him (confusion not based, in my view, upon Mr Singleton's conduct), there is no evidence of steps taken to clarify that position, no evidence of steps taken to secure legal advice earlier or since any misconception on the part of the appellant about Mr Singleton's role was corrected, and no evidence of steps taken to seek further copies of any documents the appellant or an agent may have handed over to third parties. Whilst I accept it can be difficult for a person in the appellant's position to secure legal advice, that difficulty is faced by many litigants and does not of itself necessarily justify an adjournment. 26 I am satisfied that the appellant has had proper notice of the programming orders, the hearing date for the appeal and today's hearing. 27 Hearings are only adjourned when a proper basis is established. The resources of the public and the Court can be wasted by adjournments absent proper grounds: CQH16 v Minister for Immigration and Border Protection [2018] FCA 672 [11]. 28 I have granted the appellant a further opportunity of some 9 days to be heard despite his non-appearance on the original hearing date to make any application or address me. 29 Despite his non-attendance then and today, I have had regard to the merits of the proposed appeal and whether, at least on a preliminary view, it has any real prospects of success. I have done so taking into account that one could read the appellant's various correspondence as an application for an adjournment. 30 There are five grounds of appeal and they mirror the grounds of appeal before the Federal Circuit Court, save that it is alleged that the primary judge erred in not accepting that the IAA made the jurisdictional errors referred to in the grounds. I note that the primary judge set out in his reasons a summary of the reasons of the IAA (at [7]). 31 By ground 1 the appellant claims the IAA misapprehended his claim, thus committing jurisdictional error by failing to find that the appellant would be imputed with a pro-Liberation Tigers of Tamil Eelam (LTTE) political opinion. 32 The IAA had accepted that the appellant had been the subject of extortion but was not satisfied that the appellant was imputed with an LTTE profile. It found there was not a real chance of serious harm on this basis and was not satisfied taking into account country information that involvement in extortion indicated a well-founded fear of persecution in the future. The primary judge held that such finding was open to the IAA, and that it was open to the IAA to accept the appellant had been extorted but to find he was not imputed with an LTTE profile, even if those who allegedly extorted him claimed that was the case. Taking into account that the IAA had found that the appellant had not been arrested or detained, at least on a preliminary view no error in the primary judge's assessment of the IAA's finding is established. 33 By ground 2 the appellant alleges that the IAA fell into error when it reviewed country information to find that there was no risk of harm from the Criminal Investigation Department (CID) as paramilitaries were disbanded, and such finding was illogical or irrational. 34 The appellant alleges in effect that the IAA conflated the extortion he experienced from the CID with that from paramilitary groups. The primary judge found that the IAA's reasons made it clear that the IAA had not in fact conflated those matters. His Honour rejected the submission as to irrationality. At least on a preliminary view, no error on the part of the primary judge is disclosed. The IAA reasons disclose consideration of the role of the CID and paramilitary groups, separately and in combination. It was open to accept that the appellant had been extorted but to find he was not imputed with an LTTE profile. The IAA relied on country information and was entitled to do so. 35 By ground 3 the appellant contends that the IAA failed to give proper consideration to a letter from a Sri Lankan Member of Parliament dated 10 October 2016 and failed to make inquiries. 36 The primary judge found that the IAA had considered the letter, had considered inconsistencies between it and the appellant's claims and those considerations led to it according the letter little weight (IAA reasons at [23]-[26]). As to the alleged failure to make inquiries, the obligations on the part of the IAA must be viewed against the nature of a fast track review process and the statutory scheme of Part 7AA of the Migration Act 1958 (Cth). The nature of the review and the materials to be considered are circumscribed: s 473DB(1)(a) and s 473DB(1)(b); Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 [13]-[38]; (2018) 353 ALR 600. Further, in the circumstances of the letter and the assessment of its weight, I agree with the primary judge's statement (at [22]) that it is difficult to see 'any obvious inquiry that could have been made about a critical fact, the existence of which was easily ascertained in the circumstances.' Again, in my preliminary view, no error in the primary judge's reasoning is disclosed. 37 By ground 4 the appellant submits that the IAA fell into jurisdictional error when it applied the wrong test or asked itself the wrong questions when it found that the appellant would not suffer significant harm or serious harm if he were to return to Sri Lanka. 38 Based on the primary judge's reasons, the submission before him was that the IAA did not properly consider the risk to him by reference to his personal circumstances, in particular recommencing his business. The reasons of the IAA disclose that it took into account the appellant's subjective fear of harm on the basis of being a 'Tamil businessman' but that giving weight to country information, it considered the likelihood of extortion to be remote, taking into account both past extortion and that he is a Tamil businessman (IAA reasons [27]). As the primary judge said, the IAA noted the appellant's claims that he had in the past operated a textile shop and had been involved in the coconut trade and that in that context he had encountered difficulties in running his business (IAA reasons [13]). The primary judge also noted there was a lack of any information suggesting such businesses were more likely to be affected by extortion or unlawful means than other businesses. The primary judge found that in those circumstances the IAA did not err in making findings based upon general country information about Tamil businessmen. In my preliminary view, the primary judge's rejection of the ground was correct and no error is disclosed. 39 By ground 5 the appellant alleges the IAA committed jurisdictional error when it failed to take into account that the appellant's detention in poor prison conditions would constitute persecution/complementary protection provisions and applied the wrong test in relation to s 5 and s 36(2A) of the Migration Act and failed to address the issue of intention. Ground 5 was not pressed before the Federal Circuit Court and accordingly the appellant would require leave to pursue it in this appeal. In my view, it is most unlikely that leave would be granted as the key consideration for allowing a new ground is whether it is expedient in the interests of the administration of justice to allow it. The High Court has now delivered its reasons in SZTAL v Minister for Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936 as to the meaning of 'intention' in the context of intentionally inflicting and intentionally causing harm, and in the context of the conduct of Sri Lankan officials. On their face, the IAA reasons do not disclose error in the application of the appropriate tests, taking into account the High Court's reasons: IAA reasons [39]-[43], [48]-[52]. 40 In conclusion, I have read the decision record of the IAA. I do not see any obvious jurisdictional error which would persuade me that an order under r 36.75 ought not be made. Further, I have read the reasons of the primary judge and do not see, on their face, any obvious error which would persuade me to vary or set aside the orders made on 23 May 2018. Upon my preliminary review of the material, nothing indicates that the primary judge fell into appealable error, such that a reasonable prospect of success on the appeal is disclosed. 41 In those circumstances, I was and remain satisfied that I ought to accede to the Minister's request that the appeal be dismissed by reason of the appellant's non-attendance. 42 The appellant is to pay the respondents' costs of and incidental to both hearings to be assessed if not agreed. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.