SZQWE v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 These proceedings concern an application under rule 36.05 of the Federal Court Rules 2011 for an extension of time to appeal from orders of the Federal Magistrates Court of Australia made on 17 May 2012 dismissing the applicant's application for particular relief in relation to recommendations of an Independent Merits Reviewer (the "Reviewer") to the Minister for Immigration and Citizenship concerning the applicant's claim as an offshore entry person (an "OEP") to be owed protection obligations under the 1951 Refugees Convention as amended by the 1967 Protocol, as part of a process (called a Refugee Status Assessment ("RSA")) established by the Minister for the purposes of s 46A(2) of the Migration Act 1958 (Cth). 2 The application before the Federal Magistrates Court was an amended application filed on 1 March 2012 in which the applicant sought a declaration that the recommendation of the Reviewer was "not made in accordance with law, by reason of the ground/s of this application" and an injunction restraining the Minister from relying upon the recommendation of the Reviewer. 3 The grounds of review relied upon by the applicant were in these terms: 1. In recommending to the [Minister] that the applicant not be recognised as a person to whom Australia owed protection obligations, the [Reviewer] failed to observe the requirements of procedural fairness by reason that he failed to provide an adequate interpreting service, so that the recommendation was not made in accordance with law. Particulars The [Reviewer] directed the translator not to translate a significant part of the interview, comprising a discussion between the decision maker and the applicant's legal adviser. 2. In recommending to the [Minister] that the applicant not be recognised as a person to whom Australia owed protection obligations, the [Reviewer] failed to assess all relevant evidence in applying the real chance test, so that the recommendation was not made in accordance with law. Particulars The [Reviewer] failed to take into account material that is credible, relevant and up to date in failing to take into account material attached to an email dated about 31 May 2011 from the applicant's agent to the [Minister], including a media article entitled "Re-examine claimed safety of refugee returnees, Al appeals to Australia" dated 3 September 2010. 3. In recommending to the [Minister] that the applicant not be recognised as a person to whom Australia owed protection obligations, the [Reviewer] failed to deal with an essential integer of the applicant's claims and make requisite findings of fact, being whether the applicant's detention by the army was for a Convention-based reason. 4 The Federal Magistrates Court dismissed the application on 17 May 2012. 5 On 8 October 2012, the applicant filed the present application by which an extension of time is sought to file a Notice of Appeal. The application is supported by an affidavit of the applicant also filed on 8 October 2012. By para 8, the applicant says that he could not file an appeal within 21 days of the pronouncement of the primary judgment due to a number of reasons, including, that he was "very depressed over the months" and that although the decision was delivered on 17 May 2012, he did not become "aware of the decision until August 2012". 6 The annexed draft Notice of Appeal relies upon these three grounds: 1. That there is a jurisdictional error in the Federal Magistrate [Court's] decision. 2. The reasons provided by the [Reviewer] to the [Minister] in support of the [Reviewer's] recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical nor rational. 3. Further grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed. 7 Both para 7 of the affidavit and p 3 of the draft Notice of Appeal recite that the applicant is unrepresented. The draft Notice of Appeal also recites, as part of the explanation for an extension of time, that the appellant has undergone "a severe mental depression and forgetfulness" and that the applicant is seeking legal support by applying for legal aid. 8 By operation of rule 36.03 of the Federal Court Rules 2011, the applicant was required to file an appeal from the orders of the Federal Magistrates Court within 21 days of pronouncement of the orders with the result that the last day within which an appeal could have been filed, within time, was 7 June 2012. 9 Before the Federal Magistrates Court, the applicant pressed the first two grounds of review involving a contention of a denial of procedural fairness on the footing that part of the proceeding before the Reviewer was not interpreted by the translator at the direction of the Reviewer, and secondly that the Reviewer failed to give consideration to the nominated article. 10 As to the first ground, Federal Magistrate Driver observed these matters. A translation service was provided to the applicant for the majority of the interview with the Reviewer: [29]. During the interview the Reviewer suggested that the translator stop translation of the interview: [29]; Transcript, pp 13-14. The Reviewer asked the applicant for permission to stop the translation and suggested that the legal adviser could explain to the applicant what she had discussed with the Reviewer, later: [29]; Transcript, p 14. The Reviewer then conducted a substantial discussion with the legal adviser to the applicant about the process of returning asylum seekers to Sri Lanka, the treatment of returned asylum seekers to Sri Lanka and the applicant's membership of a social group described as "failed Tamil asylum seekers who have involuntarily returned to Sri Lanka": [30]; Transcript, pp 15-18. This discussion was not translated: [30]. After the discussion between the Reviewer and the legal adviser, the translation commenced again: [31]. Once the translation resumed, the Reviewer told the applicant this: "[Your adviser] answered my question but in very technical terms and so I think it would be better for you if she explains to you afterwards, if she gives you a summary of what she just told me": [31]; Transcript, p 18. 11 At [32] to [34], Federal Magistrate Driver describes the continuing discussion with the applicant regarding the treatment of returned asylum seekers to Sri Lanka and other matters. 12 At [35], Federal Magistrate Driver observes that the difficulty with the ground agitated by the applicant was that it failed to identify any errors in the interpretation but rather focused upon the approach adopted by the Reviewer "whereby the Reviewer first asked whether discussion of the meaning of a particular social group with the applicant's adviser could be explained to him later by the adviser". 13 At [35], Federal Magistrate Driver notes that both the applicant and the adviser agreed to that approach. Reference is made to the Transcript at p 14, recording the agreement. Federal Magistrate Driver also observes at [35] that given "this explicit agreement with the procedure suggested it is difficult to see how there can be a breach of procedural fairness" and although the applicant relied upon observations in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6, Perera was a case where the interpretation services provided to the applicant were manifestly inadequate and effectively prevented the applicant from presenting his case: Perera at [38] - [50]. 14 Since there was no evidence before Federal Magistrate Driver in the present case that there was any error in the interpretation provided to the applicant nor that the applicant was effectively prevented from presenting his case, Federal Magistrate Driver concluded that there was no demonstrated procedural unfairness. Federal Magistrate Driver noted at [36] that the responses of the applicant were otherwise "coherent in that he plainly disagreed with the position put to him that he is not at risk of persecution". 15 At [36], Federal Magistrate Driver said this: All that was not interpreted was some legal discussion about the meaning of a particular social group, a procedure which both the applicant and his adviser expressly agreed to. The Reviewer had no basis to think that the applicant's adviser would not explain this part of the interview to the applicant later, as she said she would (and there is no evidence that she did not). If the process occasioned some unfairness to the applicant then it might reasonably be expected that neither he or his adviser would have agreed to it, or they would subsequently have told the Reviewer that they no longer agreed. The suggestion in the applicant's submissions that there must have been unfairness simply from the applicant's response to the country information read to him by the Reviewer has no logical connection to the interruption of interpretation. The first ground fails. 16 As to the second ground, Federal Magistrate Driver found that the ground "fails at an evidentiary level": [40]. Federal Magistrate Driver observed that the Reviewer may have referred to the nominated article where the Reviewer refers to "several media reports about human rights violations by the Sri Lankan government" and refused to infer from the lack of express reference to the article by the Reviewer that it had necessarily been overlooked: [40]. Moreover, his Honour refused to draw such an inference simply on the footing that the Reviewer ultimately concluded that the applicant's claims to fear harm as a failed asylum seeker was not "well-founded". 17 At [40], [41] and [42], Federal Magistrate Driver said this: 40. … ultimately, the Reviewer preferred the views of the independent country information on the issue [a fear of harm as a failed asylum seeker] to that relied upon by the applicant. The choice and interpretation of country information is a factual matter for the Reviewer. I reject the contention that the Court should conclude from the available material that the report [referenced as CB 122] was overlooked. 41. Further, even if the report had been overlooked, there is force in the Minister's submission that this would not constitute a reviewable legal error in the circumstances of this case. 42. A failure by the Reviewer to consider a claim will be a legal error; a failure to have regard to particular evidence in support of a claim will generally not, so long as the claim itself is addressed. Here the claim to fear harm as a failed asylum seeker was clearly addressed, and the report at CB 122 is no more than an item of evidence in support of that claim. 18 At [43], Federal Magistrate Driver observed that his Honour did not rule out the possibility that an item of evidence might weigh so heavily in one direction or another that it might be determinative of an issue and hence a failure to take an item of evidence into account may in such circumstances constitute a reviewable legal error, but that, in the present case "there was an abundance of material available to the Reviewer both for and against the conclusion reached by the Reviewer and the report at CB 122 could not have been determinative of the issue of whether the applicant had a well-founded fear of harm in Sri Lanka as a failed asylum seeker returning involuntarily to Sri Lanka". 19 By the application before this Court, the applicant seeks, at least in draft form, to ultimately agitate two grounds of appeal. First, that there is jurisdictional error in the judgment of the Federal Magistrates Court and second that the Reviewer's reasons are not logical or rational. No particulars have been given of either ground. No written submissions have been provided by the applicant in support of either ground. There is thus no content at all to either ground. Ground 3 is simply put on the basis that there are further grounds of appeal to be raised once legal representation has been obtained. Nevertheless, almost five months elapsed between pronouncement of the judgment on 17 May 2012 and the filing of the application for an extension of time. Approximately a further six weeks elapsed between the filing of the application on 8 October 2012 and 28 November 2012 when the matter was first listed for hearing and no further material was filed nor any other explanation given for the delay. Since then almost three further months have elapsed and no further explanation has been given for the delay apart from the applicant re-asserting on 11 February 2013 his state of depression as the basis for the delay. 20 Accordingly, there is no satisfactory explanation for the delay. 21 However, it is important to take into account the contention sworn to by the applicant at para 8(a) of his affidavit sworn 7 October 2012 that he has been "very depressed" over the months. 22 Independently of the question of the adequacy of any explanation for the delay, a further question involves an examination of the merits of the grounds of appeal sought to be advanced by reason of the application. 23 As already mentioned, the first ground of appeal is said to be that jurisdictional error is evident in the decision of the Federal Magistrates Court. I assume that the applicant is intending to suggest that the Federal Magistrate Driver fell into appellable error by failing to recognise or find that the Reviewer fell into jurisdictional error in discharging the statutory function cast upon the Reviewer. If the contention is that Federal Magistrate Driver fell into jurisdictional error there is no substance in the contention at all. If the contention is the alternative one I have just described, there is no content identified to the ground and in considering the Reviewer's decision in the context of the decision of the Federal Magistrates Court, I cannot identify any basis for finding jurisdictional error on the part of the Reviewer. 24 The second ground involves the notion that the Reviewer reached a recommendation made to the Minister which was "neither logical nor rational". This ground was not agitated before the Federal Magistrates Court. Leave to raise it now is required. I note that the applicant was represented before Federal Magistrate Driver by Ms Wilkinson of counsel and the instructing solicitor was Mr Lewis. Leave ought only to be granted in circumstances where this Court is satisfied that the point now sought to be raised has clear legal merit and no prejudice to the respondent arises in permitting it to be now argued. The Minister accepts, at least in relation to the extension of time question, that no prejudice arises to the respondents, should time be extended. The question of prejudice in relation to the application for leave to raise the new ground is not addressed. In any event, the question ultimately is to be determined, for present purposes, on the footing of whether the contention has clear merit with the result that the interests of justice require leave be given to now raise the point on the assumption that time is extended for the filing of a Notice of Appeal which would raise the point. 25 The difficulty is that without any particulars or identified content, it is almost impossible to determine in any meaningful way that there is any substance to the contention. On the face of the recommendation of the Reviewer and the analysis of the questions in issue before the Federal Magistrates Court, I cannot identify any basis upon which it could be said that the Reviewer reached the recommendation by reason of a process of reasoning which was illogical or irrational. The simple fact is that the applicant has failed to identify illogicality or irrationality affecting the Reviewer's ultimate recommendation or state of satisfaction: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58. 26 In the context of the questions raised by this application, it is not necessary to set out all aspects of the reasoning of the Reviewer. It is sufficient to say these things. 27 The applicant is a Sri Lankan male citizen who claimed to fear persecution because of his race, his actual and imputed political opinion as a supporter of the LTTE movement, and his membership of a particular social group described, as earlier mentioned, as failed asylum seekers returning involuntarily to Sri Lanka. 28 The Reviewer accepted that the applicant was arrested and detained for two days in 2001 by the army and also stopped and questioned by police in another incident. These two incidents are described as the first and second incidents in the factual matrix considered by the Reviewer. The Reviewer accepted that in the first incident the applicant was beaten although the applicant did not claim that his race or links (or imputed links) to LTTE were factors relevant to the beating. The Reviewer found that the harm suffered by the applicant by reason of the first incident in 2001 was not systematic, discriminatory or persecution for a Convention reason: [79] of the Reviewer's Statement of Reasons in support of the recommendation of 6 October 2011. 29 At [80] of the Statement of Reasons, the Reviewer observes and finds that the applicant's encounter with the police "has no Convention nexus". 30 At [82], the Reviewer notes the applicant's claim that State protection would not be available to him should he return to Sri Lanka. As to that matter, the Reviewer observes that in the case of the first two incidents earlier discussed, the Reviewer accepts that State protection was denied to the applicant although the "army people" were not motivated by reasons of the applicant's race and did not impute to him "an anti-government political opinion". The Reviewer concludes that the absence of State protection was "not Convention-related" and further observed that "I have no evidence before me to make a finding that there is a real chance that he will be denied state protection for a Convention reason if he returns, including in the reasonably foreseeable future". At [83], the Reviewer addressed the second encounter and finds as follows: "I do not accept that he was denied state protection at all. The police were merely making a routine check and having satisfied themselves that they had no reason to be suspicious of him, they let him go without causing him any harm". 31 The Reviewer at [85] rejected the "applicant's more general claim that the Sri Lankan government presumes that all Tamils from the Jaffna Peninsula may have LTTE links". The Reviewer examined country reports which assisted in reaching that conclusion. The Reviewer at [85] also concluded: I have not been dissuaded by the evidence put forward by the claimant or his advisers from making the following finding. I find that while a young male Tamil from the north of Sri Lanka may currently or in the reasonably foreseeable future - particularly now that the conflict between the government and the LTTE is over - be subject to inconvenience at checkpoints, including possibly brusque treatment, there is not a real chance that such treatment would amount to serious harm. 32 At [89], the Reviewer observes that the applicant's second core claim is that Tamils returning from overseas are subject to heightened suspicion and persecution, including torture. The Reviewer observes that the applicant and his adviser further claimed that the fact that he has only sought asylum abroad would be held against him. At [90] to [93], the Reviewer deals with aspects of that contention. The Reviewer finds that returning Tamils who have sought asylum abroad, including those without passports, do not face a real chance of Convention-related persecution: [92]. At [93], the Reviewer observes that even if the Reviewer was to be persuaded that a particular social group exists as contended for by the applicant, the Reviewer was not satisfied that the applicant held a well-founded fear of persecution by reason of his membership of such a group. 33 At [94], the Reviewer considered another claim made by the applicant during the course of the interview to the effect that he would be at risk of harm should he return by reason of the expression of anti-government views to the authorities. The Reviewer observed that when asked whether the applicant had expressed such views in his encounters with the army or police, he replied that he had not done so. 34 The Reviewer rejected the claims at [95] and found them to be contradictory in any event. The Reviewer also found the applicant's claims to be "opportunistic inventions" which were not supported by "the evidence about his previous conduct and behaviour". At [96], the Reviewer explains the content and foundation for the views and conclusions reached relating to the claims about expressing anti-government views. At [96] and [97], the Reviewer did not accept that the applicant would express views critical of the government should he return to Sri Lanka, in the event that he might be stopped by the army, police or other authorities. The Reviewer did not accept that the applicant would fail to express anti-government views by reason of a fear of persecution. 35 Also, at [99], the Reviewer did not accept that the applicant had "… attended meetings or that either of them asked him to become a member. Hence I do not accept that he faces a real chance of Convention-based harm on the basis of having attended LTTE and/or PLOTE meetings or on the basis that one or other of the two groups asked him to join". 36 At [100], the Reviewer observed that the claims of the applicant had been considered "both singularly and cumulatively". The Reviewer found that there was not a real chance that the claimant would suffer persecution in Sri Lanka for reasons of his actual or imputed political opinions, his race or his membership of a particular social group comprising failed asylum seekers returning involuntarily to Sri Lanka, now or in the reasonably foreseeable future. 37 Having considered the process of reasoning adopted by the Reviewer and the method of addressing the claims, I can find no basis for concluding that the process of reasoning reflects irrationality or illogicality, leaving aside the state of satisfaction that might be necessary in order to establish a proper ground, on that footing, of impugning the legality of the recommendation of the Reviewer. 38 Since the proposed grounds of appeal have no demonstrated merit, the application must be dismissed with costs. I am also satisfied that the delay has not been adequately explained although the ground upon which the application is dismissed is that the proposed grounds of appeal have no demonstrated merit. 39 I should add these observations in relation to the procedural aspects of the matter. The application was listed for hearing in Sydney on 28 November 2012. The applicant failed to appear. In the result, the application was dismissed with costs. On 29 November 2012, the orders made on 28 November 2012 were vacated pursuant to rule 1.32 of the Federal Court Rules 2011. The application was adjourned to a date to be fixed with the costs of and incidental to the proceeding on 28 November 2012 reserved for determination upon the determination of the principal application. The reasons for setting aside the orders for 28 November 2012 are set out in SZQWE v Minister for Immigration and Citizenship [2012] FCA 1351. For ease of reference, I will set out hereunder the relevant part of those reasons: 3. The application was listed for hearing at 10.15am on Wednesday, 28 November 2012 in Court Room 19C of the Law Courts Building, Queens Square, Sydney. At 10.15am the applicant did not appear and after having called the matter outside the Court Room, the applicant made no appearance. The applicant, however, was given notice that the matter would be heard in Court Room 19B of the Law Courts Building, Queens Square, Sydney which is on the same floor as Court Room 19C. After it became clear that no response had been made to the calling of the matter outside Court Room 19C, I directed the Court Officer to call the matter outside Court Room 19B as well. There remained no appearance. 4. I gave leave to read and file the affidavit of Sheaj Sayers sworn 21 November 2012. 5. That affidavit deposes to service of a copy of the respondent's written submissions upon the applicant by courier at 104 Pendle Way, Pendle Hill, NSW, 2145 and at 133 Pendle Hill Road, Pendle Hill, NSW, 2145 by Express Post. The submissions in each case were enclosed in a letter dated 14 November 2012 from the Solicitors for the respondents, DLA Piper Australia, to the applicant that gave notice to the applicant that the matter would be heard on 28 November 2012 at 10.15am as previously described. For the assistance of the applicant, a map was enclosed in the letter dated 14 November 2012. Clearly enough, the lawyers for the first respondent were seeking to help the applicant in finding the physical site for the Court hearing. 6. However, the enclosed map is a map setting out various locations at which proceedings before the Federal Magistrates Court of Australia are conducted, rather than a map with specific reference to the Federal Court of Australia. The map bears a large heading under the Coat of Arms "FEDERAL MAGISTRATES COURT OF AUSTRALIA". Six locations are shown on a map of the central business district in Sydney. One of the sites shown on the map is a reference to "QUEENS SQUARE (Court & Registry)". The map may well be confusing to a person such as the applicant who is a Sri Lankan citizen who requires the assistance of an interpreter. Because the map bears a prominent reference to a Court other than the Federal Court of Australia and the applicant is a Tamil who has no English fluency, I cannot be satisfied that the failure of the applicant to appear on 28 November 2012 is not attributable to the applicant attending one of the other sites depicted on the map or, alternatively, finding difficulty in identifying the precise location of the Federal Court of Australia at Queens Square by reference to the map. Accordingly, it seems to me inappropriate to determine the merits of the application (or otherwise determine the application on a procedural basis of non-attendance) on the footing that the applicant has failed to appear and has chosen not to agitate the merits of his application or otherwise abandon the application. Other cases may well be entirely different on the facts in the sense that an applicant with English language skills might, by reference to the map, locate the Queens Square Law Courts Complex and find the particular identified Court within the Complex. However, in circumstances where the applicant has no English fluency and one of the questions alive in the proposed challenge is a failure to properly provide information and translation services to the applicant in the course of the exchanges between the Reviewer and the applicant, a determination of the application in the circumstances I have described is not in the interests of justice. 7. On Wednesday, 28 November 2012, I made orders that the application be dismissed with costs. Having regard to the matters described at [5] and [6] of these reasons, I propose to vacate, pursuant to rule 1.32 of the Federal Court Rules 2011, the orders made yesterday and make further orders that the application be adjourned to a date to be fixed by the Registry of the Court. The application will then be heard and determined on that date. The costs will be reserved. 8. When the matter is re-listed by the Federal Court Registry, the matter will be re-listed before me as I am familiar with the underlying facts and issues raised by the application. 40 The application was re-listed for hearing before me on Monday, 11 February 2013. 41 On 8 January 2013, a Case Manager for the National Appeals Registrar gave notice to the applicant at the address provided by the applicant for service of material, namely, 104 Pendle Way, Pendle Hill, NSW, 2145 of the date and time for the hearing of the application. Notice was also given to the solicitors for the respondent, DLA Piper Australia. 42 On 11 February 2013, the applicant appeared in person assisted by an interpreter. The applicant has not filed any written submissions directed to the issues of delay or the merits. When invited to make oral submissions with the assistance of the interpreter, the applicant simply asserted that his failure to explain the delay and his failure to promptly make an application for leave was due to a state of depression. In any event, irrespective of the question of delay, I have elected to address the application on the merits. The applicant has made no submissions which give content to the merits. 43 Having regard to these reasons addressing the merits and also the question of delay, the application is to be dismissed with an order that the applicant pay the respondents' costs of and incidental to the application. There will be no order as to the costs reserved by the order of 29 November 2012. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.