FEDERAL COURT OF AUSTRALIA

COA17 v Minister for Immigration and Border Protection [2018] FCA 1330

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed with costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWARD J:

Introduction

1    This is an application for leave to appeal from an interlocutory decision of the Federal Circuit Court of Australia refusing to reinstate an application for judicial review of a decision of the second respondent (the “Authority”) which had earlier affirmed a decision of a delegate of the first respondent (the “Minister”) declining an application for the grant of a Safe Haven Enterprise visa.

Background

2    The applicant is a Tamil man of Christian faith from Sri Lanka. He arrived in Australia on 4 November 2012 and applied for his visa on 7 April 2016. By orders made in the Federal Circuit Court on 26 October 2017, the application for judicial review of the Authority’s decision was set down for hearing on 15 December 2017. This order was sent to the email address which had appeared on the applicant’s originating application. A reminder of the trial date was both emailed to that same email address on 8 December 2017 and sent by a letter to the address nominated by the applicant on his application. The applicant did not appear in court on 15 December 2017. The Federal Circuit Court then made orders dismissing the application for review summarily.

3    By application filed 15 February 2018, the applicant applied in the Federal Circuit Court to have the orders made on 15 December 2017 set aside pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth). That application was refused on 26 February 2018 with reasons being delivered on 29 March 2018. In his judgment, the primary judge refused to set aside the earlier orders for two reasons. First, the court was not satisfied with the reason or explanation for the applicant’s failure to attend court on 15 December 2017. The applicant claimed that he had not known about the date and had not received the emails or the letter referred to above. The court decided at [5]:

The Court does not accept that the applicant was not notified of the hearing date. The Court does not accept the applicant’s explanation as satisfactory for his failure to appear and on that ground alone, the application in a case should be dismissed.

4    Secondly, the court considered the merits of the application for judicial review and had regard to the Authority’s reasons for decision, the terms of the originating application, and certain grounds handed to the court by the applicant contained in a proposed amended application. I will return to the court’s consideration of the merits for judicial review. The court ultimately dismissed the application to have the orders set aside. It concluded as follows at [15]:

Neither the originating application, nor the proposed amended application, which was marked exhibit B, identify a sufficiently arguable case to give rise to any utility in setting aside the Court order even if the applicant had provided a satisfactory explanation for his failure to appear. The Court finds in the circumstances of the present case there would be no utility in setting aside the order made on 15 December 2017. Accordingly, the application in a case is dismissed.

Application for Leave

5    On 12 March 2018, the applicant filed a purported notice of appeal containing the following ground of appeal:

1.     The Federal Circuit Court Judge committed jurisdictional error when dismissing my case.

Particulars

a.     My hearing was reinstated on 15 February 2018 because I failed to attend the 15 December 2017 hearing

b.     The Federal circuit court judge rescheduled my hearing to 22 February 2018, I had 4 working days to prepare my case for the interlocutory hearing on 22 February 2018.

c.     Previously I was told by govt lawyers and orders were made by previous Judge who had been allocated my matter on 14 July 2017 that my matter was scheduled for call over on 13 April 2017.

d.     I explained the reason why I did not attend the hearing on 15 December 2017 by way of an Affidavit.

e.     On the day of the hearing as I did not have sufficient time to prepare my case and or seek legal representation in 4 working days therefore I provided a short submission/affidavit to the FCC which was prepared with the help of a friend.

f.     The FCC judge did not consider my submission/affidavit I handed in at the commencement of the interlocutory hearing on 22 February 2018.

g.     No reasons for the decision has also been made at the time of filing this appeal.

(Errors in the original)

6    On 11 April 2016, the Minister filed a notice of objection to competency pointing out that the decision of the Federal Circuit Court was interlocutory and not final, and that, accordingly, the applicant needed leave to appeal. Orders were then made by this Court for, amongst other things, the filing by the applicant of a written outline of submissions 10 days before the date of the hearing before me. This has not occurred, nor has the applicant filed, as required by Federal Court Rules 2011 (Cth), an accompanying affidavit in support of an application for leave. However, the Minister urged the Court to dispense with these requirements, pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) and instead to treat the document called “notice of appeal” as being, in substance, an application for leave to appeal. This seemed both sensible and fair. The applicant also agreed with this course.

7    To obtain leave an applicant must show, in all the circumstances, that the decision below is attended by a sufficient doubt to warrant reconsideration and that substantial injustice would result if leave were refused, supposing the decision to be wrong: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In addition, one should take into account that the power conferred by r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) in a judge of the Federal Circuit Court is discretionary in nature. On an application for leave to appeal, this raises for consideration the principles derived from House v The King (1936) 55 CLR 499, at least for the purposes of determining sufficient doubt. As Kenny J observed in Sandhu v Minister for Immigration and Border Protection [2015] FCA 1321 at [29]-[30]:

It must be borne in mind that an appellate court will not readily interfere with a discretion exercised by judge a first instance in relation to practice and procedure. To succeed in challenging the exercise of discretion by the Federal Circuit Court Judge to refuse reinstatement, the applicant needed to demonstrate that the Judge made an error of the kind identified in House v The King (1936) 55 CLR 499 at 505. That is, the applicant needed to show that this exercise of discretion has miscarried, because her Honour acted upon a wrong principle, was guided by extraneous or irrelevant matters, ignored relevant matters or made a mistake of fact. A failure to properly exercise a discretion may be inferred in appropriate cases, where the discretionary decision is, upon the facts, unreasonable or plainly unjust. In essence, the applicant needed to show that the challenged exercise of discretion miscarried in such a fundamental way as to justify the appellate court’s interference: see Samsung Electronics Co Limited v Apple Inc [2013] FCAFC 138 at [17]-[20].

The critical question would have been, therefore, whether the Federal Circuit Court made an error of this kind when exercising the discretion that arose on the applicant’s reinstatement application. There appears to be no error in her Honour’s identification of the legal principles which governed the exercise of discretion. Her Honour applied those principles, having regard to relevant matters. Her Honour gave close consideration to the Tribunal’s decision and the merits of the applicant’s judicial review application, bearing in mind that the applicant had identified no jurisdictional error in that decision.

8    I respectfully agree with her Honour’s observations. Thus, a question for determination is whether the primary judge’s consideration of the reasons for the applicant’s failure to appear and his Honour’s analysis of the Authority’s decision miscarried in the fundamental way described by Kenny J in Sandhu.

9    I turn, first, to consider the merits of the application for judicial review in the way mandated by Decor Corporation. The applicant’s claim for a visa was based on the proposition that he either satisfied s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”).

10    His claim of fear if returned to Sri Lanka was summarised by the Authority at [7]:

The applicant’s claims can be summarised as follows:

•    He fears that if he is returned to Sri Lanka he could be seriously harmed by the Sri Lankan authorities including the Sri Lanka Army (SLA), the Special Task Force (STF) and the Criminal Investigation Department (CID) for the following reasons:

•    As his family is perceived to have supported the Liberation Tigers of Tamil Eelam (LTTE) by smuggling weapons;

•    His siblings were members of the LTTE;

•    He has been suspected of LTTE links, involvement and been tortured in the past;

•    He lived in the former LTTE controlled areas;

•    He departed Sri Lanka illegally and claimed asylum in Australia hence could be perceived to be a member of the LTTE; and

•    He also has scarring on his body caused due to the torture he underwent.

11    The Authority accepted that many of the incidents which the applicant had claimed in the years up to 2008 had taken place. Thus, at [16] it found as follows, concerning the applicant’s brother called “A” and his sister called “M”:

The applicant was generally consistent throughout the visa application process that M and her husband were in the LTTE, she was arrested and is now in India; that A was previously arrested and then went missing in 2007; that the applicant was detained in 2004; and that he went to Jordan, Iraq and Saudi Arabia. He provided supporting documents including M’s rehabilitation certificate dated 10 August 1998; A’s bail release condition form dated 26 April 1999; and letters and a newspaper article concerning A’s disappearance in 2007.

12    More specifically in relation to the applicant’s sister, the Authority found as follows at [17]:

…I accept that his sister M and her husband were in the LTTE; that she was a Sea Tiger; that they fled from the LTTE prior to July 1997 when she was placed in rehabilitation; that after her release in July 1998 she and her husband lived in Colombo; that she was not involved in the LTTE after her release; and she and her husband moved to India around 2006.

13    The Authority then went on to observe at [17]:

Given that the applicant concedes he is not good with years and dates, I consider his estimate of when M joined based on her age to be the more accurate assessment and, together with the rehabilitation certificate that shows she started rehabilitation in July 1997, I accept that she joined the Sea Tigers in approximately 1995 (she was born in 1976) and left the LTTE prior to the end of July 1997.

14    In relation to his brother the Authority found at [18]:

I accept that A supported the LTTE by smuggling goods for the LTTE, including weapons, food, cement and building materials from about 1994 until the start of the ceasefire in 2003; that A moved to Jaffna in 2003 and in 2007 A disappeared. Based on the bail document provided, and noting the applicant’s comments about his poor recall of dates and years, I accept that A was arrested while smuggling goods and imprisoned for six months in 1999 not 2000.

15    In relation to an event said to have occurred in 2004, the Authority said at [19]:

I accept that during the war, up until 2004 the Sri Lankan authorities frequently visited his family’s home because of A and M’s known links to the LTTE to interrogate the family; he and his father were taken to the SLA camp at T for questioning several times; that on one occasion in 2004 he was detained and beaten, for three days; and that on one occasion in 2004, the SLA struck him on the leg and he suffered injury including a fracture; and that because of these problems his family sent him to Jordan and Iraq.

16    In relation to an event which occurred in 2008, the Authority said, at [21]:

I accept his claims that he was questioned by the CID at the airport when he returned from Iraq and Saudi Arabia; that he was stopped at a checkpoint by the SLA on his way home from the airport in January 2008, detained, questioned, pushed and fell injuring his buttocks and thigh, and when the SLA released him they dropped him near a hospital; that a week after he returned home from Saudi Arabia the STF called at his family's house, took an old passport and asked him to report to the STF camp; that at the STF camp he was interrogated and mistreated overnight and after his release the next day two STF men grabbed him by the genitals and placed him in a tree; and that on three or four occasions he was given money so he and a friend could buy alcohol for the STF and they were made to stay during the night until the STF were really intoxicated.

17    However, the Authority had concerns about the applicant's claims in the period following his return to Sri Lanka in 2008. It said the following at [16]:

[The applicant] was much less consistent concerning events after he returned from Iraq and Saudi Arabia in 2008 and until he left Sri Lanka 2012. Having considered his evidence from his arrival interview, SHEV application and SHEV interview, I have concerns about the truthfulness of some aspects of the applicant’s evidence.

18    The Authority then considered the most recent country information in some detail. Thus it made findings at [28]:

DFAT assesses that Sri Lankans of all backgrounds generally have a low risk of experiencing official discrimination as there are no current laws or policies that discriminate on the basis of ethnicity including in relation to access to education, employment or access to housing. DFAT states that Tamil inclusion in the political dialogue in Sri Lanka has increased under the Sirisena government and they have a substantial level of political influence.

(Footnotes omitted)

19    It reached its conclusions at [39]:

Having regard to the [United Nations High Commissioner for Refugees (the “UNHCR”)] guidelines and the other information before me, I do not consider the applicant to be at risk of harm for reason of any links to the LTTE, or any imputed political opinion, now or in the reasonably foreseeable future, for a number of reasons. First, on the evidence, residing in a LTTE controlled area and any day to day interactions with the LTTE that entailed does not itself give rise to a need for protection. Secondly, although the applicant was questioned and sometimes beaten and mistreated by the Sri Lankan authorities on a number of occasions up to 2004 and then on his return from Iraq and Saudi Arabia in 2008, all of those occasions occurred during the war and country information suggests that harassment and monitoring of Tamils in the north was routine. Thirdly, on my findings, the only adverse interaction the applicant had with the Sri Lankan authorities after the incident in which he was grabbed by his genitals and placed in a tree approximately a week after he returned from Saudi Arabia in late 2008, was on the three or four occasions that he and a friend were given money and forced to buy alcohol for the STF and to remain with them until the STF men were inebriated. I am satisfied on the evidence that this conduct by the STF was opportunistic exploitation and an abuse of power by the STF, but these occasions are not indicative of an ongoing interest in the applicant because of his LTTE connections through A or M or otherwise. Also, given the passage of time, the lack of interest by the authorities including the STF in the applicant or his family since the applicant departed for Australia and the dramatic improvement in the security situation in Sri Lanka, I am satisfied that the chance that the applicant will face the same or similar conduct from the STF if he returns to Sri Lanka is remote. Fourthly, although she was in Sri Lanka until approximately 2006, the applicant does not claim that the Sri Lankan authorities showed any interest in his sister M after her release from rehabilitation in July 1998. Fifthly, the Sri Lankan authorities have not enquired about the applicant since he left Sri Lanka and, on my findings, they have not visited his family’s home for any reason in that time. Sixthly, although some of the applicant’s issues with the Sri Lankan authorities arose as they were looking for A and he has some resemblance to A, it is now over 13 years since A smuggled goods for the LTTE, over nine years since A disappeared and over five years since the authorities have, on my findings, shown any interest in the applicant or his family for any reason. I also note that country information suggests that scarring was, anecdotally, a matter of interest to the Sri Lankan authorities during the war and in its immediate aftermath when considering suspected LTTE involvement but that it is no longer the case. The applicant does not have a profile that country information suggests he is at risk of harm from the Sri Lanka authorities, now or in the foreseeable future, for any links to the LTTE or for any imputed political views. I am not satisfied that the Sri Lankan authorities would have had any adverse interest in the applicant had he remained in Sri Lanka or that he would be of any adverse interest to the Sri Lankan authorities if he returned.

20    It also considered the risks arising from the applicant returning as a failed asylum seeker who had departed Sri Lanka illegally. It reached the following conclusions, at [47]-[48]:

I accept that the applicant will be considered a failed asylum seeker on his return. DFAT assesses the risk of mistreatment or torture for the majority of returnees, including those suspected of offences under the [Immigrants and Emigrants Act 1949, Sri Lanka (the “IE Act”)], is low and continues to reduce. Country information containing reports of some returnees being tortured was before the delegate and provided to the [Immigration Assessment Authority (the “IAA”)]. DFAT does not suggest that there is no risk and those other reports provide some examples of incidents of mistreatment. I accept that an asylum seeker with actual or perceived links to the LTTE may be at risk of harm when processed at the airport. However, as discussed above, notwithstanding his and his family’s residence in areas that were controlled by the LTTE during the war, A and M’s involvement with the LTTE, his and his father’s questioning and mistreatment by the authorities at various times up to 2004, his questioning and mistreatment on a number of occasions in 2008, his buying alcohol for the STF and his scarring, the applicant was not of adverse interest to the former Sri Lanka authorities at the time he left Sri Lanka and the authorities have shown no interest in him since he departed Sri Lanka. The country information does not suggest, and I do not accept, that being an asylum seeker in Australia increases a person’s risk profile with the Sri Lankan authorities. It was submitted on behalf of the applicant that his being absent from Sri Lanka at the same time as M and [another brother (“M2”)] would increase his risk profile. Although he has been absent from Sri Lanka while M is in India and his brother M2 is in Malaysia, given that he has not claimed that the authorities have shown any interest in M since she was released from rehabilitation, that he has not claimed that M2 is in Malaysia because of any issues with the authorities nor, on my findings, have the authorities visited his family’s home since he left Sri Lanka, I am not satisfied that his absence from Sri Lanka at the same time as M and M2 will in any way increase his risk profile with the Sri Lankan authorities. It was submitted on behalf of the applicant that, as returnees are processed en masse, if one of that group of returnees was of adverse attention to the authorities for whatever reason it was more likely than not that other members of the group would be affected and expose them as persons of interest or impute them with a political view. I do not accept that if someone else in his group was of adverse interest to the authorities, the fact that he was processed en masse with that person of interest would increase the applicant's own risk profile. Taking into account those findings and the country information, I do not accept that the applicant will be at risk of adverse attention from the Sri Lankan authorities when scrutinised on arrival in Sri Lanka.

I am not satisfied that there is a real chance that the applicant would face harm on his return as a failed Tamil asylum seeker. I accept that the applicant, if returned to Sri Lanka, will face action under the IE Act. The country information confirms that the applicant is likely to be detained and questioned at the airport, possibly up to 24 hours, before being taken by the police to the nearest Magistrates Court.

(Footnotes omitted)

21    It considered all of the claims individually and cumulatively and concluded, at [57]:

I accept that the applicant will face some non-discriminatory penalties because of his illegal departure from Sri Lanka. However, considering the applicant’s circumstances as a whole I am not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future, either in the period following his arrival or on his return home, because of his illegal departure, for having made a claim for asylum in Australia, for any links to the LTTE or imputed political opinion, as a Tamil male from the Northern Province or any combination of these. The applicant does not have a well-founded fear of persecution within the meaning of s. 5J [of the Act].

22    It followed, according to the Authority, that s 36(2)(a) was not satisfied. The Authority then considered the application of s 36(2)(aa) and found as follows, at [61]:

I have found that there is not a real chance of harm to the applicant, now or in the reasonably foreseeable future, for any LTTE links or imputed political opinion, including because of M’s and A’s involvement with the LTTE and the applicant’s arrests, questioning and mistreatment by the authorities up to 2004 and again during 2008, as a Tamil male from the Northern Province, as a returned Tamil failed asylum seeker from Australia or a combination of these. As ‘real chance’ and ‘real risk’ involve the same standard, it follows that I am also satisfied that there is no real risk of significant harm if he is returned to Sri Lanka.

(Footnotes omitted)

Again, it decided that s 36(2)(aa) was not satisfied.

23    For the purposes of considering whether to set aside the orders summarily dismissing the applicant’s application for review, as already mentioned, the primary judge said he would consider the adequacy of the explanation for his non-appearance and also whether there was merit in the grounds of review or whether that application was futile. In my view, these were matters which the Federal Circuit Court judge could have regard to in exercising the discretion reposed in his Honour by r 16.05 of the Federal Circuit Court Rules 2001 (Cth). It was not suggested that these were the wrong tests.

24    As to the explanation for the non-appearance, as already mentioned, the judge rejected the applicant’s excuse. It found, as a fact, that the applicant was notified of the hearing date. No error of law has been identified in relation to that finding.

25    The primary judge then considered each of the proposed grounds of review which were contained in the original and amended applications. Those grounds are reproduced in the judgment below at [10]-[11], being:

Turning now to the merits of the application, the applicant, from the bar table, handed up a proposed amended application that was marked as exhibit B. The originating application had a bare assertion that the Authority had failed to consider the applicant’s claims in the circumstances and, accordingly, that the conduct of the Authority was procedurally unfair. The ground asserted that further details would be provided in due course…

…

The amended application identifies two proposed grounds, are as follows:

GROUND 1

The Authority failed to consider written submissions that were put to the IAA [CB 216,1].

Particulars

1.     The Authority invited the applicant to comment on new information it had received extracted from the DFAT 2107 report [CB 223, 4].

2.     The applicant sent in submissions on 10 April 2017 to the authority [CB 223, 5].

3.     The Authority refers to things other than the specific submissions (that the delegate failed to consider the familial connection to the LTTE due to the applicant's sister being a member of the LTTE) that was put forward to the IAA contained in the submissions on 10 April 2017 [CB 216, 1].

4.     At [CB 223, 5] and [CB 223, 6] the Authority refers to and deals with contents in the submissions of 10 April 2017, however fails to consider the submission put forward concerning the fear of harm the applicant would face due to his sister's links to the LTTE. The Authority did not mention that it had considered the specific submission about the applicant's sister that was in the written submission sent to the IAA. The court must conclude that these submissions were not considered by the IAA for this reason.

5.     The authority made findings regarding the applicant’s sister’s duration in the LTTE (that she served only for 2 years) without considering the specific submission that was put to the IAA which was that she served for 12 years.

6.     The Authority should have first considered the specific submissions contained in the submissions on 10 April 2017 and then proceeded in the manner it did to conclude that the sister served only for a period of 2 years [CB 226, 17] and [CB 233, 38].

7.     It was procedurally unfair to not deal with the submissions that were put to the IAA.

GROUND 2

The Authority’s decision is so unreasonable that no decision maker would make such a decision

Particulars

1.     The Authority accepted the applicant sister was a member of the LTTE sea tigers who underwent rehabilitation [CB 233, 38].

2.     The authority accepted the applicant’s brother smuggled goods for the LTTE including weapons [CB 227, 18].

3.     The authority accepted that the applicant’s brother was arrested for smuggling goods and he was imprisoned [CB 227, 18].

4.     The authority accepted that the authorities frequently visited the applicant’s house because of the applicant’s brother and sister’s [LTTE] connections [CB 227, 19].

5.     The authority considered the UNHCR guidelines which states a “person with real or perceived links with the [LTTE] may give rise to a need for international refugee protection.” [CB 231, 32].

6.     The UNHCR guidelines the authority considered states amongst other things that persons with family links to persons closely related to persons with certain profiles could be in danger [CB 231, 32].

7.     The Authority accepted that the applicant was subjected to serious mistreatment [[CB 233, 37]]. The serious mistreatment at the hands of the authority included the following

•    The applicant was beaten and detained for three days [CB 233, 37].

•    The applicant was struck so hard he suffered injury including a fracture [CB 233,37].

•    The applicant was questioned several times, detained, pushed and he fell [CB 233, 37].

•    The applicant was interrogated by the STF (Special Task force) and was mistreated [CB 233, 37].

•    The STF grabbed the applicant by his genitals and placed him in a tree [CB 233, 37].

8.     The IAA made an unfair and unreasonable decision after having considered the above claims and after considering the UNHCR report.

(Errors in the original)

26    At [12]-[14] of the judgment below, the primary judge considered each of these grounds and found each to lack legal merit. The primary judge found that the Authority had taken into account all the matters said by the applicant that it did not take into account, and the primary judge did not consider that the Authority’s decision was legally unreasonable. In my view, by so concluding, the primary judge did not exercise his discretion in a way that was unreasonable or plainly unjust. The primary judge addressed the correct principles for the exercise of that discretion. He did not take into account irrelevant matters and his Honour did not ignore relevant material. The conclusion at [15] that there would be no utility in setting aside the orders for dismissal is not, for these reasons, attended with sufficient doubt.

27    The ground in the proposed notice of appeal addresses the issue of the applicant’s non-attendance in court. Particulars (a) to (e) raise a series of factual propositions concerning his inability to prepare for the hearing before the primary judge for reinstatement, as well as his non-appearance at the trial below. As for his contention that he was unable to prepare, the difficulties recited are similar to those which unfortunately hamper litigants who are not legally represented. That is very unfortunate, but it does not reveal an error of law of the House v The King type. Nor does reliance upon the affidavit said to explain his non-appearance form a basis for showing that the primary judge erred in finding, as a fact, that the applicant had been notified of the hearing date.

28    Particular (f) was a contention that the primary judge had refused to consider a document handed to him. Before me, the applicant identified that document as the amended application. However, not only was that document received and marked “B”, for reasons already given, each of the grounds contained in it was considered by the primary judge.

29    Particular (g) was that at the time of filing his notice of appeal document, reasons had yet to be delivered by the primary judge. However, those reasons were delivered on 29 March 2018 and since then, the applicant had the opportunity to file an amended document (as he did below) and the opportunity to file written submissions.

30    It follows that the first limb of the test from Decor Corporation is not satisfied and I therefore do not need to make any findings about the second limb of that test concerning substantial injustice.

31    Before me, the applicant stated that his mother passed away on 8 August 2018 and that he has been unable to pay attention to this matter. That is understandable. However, this matter has been with this Court since 12 March 2018 and no application for an adjournment has been made to it.

32    For these reasons, the application for leave is dismissed with costs as agreed or assessed.

Associate:

Dated:    26 September 2018