FEDERAL COURT OF AUSTRALIA

SZQFQ v Minister for Immigration and Citizenship [2012] FCA 623

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    The Appellant is a citizen of Sri Lanka.

2    He arrived illegally in Australia and was placed in detention on Christmas Island. An officer of the Department of Immigration and Citizenship interviewed him on 3 May 2010 and on 18 June 2010 and concluded that they did not believe the Appellant met the definition of a refugee. Review was sought. An Independent Merits Reviewer recommended to the Minister on 5 April 2011 that the Appellant not be considered a person to whom Australia owed protection obligations.

3    An application was then filed with the Federal Magistrates Court on 12 May 2011 seeking (inter alia) a declaration that the recommendation of the Independent Merits Reviewer was not made “in accordance with law”. The hearing before the Federal Magistrates Court took place on 21 February 2012. That Court on the same day published its reasons for dismissing the application: SZQFQ v Minister for Immigration [2012] FMCA 170.

4    A Notice of Appeal was filed in this Court on 12 March 2012.

5    The appeal was first listed for hearing in Sydney on 8 May 2012. The Appellant was then relocated to Melbourne after the Minister granted him a bridging visa. Arrangements were made to hear the appeal in Melbourne on 24 May 2012. On that occasion an adjournment was sought to enable the Appellant to obtain legal assistance. That adjournment was granted and the proceeding stood over for hearing in Sydney via video link to Melbourne. The Appellant was advised that any further adjournment would have to be supported by an Affidavit setting forth the steps taken to secure legal advice and providing the names and contact details of any proposed adviser should any questioning be considered appropriate. No such Affidavit was provided and the hearing proceeded in Sydney on 31 May 2012. The Appellant appeared unrepresented and with the assistance of an interpreter.

6    The appeal is to be dismissed.

The Notice of Appeal

7    The Notice of Appeal as filed and without alteration sets forth the Grounds of Appeal as follows:

1.    That there is a jurisdictional error in the Federal Magistrate Courts decision.

2.    The Federal Magistrate Court on 21 February 2011 was not listed for hearing, but I was taken to the Court House and the Case was heard without legal representation for me, as described in my Court Affidavit attached with this Notice of Appeal.

3.    The reasons provided by the Second Respondent to the First Respondent in support of the Second Respondent’s recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical nor rational.

4.    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.

8    The first Ground of Appeal lacks any degree of specificity. Even if that difficulty is left to one side, no error is discernible in the manner in which the Federal Magistrate resolved the application pending before him. It is dismissed.

The Absence of Legal Representation

9    It is uncertain whether the second Ground of Appeal is an allegation that inadequate notice was given as to the hearing date before the Federal Magistrates Court or is an allegation that on that date he was denied an adequate opportunity to be heard because he did not have legal representation or, perhaps, that he was refused an adjournment that would have enabled him to have secured legal representation.

10    Some light, however, is thrown upon the concerns sought to be expressed by the Appellant if recourse is had to the Affidavit he filed in this Court together with his Notice of Appeal. Objection was taken by the Respondent Minister to this Affidavit – but that objection may be placed to one side. It need not be resolved.

11    That Affidavit sets forth some uncertainty, at least on the part of the Appellant, as to the date of his hearing before the Federal Magistrates Court. However that uncertainty may be resolved, his Affidavit goes on to state that he had been “assured” by “Tamil community members” that they would “seek legal advice and secure legal representation for [him]”. The Appellant then states that “[t]he hearing took place, and I was not legally represented”.

12    Notwithstanding uncertainty on the part of the Appellant, his Affidavit accepts that he was notified “in the third week of November 2011” of the hearing date on 21 February 2012. The Affidavit also accepts that he “received a letter from the Government Solicitor on xx February 2012.” The Affidavit leaves the date of receipt of that further letter unspecified. The Affidavit, however, goes on to state the concern expressed by the Appellant to his case manager that the letter should have been given to him earlier “if the Court [was] going to hear [his] case on 21 February 2012.”

13    If Ground 2 is to be construed as to an allegation of inadequate notice being given of the 21 February 2012 hearing date, it is rejected. The hearing before the Federal Magistrate had originally been scheduled to take place in Sydney on 21 August 2011 by way of a video link. That hearing date had been vacated so as to allow the Appellant the opportunity to appear in person. More than adequate time had been extended to the Appellant to prepare his case for hearing before the Federal Magistrate.

14    If Ground 2 is directed to a concern as to a denial of procedural fairness by reason of a refusal of an adjournment or by reason of an absence of legal representation, that Ground so construed is also rejected.

15    The Affidavit filed together with the Notice of Appeal does not expressly state whether or not the Federal Magistrate was informed of the assurance the Appellant had been given regarding legal representation from the Tamil community; nor does it expressly state whether any request was made to adjourn the hearing pending the provision of such legal representation.

16    The reasons for decision are equally silent as to whether the Federal Magistrate was informed of the prospect – or assurance – of future legal representation or whether any request for an adjournment was made.

17    There is thus no basis for concluding on the material before this Court that the Federal Magistrate had been informed of the assurance proffered by the Tamil community members. There is accordingly no reason to conclude that the Federal Magistrate did anything improper by simply proceeding to hear and determine the application which was before him.

18    The importance of legal representation cannot be questioned. But the rules of procedural fairness do not extend to a requirement to provide legal representation in civil proceedings: New South Wales v Canellis (1994) 181 CLR 309 at 330-331. See also: Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265 at [24] to [25], 101 FCR 20 at 26-27 per Sackville, Marshall and Lehane JJ.

19    The value of legal representation to the Appellant in the circumstances of the present case may, however, be open to question. There seems little reason to doubt the correctness of the Federal Magistrate’s decision or his reasons. But it is not the function of a Judge to provide legal assistance or advice to an unrepresented party. It is certainly not the role of a Judge to identify a potential error and then to resolve that potential error as having no merit.

20    The difficulty confronting the Appellant in the present proceeding is that he did not inform the Federal Magistrate of the prospect of future legal representation nor did he seek an adjournment on that basis.

21    The Federal Magistrate cannot be said to have erred in refusing an application which was never made.

22    It is also not without relevance to note that no contention can be advanced that the Appellant had been denied access to legal representation. The reasons for decision of the Federal Magistrate state in part as follows:

[14] On 9 June 2011 the applicant appeared by video-link from Sherga Detention Centre at the first directions hearing of his case. Orders were made referring him to a member of the pro bono legal panel. An order was also made that he be provided with a CD containing the IMR Guidelines and any sound recording of the interviews by 30 June 2011. He was ordered to serve any amended application with full particulars by 21 July 2011. The matter was originally listed for hearing on 21 August 2011 in Sydney but on 10 August 2011, at a further directions hearing, it was ordered that the matter be adjourned and would be heard in Weipa. This was because, although the applicant had been referred to a number of practitioners on the pro bono panel, none of them were prepared to assist him and as the applicant was to appear in person, it was felt appropriate that the hearing should be held at a place where he could be present.

No inference should be drawn as to why no member of the pro bono legal panel was prepared to assist the Appellant. The importance of the referral of the Appellant to that panel lies in the fact that the Appellant had been extended the opportunity to consult with those who could provide legal advice and that a hearing date and place of hearing had been set to accommodate his convenience. Even if an application had been made to the Federal Magistrate for a further adjournment, it is open to question whether it would have been granted.

The Lack of Logic and Rationality

23    The third Ground of Appeal should be briefly addressed.

24    The claim advanced by the Appellant was that he was at risk of harm from the Sri Lankan government because of his age and Tamal ethnicity. He further claims that he is of particular interest to the Sri Lankan authorities because he had escaped from custody. After having escaped from custody, he claims to have boarded a boat to India and thereafter a further boat to Australia.

25    The Independent Merits Reviewer considered his claims. A finding was made, for example, that the claim that the Appellant’s escape from custody made him a person of “particular interest to the authorities” was “implausible”. A finding was also made that a claim that the Appellant had bribed a senior officer to secure his release was “fanciful”. Although expressly recognising difficulties in assessing credibility, the Reviewer referred to the benefits he had in “observing the claimant give oral evidence”. The Reviewer formed the view that the now Appellant was not a credible witness and “drew the clear impression that he was not being truthful”.

26    Without more, it is difficult to discern how the Appellant seeks to contend that the recommendation of the Independent Merits Reviewer was “neither logical nor rational”. It is not known whether the contention is that the findings of fact were not open on the evidence or whether it is being suggested that those findings were open but that the ultimate recommendation was open to question. Nor is it known whether his contention is that aspects of his claim were not considered or whether the contention is directed to the conclusions reached in respect to credibility.

27    The Appellant’s oral submissions during the course of the hearing of the appeal focussed upon two paragraphs (in particular) of the reasons for decision of the Independent Merits Reviewers. One was directed to the Reviewer’s disbelief that he had bribed his way out of a prison camp and the other was directed to the Reviewer’s finding that he “… found it difficult to accept that an Army commander would drive a prisoner to get medical treatment”. These submissions centred on the procedural manner in which the findings were reached rather than their merit. It was thus contended that some of the issues in respect to which the Reviewer made adverse findings had not been raised with the Appellant during the course of the interview. Notwithstanding the assertions of the Appellant, there remained no evidential basis upon which it could be concluded that the findings of the Reviewer expressed anything other than an accurate account of what had occurred during the interview or that the Reviewer had proceeded in any unfair manner.

28    There are, moreover, accepted difficulties in seeking to establish jurisdictional error by reason of erroneous fact finding or reasoning: Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34 at [25], 179 ALR 513 at 518 to 519 per Kirby J.

29    “Want of logic”, it has long been recognised, “is not synonymous with error of law”: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ. Jurisdictional error arising by reason of “illogicality” or “irrationality” is only made out in confined circumstances: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130] to [131], 240 CLR 611 at 647 to 648. Crennan and Bell JJ there observed:

[130] In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

Gummow A-CJ and Kiefel J also observed that an affirmative answer – as to whether a state of satisfaction which is a condition precedent to the discharge of an obligation can be characterised as irrational or illogical – should not be “lightly given”: [2010] HCA 16 at [40] to [41], 240 CLR at 625 per Gummow A-CJ and Kiefel J. See also: Adamas v O’Connor (No 2) [2012] FCA 227 at [19] per Gilmour J. Other cases provide instances of the same argument being raised only to be rejected: eg, SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [84] to [89] per Greenwood J; MZYPV v Minister for Immigration and Citizenship [2012] FCA 296. As Crennan and Bell JJ made clear, an argument descends to mere merits review where the position is reached that the materials permit different decision-makers to reach different decisions: cf. Weeks v Commissioner of Taxation [2012] FCA 342 at [31]. The ground may, however, be made out where a decision is made “upon an assumption which had no basis in the evidentiary material or which was contrary to the overwhelming weight of that material …”: Ortiz v Minister for Immigration and Citizenship [2011] FCA 1498 at [53] per Logan J.

30    In the present appeal, each of the findings was a finding that was open to be made. There is no suggested aspect of the Appellant’s case which was not considered. And the process of reasoning from those facts to the conclusion is a process that was open to the Independent Merits Reviewer. However the argument alleging a lack of logic or rationality is advanced, it is without substance.

31    There is nothing on the facts of the present case to make out the third Ground of Appeal. It is dismissed.

GROUND 4 AND A REQUEST FOR AN ADJOURNMENT

32    In addition to the Affidavit filed at the same time as the Notice of Appeal, the Appellant also filed a further Affidavit. That further Affidavit states that the Appellant received notice of the date of hearing before this Court on 27 April 2012. The Affidavit goes on to state that:

[10] I have very limited time and other resources to seek legal representation for the scheduled hearing date on 8 May 2012. An adjournment would enable me to discuss with legal professionals and present my case properly to the Court.

The Affidavit further states:

[15] I am confident that I can work with my legal representatives to demonstrate that a legal error was committed by the second respondent in deciding my application for humanitarian protection in Australia.

The contents of this Affidavit should be read together with Ground 4 of the Notice of Appeal.

33    To accommodate a potential submission that the Appellant needed more time in which to secure legal assistance for the preparation of the present appeal, the hearing otherwise set down on 24 May 2012 was adjourned to 31 May 2012.

34    Notwithstanding the adjournment of the hearing to 31 May 2012, no further evidence was filed setting forth the steps taken by the Appellant to secure legal representation or assistance. There is thus no basis upon which any further adjournment of the hearing of the appeal could be entertained.

35    At the adjourned hearing on 31 May 2012 the Appellant sought to rely on new evidence which took the form of two further letters – one dated 9 August 2010; the other was dated 3 April 2011. The latter was in the Tamil language and was a letter from the Appellant’s mother. It was translated to the Court by the interpreter. No satisfactory explanation was provided as to why the Appellant did not seek to adduce these letters before the Federal Magistrate. And, in any event, the letters both sought to cavil with the findings of fact made by the Independent Merits Reviewer which had been made adversely to the Appellant. Neither letter was admitted as evidence on the appeal. Even if one or both of the letters had been admitted, they would not have been of any assistance to the Appellant in establishing jurisdictional error on the part of the Reviewer or appellable error on the part of the Federal Magistrate. It is unnecessary to address the Appellant’s further contention that there had been some failure on the part of his former legal advisers to pass on one or other of these letters to the Independent Merits Reviewer.

Conclusions

36    The appeal is to be dismissed.

37    There is no reason why the Appellant should not pay the costs of the First Respondent.

ORDERS

38    The Orders of the Court are:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Associate:

Dated:    15 June 2012