FEDERAL COURT OF AUSTRALIA

DZAAC v Minister for Immigration and Citizenship [2013] FCA 127

THE COURT ORDERS THAT:

1.    The application is refused.

2.    The applicant pay to the first respondent costs of the application.

Note:    Entry of orders is dealt with under s 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant on behalf of herself and two children seeks an extension of time to appeal from a decision of a Federal Magistrate given on 13 August 2012.

2    The Federal Magistrate dismissed an application for judicial review of a decision of an Independent Merits Reviewer (IMR) under the Migration Act 1958 (Cth) (the Act). The IMR, in affirming an earlier decision of a delegate of the second respondent, recommended that the applicant on behalf of herself and her children not be recognised as persons to whom Australia has protection obligations under the Refugees Convention (the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees).

BACKGROUND

3    The applicant is a Sri Lankan of Tamil ethnicity.

4    Both her parents were killed during the LTTE insurgency in Sri Lanka, her mother many years ago and her father more recently.

5    She and her now estranged husband left Sri Lanka in March 2010, and arrived at Christmas Island on 30 March 2010. Each of them then applied for a protection visa. Each of those applications was refused on 12 July 2010. Each of those applications was then subject to an independent merits review. In the applicant’s case, on 26 March 2011, the IMR affirmed the decision of the departmental delegate.

6    By that time the applicant and her husband had ceased living together, and it appears the marriage had broken down. Nevertheless, the hearing of their two independent merit reviews took place contemporaneously.

7    The applicant (and her husband) primarily claimed to fear persecution if she was returned to Sri Lanka because of her Tamil ethnicity and a perceived association with the LTTE. Her husband had first been arrested by the Sri Lankan authorities in 1997, and had been beaten and had reporting conditions imposed on him for some two years. Thereafter, they had experienced few problems in Sri Lanka until more recent times.

8    The applicant and her husband said that in about mid-2008, as a result of an accidental meeting, they had taken in a boarder in their house by the arrangement of her husband. Apparently the boarder came to be suspected of being associated with the LTTE, and he disappeared in late 2009. Around the same time, the applicant and her husband, she claimed, became associated with this man in the minds of the authorities. Her husband was arrested and beaten. When he was released they fled Sri Lanka. The applicant said that just after her husband had been released, Sri Lankan authorities came to their house again looking for him, and had assaulted her. They obtained Sri Lankan passports and apparently left Sri Lanka lawfully to travel to Malaysia, and from there found their way to Australia. Consequently, the applicant claimed the Sri Lankan authorities would attribute to her and her husband the political view that they were each LTTE sympathisers.

9    The IMR accepted that, despite the cessation of hostilities in Sri Lanka, the Sri Lankan authorities in certain circumstances continued to commit human rights abuses against those Tamils they considered to have LTTE links or sympathies. However, the IMR concluded that there was no reason why the Sri Lankan authorities would believe that the applicant fitted that profile so as to attract the adverse attention of the Sri Lankan authorities if she returned to Sri Lanka.

10    That was, in essence, because the IMR did not accept that in late 2009 or thereafter the applicant or her husband might have been imputed with LTTE sympathies. The IMR rejected the claims of the applicant and her estranged husband that they were suspected by the authorities of having LTTE links through their association with their boarder, because of discrepancies in their evidence about the husband’s arrest and detainment and the applicant’s assault, and how they then left Sri Lanka. The IMR gave reasons for rejecting that evidence based upon the discrepancies between their respective statements about what happened.

11    In addition, the applicant claimed to fear persecution if she returned to Sri Lanka as a failed asylum seeker, and as a single woman the head of a household.

12    Both of those claims were also rejected by the IMR, based upon country information that a Tamil returning to Colombo after seeking asylum in Australia was under no more scrutiny than any other Tamil returning to Colombo, and as there was no reason to believe that the applicant would be perceived as having an LTTE association, she would not receive adverse attention from the Sri Lankan authorities simply because she was returning as a failed asylum seeker.

13    The IMR also regarded the country information as demonstrating that Tamils, in particular women with families and being the head of a family are no longer at risk unless there is a particular profile of that person. The applicant did not fit those profiles.

14    Consequently, the IMR was not satisfied that the claimant and her children, upon their return to Sri Lanka, could in the reasonably foreseeable future face a real chance of persecution by reason of their ethnicity, their political opinion – either real or imputed – or their membership of a particular social group of women without male protectors, or as a returning failed asylum seeker.

DECISION OF THE FEDERAL MAGISTRATE

15    The applicant sought judicial review of that decision in the Federal Magistrates Court.

16    On 13 August 2012, a Federal Magistrate refused that application. The applicant claimed that she had been denied procedural fairness in the course of the hearing by the IMR, in substance because during the course of that hearing the IMR excluded the applicant from the room for part of the hearing while he heard from her husband, and excluded her husband from the room for part of the hearing whilst he heard from her, and delivered two separate decisions which each refused to recommend that either the applicant or her husband were in need of protection.

17    The issue principally ventilated before the Federal Magistrate was whether the applicant had been deprived of procedural fairness in the course of her hearing. The Federal Magistrate rejected the contention to that effect. It is necessary to know, in a little detail, the basis upon which that conclusion was reached.

18    Firstly, it is clear that the claims of the applicant and her husband had, to a point in time, proceeded together. After they were estranged, they continued to be represented by the same migration agent. The migration agent requested the IMR to hear their applications separately, as was technically done, although he did not formally seek separate hearings and the hearings proceeded together without objection. The complaint is not about that, but that, during the course of the hearing, the IMR excluded the applicant from the room for part of the hearing whilst he heard from her husband, and then excluded her husband from the room for part of the hearing whilst he heard the applicant and delivered two separate decisions. It is important to note that the applicant continued to be represented through the whole of her hearing by her migration agent. He was the same migration agent that represented her husband. The migration agent did not object at the time about the course which the IMR adopted, either on behalf of the applicant or on behalf of her husband. The migration agent obviously decided that it was appropriate to continue to represent each of them. That was a matter for the migration agent.

19    Secondly, as the IMR mentioned, following the interviews on 19 January 2011, the IMR wrote to each of the applicant and her husband at some length. He drew her attention, and that of her advisors, to a number of apparent contradictions in the evidence between the two of them. They were on matters of detail about the circumstances in which the applicant came to be assaulted, her husband’s movements after he was released from the police station, the number of police visits to their home, the nature of his injuries, the length of time they had remained in Sri Lanka after travelling to Colombo to arrange passports, the length of time after the assault of the applicant before they went to Colombo, and the assertion that they had been under observation by “white vans” whilst they were in Colombo. The applicant (and on his application the husband) was given the opportunity to respond at length to those concerns. Responses were provided. The applicant’s response did not persuade the IMR that the applicant’s version of events was reliable.

20    As the Federal Magistrate correctly identified, the applicant therefore needed to assert that it was the failure to put the inconsistencies to her during the course of the hearing, rather than to notify her of them and to invite her submissions on them subsequent to the hearing, and thereby deprive her of the opportunity to cross-examine her husband, which amounted to procedural unfairness on the part of the IMR sufficient to demonstrate jurisdictional error.

21    Her position was made more difficult by the Federal Magistrate’s findings upon the whole of the material that there was “a tacit understanding” that the evidence of the parties would be better if it was given separately rather than when they were together. He said at [21]:

This sometimes happens by agreement in civil proceedings, that one of the parties will choose to be absent and only have their lawyer present when the other gives evidence. In this context it seems to me there is nothing that would amount to an error that breaches the rules of procedural fairness even bearing in mind that the decision-maker was formally hearing separate cases and making two separate decisions.

As noted, it was with the acquiescence of the applicant and her husband through their migration agent that the hearings proceeded together, and also with the acquiescence of the applicant through her migration agent that she left the hearing room during her husband’s evidence.

22    In those circumstances, the Federal Magistrate applying the comments of the Full Court of this Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590 considered that there had been no breach of the rules of procedural fairness as they applied to the applicant. Reference was also made to observations in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577 at [43].

23    The Federal Magistrate separately addressed the further grounds of review that the IMR:

(a)    took into account irrelevant considerations, or placed too much weight on the inconsistencies between the statements of the applicant and her estranged husband;

(b)    failed to take into account the applicant’s possible trauma due to past experiences and events and detention; and

(c)    could not, to a fair minded observer, be seen to bring an impartial mind to bear in deciding the applicant’s claim.

24    It is not necessary to refer in detail to how the Federal Magistrate dealt with (b) and (c) as his Honour’s reasons for rejecting those contentions are not the subject of this appeal.

25    As to (b), the Federal Magistrate described the contention as an attack on the fact-finding of the IMR, involving an attempt to secure merits review rather than to demonstrate jurisdictional error. In any event, the Federal Magistrate after reviewing the evidence and the reasons of the IMR concluded that it was no more than a merits review attempt, and that the findings and reasons of the IMR for the conclusions reached were reasonably available on the material.

PROPOSED GROUNDS OF APPEAL

26    The proposed grounds of appeal are set out in the applicant’s affidavit of 18 September 2012. They are unhelpfully expressed as follows:

1.    That there is a jurisdictional error in the Federal Magistrates Court decision.

2.    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.

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.

27    On this application the applicant was not represented, although she had been legally represented before the Federal Magistrate.

28    Indeed, it is appropriate to record that the applicant has not been represented. She has made no submissions on the hearing of this application. It has a slightly prolonged history.

CONSIDERATION

29    The application was instituted on 26 September 2012 in this Registry of the Court. The applicant gave an address for service. She filed an affidavit in support of her application also identifying that address as her current address.

30    In her original affidavit, the applicant referred to a medical condition from which she was then recovering (as at 18 September 2012) which impeded her instituting her appeal within time and said that she was undergoing regular counselling for her mental health issues. The accompanying material included a report from a general practitioner asserting that she was unfit to attend to such matters as the institution of an appeal until 19 September 2012 due to emotional distress after rejection of her application and a resultant exacerbation in her chronic pain. There was other material relating to a medical condition which related to a period of time prior to September 2012. Finally, there was a notice to her of an appointment at an outpatient service on 27 September 2012.

31    Her subsequent affidavit of 21 December 2012 did not add to that picture except her assertion that she underwent regular counselling for her mental health issues.

32    At a directions hearing on 5 December 2012, the matter was listed for hearing on 8 January 2013 (subsequently changed to 10 January 2013) at 9:00 am and routine directions were given for the preparation of an appeal book, and other matters. The first respondent complied with those directions. The applicant did not do so. On 21 December 2012, she filed a further affidavit indicating that she was aware of the hearing (on 10 January 2013). She provided further reasons in support of her application for an extension of time. That is, she explained the reasons for the delay. That is not now an issue, as the first respondent acknowledges that there is an acceptable reason for the delay and that, if there is any arguable merit in any of her grounds of appeal, it would be appropriate to grant an extension of time. The first respondent’s position is simply that there is no prospect of the appeal succeeding, if an extension of time is granted, so that the extension of time should be refused.

33    The applicant also indicated that she proposed to argue, through a solicitor, that the IMR had failed to take into account a relevant consideration, namely the “applicant’s claims to complementary protection” under s 36(2)(aa) of the Act.

34    A further affidavit was filed by her on 7 January 2013. It again noted the hearing date. It said she wished to have her case transferred to Canberra and wanted legal representation organised through the Court. She said that she could not secure the services of a legal professional as she continued to undergo counselling for mental health issues, although she did not bring forward any contemporary support for those assertions, and that she did not have financial resources to pay for her legal costs.

35    The applicant had earlier been notified on 9 October 2012 that her application would proceed to a hearing, and she was requested to provide the details of her attempts to obtain legal assistance prior to the fixing of the hearing date. No response was received. Attempts to contact her at her address for service (and still the address which she uses) were unsuccessful. She did not attend the directions hearing which was fixed on the application. She was notified of the hearing date on 6 December 2012. She still did not respond. She was notified on 14 December 2012 of the revised hearing date to 10 January 2013 at 9:00 am Darwin time. She was offered the facility of a video link. It was only at that point that she was prompted to respond by her two affidavits of 21 December 2012 and 6 January 2013. The Court also received direct from a counsellor/advocate (a social worker) a letter of 19 December 2012. She said she was writing to support the applicant’s application for an extension of time to appeal the decision. She referred to seeing the applicant weekly “due to the negative impact of her impending court case on her physical and mental health”. The premise for much of her letter is the suffering of traumatic events experienced by the applicant before the family fled Sri Lanka, but of course that is not a fact which the IMR accepted and that report is not capable of proving those facts.

36    The social worker also recommended an extension of time be granted, and noted that the applicant needed more time to secure legal advice. She had by then had some three months to do so. There was nothing to indicate that she would be able to secure legal assistance within any finite time.

37    The applicant was due to appear at the hearing on 10 January 2013. She did not do so. The Minister sought summary dismissal of the application. I declined to do that in case there was some explanation for her failure to attend. As it transpired, there had been some misunderstanding about the time at which she should attend having regard to the time difference between Darwin and Canberra. I made orders that her application to transfer the matter to the Australian Capital Territory of the Registry of the Court was refused, and that the further hearing of the application for an extension of time be heard and determined on the papers. To give her the opportunity to make further submissions, although to that point she had made none on the merits of her proposed appeal, she was given until 31 January 2013 to file and serve such further information or submissions as she considered appropriate in support of her application for an extension of time. In particular, she was notified that she should focus on whether the proposed grounds of appeal have any real prospects of success. Subsequently, on 14 January 2013, by email, a “counsellor advocate” contacted the Court on her behalf indicating that the applicant is not in a financial position to engage a private solicitor, and requesting legal assistance from the Court. The following day, the applicant was notified (copied to her counsellor advocate) again that she had been given a further period to make submissions and that she needed to do so by 31 January 2013. On 15 January 2013, her counsellor advocate again requested legal assistance from the Court. Both the applicant and the counsellor advocate were notified that the Court did not consider it appropriate to make an order seeking pro bono legal assistance on her behalf having regard to r 4.12(2) of the Federal Court Rules 2011 (Cth). The counsellor advocate did not subsequently make any submission to the Court on behalf of the applicant, and the applicant has not done so notwithstanding the expiry of the time to 31 January 2013 or indeed up to the time of this decision. Nor has there been any request for further time to do so. In all, the applicant has now had some five months to secure further legal assistance or to make her own submissions.

38    The applicant has not explained what jurisdictional error she asserts in ground 1 of her proposed grounds of appeal. I assume it is the same as that presented to the Federal Magistrate, namely a failure to accord her procedural fairness.

39    In my view the Federal Magistrate did not err in addressing that issue, and the applicant has no real prospect of succeeding in establishing jurisdictional error on the part of the IMR in the conduct of that hearing by depriving the applicant of procedural fairness.

40    She was given the opportunity to be heard. She was notified of matters of concern to the IMR. She was given an opportunity to respond to them. She knew what her husband had said, in detail, and she made a response in relation to it. Her agent was present when she was asked to, and agreed to, leave the hearing room and she continued to be represented by her agent during that time. She made no application through her migration agent to insist that she be present during her husband’s evidence or to insist that he be questioned by her agent as part of his evidence.

41    In my view, she had an opportunity to put her case. She was made aware of the matters which were of significance to her case which emerged from the evidence of her husband. She had an opportunity of responding to those matters, partly through what was put on her behalf during the hearing by her agent, and partly by being able to make submissions about those matters following the hearing.

42    The only other proposed ground of appeal asserts that the reasons for decision of the IMR are “neither logical nor rational”. I note that that particular ground of review was not raised before the Federal Magistrate in these terms and there are limited circumstances in which, on an appeal (or an extension of time within which to appeal), leave to raise such a ground will be given: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48]. However, it was argued before the Federal Magistrate that the IMR had taken into account irrelevant considerations or placed too much weight upon what was said to be minor inconsistencies between the statements of the applicant and her estranged husband. So I think much the same ground is covered.

43    There is no merit in the contention. As the Federal Magistrate said, the attack of the applicant upon the decision of the IMR before the Federal Magistrate, apart from the issue as to procedural fairness, was really an attack upon the fact finding of the IMR. The IMR’s reasons reveal a careful analysis of the evidence presented to him, and an attempt to distil from that evidence those matters of fact upon which he was satisfied and those matters asserted by the applicant of which he was not satisfied. Although the assessment of the reliability of the evidence of an individual or individuals is always a difficult one, and one where care must be taken, the reasons of the IMR for not accepting the claims of the applicant about the incidents in late 2009 are not irrational or illogical, but are carefully considered.

44    There are occasions where minor discrepancies in the versions of events given from time to time, or by different people, are quite understandable given the passage of time, the stress of the occasion, different perceptions and the like. However, there were a number of discrepancies identified by the IMR. It may be that to a greater or lesser degree they were not in themselves conclusive. That is a matter of balance and individual assessment. The IMR’s reasons are not demonstrably illogical or irrational. They demonstrate a careful and thorough analysis of the facts, the inconsistencies, and their significance. It was clearly the collective weight of the inconsistencies which was important. Some of them are less readily fitted into the innocent explanations for inconsistency than others. In my view, however that proposed ground of appeal is expressed, it has no prospect in terms of demonstrating jurisdictional error on the part of the IMR and so there is no prospect of the applicant succeeding on that ground.

45    In those circumstances, in my view, the applicant has no prospect of succeeding on her appeal if an extension of time was granted. Consequently the extension of time application is refused. That is consistent with the approach adopted in SZQHK v Minister for Immigration and Citizenship [2012] FCA 178 at [20]-[26]. The applicant should pay to the first respondent the costs of the application.

Associate:

Dated:    1 March 2013