FEDERAL COURT OF AUSTRALIA

SZTUL v Minister for Immigration and Border Protection [2014] FCA 1427

THE COURT ORDERS THAT:

1.    The Application for adjournment be dismissed.

2.    The Application for leave to appeal be dismissed.

3.    The Applicant pay costs of the First Respondent which are fixed in the amount of $3,641.00.

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

REASONS FOR JUDGMENT

1    The applicant is a citizen of Sri Lanka. He is a Tamil, coming from that country’s west coast. The applicant left Sri Lanka in April 2012. He arrived in Australia the following month. He was without any original travel documents when he arrived in Australia.

2    Later in 2012, on 15 September, the applicant applied for that class of visa under the Migration Act 1958 (Cth) (Migration Act) known as a Protection (Class XA) visa. A delegate of the Minister for Immigration and Border Protection (Minister) refused that application on 4 April 2013. As was his right under the Migration Act, the applicant then sought the review of the Minister’s delegate’s decision by the Refugee Review Tribunal (Tribunal).

3    Earlier this year, on 6 January 2014, the Tribunal decided to affirm the Minister’s delegate’s decision, applicant with written reasons for that decision. The applicant then sought the judicial review of the Tribunal’s decision by the Federal Circuit Court or, at least, purported to seek that review. It is necessary to say “purported” because the specified grounds of review were these.

I do not agree with the RRT decision and I kindly seek that you provide a lawyer from pro-bono in order to obtain advice.

I will submit the grounds of review soon after I have sought legal advice.

4    Accompanying that application was an affidavit from the applicant in which he repeated, in essence, the specified grounds of review and request for legal representation. A copy of the Tribunal’s notification letter and accompanying reasons was annexed to the affidavit.

5    On 29 August 2014, the Federal Circuit Court made the following interlocutory orders:

(1)    The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

(2)    The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item (2) of Division 1 of Part 3 of the Federal Circuit Court Rules 2001 (Cth).

6    The Federal Circuit Court dismissed the application on the basis that the applicant had failed to establish an arguable case of jurisdictional error by the Tribunal. The consequence of the interlocutory determination of the judicial review application by the Federal Circuit Court is that it is necessary for the applicant to seek leave to appeal. His application for leave was filed on 8 September 2014.

7    Initially, the application for leave was to be heard in the first appeal sittings of the court in February and March next year. On 26 September 2014, that initial listing was vacated and, in lieu, the application was fixed for hearing in these sittings.

8    The applicant today sought an adjournment of the hearing of the application for leave. The basis for that application was that he sought a further time within which to obtain legal advice and representation in respect of the application for leave to appeal. The applicant had already sought representation under the public spirited scheme of pro bono representation provided via the New South Wales Bar Association (Bar Association). Under cover of a letter to him from the Bar Association of 18 September 2014, he had received advice that his paperwork had been forwarded to a barrister for assessment of prospects and that he would receive advice as soon as possible, once the Bar Association had heard back from the barrister.

9    In oral evidence this afternoon, the applicant stated, and I accept, that he had since received advice from the Bar Association that legal representation via that source would not be forthcoming. It is no part of my acceptance of that fact that I draw any inference one way or the other as to the nature of the advice that he received via the Bar Association as to the prospects of success of any appeal. It would, in my view, be quite improper and a breach of the applicant’s privilege to draw any inference at all in relation to the nature of the advice received and I draw no such inference. The long and the short of it is that the applicant, as he was before this Federal Circuit Court, is unrepresented.

10    The applicant’s further evidence, given in the course of cross-examination, which I also accept, is that he does wish to secure legal representation from another source. He also put in the course of submissions and, quite properly, without objection, that his employment as a process worker makes it difficult for him to go about the task of finding alternative legal representation, because an absence from work might jeopardise his employment.

11    The Minister’s submission was that, even accepting that, there was an absence of any evidence as to the particular legal representation that was in the process of being sought. The position is that for all of October and most of this month the applicant has known that today was the day fixed for the hearing of his application for leave to appeal.

12    In Tinkler v Elliott [2012] EWCA Civ 1289 at [32], Kay LJ of the Court of Appeal of England and Wales, in dealing with a question as to whether a litigant in person had acted promptly upon learning that a default judgment had been entered against him, stated:

An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person.

13    His Lordship continued:

The fact that, if properly advised, he would or might have made a different application then cannot avail him now. That would be to take sensitivity to the difficulties faced by a litigant in person too far.

14    Those particular sentiments commended themselves to Griffiths J in Singh v Owners Strata Plan No 11723 (No 4) [2012] FCA 1180 and, also, to me in Dobson v Australian Postal Corporation [2013] FCA 320. They are applicable here in the sense that it may perhaps be that, with legal representation, the applicant may have cast his application for leave to appeal and also his submissions today in a different form. For all that, he has already had opportunity in the almost two months that have passed, since this case was listed for hearing today, to seek legal representation. That has been sufficient time to enable the applicant to seek representation and receive advice from the Bar Association as to whether representation would be provided under the pro bono scheme.

15    There are many calls on the time of the court for dealing, not only with cases arising under the Migration Act, but with other cases both in its original and appellate jurisdiction. Of course it is possible, as a matter of discretion, to adjourn the present application but so doing would entail adjourning a case long-fixed for hearing in circumstances where there has already been opportunity to seek legal representation. And there is no particular prospect presently evident of alternative representation being secured at some definite time in the future. I am not therefore satisfied that absence of legal representation and endeavours to secure the same in themselves provide a basis for adjourning the application.

16    Also relevant to any adjournment is the question of the prospects of success in the sense of whether there is an arguable case sufficient to warrant a grant of leave or at least the prospect that there may be a case for a grant of leave upon some adjourned date. I heard submissions in respect of whether leave to appeal ought be given both to the end of deciding whether an adjournment ought to be granted and on the basis that, if it were not granted, whether leave should be given.

17    The application for leave to appeal specified the following grounds:

1.    THE RRT refused me a Protection of Australia and the Complimentary Protection.

2.    The RRT erred in considering whether I would suffer harm if detained on returned considered although I claim persecution as a returnee.

18    The first of these grounds is merely a statement of fact, not in any way a prospective, meaningful ground of appeal. The second requires quite some latitude of construction to discern any possible ground of appeal.

19    Further, and having regard to the purported grounds of review before the Federal Circuit Court, it would require a grant of leave to include, as a ground of appeal, a ground not pressed before the Federal Circuit Court in the review application.

20    Some further precision, if precision it be, as to the proposed basis of challenge in this Court was given in a draft notice of appeal, attached to an affidavit which accompanied the filing of the application for leave to appeal. That ground reads as follows:

The RRT did not consider any potential right to complementary protection although it has accepted the risks faced by young Tamils returning to Sri Lanka as failed asylum seekers that would face a real risk of significant harm. The RRT has accepted that I would be questioned and detained upon my return but it did not apply the correct test required by section 36(2)(a). Therefore, the RRT did not exercise its jurisdiction.

21    Reading that particular proposed ground of appeal in conjunction with the second of the grounds specified in the application for leave, it is possible that what is sought to be raised is an error in the construction and application of s 91R(1)(b) of the Migration Act of the kind described by North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (WZAPN). The Tribunal reached its decision prior to the delivery of the judgment in WZAPN. So, too, did the Federal Circuit Court decide to dismiss the judicial review application summarily prior to that judgment.

22    The basis for the applicant’s claim for a protection visa had been perceived political opinion on the basis of an asserted membership of the LTTE, his status as an ethnic Tamil and his membership of a particular social group, namely, Failed Asylum Seekers of Tamil Ethnic Origin.

23    The Tribunal found, at para 69, on the basis of information available to the Tribunal that, on return to Sri Lanka, the applicant would be charged under that country’s immigration and emigration act with offences relating to illegal departure, with the likely penalty being a fine after a fortnight in jail on remand, unless the court there found that he had been an organiser of irregular migration.

24    The reasons for the Tribunal’s decision are well-summarised by the Federal Circuit Court. The learned Federal Circuit judge quoted, at para 31, a particular passage from the Tribunal’s reasons:

31.    The Tribunal considered the applicant’s fear as a returnee, both in relation to the refugee criterion and the complementary protection criterion. The Tribunal’s assessment of the applicant’s claims against the complementary protection criterion are especially noteworthy. That is because the Tribunal engaged in detail with the language of the Migration Act bearing upon complementary protection:

In their submission dated 9 July 2013 [the applicant’s] representatives quoted from the UK Home Office Operational Guidance Note in relation to Sri Lanka (April 2012) which stated at paragraph 3.9.11 that: ‘Conditions in prisons and police custody are very poor and taking into account the levels of overcrowding, unsanitary conditions, lack of food and the incidence of torture, are likely to reach the Article 3 threshold’. As they noted this refers to Article 3 of the European Convention on Human Rights which states that: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ However, as the Full Court of the Federal Court (Lander, Jessup and Gordon JJ) said in Minister for Immigration and Citizenship v MZYYL & Anor [2012] FCAFC 147 at [29], the starting point in the present context must be words of the Migration Act 1958. As they noted at [18], the complementary protection regime uses definitions and tests different from those referred to the international human rights treaties. As they said at [20], it is therefore neither necessary nor useful to ask how the Convention Against Torture or any of the other international human rights treaties would apply to the circumstances of the case.

In their submissions [the applicant’s] representatives did not address the specific and separate definitions of ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ in subsection 5(1) of the Migration Act. They treated torture and cruel or inhuman treatment or punishment together, submitting that the June 2012 report by ACAT-France in collaboration with the Asian Legal Resource Centre, When Arbitrariness Prevails – A Study of the Phenomenon of Torture in Sri Lanka, demonstrated that the use of torture and cruel and inhuman treatment or punishment during imprisonment and interrogation processes in Sri Lanka was systematic, common and carried out intentionally. They submitted with reference to the same report and a Human Rights Watch report published in February 2013 regarding the use of sexual violence by the Sri Lankan security forces against Tamils that degrading treatment or punishment during interrogation and imprisonment processes in Sri Lanka was part of a systematic effort to humiliate and degrade individuals in detention.

As I put to [the applicant] in the course of the hearing before me, however, the Australian Department of Foreign Affairs and Trade has said that it is not aware of allegations of mistreatment of returnees while on remand. As I indicated, I accept that prison conditions in Sri Lanka are poor, due to overcrowding, but I do not accept on the basis of the advice of the Australian Department of Foreign Affairs and trade that there is real risk that [the applicant] will be subject to ‘torture’ as defined while he is on remand for what I find on the evidence before me will be a period of up to a fortnight. I do not accept on the evidence before me that there is a real risk that during this brief period on remand [the applicant] will suffer the more extreme forms of ill-treatment referred to in his representatives’ submissions. As I have indicated above, I do not accept that the intention required by the definitions of ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ can be inferred from the mere fact that prison conditions in Sri Lanka are poor, due to overcrowding. I consider it clear from the relevant statutory provisions that mere negligence or indifference is not sufficient: what is required is an intention to inflect pain or suffering or to cause extreme humiliation. I do not accept on the evidence before me that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Act, nor do I accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’.

[emphasis in original] [footnote references omitted]

His Honour concluded, at para 32, that the Tribunal’s interpretation of the Migration Act, evident from the quoted passage, was “not only open to it but was correct”.

25    Assuming then in the applicant’s favour that what is at the heart of his application for leave is an application to raise as a ground the same ground as was advanced in WZAPN, the difficulty about that is that the criteria in s 91R(1) are cumulative. They materially include s 91R(1)(c):

The persecution involves systemic and discriminatory conduct.

26    Here, as in SZTBE v Minister for Immigration and Border Protection [2014] FCA 1230 at [50] in particular, there is a clear finding by the Tribunal of an absence of systemic discrimination by Sri Lankan authorities. That being so, the WZAPN ground would not lead to an overturning of the Federal Circuit Court’s judgment and, in turn, a setting aside of the Tribunal’s affirmation of the refusal of a protection visa. Instead, what this case entails is an emphatic disagreement with a factual outcome. That is not a basis upon which leave to appeal can or should be granted.

27    It follows that the application for adjournment must be dismissed and so too must the application for leave to appeal.

Associate:

Dated:    23 December 2014