FEDERAL COURT OF AUSTRALIA

AMM15 v Minister for Immigration and Border Protection [2016] FCA 267

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal from the decision of the Federal Circuit Court refusing the appellant’s claim for constitutional writ relief from a decision of the Refugee Review Tribunal given on 18 March 2015 that affirmed the decision of the Minister’s delegate not to grant the appellant a protection visa: AMM15 v Minister for Immigration [2015] FCCA 2339.

The appellant’s non-appearance

2    The application was heard by his Honour in Darwin but, when he filed his notice of appeal on 15 September 2015, the appellant gave his address for service in Merrylands, New South Wales. As a result, on 16 October 2015, a judge of the Court ordered that the proceedings be transferred to the New South Wales District Registry.

3    The appellant has not appeared at court today and several attempts have been made during the hearing to telephone him on the mobile telephone number that he gave in his notice of appeal, none of which have resulted in him answering. On some occasions the response to the telephone call indicated that the appellant was on another call, or the number rang and then was diverted to a statement that he was on another call, or the number appeared to have been answered but there was no response coming from wherever the person holding the phone was.

4    On 21 October 2015, the Registrar made directions that were sent to the appellant. He was directed to file and serve his written submissions 10 business days before the hearing of the appeal. On 10 December 2015, the Registrar wrote to the parties, including to the appellant at his address for service, informing them of the listing of the appeal at 9.30 am today. The appellant has filed no written submissions and there is no record of any correspondence from him. On 19 January 2016 the Minister’s solicitors sent by express post a copy of the appeal book and reminded the appellant of the hearing at 9.30 am today in the Court in Sydney. The letter noted that should he or a lawyer acting on his behalf fail to appear at the hearing, the Minister might seek orders that the appeal be dismissed without further notice.

5    On 11 February 2016, the Minister’s solicitor sent a letter by express post attaching a copy of the Minister’s filed written submissions and again reminded the appellant of the listing today and the possibility that if he did not appear the appeal would be dismissed.

6    In the event the Minister sought that the appeal be dismissed on two bases, first that I make an order pursuant to the power in s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) that the appeal be dismissed for failure of the appellant to attend a hearing relating to the appeal, and also on a similar ground under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). Alternatively, the Minister argued that the proposed appeal has no prospects of success by reason of the matters raised in the Minister’s written submissions. I propose to determine the substance of the appeal.

Background

7    The appellant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival in late May 2012. He lodged an application for a protection visa on 19 September 2012. On 3 January 2013, the delegate determined that she was not satisfied that the appellant was a person to whom Australia owed protection obligations under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) and accordingly refused to grant him a protection visa. She had interviewed the appellant earlier and explored his claims in detail. At that point, the appellant had been represented by a solicitor migration agent.

8    He applied to the Tribunal for a review of the delegate’s decision and on 30 April 2014 the Tribunal affirmed the delegate’s decision. However, on 31 October 2014 the Federal Circuit Court made orders by consent quashing the Tribunal’s first decision on the ground that it had not had regard to relevant considerations identified in ground four of the appellant’s then application to that Court.

9    The appellant continued to be represented by his solicitor migration agent before the second Tribunal member. He gave evidence to that member, who took a more favourable view of the appellant’s credibility than had the first member, but nonetheless concluded that the appellant had not satisfied him of the relevant bases on which the appellant’s claims for protection were made.

10    The appellant claimed that his father had worked for a Sinhalese fisherman named Mr Nemalson, and that his father had helped to arrange for other Tamils to work for Mr Nemalson. The appellant claimed that in May 2011 he had accompanied his father to collect money from Mr Nemalson in order to pay the Tamils whom his father had arranged to work on Mr Nemalson’s fishing vessel or vessels. He claimed this resulted in an argument that concluded in both him and his father being beaten and hospitalised.

11    The appellant claimed that his father had changed employer later in 2011. In the iteration of his claims as amended when heard by the second Tribunal, he claimed that the work as a fisherman involved going to sea for six months or so at a time and that he expected his father to return in April 2012. He claimed that his father had not returned at the same time as his work mates and that they had told him that his father had been abducted in a white van while waiting, in a town they named, to board the fishing boat six months earlier.

12    He claimed that in October 2011, as his father began to work for the new employer, Sinhalese men began to look for the appellant at his home. He claimed those persons wore plain clothes, visited about five times and he believed they were sent by Mr Nemalson. He claimed that they had threatened his mother and made inquiries about where he was, threatening to “finish” the appellant if they found him. He claimed that because of his mother’s concerns she sent him to live with his uncle where he hid until he came to Australia.

13    He claimed that this father’s disappearance had resulted from his previously speaking up on behalf of other Tamils to Mr Nemalson. He claimed that he had not reported his father’s disappearance to the police because he was scared this would bring more attention to his family and the police would tell Mr Nemalson where the appellant was. He claimed that the Sinhalese fishing boat owners treated Tamil fishermen like slaves, mistreating and killing them, Tamils did not dare to report the harm to the authorities and the authorities did not offer Tamils protection against the Sinhalese, as the authorities and Sinhalese worked together.

14    The appellant claimed that he worked on a prawn farm for 15 days in 2012 but the Sinhalese owner of the farm had refused to pay him. He claimed that he was too scared to speak up about that mistreatment because he feared punishment if he did so.

15    He claimed that Sri Lankan authorities would find him, wherever he went, detain and torture him because he had tried to flee thus indicating, so he claimed, that they would think he had something to hide. He claimed that he would be taken straight from the airport as he had tried to flee Sri Lanka and that the government would believe that he had links to the Liberation Tigers of Tamil Elam or LTTE as he had tried to flee Sri Lanka and the government feared that the LTTE were regrouping. He claimed that, if he were detained and interrogated and did not give the authorities the information they sought, he would be tortured or killed or otherwise harmed by Sri Lankan government authorities. He also made other claims about conduct of the Sri Lankan police.

The second Tribunal’s decision

16    The second Tribunal found that, notwithstanding some variation in detail from occasion to occasion, the appellant’s evidence about his own direct experiences was generally credible but that it was unable simply to accept at face value his speculation about events at which he was not present. The second Tribunal relevantly found that the dispute with Mr Nemalson arose over a business or employment matter and did not occur for a Convention reason. It found that the appellant’s claims about other people’s motives and conduct involved his or other people’s speculation as to what had happened with his father’s disappearance or what might happen to the appellant in the future. It instanced the appellant’s claims concerning his father’s disappearance and the visits, to his mother and grandmother, of men in civilian clothes in respect of which it found the appellant’s speculation that they were police or Mr Nemalson’s men unconvincing.

17    The Tribunal was not satisfied that whoever made those visits and inquiries in 2012 and for whatever reason were Sri Lankan government officials or authorities. The Tribunal did not accept that the appellant had acquired any profile as a supporter or suspected supporter of the LTTE or that such a profile would be imputed to him were he to return to Sri Lanka.

18    It concluded that it was not satisfied that any of the circumstances on which the appellant relied gave rise to a real chance that he was at risk of persecution for any Convention reason or that there were substantial grounds for believing that the appellant faced a real risk of significant harm in the reasonably foreseeable future for the purposes of s 36(2)(a) or (aa) of the Migration Act 1958 (Cth).

19    The Tribunal considered the country information provided by the Department of Foreign Affairs and Trade (DFAT), particularly that in its February 2015 report, in respect of matters affecting Sri Lankan returnees from Australia whose claims for protection visas had failed. It did so in accordance with the requirements of Ministerial Direction No 56 issued under s 499 of the Act. The Tribunal accepted the DFAT advice that no returnee, who was just a passenger in a people smuggling venture (as it found the appellant to be), had been given a custodial sentence for departing Sri Lanka illegally and that the Sri Lankan courts had only fined such persons by way of deterrence. It was satisfied that the imposition of a fine in the range of between 5,000 to 50,000 rupees, or approximately AUD50 to AUD500, would not be so onerous or unreasonable as to amount to serious or significant harm. The Tribunal was not satisfied that the appellant would be unable to pay any fine.

20    It found that, were the appellant returned to Sri Lanka, he would be held in prison for, at most, only a few days over a weekend or a public holiday when a magistrate might not be available, and that during that period there was no real risk of the infliction on him of significant harm. However, the Tribunal accepted that prison conditions in Sri Lanka were reliably reported to be poor with severe overcrowding, lack of adequate facilities and mistreatment. It accepted country information that, generally, Tamils were not now targeted particularly or treated differentially in Sri Lankan prisons. Accordingly, the Tribunal affirmed the decision under review.

The proceedings before the trial judge

21    The appellant appeared in person before the trial judge. His Honour summarised the circumstances relating to the appellant’s claims and the proceedings in the Tribunal hearing. He noted that the application before the Court below had only one ground of review that was devoid of any meaningful content because it was in the following terms: “The decision was affected by jurisdictional error.”

22    His Honour rejected that ground, finding that the Tribunal’s reasons demonstrated that it had considered each of the appellant’s claims and had not accepted them on the evidence before it. He held that the Tribunal’s findings were open to it on the body of material before it and that no error of either a factual or legal nature was apparent in the process adopted by the Tribunal or in its consideration of the appellant’s claims. His Honour said that the oral submissions that the appellant had made asserted that the appellant could not understand or accept how the second Tribunal could have affirmed the Minister’s delegate’s decision when the first Tribunal’s decision had been set aside. The trial judge observed that the appellant did not appear to understand why, in those circumstances, the visa application had not been granted.

23    His Honour found that the appellant’s arguments demonstrated that he was seeking merits review and that that was not available in the proceedings. His Honour concluded that no jurisdictional error had been demonstrated and that the proceedings should be dismissed.

This appeal

24    The two grounds of appeal in the notice of appeal are that his Honour erred by:

(1)    “not acting in accordance with the rule of the Federal Circuit Court Rules 2001 by not taking the applicant’s application at its highest for the purposes of dismissing the proceedings”;

(2)    dismissing the proceedings in circumstances where the appellant was unrepresented.

25    The Minister’s written submissions contended that the grounds of appeal were misconceived and in particular did not identify any relevant provision of the Federal Circuit Court Rules 2001 (Cth) that contained the requirement asserted in the first ground of appeal.

26    I accept that submission. Moreover, his Honour was conducting a final hearing of the appellant’s claims for constitutional writ relief. The onus was on the appellant, as applicant below, to demonstrate that the Tribunal had made a jurisdictional error that would enliven the Court’s jurisdiction to grant constitutional writ relief to quash the second Tribunal’s decision. The mere assertion in the ground of the appellant’s application to the Federal Circuit Court that the second Tribunal’s decision was affected by jurisdictional error did nothing to identify what the asserted error was or how the Tribunal had acted in some way that entitled him to any relief. In those circumstances it is impossible to see how the appeal on the first ground could possibly succeed, even if the appellant were here to articulate some reasoning process.

27    The second ground of appeal appears to assert that the mere fact that the appellant was not represented by a lawyer entitled him to relief. In SZRIF v Minister for Immigration and Border Protection [2015] FCA 680 at [26]-[28], I rejected a similar argument. There is no common law right for an individual to have a lawyer to represent him or her in Court proceedings at public expense: Dietrich v The Queen (1992) 177 CLR 292. This is so here, particularly because these are civil proceedings: see O’Donoghue v Honourable Brendan O’Connor [2012] FCAFC 47 at [51]-[52] per Keane CJ, Rares and Besanko JJ. Moreover, there was nothing in the circumstances of the appellant’s case before his Honour which would have called for any consideration that the appellant should be represented by a lawyer.

Conclusion

28    For all these reasons, including the appellant’s unexplained non-attendance at Court today, I am of opinion that the appeal should be dismissed with costs.

Associate:

Dated:    16 March 2016