FEDERAL COURT OF AUSTRALIA

AMM15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 443

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 10 March 2016 be dismissed.

2.    The applicant 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 (REVISED FROM THE TRANSCRIPT)

RARES J:

1    This appeal was listed for hearing on 18 February 2016. On that occasion the appellant failed to appear in circumstances set out in my reasons delivered that day for dismissing his appeal with costs: AMM15 v Minister for Immigration and Border Protection [2016] FCA 267. Those reasons set out the substantive summary of the facts before the Refugee Review Tribunal and the Federal Circuit Court.

2    This is an application by the appellant, now represented by counsel, to set aside those orders.

The jurisdiction to hear the application to set aside final orders

3    Every court has inherent or implied jurisdiction to set aside an order made in the absence of a party where that person through no fault of his, her or its own has not been able to appear at the time of the hearing: Taylor v Taylor (1979) 143 CLR 1 at 6-7 per Gibbs J with whom Stephen J agreed, 16 per Mason J with whom Aickin J agreed and, 20 per Murphy J. There, Gibbs J instanced the well-known judgment of Griffith CJ in Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164 who said:

When an order is made ex parte the court or judge making it may upon application of any person prejudicially affected by the order review and, if necessary, discharge it. This is a rule of natural justice. But when a judgment or order is pronounced or made after hearing both sides it is a general rule that the court which pronounced the judgment or made the order cannot reverse or vary it.

4    In Allesch v Maunz (2003) 203 CLR 172 at 182-183 [29] Gaudron, McHugh, Gummow and Hayne JJ expressed an important qualification to this principle. They said that, ordinarily, where an order had been made in the absence of a party, a court will be satisfied:

… that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an irremediable injustice to the other side.

5    The Minister contended that the proposed amended grounds of appeal had no merit, that no different result would be reached on a rehearing, and that I should refuse to reopen the order. He also contended that the explanation given by the appellant was insufficient but accepted that I should hear, as I did, full argument on the proposed amended grounds of appeal.

Background

6    The appellant, who is now in immigration detention, affirmed an affidavit on 9 March 2016 in which he said that he was aware of the hearing date of 18 February 2016 because he had previously received a letter from the Court. However, he said that he had a severe fever a few days leading up to the hearing and also during that time developed an acute headache and blacked out on that day. He also said that he lost focus on 18 February 2016 and did not attend the hearing because he was “overwhelmed by these illnesses at that time”. He said he no longer had access to Medicare, could not afford to see a doctor and therefore did not consult one. He subsequently consulted a lawyer and attached to his affidavit a draft notice of appeal that raised five new grounds, namely that the Tribunal had committed jurisdictional errors because:

(1)    it denied him procedural fairness and/or failed to comply with s 425 of the Migration Act 1958 (Cth) because it did not raise with him the issue as to whether he could afford, or would be able to have someone pay, the amount of any bail set by a court in Sri Lanka when he returned, having illegally departed there;

(2) and (3)

it misapplied ss 5 and 36(2A) of the Act by misconstruing, first, the definition of significant harm when it dealt with the conditions he would face in Sri Lankan prisons during the period before which he could be brought before a magistrate after his return and detention by the authorities at Colombo airport, or secondly, the words “intentionally inflicted” and “intended to cause” in the definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment in s 5 of the Act and thereby failed to take into account the cumulative effect of the suggested mistreatment;

(4)    it failed to apply Ministerial Direction No 56 made pursuant to s 499 of the Act, known as the “PAM3 guidelines”;

(5)    it applied a balance of probabilities test in evaluating the nexus of the Refugees Convention to his claims that his father had gone missing in circumstances suggestive of abduction (that I described in my earlier reasons).

The appellant’s submissions – ground 1

7    The appellant argued in support of his first ground that the Tribunal presumed that bail would be given to him but it did not make any inquiries as to whether or not he, or members of his family, could provide surety for him were he granted bail after his return to Sri Lanka. He submitted that he was not on notice about the possibility that the Tribunal might find that he would be treated in the way that the country information, at both his first and second Tribunal hearings, stated would be the case.

Consideration – ground 1

8    The first Tribunal’s decision was given on 30 April 2014. It cited the then country information that bail was routinely given on an accused’s own recognisance, although a family member was required to be a surety when an illegal departee returned to Sri Lanka. The first member made a finding that he was not satisfied that the short term nature of any imprisonment or remand was serious harm for the purposes of the Refugees Convention pursuant to s 36(2)(a) and that the appellant would not face a real chance of serious harm if he were held on remand for a short time. It is implicit that the first member found that the appellant would be granted bail.

9    When the second member was to hold a further hearing, the appellant knew the Federal Circuit Court had remitted the application for review to the Tribunal for hearing and determination according to law because the first Tribunal member made a jurisdictional error by not considering a relevant consideration in the review.

10    Before the further hearing the appellant’s solicitor migration agent wrote a letter on 4 March 2015 to the second Tribunal member that was 44 pages long. The letter noted at paragraph 174 that most, but not all, returnees in his position were granted bail on their personal recognisance with a family member standing as a guarantor or surety. The letter referred to country information from the Department of Foreign Affairs and Trade (DFAT) that set out that position. The submission went on to argue that the appellant would be detained at the Negombo Prison for an unspecified period of time, tried and convicted of charges relating to his illegal departure, face detention of up to two years and be required to pay a fine up to 200,000 rupees. It asserted that he feared that he would be subjected to significant harm in police custody, particularly at the interrogation and detention stages.

11    In the course of the hearing, the second Tribunal member discussed those matters with the appellant. In a post hearing submission of 19 pages excluding annexures, his solicitor migration agent submitted that, while DFAT’s most recent report for Sri Lanka, published on 16 February 2015, suggested that fines had gone down to about 50,000 rupees, the report did not take into account the capacity of a returnee or his family to meet the fine. The submission also argued that that DFAT report may not have been impartial.

12    The second Tribunal member considered all those matters. During the hearing he put to the appellant the country information in the latest DFAT report. The appellant did not appear to take any issue with the information in the report that he would be held for a brief period on remand till he could be brought before a magistrate as soon as reasonably practical and granted bail on his own recognisance, with a family member to be a surety. The second Tribunal correctly recognised that it was bound by the PAM3 direction to have regard to the DFAT report and it did so by finding that that report accurately set out the situation for a person in the appellant’s position when he returned to Sri Lanka as an illegal departee.

13    Those factual findings were open to the Tribunal in accordance with the PAM3 guidelines. I am unable to see any basis on which a jurisdictional error could be arguable in relation to the way in which the Tribunal dealt with this matter. At no point did the appellant raise with the Tribunal that he or a family member would be unable to provide him with surety for his bail. Indeed, he told the Tribunal, as it recorded, that he was in touch with his family and had been sending money back to them while working in Australia.

Grounds 2 and 3 – the appellant’s submissions

14    The second and the third grounds of appeal were argued together. The appellant asserted that the conditions of detention, which the Tribunal noted he would be likely to face in the brief period of, at most, only a few days over a weekend or public holiday when a magistrate might not be available, in which he would be held on remand was such that he faced a real risk of the infliction of significant harm on his return.

Grounds 2 and 3 – consideration

15    As I have noted the Tribunal had regard to the PAM3 guidelines and it considered the country information. The Tribunal found that the appellant was not at risk of significant harm were he returned to Sri Lanka as an illegal departee.

16    It also found that DFAT was not aware of any significant harm occurring in such circumstances. It found that while conditions in prisons in Sri Lanka were reliably reported to be poor with severe overcrowding, lack of adequate facilities and mistreatment, country information did not show that the appellant, as a Tamil, would be mistreated or targeted or treated any differently in Sri Lankan prisons from other persons in the society and that the law providing for the bringing of illegal departees before the courts on their return to Sri Lanka was a law of general application in that respect.

17    The Tribunal followed what I had held in SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245. It was satisfied that the appellant did not face a real chance of serious harm amounting to persecution on return to Sri Lanka then or in the reasonably foreseeable future for a Convention reason. For the same reasons, it found, having considered the appellant’s claims under s 36(2)(aa), that Australia’s complementary protection obligations were not engaged because it was satisfied there were not substantial grounds for believing that the appellant would face a real risk of significant harm in the reasonably foreseeable future should he return.

18    The appellant also argued that I should wait for the reserved decision of a Full Court in SZTAL v Minister for Immigration and Border Protection, which apparently is considering some of these issues. I see no reason in the circumstances of this case to do so. There was nothing in the way in which the Tribunal reasoned or applied the latest DFAT country information to the circumstances of the appellant’s case, as it was bound by the Ministerial direction in PAM3 to do, to suggest that it made any jurisdictional error. In essence the appellant’s argument amounted, in my opinion, to an attempt to engage in merits review which is not permissible in judicial review proceedings: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

Ground 4 – the appellant’s submissions

19    The appellant contended that the Tribunal had not dealt substantively or, in any meaningful way, with the PAM3 guidelines other than acknowledging their existence.

Ground 4 – consideration

20    Ministerial Direction No 56 required the Tribunal to take into account a DFAT report providing country information where it was available and had been prepared expressly for the purposes of protection status determination processes, so far as the report was relevant, although the Tribunal also could take other information into account. This the Tribunal did in clear terms.

21    The Tribunal considered the possibility whether the period of detention on remand, which it found the appellant would be likely to face, might amount either to serious harm amounting to persecution for a Convention reason or of significant harm within the definitions in ss 36(2A) and 5 of the Act. It concluded that that detention would not amount to such harm, albeit that there would be likely to be a brief period, conditioned by the time at which the appellant arrived and the prompt availability of a magistrate, in which he would be held in the poor conditions of Sri Lankan prisons that the Tribunal described. There is no basis to think that those conditions had the character of being intentionally inflicted on persons who were being held on remand. The reasons of the Tribunal appear to have found the situation in Sri Lanka unfortunate because its prisons were overcrowded, lacked adequate facilities and detained persons faced risk of mistreatment, but that all persons had to be detained in those conditions until they can be brought before a court as soon as possible in accordance with the rule of law.

22    I rejected a similar argument in AUE15 v Minister for Immigration and Border Protection [2016] FCA 331 as did Katzmann J in AAH15 v Minister for Immigration and Border Protection [2016] FCA 104. In my opinion the argument is without substance.

Ground 5 – the appellant’s submissions

23    The final ground of appeal concerned the Tribunal’s factual findings that the appellant’s father’s disappearance was connected to Sri Lankan government officials or authorities. The Tribunal found that the disappearance had occurred in circumstances where it had accepted that his father had been beaten in a dispute over payment with his employer, Mr Nemalson, in May 2011 on an occasion at which the appellant had been present.

24    The appellant argued that the Tribunal had treated the appellant’s evidence about this claim in isolation and had not properly weighed the evidence that, as it found, the appellant had been bruised or slightly injured when he sought to intervene.

Ground 5 – consideration

25    The Tribunal found that a dispute had occurred over a business or employment matter involving Mr Nemalson, the appellant and his father. It was not satisfied that the dispute had occurred significantly or essentially for any Convention reason, or that its occurrence gave rise to a future risk of harm to the appellant himself. It noted that the appellant’s evidence about subsequent events relating to his father was essentially secondhand and speculative. It found that the appellant’s account involved what he claimed others had told him around the time at which his father might have been expected to return from a six-month fishing engagement as crew on a vessel, about his father being taken away in a vehicle by unknown persons in October 2011, six months after the appellant had last seen him.

26    The Tribunal considered the appellant’s claim that his father’s disappearance was the responsibility of Mr Nemalson or his men and that they were the same people who had come to the appellant’s house two months before he had been informed of his father’s disappearance.

27    The Tribunal discussed the likelihood of this claim. It said that it was unclear why Mr Nemalson would be motivated to pursue or harm the appellant’s father between six and 10 months after the original dispute in May 2011. It found that the appellant’s account raised no suggestion that his father had taken any further steps after May 2011 to seek to recover the money he claimed to be owed. The Tribunal found the appellant’s speculation about what had happened to his father unconvincing. It then went on to explain why it made those findings of fact in its reasons. Those findings were open to the Tribunal.

28    The Tribunal then went one step further and said that, even if it accepted, at face value, the appellant’s speculation that, in 2012, Mr Nemalson’s men had come to his home and inquired, that event would not have established a Convention ground in itself, and still less did it support the further speculation that the appellant, and his migration solicitor agent, had suggested that the visitors included the CID. The Tribunal found:

… this speculation appears to be based on little more than the men were in plain clothes and the CID operate in plain clothes. The claimed rationale for adverse interest by Mr Nemalson at this time sits very uneasily with any suggested involvement at all by the police or other authorities. There was no specific evidence that Mr Nemalson was linked with the local police or authorities.

29    In those circumstances, the Tribunal was not satisfied that whoever came to the house in 2012 was involved with the CID or other Sri Lankan authorities. It came to the conclusion that the appellant’s fears as to what had happened to his father and who the mysterious visitors might have been, were no more than speculation, insufficient to persuade the Tribunal that those circumstances gave rise to a real chance that the appellant might face persecution for any Convention reason or that he faced any risk of significant harm then or in the reasonably foreseeable future were he to return to Sri Lanka. For those reasons the Tribunal rejected that claim. There is no arguable jurisdictional error in the Tribunal’s reasoning or approach to this matter.

30    The Tribunal also considered all of the appellant’s claims cumulatively following its consideration of each of them separately, for the purposes of assessing both whether Australia's protection obligations were engaged under either s 36(2)(a) or (aa) of the Act. It found that they were not. In my opinion, those findings of fact were also open to it and do not disclose any jurisdictional error.

Conclusion

31    For these reasons, I am satisfied that the appellant has failed to establish any arguable case that could be raised, were I to grant leave to the appellant to amend his notice of appeal or to set aside my orders, that would require any different orders to be made than those I made on 18 February 2016, dismissing the appeal with costs.

32    In the case of persons who at first instance are unrepresented and file notices of appeal, before they secure representation, the Court must maintain control over applications to amend the grounds for challenging the Tribunal’s decisions. The central consideration in the exercise of such a discretion is the interests of justice. However, that does not mean, when an appeal is heard, that the Courts will allow a substantial departure from the issues that had been raised at the trial: Coulton v Holcombe (1986) 162 CLR 1 at 7-8 per Gibbs CJ, Wilson, Brennan and Dawson JJ. Ordinarily, leave to amend a notice of appeal, and to raise a ground not agitated below, will only be granted if it is expedient and in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]; see too AAH15 [2016] FCA 104 at [72]-[73].

33    In my opinion, it is not expedient or in the interests of justice to allow these five new grounds of appeal to be raised. They have no prospect of success. In those circumstances, I am not satisfied that any purpose would be served by setting aside my earlier orders to dismiss the appeal with costs. The same order inevitably would be made. Accordingly, I will refuse the proposed amendment of the notice of appeal to raise the new grounds. Even if I did permit the amendment, I would dismiss the appeal in any event.

34    For these reasons, in my opinion the proper order to make is that the interlocutory application filed on 9 March 2016 be dismissed with costs.

Associate:

Dated:    11 May 2016