FEDERAL COURT OF AUSTRALIA

BHK15 v Minister for Immigration and Border Protection [2016] FCA 569

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

2.    The applicant is to pay the first respondent’s costs of and incidental to the application, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

LOGAN J:

1    The Refugee Review Tribunal (Tribunal) has found that the applicant is a citizen of Sri Lanka. He came to Australia in 2012 without a visa, but applied on 17 December that year for that class of visa under the Migration Act 1958 (Cth) known as a Protection (Class XA) visa (Protection visa). On 11 February 2014, a delegate of the first respondent, the Minister for Immigration and Border Protection, decided not to grant such a visa to the applicant.

2    The applicant then sought the review of that decision by the Tribunal. On 12 May 2015, the Tribunal conducted a hearing in respect of the review application at which the applicant gave evidence with the assistance of an interpreter. He was represented at that hearing by a registered migration agent. On 5 June 2015, for reasons given in writing, the Tribunal decided to affirm the decision of the Minister’s delegate not to grant a Protection visa to the applicant.

3    The applicant then sought the judicial review of the Tribunal’s decision by the Federal Circuit Court. As filed, the judicial review application specified the following as the grounds of review:

1.    That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.

2.    More details will be provided by the legal representative.

4    As it transpired, the applicant did not have the benefit of legal representation before the Federal Circuit Court as his filed judicial review application anticipated. Desirable though such representation may be, the applicant in a case of that kind did not have a right to legal representation.

5    The applicant’s judicial review application came before the Federal Circuit Court on 18 December 2015. The applicant appeared for himself that day with the assistance of an interpreter. In the result, and for reasons given ex tempore that day, the learned Federal Circuit Court judge decided to dismiss the applicant’s judicial review application pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). In effect, his Honour dismissed summarily the judicial review application on the basis that it enjoyed no reasonable prospect of success.

6    The only evidence which I have as to the events in court on 18 December 2015 is supplied by particular recitations in his Honour’s reasons for judgment. These record at [6], that at the commencement of the hearing his Honour explained the nature of a hearing under the rule of court in question and that the applicant confirmed that he understood the nature of the hearing.

7    His Honour’s reasons for judgment also disclose that, prior to the determination of whether the judicial review application should be dismissed summarily, the applicant was requested to identify the nature of the legal error sought to advance. His Honour’s reasons for judgment recite that “From the bar table the applicant repeated some of his claims and maintained that he could not go back to Sri Lanka and that he was fearful for his life if so returned. The applicant also made reference to his wife and child living in India.” On that basis, and having noted that there had earlier been, via the court’s registrar, the provision of an opportunity for the applicant to file an amended application, his Honour concluded that even taking into account what was said by the applicant from the bar table, no arguable jurisdictional error was disclosed. It was on that basis that his Honour concluded that the case was one for summary dismissal. Given the basis upon which the Federal Circuit Court dismissed the judicial review application, the order of dismissal is correctly to be categorised as interlocutory, rather than final. That means that the applicant does not have a right of appeal; he must first secure a grant of leave to appeal.

8    Appreciating this, the applicant filed such an application and correctly incorporated with his application for leave draft notice of appeal, in which he identified the following as his proposed grounds of appeal:

1.    His Honour erred by not acting in accordance with rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) by not taking the Applicant’s application at its highest for the purposes of summarily dismissing the proceedings.

2.    His Honour failed in his overriding duty to ensure that the trial was conducted fairly and in accordance with the law.

Particulars

a)    The applicant was unrepresented, could not speak or read English and the importance of the subject matter of his statements to the success of his application, and

b)    His Honour’s failure to explain the procedure to the applicant was not fair and affected the outcome.

3.    His Honour failed to be an impartial adjudicator of the matter and identify the jurisdictional error in his findings that the Tribunal failed to consider the integer of the applicant’s claim that he feared persecution arising from his Tamil ethnicity.

9    It was not this afternoon for the applicant to demonstrate that one or more of his proposed grounds of appeal should succeed, only that one or more of them was arguable, such that on one or more of those arguable grounds, leave to appeal should be granted. The Minister’s position was that a grant of leave was not warranted, because none of the grounds was arguable.

10    As to the first of the proposed grounds, I readily accept that, even though a proposed ground of review may not, because of lack of fluency in English or legal training, be well expressed, if it does, on a fair reading, disclose what could be regarded as a particular jurisdictional error, then it ought to be so regarded. If that is what the applicant is getting at in his allegation, that his application should have been taken “at its highest form”, then he does, in my view, invoke a principle known to our law.

11    The difficulty for the applicant about the first of his proposed grounds of appeal is that in the application of that principle, it is not arguable that there was any error on the part of the Federal Circuit Court. That is because the first of the applicant’s grounds of review was expressed at such a level of generality as not to be meaningful in the absence of particularisation. The applicant did not provide such particulars, either by amendment prior to 18 December 2015, or in response to an invitation from the learned Federal Circuit Court judge that he would do so orally that day.

12    The applicant’s statements from the bar table, whilst meaningful to him according to an imperfect understanding of the nature of judicial review, did not amount to an allegation of any jurisdictional error known to law. It is not to the applicant’s discredit that even today he had difficulty in submissions in distinguishing between the making of a decision on the merits as to whether to accept his claim to be a refugee, and a legal error in the making of such a decision. A grant of leave in respect of the first ground is not warranted.

13    As to the second proposed ground, once again the applicant does seek to invoke a principle known to our law. It is fundamental that any judge exercising the judicial power of the Commonwealth must afford parties procedural fairness. It is further the case that how and whether such an obligation has been discharged can be influenced by the way in which a proceeding is conducted, in circumstances where an applicant is not legally represented and does not speak or read English. That is not to say that litigants in person enjoy exemption from compliance with rules of court, only that it is always by reference to the particular circumstances on a particular occasion that whether or not procedural fairness has been observed must be judged.

14    On this occasion, and once again as revealed by the only evidence before me namely, the reasons for judgment of the learned Federal Circuit Court judge, it appears to me not reasonably to be arguable that there was a failure to afford the applicant procedural fairness. Quite apart from the earlier opportunity extended to the applicant to amend his judicial review application, his Honour explained the nature of the summary judgment procedure on the day, and before proceeding to judgment, offered the applicant an opportunity orally to particularise the basis of his generally alleged legal error. In so doing, his Honour observed all that was necessary to afford the applicant procedural fairness. That is why, in my view, the second of the proposed grounds of appeal does not enjoy any reasonable prospect of success.

15    As to the third proposed ground, it was not, under our system of justice, the function of the learned Federal Circuit Court judge himself to identify the jurisdictional error. It was his Honour’s function, as I have already mentioned, fairly to read the grounds of alleged jurisdictional error. Were there an arguable ground revealed, it was then his Honour’s function to hear and determine whether that ground was made out. It was not though his Honour’s function to go looking for a ground of review.

16    Another element in proposed appeal ground 3 is an asserted failure on the part of the Federal Circuit Court to appreciate that the Tribunal had failed to consider an integer of the applicant’s claim to be a refugee. It was not a pleaded ground of review that the Tribunal had failed in this way. It is, exceptionally, possible to advance on appeal a ground of review not taken in the original jurisdiction, in other words before the Federal Circuit Court.

17    The difficulty for the applicant, if this is how proposed ground 3 is to be read, is that a reading of the Tribunal’s reasons discloses that there was a close engagement by the Tribunal with the integers of the applicant’s claim, which centred around a fear of persecution on the basis of his Tamil ethnicity in Sri Lanka, and an asserted association by a paramilitary group, the Kanna Group, and by the SLA with the LTTE. The Tribunal made, for reasons which are logically explained, a value judgment, which included a value judgment in respect of the applicant’s credibility as to whether to accept the claim.

18    It was peculiarly the role of the Tribunal, not the Federal Circuit Court, and it must be said, in light of submissions this afternoon, not this Court, to make such a value judgment. If made without jurisdictional error, that value judgment must stand. That the Tribunal had made such a value judgment was the conclusion of the learned Federal Circuit Court judge in his approach to the dismissal of the judicial review application. There was no error by his Honour in reaching that view. However approached, proposed appeal ground 3 does not disclose an arguable error on the part of the Federal Circuit Court.

19    It necessarily follows that leave to appeal must be refused.

Associate:

Dated:    20 May 2016