FEDERAL COURT OF AUSTRALIA

ALK15 v Minister for Immigration and Border Protection [2016] FCA 629

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time 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 is an application for an extension of time of about three weeks to appeal against the decision of the Federal Circuit Court given on 10 July 2015, refusing the applicant’s application for constitutional writ relief against the decision of the Refugee Review Tribunal, given on 11 March 2015, to affirm the Minister’s delegate’s decision not to grant the applicant a protection visa: ALK15 v Minister for Immigration [2015] FCCA 1896. The applicant filed the present application on 25 August 2015.

Background

2    The applicant was represented at all stages of his application for a protection visa in the proceedings before the delegate and the Tribunal by a representative appointed under the Immigration Assistance Scheme, as the Tribunal noted in [6] of its reasons. However, he was unrepresented at all times before the trial judge and in this Court.

3    The applicant arrived in Australia by boat on 1 July 2012 and applied for a protection visa on 16 November 2012. The Tribunal found that he was a goldsmith from the eastern province of Sri Lanka. He claimed that he feared persecution because he was a Tamil, and that during the civil war he had been suspected of supporting the Liberation Tigers of Tamil Eelam, or LTTE. He also claimed that he had been subject to robbery and extortion in more recent times, and that he would be targeted as a member of a particular social group comprised of wealthy Tamils. He also claimed that he would face problems on return to Sri Lanka by reason of his illegal departure and failed claim for asylum, coupled with his ethnicity.

4    The Tribunal gave detailed reasons as to why it found the applicant’s evidence in support of his claims to fear harm on either basis for granting a protection visa under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) not to be credible. Indeed, it said:

Because of the major discrepancies in his evidence, and the magnitude of the credibility problems, I conclude that he is not, in general, telling the truth about his experiences.

5    The Tribunal explained that it was not satisfied that the applicant had been the target of extortion demands by the Karuna group, or any other paramilitary group, the Sri Lankan Army, or at all prior to his departure from Sri Lanka. It also relied on country information that indicated that there was no real chance that the Karuna group or any other paramilitary group posed a real threat of harm to persons, such as the applicant, in the town in which he lived, now or in the reasonably foreseeable future. The Tribunal said it had not been able to locate any recent country information that such groups were involved in extortion or other criminal activity in the area where the applicant lived. Furthermore, the Tribunal found that the applicant's evidence suggested that his wife's family’s jewellery business was operating without difficulties. It found that the applicant was not being forthright when he said that the reason that he was not aware of any problems that his wife's family might be having was “because they would not tell him”.

6    It did not accept that he had been subjected to extortion, robberies, and death threats, as he claimed, by any group for any reason prior to his departure from Sri Lanka, that he had left Sri Lanka for any of the reasons that he claimed, or that he would face any threat in the future of the nature claimed, were he to return.

7    The Tribunal rejected the applicant’s claim that he had a well-founded fear of persecution by reason of his Tamil ethnicity. It relied on independent country information, as well as his individual circumstances, to find that it was not satisfied that there was a real chance that he faced persecution on return to Sri Lanka for that reason. The Tribunal found that on the basis of the applicant's evidence, he did not have any links or connection with the LTTE, and that his past experience had indicated that he was not regarded by the Sri Lankan authorities as having any such connection, or of his being under suspicion because of any imputed connection with the LTTE.

8    It also rejected the applicant's representative's post-hearing submission, that that was raised explicitly for the first time then, that he and his wife had refused to provide political support for the Karuna group, and thus he would be perceived or imputed to be a supporter of the LTTE, or as holding anti-government opinions. The Tribunal found that if there had been any truth in that claim, it would have been raised at an earlier stage.

9    It also noted that the applicant's wife had remained in Sri Lanka after his departure, and had stayed in their home for some time before relocating to live with her family, although she still worked in the same village, where their children also attended school. It reasoned that, if it were true that an anti-government profile had been attributed to the applicant because of his wife's refusal to help, then she would also have been at risk of the very harm which the applicant claimed to fear for himself, yet there was no evidence to suggest any basis for such a conclusion, and that this further undermined his credibility in the Tribunal's eyes. The Tribunal found that:

… the applicant is not at risk of harm of any kind in Sri Lanka, now or in the reasonably foreseeable future, because of real or suspected links to the LTTE, or because he is imputed to hold political opinion opposed to the former government.

10    The Tribunal also rejected the applicant's claim to a well-founded fear of persecution, or that he was at real risk that he would face significant harm for the purposes of each of s 36(2)(a) and (aa), were he to return to Sri Lanka as a failed asylum seeker who had departed Sri Lanka illegally. It made detailed findings on that topic, concluding that “the key factor determining whether an individual faces a real chance of mistreatment on return is real or suspected links to the LTTE”. It found that there was no real chance that this would occur to the applicant.

11    The Tribunal also considered, separately, the treatment which failed asylum seekers, or others who had departed Sri Lanka illegally, might face when returned to Sri Lanka. It found that the applicant did not face a risk of harm of any kind as part of the process under which, according to country information, he would be detained at the airport on return to Sri Lanka and remanded so that he could appear as soon as reasonably possible before a Court, at which time he would be granted bail, with a family member as a surety, and, at most, be exposed to the imposition of a fine were he convicted.

12    Although the Tribunal noted that the present conditions in Negombo prison, at which he would be held while on remand awaiting to be brought before a magistrate for the bail hearing, may be poor, those conditions did not amount to a situation in which the authorities intentionally would inflict pain or suffering on those on remand, or intend to cause extreme humiliation, pain or suffering for them. It found that the applicant had not suggested he would be unable to pay any fine that might be imposed on him.

13    The Tribunal considered all his claims, individually and cumulatively, but was not satisfied that there were reasonable grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there was a real risk he would suffer significant harm for the purposes of s 36(2)(aa), and, accordingly affirmed the delegate’s decision.

The proceedings before the trial judge

14    The applicant filed his application in the Federal Circuit Court on 14 April 2015, and it was returnable before that Court on 14 May 2015. The sole ground of the application before the trial judge was that the Tribunal had committed a jurisdictional error by applying the wrong test under s 91R(2)(a) of the Migration Act 1958 (Cth), expressly because of the decision that North J made on 3 September 2014 in WZAPN v Minister for Immigration and Border Protection (2014) 229 FCR 477.

15    Subsequently, on 24 March 2015, a Full Court of this Court overruled North J’s decision in SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497.

16    The matter first came before the trial judge on 14 May 2015. He made directions that the applicant could amend his application and put on any further affidavit evidence on or before 11 June 2015. In the event, the applicant filed no amended application or other material in support of his application below.

17    By the time of the hearing before his Honour, the High Court had expressly overruled North J’s decision on 17 June 2015: Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610.

18    At the commencement of the hearing before his Honour, the applicant applied for an adjournment, saying that he had been suffering from insomnia, needed more time and wanted to obtain a lawyer. His Honour inquired what steps he had taken to obtain a lawyer, and the applicant told him that, at the highest, he had spoken to a friend about doing so.

19    His Honour accepted the Minister's submission that the applicant’s explanation for an adjournment was unsatisfactory and inadequate, and that there was no medical evidence to support it. His Honour was not satisfied that an adjournment would have any utility, because, in the absence of an amendment to the sole ground of review that had been relied on by the then comprehensively overruled decision in WZAPN 229 FCR 477, the applicant had not identified any basis for asserting that the Tribunal had made any jurisdictional error. His Honour determined not to grant the adjournment, and proceeded to hear the application on the merits.

20    He found that the applicant had had ample opportunity to obtain a lawyer, had he sought to do so, and that his explanation as to his efforts to obtain one were unsatisfactory, inconsistent, and implausible. His Honour also found that the granting of an adjournment would have had no useful purpose, other than increasing the cost to the parties, and further utilising the limited time of the Court.

21    His Honour then considered the Tribunal's findings based on its adverse view as to the applicant’s credibility that it relied on to justify its lack of satisfaction that he was entitled to protection for a Refugees Convention reason under s 36(2)(a), or to complementary protection under s 36(2)(aa) of the Act. He found that there was no basis on which to find that the Tribunal had committed any jurisdictional error and dismissed the application with costs.

This application for an extension of time

22    The applicant’s affidavit of 25 August 2015 set out the reasons why he sought the extension of time. He said that he had appeared at the final hearing on 10 July 2015 representing himself because he was unable to retain a legal practitioner. The affidavit continued:

5.    Since I am not represented by a legal practitioner to represent my case for the hearing at the Federal Circuit Court the Judge at the FCCA should have adjourned for me to have a legal representatives.

6.    Had an adjournment been granted I would seek proper advice the way in which I should be having the carriage of my matter.

23    On 25 August 2015, a Registrar made directions listing the application for an extension of time to be heard during the Full Court sitting period between 2 and 27 November 2015, and made the usual directions for the filing and serving of a draft notice of appeal with particularised grounds and written submissions, together with the reasons for judgment and orders of the Federal Circuit Court and the Tribunal. The applicant's affidavit in support had already attached those documents, but he filed no draft notice of appeal or, apart from a brief written submission that he filed recently, any other material in support of his application.

24    His recent submission was that he feared, if he returned to Sri Lanka, he would be harmed by armed groups, as he had been threatened by such armed groups in the past, and he attached a certified translation, from Tamil, of a document dated 19 April 2016. That document appeared to be some form of news report or press release by a district village officers’ association in his home town that protested against the killing of one of their members by an unnamed person in unidentified circumstances, save to say that it was a brutal and inhumane killing.

25    The application for an extension of time came before a judge of the Court on 20 November 2015. His Honour ordered that the Minister file and serve an updated bundle of documents that included the transcript of the hearing before the Federal Circuit Court, and of the earlier hearing on 18 February 2015 before the Tribunal, and fixed the matter for directions in the February 2016 Full Court sittings.

26    On 17 February 2016, a Registrar made further directions for the listing of the matter for hearing in the May Full Court sittings and for, once again, the applicant to file and serve a draft notice of appeal setting out particularised grounds, and submissions in support of the application prior to its hearing. The matter was fixed for hearing today.

27    This morning, the applicant explained to me that he was prevented by the current bridging visa, on which he is in the community, from engaging in work or having any remuneration or other assistance, save for what his friends and family may provide him. He argued that his application had merit on the basis of the news report in his recent written submission and that the Tribunal should not have found that he was not a credible witness.

28    He said that he was now recovered from the conditions that he suffered from at the time of the hearing before the Federal Circuit Court. He said that he wanted to, and could, concentrate on the preparation of his case. He said that he wanted an adjournment today to get a lawyer. When I asked him on what basis, given all of the time that had passed since the proceedings before his Honour, I should think that he would do anything to further prepare his case, he said that last week his brother-in-law said he would help him. He said that his brother-in-law had told him that he (the brother-in-law) had been in contact with a lawyer. The applicant gave no further indication of what, if anything, the lawyer had said, or what, if anything, was going to be done, apart from the applicant, again, repeating the assurance that if he got a lawyer, he would be able to prosecute his case.

Consideration

29    An application for an extension of time in which to file an appeal challenges a respondent's vested right to retain the benefit of the judgment from which the appeal is sought, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [4]; see also per Kirby J at 539-543 [66]. The Court deals with such applications in the way that each of their Honours said had been adopted by Lord Denning MR in R v Secretary for the Home Department; Ex parte Metha [1975] 1 WLR 1087 at 1091, namely:

We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time. (emphasis added)

30    I appreciate the difficulties that the applicant, as a person for whom English is not a first language, and who is not, by profession, a lawyer, let alone a lawyer trained in the intricacies of Australian principles for judicial review, faces in seeking to challenge an administrative decision, such as that of the Tribunal, when bringing proceedings such as the present. Therefore, I have had regard not only to the only basis upon which the applicant has articulated in his affidavit in support of the extension of time he seeks, but also to whether, having read the Tribunal’s decision, anything appears that a lawyer acting for him might be able to raise for the purposes of putting forward an intelligible ground of review that could have any prospect of success. The Minister's counsel was unable to identify any such ground when I asked him.

31    A trial judge has a substantive discretion whether to grant or refuse an adjournment. An appellate court will seldom feel justified in reviewing such a decision of a trial judge, as Wilson J said, with whom Gibbs CJ, Murphy, Aickin and Brennan JJ agreed on this point in Bloch v Bloch (1981) 180 CLR 390 at 395. Wilson J adopted the formulation of Atkin LJ in Maxwell v Keun [1928] 1 KB 645 at 653 (see 180 CLR at 395-396) as follows:

I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does do so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do what which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so.

32    I am not satisfied that the trial judge's order or decision to proceed on 10 July 2015, without granting an adjournment, would or could create an injustice to the applicant in all of the circumstances. The applicant had been aware, from the first directions hearing on 14 May 2015, that he had the opportunity first, to obtain legal advice to the extent he had not already done so, and, secondly, to put together a case, including an amended application and submissions that advanced what he could say to the trial judge might be wrong with the decision of the Tribunal. The applicant’s explanation of his failure to do anything in the two month period between the first directions hearing on 14 May 2015 and the final hearing on 10 July 2015 before he applied on that day, and without any prior notice, for an adjournment, were matters that the trial judge was entitled to reject as being of no substance or basis.

33    Moreover, the only ground which the applicant had advanced in his application before the Court below was hopeless, having been overruled by both a Full Court of this Court, and, more recently, by the High Court in WZAPN 254 CLR 610.

34    As I said in SZRIF v Minister for Immigration and Border Protection [2015] FCA 680 at [26]-[28], there is no common law right for persons to have a lawyer represent them at public expense in administrative proceedings such as those before the Tribunal, or in claims for judicial review arising from administrative decisions.

35    The applicant had four months, between the decision of the Tribunal and the final hearing before his Honour, to seek legal representation. All that he did, on his account, was to talk to a friend about it. That was to treat the Court's role in hearing and deciding his case in a way that was not appropriate. His Honour's reasons for rejecting the application for an adjournment of the trial were well open to him, and disclosed no error or the occasioning of any injustice.

36    Moreover, the applicant's application for an adjournment before me today is, in my opinion, utterly without foundation, and an abuse of the process of the Court. The applicant has known about the need to persuade this Court that some injustice had been done to him by the trial judge refusing him an adjournment for about ten months, or, at least, eight months since he filed his application for an extension of time, and affirmed that allegation in his affidavit in support of his application. Yet, he has done nothing to advance matters, apart from telling me, from the well of the Court this morning, that his brother-in-law had spoken to a lawyer last week.

37    In my opinion, the applicant was well aware, from the very moment it was filed on 25 August 2015, of the critical importance of preparing this application properly to the assertion of whatever the rights that he may have to challenge the Tribunal’s or the trial judge’s decisions. He has done nothing, to advance that case, apart from having taken the step of obtaining and filing his brief written submission, to which I have referred, that attached the material about the village officer’s death.

38    In my opinion, it would be contrary to the interests of justice, rather than to advance them, were I to grant any adjournment. The cost to the Minister and the community of having the Court sit today with no prior communication of the adjournment application, or of any steps which the applicant had been seeking to take to obtain legal representation demonstrate that there is no substance in his application.

39    Moreover, having read the Tribunal's decision, I can see no basis for challenging its credibility based findings rejecting the foundation of any claim that the applicant is entitled to either protection under the Refugees Convention, or the complementary protection ground in s 36(2)(a) or (aa). In my opinion, the application below for constitutional writ relief was devoid of any merit or substance, as were both his applications for an adjournment to his Honour and me.

Conclusion

40    For these reasons, I reject the application for an extension of time with costs.

Associate:

Dated:    31 May 2016