FEDERAL COURT OF AUSTRALIA

CKG16 v Minister for Immigration and Border Protection [2018] FCA 362

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant 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 application for leave to appeal from the decision of the Federal Circuit Court that summarily dismissed, under r 44.12 of the Federal Circuit Court Rules 2001, the applicant’s application for Constitutional writ relief from the decision of the Immigration Assessment Authority given on 2 August 2016 to affirm the Minister’s delegate’s decision to refuse the applicant a protection visa: CKG16 v Minister for Immigration [2017] FCCA 508.

Background

2    On 24 November 2016, at the first court date, the proceeding below was set down for a show cause hearing under r 44.12 on 17 March 2017. The applicant who is a citizen of Sri Lanka was represented by counsel before the trial judge. Three days before the show cause hearing, the applicant filed an amended application that his counsel had drafted that raised two grounds.

3    The second ground is now no longer arguable, following the decision of the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405 that affirmed the decision of the Full Court (SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556). It concerned the Authority’s dismissal of the claim that the applicant would suffer significant harm were he to return to Sri Lanka because of the prison conditions in which he would be held, prior to his being admitted to bail, on a charge of leaving the country illegally.

4    The first ground was as follows:

1    The Authority failed to act in accordance with s 473DE and give to the applicant country information regarding document fraud in Sri Lanka.

Particulars

(a)    The delegate found (CB 326 at [50]) of the decision record as follows:

I note that the applicant has provided a document purporting to be a police report and English translation regarding this incident. Despite being about an incident that allegedly occurred on 06 May 2009 the document is dated 27 April 2012. The does have any official letterhead which could be expected of a document or its translation and as such place no weight on it supporting the applicant’s claims regarding this incident.

(b)    The delegate did not consider whether the document was fraudulent.

(c)    At (CB 380; IAA at [ l4]) the reviewer found as follows:

When question at the SHEV interview about the discrepancy in dates between the document and the date of the alleged incident, the applicant explained that the document was issued in 2012 because he thought D “put in another entry”. I do not accept this as credible and note that country information that document fraud is prevalent in Sri Lanka. While it is possible that the document’s author misdescribed the relationship between D and the second person, given my credibility concerns and the country information regarding document fraud, I place very little weight on the document.

(d)    The country information on document fraud in Sri Lanka did not form part of the reasons for the decision of the delegate, however it did in the reviewer’s decision as part of the reason for not accepting the central claim that his uncle and wife were abducted and the information has been used adversely to assess the applicant’s credibility.

(f)    The Applicant has been denied procedural fairness regarding the documents in respect of his central claims.

(g)    The Authority thereby committed jurisdictional error.

5    The applicant’s then counsel apparently filed written submissions in support of the amended application on the same day that it was filed. The matter came before the trial judge on 17 March 2017 and, in ex tempore reasons, his Honour dismissed the application. He dealt with ground 1 as follows:

34.    Mr Kumar of counsel, submitted that as the Authority considered the DFAT information regarding the prevalence of fraud in Sri Lanka, even though this document was before the delegate, the particular information as to fraud was not referred by the delegate, and that this constituted new information. Counsel argued that this meant that in respect of that new information, the Authority failed to act in accordance with s.473DE of the Act.

35.    I accept the submissions of the first respondent that the issue of the unreliability of the document was clearly raised before the delegate. The delegate referred to the same DFAT report, albeit in a different context. I do not accept that the prevalence of fraud in the DFAT report was new information falling within s.473DE of the Act. No arguable case of jurisdictional error is disclosed by Ground 1.

The applicant’s submissions

6    The applicant is now represented by a solicitor, different from counsel who appeared before his Honour. The applicant’s solicitor seeks to agitate one ground of appeal, if leave to appeal were granted, namely, that the Federal Circuit Court failed to accord procedural fairness to the appellant by wrongly exercising its power summarily to dismiss his application under r 44.12. The basis of that argument is that the trial judge should not have dismissed the application as amended on what was said to be, effectively, the first return date of that amendment, even though the matter had been set down, some months beforehand, for a show cause hearing on that day.

7    The applicant’s solicitor argued that the trial judge failed reasonably to consider the merits of his case on the basis of the submissions and evidence provided by the applicant and his counsel and dealt with the only issue now in question in the manner in which I have set out above. The applicant argued that the brevity of his Honour’s reasoning on this point did “not disclose any form of legal reasoning and amount[s] to little more than assertions or conclusions”.

8    The applicant’s solicitor argued that the information in relation to fraudulent documentation on which the Authority relied had not been considered by the delegate and that somehow, accordingly, the Authority had not accorded the applicant procedural fairness. The solicitor argued that this contention had not been answered by his Honour’s reasoning that the delegate had referred to the same DFAT report, albeit in a different context. The argument proceeded that, although the applicant had been notified about the DFAT report, he had not been directed to the specific part of it that referred to fraud. He also argued that by failing to notify him about the potential that the amended application could be summarily dismissed at the show cause hearing, his Honour denied him procedural fairness on what was effectively the first court date following that amendment. The solicitor cited SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317 in support of the proposition that the summary dismissal of a judicial review proceeding on the first court date, on the Court’s own motion and without prior notice, where both parties appeared, amounted to a lack of procedural fairness. The applicant’s solicitor argued that the applicant’s then counsel had not been put on notice either by the Court or the Minister’s lawyers that his case might be dismissed summarily at the show cause hearing.

Consideration

9    In my opinion, the application is entirely without merit. First, the matter had been set down some months beforehand for a show cause hearing for the purposes of the applicant demonstrating that he could satisfy the requirements of r 44.12, namely:

(1)    At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application.

10    Here, the applicant, with the benefit of counsel, sought to rely upon an amended application for which counsel provided written submissions and addressed his Honour orally. Counsel for the Minister today briefly read out that part of the written submissions dealing with ground 1. The solicitor for the applicant not only had not seen the submissions that the applicant’s counsel had relied on before his Honour, but had no evidence that that counsel had experienced or raised any difficulty in seeking to justify the amendment, based on his own supporting submissions for it, when the show cause hearing occurred. Nor did the applicant put in evidence before me any transcript or other account of the hearing. The affidavit of the applicant affirmed 28 March 2017 in support of his application for leave to appeal showed that he was present in court before his Honour. I am unable to discern any basis in the material before me on which it could be arguable that his Honour did not sufficiently summarise, in [34] of his judgment quoted above, the nature of the argument which the applicant wished to make in respect of ground 1.

11    Relevantly, the scheme of Pt 7AA of the Migration Act 1958 (Cth) is that the Minister must refer a decision that falls within the definition, in s 473BB, of a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made (s 473CA). A fast track reviewable decision is one that, relevantly, is a decision to refuse to grant a protection visa to a person who is a fast track applicant, as defined in s 5(1), which includes a person in the present applicant’s position, about which there is no dispute. At the same time as the Minister refers a decision to the Authority, or as soon as reasonably practicable thereafter, under s 473CA, the Secretary of his Department must provide the Authority with, relevantly, the material prescribed in s 473CB(1), namely, the delegate’s decision, the material that the applicant for the visa provided to the delegate and any other material in the Secretary’s possession or control that he considered at the time of the reference to be relevant to the review.

12    The Authority must review the decision under s 473CC, but can only either affirm or remit it for reconsideration (s 473CC(2)). Section 473DA, Div 3 of Pt 7AA, together with ss 473GA and 473GB, are deemed to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to a review under Pt 7AA.

13    Importantly, s 473DA(2) provides that the Authority has no obligation to give the applicant for a visa anything that was before the delegate, although he or she will already have the delegate’s reasons for decision. The Authority must conduct its review ordinarily only on the papers before it, under s 473CB, without accepting or requesting any new information or interviewing the applicant for the visa (s 473DB(1)). However, under Subdiv C of Div 3 of Pt 7AA, the Authority can obtain additional information in limited circumstances, but s 473DC(2) provides that it has no duty to do so. Moreover, s 473DD prevents the Authority from considering any new information unless one or two conditions are satisfied, namely that, first, there are exceptional circumstances to justify considering the new information and, secondly, where the applicant gives or proposes to give the new information, he or she satisfies the Authority that either it was, and could, not have been given to the delegate before the decision under review was made, or it is credible personal information that was not previously known and, had it been known, may have affected consideration of his or her claims.

14    However, where the Authority itself obtains new information other than from an applicant, s 473DA requires it to give the applicant particulars of the new information, if the Authority considers it under s 473DD(a) and it would be a reason, or part of the reason, for affirming the decision, (s 473DE(1)(a)). Next, s 473DE(3)(a) provides that the obligation under s 473DE(1) does not apply to new information, such as country information, that was not specifically about the referred applicant but was just about a class of persons of which the referred applicant was a member.

15    Critically, in the circumstances of the present case, the information before the Authority concerning the DFAT report was not new information. It had been before the delegate and, moreover, it was country information of the kind referred to in s 473DE(3)(a) about which the Authority had no obligation to inform the applicant. In addition, the delegate had considered the document referred to in ground 1 of the amended application below, on which the applicant relied, being a police report dated 27 April 2012 concerning an incident that allegedly had occurred three years earlier, on 6 May 2009. The delegate observed as set out in ground 1(a) that the document had no official letterhead which could be expected to be present on an official report, or reflected in its translation. In those circumstances, the delegate placed no weight on that document as supporting the applicant’s claims.

16    As set out in the particulars of the amended application before his Honour, when the Authority dealt with the same document, it referred to inconsistencies within the document itself, adding that those inconsistencies may have been a misdescription. The Authority observed that, given its credibility concerns about the applicant (whose claims it had found “are not credible”) and the country information regarding document fraud, the Authority gave it “little weight”, instead of placing no weight on the document, as the delegate had done.

17    In my opinion, nothing in s 473DE, as articulated in ground 1 below, in any submissions before me or as summarised by his Honour, suggested that the Authority had been required under Pt 7AA to notify the applicant of how it proposed to use the DFAT report in relation to document fraud. Indeed, the delegate’s decision suggests that the delegate did not regard the document as genuine. That is because he referred to the absence of any official letterhead that could be expected on a genuine police report which appeared to explain why the delegate gave the document no weight.

18    The Court had given the applicant notice that it would consider his case to ascertain whether he could satisfy his Honour that he had raised an arguable case for the relief claimed in accordance with r 44.12(1)(a). His Honour was hearing an application for an order that the applicant to show cause that he had an arguable case and his counsel was prepared and ready to do so relying on his very recently amended application and written submissions in support.

19    The obvious reason why counsel then appearing for the applicant had sought to amend his application and provided written submissions in support of that amended application was that the applicant was clearly on notice that the hearing would deal with the matter on the basis that, whatever was before the Court on 17 March 2017, he had to demonstrate that it would be sufficient to raise an arguable case under r 44.12(1)(a).

20    As I have noted, there is no evidence of a transcript before his Honour to support any suggestion that the trial judge did not deal with the amended application fairly, nor was there evidence from counsel then appearing for the applicant that the applicant had not been given a fair hearing.

21    The solicitor for the applicant before me explained that he did not have a relationship with counsel then appearing for the applicant sufficient to enable him to obtain an affidavit. Nonetheless, in my opinion, there is nothing in the material before me to justify the improper submissions that the solicitor made, without any factual support or other proper basis, that his Honour did not afford the applicant procedural fairness or wrongly exercised his power under r 44.12 to dismiss the amended application.

22    The Federal Circuit Court is a busy court. The purpose of setting matters down for show cause hearings under r 44.12(1)(a) is to enable that Court to deal with cases in accordance with the objects in s 3 of the Federal Circuit Court of Australia Act 1999 (Cth), including the use of streamlined procedures in s 3(2)(b).

23    The fact is that the applicant has not identified, even today, any arguable case that, had an application for an adjournment been made (which, on the material before me, it was not) he could have been able to demonstrate after the adjournment something that would have been capable of showing cause why the proceeding should not have been summarily dismissed. In my opinion, there was no basis for the argument advanced in ground 1 of the draft notice of appeal. That ground was an abuse of process because it was clearly foredoomed to fail: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ.

24    Ground 2 below, of course, had been precluded by reason of the then decision of the Full Court in SZTAL 243 FCR 556, that subsequently was affirmed by the High Court. Having regard to the lack of any arguable case in ground 1, there would have been no point in standing the show cause application over, since his Honour was bound by the Full Court’s decision to dismiss ground 2. Because there was nothing else in the application, his Honour made no error in dismissing it.

25    An applicant for leave to appeal must show that, first, the decision in question is attended with sufficient doubt to warrant the grant of leave and, secondly, substantial injustice will result from a refusal of leave to appeal: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ. In my opinion, neither of those conditions has been remotely made out on the material before me.

Conclusion

26    For these reasons, I am of opinion that the application must be dismissed with costs.

Associate:

Dated:    16 March 2018